PRATAP CHAND Vs. JETHMAL

JUDGEMENT

(1.) An application as per provisions of Section 212 of the Rajasthan Tenancy Act was preferred by the petitioner in a suit filed under Sections 88, 89 and 188 of the Rajasthan Tenancy Act, 1955. The application was supported by an affidavit sworn in by Shri Kamal Sipani being a general power of attorney holder of the petitioner. By way of submitting an application under Section 37 of the Rajasthan Stamp Act, 1998, an objection was raised that the power of attorney suffers from deficiency of stamp duty. The application aforesaid came to be decided under an order dated 13.4.2010 by the Sub Divisional Officer, Bikaner. The Sub Divisional Officer, Bikaner by the order aforesaid impounded the instrument and sent the same to the Collector with observation that the document concerned is in the nature of conveyance and the same suffers with deficiency of stamp duty. Being aggrieved by the order dated 13.4.2010 the petitioner preferred a revision petition before the Board of Revenue Rajasthan as per provisions of Section 230 of the Rajasthan Tenancy Act, which came to be dismissed under order dated 23.7.2010. The Board of Revenue while rejecting the revision petition held that the order passed by the Sub Divisional Officer is an interlocutory order being a reference as per provisions of Section 42(2) of the Rajasthan Stamp Act, thus, the revision petition as per provisions of Section 230 of the Rajasthan Tenancy Act is not maintainable. Instant petition for writ is preferred to challenge the order dated 23.7.2010 and also the order passed by the Sub Divisional Officer, Bikaner dated 13.4.2010.

(2.) It is stated by counsel for the petitioner that a decision has already been taken by the Sub Divisional Officer that the document in question is a conveyance and as such nothing remains now to be decided by the Inspector General Registration-cum- Officiating Collector (Stamps) Bikaner in the matter, as such the order passed by the Sub Divisional Officer is virtually a final order, therefore, the revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 is maintainable. It is also urged that the power of attorney (Anx.2) is not a conveyance as no transfer of any immovable property taken place thereunder.

(3.) I have considered the arguments advanced. True it is, the order dated 13.4.2010 passed by the Sub Divisional Officer, Bikaner mentions that the power of attorney is in the nature of conveyance, thus, it suffers from deficiency of stamp duty and also that a penalty is required to be imposed, however, mere such mentioning in no manner restricts the Collector from deciding the nature of instrument sent. It is for the Collector to examine nature of the instrument and then to reach at a definite conclusion about chargeability of duty and penalty. The fact that impounded document has been transmitted to the Collector as per provisions of Section 42(2) of the Rajasthan Stamp Act itself is sufficient to establish the intention of the transmitting authority that the nature of the document is required to be examined and then chargeability of duty is also required to be settled. In such circumstances I do not find any wrong with finding of the Board of Revenue that the order passed by the Sub Divisional Officer is an interlocutory order.