S SARUP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution by Sardar Sarup Singh, petitioner, against three respondents, respectively Union of India, through the Secretary in the Ministry of Finance, the Chief Controlling Revenue Authority for Delhi State, and the Collector of Stamps, Delhi for an appropriate writ, direction or order quashing the order, dated March 3, 1964, passed by respondent 2 demanding certain amount as deficiency in stamp duty with another amount as a penalty before the document could be considered properly stamped and registered.

(2.) THE facts are not much in dispute. Sometime in February 1952 the petitioner's wife purchased a building site in the Diplomatic Enclave for Rs. 41,000/ -. The petitioner contributed Rs. 23,300/- as a gift to his wife to meet part of the price to be paid for the site. The petitioner has throughout claimed that he forms a joint Hindu family with his sons and in the petition he has stated that this amount that he gifted to his wife came out of the joint Hindu family funds. As the building on the site was being built by his wife, the petitioner made further gifts of the total amount of Rs. 1,40,000/- to his wife to enable her to complete the building. The building was completed sometime in 1954. Subsequently the petitioner executed a registered release deed on February 15, 1956, making a declaration that the property in question was the sole property of his wife. Subsequently on March 27, 1962, the petitioner executed an instrument, described as a trust deed, in which he has given some history of his family, history of the acquisition of the property in the family, and has then stated that the whole of the property has been the property of the joint Hindu family that he forms with his sons. Then he recites the facts concerning the first gift of Rs. 23,300/- to his wife sometime in 1952 and remaining gift of Rs. 1,40,000/- between that year and 1954 in connection with the building on the site purchased by his wife in the Diplomatic Enclave. He also refers in this instrument to the release deed of February 15, 1956. There is then a recital in this instrument to the effect that "the house at 3 Kitchner Road, Diplomatic Enclave, New Delhi, belongs to my wife Sardarni Raminder Sarup Singh and neither I personally, nor the joint Hindu family has any rights in it, as already declared in the registered Release Deed dated 15th of February, 1956. " After this recital the petitioner goes on to say "and whereas I am now of 65 years of age and in order that there should be no confusion or doubt about the properties, I, the said Sarup Singh, hereby declare as follows", and then follows the description of the property with the joint Hindu family on the date of the instrument, but item 2 in this part of the instrument is "that the gift made to my wife, Sardarni Raminder Sarup Singh, was made out of the funds of the joint Hindu family". In this part, which is a declaratory part of the instrument, this is about all that is stated with regard to the gift of monies made by the petitioner to his wife, but there is complete omission of the property at 3, Kitchner Road in Diplomatic Enclave, New Delhi. This instrument was presented for registration on May 29, 1962, and on the same date impounded by the Registration Authority under Section 33 and Section 38 of the Indian Stamp Act, 1899 (Act 2 of 1899), and forwarded to the Collector of Stamps to be dealt with according to the provisions of this Act for the matter of realisation of statutory duty and any penalty that may be imposed in connection with the deficiency in that behalf. The Sub-Registrar treated the instrument as a gift-deed under item 33 in Schedule I, as amended in Delhi, of the said Act and was of the opinion that the instrument was liable to a stamp duty of Rs. 4,200/- and Corporation Fee of Rs. 5,600/-, the total of which is Rs. 9,800/ -. The instrument was stamped on a stamp paper of Rs. 30/ -. He, therefore, pointed out that the deficiency was of Rs. 9,770/ -. The Collector of Stamps, respondent 3, took this matter into consideration and came to the conclusion that the instrument will be taken as a deed of gift of moveable, it being a gift of money, and thus liable to a stamp duty of Rs. 3,260/- at the rate of 2 per cent on the total amount gifted, that is to say Rs. 1,33,300. So, deducting Rs. 30/-he found the deficiency of Rs. 3,230/ -. He then proceeded to impose a penalty of Rs. 16,150/-, which is five times the amount of the deficiency under Section 40 of the Act. The petitioner was directed to pay a total amount of Rs. 19,380 under the order of respondent 3 made on February 22, 1963. The petitioner went in revision to the Chief Controlling Revenue Authority, respondent 2, against the order of respondent 3, and this authority by its order of March 3, 1964, while dismissing the revision application pointed out that there was a mistake in the calculation of the duty which came to Rs. 3,270/-, and, deducting Rs. 30/- out of it, it found the deficiency as Rs. 3,240/ -. It reduced the penalty to an equal amount, that is to say to another amount of Rs. 3,240/ -. In other words, under the order of respondent 2 the demand against the petitioner came to Rs. 6,480/ -. It was after that on April 4, 1964, that the petitioner filed the present petition under Article 226 of the Constitution seeking to have the orders of respondents 2 and 3 quashed.

(3.) THERE is power given in Sub-section (1) of section 57 of Act 2 of 1899 to the Chief Controlling Revenue Authority to state a case to the High Court for the latter's opinion (a) when a case has been referred to it under Sub-section (2) of section 56 of the Act by the Collector, and (b) when it otherwise comes to its notice, by which I take it that at least when a case comes to its notice in the exercise of its revisional powers under Sub-section (1) of section 56 of the Act, it can even then make a reference; but in either case whether the case is before the Chief Controlling Revenue Authority on the revisional side under subsection (1) or on a reference by the Collector under Sub-section (2), it is a case pending before it when it makes a further reference to the High Court under Sub-section (l) of section 57 of the Act. Nothing of the sort has happened in this case. For the sake of clarity I may state that the petitioner never applied to respondent 2 for statement of any case to the High Court under the provisions of sub-section (1) of Section 57 of the Act. A reference under Sub-section (1) of Section 57 of the Act is to be heard by three Judges of the High Court according to Sub-section (2) of that section. Obviously it is treated as quite an important matter. Instead the petitioner has come straight in a petition under Article 226 of the Constitution seeking to have the orders of respondents 2 and 3 quashed. It is for all practical purposes the settled position that where an approach is provided to the High Court by the statute itself, then it is that approach that has to be made to the High Court and not any other, such as recourse to Article 226 of the Constitution. This is what happens normally and in this case there is no exceptional circumstance that there should be departure from this. This, however, is confined only to the prayer of the petitioner when he seeks to have the orders of respondents 2 and 3 quashed. There is another aspect of the matter and that is the power of this Court by mandamus to direct the Chief Controlling Revenue Authority to make a reference of the case to this Court. If there was ever any doubt about any such powers in the High Court, it has been finally resolved in Chief Controlling Revenue Authority v. The Maharashtra Sugar Mills Ltd. , AIR 1950 SC 218. But then two questions immediately arise; the first question is whether this Court can call for a reference when no matter is pending before respondents 2 and 3, and the second question is whether that can be done in spite of the fact that in the present case the petitioner himself never made any application that respondent 2 should make reference to this Court before coming to this Court in the present petition ? A Davison Bench of the Madras High Court in Shanmugha Mudaliar v. Board of Revenue, Madras AIR 1955 Mad 304, and a Single Judge of that Court in Saradambal v. Chief Controlling Revenue Authority, AIR 1960 Mad 21. following the Maharashtra Sugar Mills Ltd. , case, AIR 1950 SC 218 answered the first question in the affirmative that even if no case is pending before the authorities below, the High Court has power to call for the statement of a case by a mandamus. There is no discussion of this matter in the first case, but there is discussion of the matter by the learned Single Judge in the second case. The learned counsel for the respondents has made reference to Nanak Chand Mehrotra v. Board of Revenue, U. P. AIR 1958 All 320, in which the learned Judges considered the Maharashtra Sugar Mills Ltd. , case AIR 1950 SC 218 as also the first of the two Madras cases. With regard to the first Madras case they pointed out that this question has not been discussed in it. With regard to the Maharashtra Sugar Mills Ltd. , case AIR 1950 SC 218 they observed that: