ABDUL HAMID Vs. STATE

JUDGEMENT

(1.) L . The circumstances in which this application under article 226 of the Constitution has been filed are that in the course of proceedings under Order 38, rule 5 of the Civil Procedure Code Haji Abdul Hamid, the petitioner filed an objection to the attachment made, and in support of the objection tiled a document to show that the attached property belonged to him. The Additional District Judge, Satna, who was trying the suit, impounded the document treating it as 'conveyance deed' and directed the petitioner to pay Rs. 496 -12 -0 as stamp duty on the document and penalty of Rs. 4,967 -8 -0. The petitioner did not pay the stamp duty or the penalty levied. The Additional District Judge sent the document to Collector for recovery of the amount of duty and penalty imposed by him. The suit in which the petitioner objected to the attachment was settled between the parties. Consequently, the objection having become in fructuous was rejected.

(2.) WHEN the document was received by the Collector from the Additional District Judge, Satna, the petitioner filed objections in writing contending that the instrument was not chargeable as a 'conveyance'; that it was at the most a 'receipt'; that the instrument was exempt from payment of duty under article 5 of the Indian Stamp Act, 1899 (hereinafter called the Act); and that no penalty or duty could be demanded or recovered from him, as he was not the executant and the document was not admitted in evidence. The Collector, Satna, did not entertain any of these objections, taking the view that he was bound to recover the amount of penalty and duty as levied by the Additional District Judge, Satna, by his order dated 1 July 1957, Accordingly, he initiated proceedings for the recovery of the duty and penalty imposed by the Additional District Judge. The petitioner then preferred a revision petition before the Board of Revenue against the order of the Additional District Judge, Satna. The Board of Revenue rejected the revision petition on the ground that the Board had no power to entertain any revision petition against the order of the Additional District Judge, and that the revision petition was therefore incompetent.

(3.) HAVING heard learned counsel for the parties, we have reached the conclusion that the only relief which the petitioner can be granted is a direction to the Collector to decide in accordance with section 40 the matter of the duty payable on the instrument for warded to him by the Additional District Judge, Satna. Under section 33, read with 5 section 38 of the Act, the Additional District Judge had no doubt the power to impound the document filed by the petitioner and to admit it in evidence upon payment of duty and penalty determined by him. When the amount of duty and, penalty is paid by the person concerned, then the Court impounding the document and imposing a duty and penalty has to send under section 38 (1) of the Act an authenticated copy of the instrument, together with the amount paid, to the Collector. In every other case, the authority or the person impounding the instrument has to send it in original to the Collector, as laid down in sub -section (2) of section 38. Thus, if the instrument is not admitted in evidence because of failure of the party to pay the amount of duty and penalty, then the Court impounding the document has to send it in original to the Collector, as required by section 38 (2). In the present case, the petitioner did not at all pay any duty and penalty. The document was therefore not admitted in evidence. The Additional District Judge, therefore should have sent the instrument in original to the Collector, as laid down in section 38 (2). Actually, the Additional District Judge sent the document in original to the Collector, albeit with a direction that the Collector should recover the amount of duty and penalty imposed by him. The Additional District Judge had no power to give such a direction. When the document was not admitted in evidence for the petitioner's failure in the payment of the amount of duty and penalty the document had to be sent to the Collector under section 38 (2).