ISHWARI SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The Petitioner made an application for advance of a loan for the development of his industry to the U.P. Financial Corporation Ltd., Kanpur Respondent No. 2. A loan of rupees two lacs appears to have been sanctioned by Respondent No. 2 and intimation in this behalf was sent to the Petitioner vide letter dated 20th September, 1972. Thereafter a bilateral deed for simple mortgage was executed on 20th July, 1973, and it was registered on 1st August, 1973, before the Sub-Registrar, Bulandshahr. A notice dated 6th August, 1973, was subsequently served on the Petitioner by the District Stamp Officer, Bulandshahr, stating that a sum of rupees four thousand was payable by the Petitioner as additional stamp duty in pursuance of the provisions of Section 62(1) of the Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act No. 1 of 1965)(hereinafter referred to as the Adhiniyam). The deed referred to above was also impounded by the District Stamp Officer. The Petitioner submitted a reply to the notice. He also made an application to the District Magistrate and Collector, Bulandshahr, requesting him to deal with the matter himself. The District Magistrate heard the Petitioner and did not agree with the stand taken by him that the additional stamp duty referred to above was not recoverable and a direction was issued for realising the stamp duty. Aggrieved the Petitioner has instituted this writ petition.

(2.) Two submissions have been made by counsel for the Petitioner. Firstly it has been urged that the deed in question could not be impounded under Section 33 of the Stamp Act nor could proceedings for recovery of the additional stamp duty, which is said to be payable by the Petitioner in pursuance of Section 62(1) of the Adhiniyam, be taken under the Stamp Act. In support of this submission reliance has been placed on the decision of a Special Bench of this Court in Board of Revenue, U.P. v. Messrs Electronic Industries of India, 1980 AIR(All) 1. In that case a similar question came up for consideration in the context of Section 67-H of the U.P. Town Improvement Act. A comparison of the language of Section 67-H of the U.P. Town Improvement Act with that of Section 62(1) of the Adhiniyam reveals that these sections are couched in identical language. Keeping in view this circumstance and the purpose of the two sections which too is identical it is apparent that these two sections are in pari materia. What has consequently been held in regard to the interpretation of Section 67-H of the U.P. Town Improvement Act will, in our opinion, apply with equal force to the interpretation of Section 62(1) of the Adhiniyam. In that case on a conspectus of the relevant sections of the Stamp Act it has been held that for non-payment of the additional duty contemplated by Section 67-H of the U.P. Town Improvement Act a deed could not be impounded under Section 33 of the Stamp Act nor could it be subjected to any penalty under the said Act. For the reasons stated in the aforesaid case we are of opinion that in the instant case too it was not open to the District Stamp Officer or to the District Magistrate and Collector to have impounded the deed in question under Section 33 of the Stamp Act or to take any proceedings for the recovery of the amount of duty payable by the Petitioner under Section 62(1) of the Adhiniyam in exercise of any power conferred by the Stamp Act.

(3.) The Chief Standing Counsel, however, urged that the decision in Board of Revenue v. Electronic Industries of India (supra) requires reconsideration inasmuch as an important aspect of the matter seems to have been overlooked in that case. It was urged that Section 33 of the Stamp Act permits an instrument to be impounded if it is not "duly stamped". According to the Chief Standing Counsel the definition pt the term "duly stamped" contained in Section 2(11) of the Stamp Act seems to have been overlooked in the case of Electronic Industries of India (supra). It was urged that if the definition of the term "duly stamped" was read with Sub-section (2) of Section 33 which inter alia provided that for the purpose of impounding an instrument on the ground that it was not duly stamped under Section 33(1) every such person referred to in the said sub-section shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed, it was apparent that the deed in question could be and was rightly impounded.