Back
SUPREME COURT OF INDIA
16th February, 1961
J.L. KAPUR, M. HIDAYATULLAH AND J.C. SHAH, JJ.
Government of Uttar Pradesh and others, Appellants
Versus
Raja Mohammad Amir Ahmad Khan, Respondent.
Civil Appeal No. 369 of 1957.
Advocates appeared
Mr. C. B. Agarwala, Senior Advocate, (Mr. C. P. Lal, Advocate, with him), for Appellants; Mr. V. D. Misra, Advocate, for Respondent.
– the words “every person …. before whom any instrument …. is produced or comes in the performance of his functions”, refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly refer to other officers who have to perform any function in regard to those instruments when they come before them, e.g., registration. They do not extend to the determination of the question as to what the duty payable is. They do not cover the Acts which fall within the scope of Section 31, because that Section is complete by itself and tends by saying that the Collector shall determine the duty with which, in his judgement, the instrument is chargeable, if it is chargeable at all. Section 31 does not postulate anything further to be done by the Collector, as held in Governments of U.P. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787.
– also held, that the language in regard to executed and unstamped documents is no different and the powers and duties of the collector in regard to those instruments are the same, that is, when he is asked to give his opinion, he has to determine the duty with which, his judgment the instrument is chargeable and there his duties and powers in regard to that mater end. Then follows Section 32, under which the Collector has to certify by endorsement on the instrument brought in him under Section 31 that full duty has been paid, if the instrument is duly stamped, or it is unstamped and the duty is made up, or it is not chargeable to duty. Under that Section the endorsement can be made only if the instrument is presented within a month of its execution. Section 31 however places no limitation in regard to the time and there is no reason why any time limti should be imposed in regard to seeking opinion as to the duty payable. Further held, that the scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument, he approaches him under Section 31. If it is not properly stamped and the person executing the document wants to proceed with effectuating the document or using it for the purposes of evidence, he is to make up the duty and under Section 32 of Collector will then make an endorsement and the instrument will be treated as if it was duty stamped from the very beginning. But if he does not want to proceed any further then seeking the determination of the duty payable then no consequence shall follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the Section 33 have no application. The provisions of the duty the Collector becomes functus officio and the provisions of that section are a subsequent stag when something more than mere asking of the opinion of the Collector is to be done.
Judgment
KAPUR, J. : This is an appeal against the judgment and order of the High Court of Allahabad on a certificate granted by that court. The respondent filed a petition under Art. 226 of the Constitution praying that the imposition of stamp duty by the Collector of Sitapur, of Rs. 85,598/7/- and a penalty of Rs. 5 was against law and could not be realised against him and prayed that the order be quashed. On September 12, 1948, the respondent executed a wakf by oral recitation of Sigha and then it was written on a stamped paper which was signed by the respondent and attested by witnesses. On September 15, 1948, it was presented to the Collector for his opinion under S. 31 as to the duty chargeable. As the Collector himself was in doubt, he referred the matter to the board of Revenue which, after a fairly long time, held that the document was liable to duty in accordance with Art. 58 of the Stamp Act. On October 29, 1951, the Collector held that Rs. 85,598/7/- were payable as stamp duty and ordered that it be deposited within fifteen days. Notice to this effect was served on the respondent on November 10, 1951. Thereupon the respondent filed a petition in the High Court under Art. 226 which was dismissed on November 3, 1952, on the ground that it was premature. On February 2, 1954, a further notice was served upon the respondent to deposit the amount of the stamp duty plus the penalty of Rs. 5 within a month otherwise proceedings would be taken against him under S. 48 of the Stamp Act. Thereafter on March 1, 1944, the respondent filed a petition under Art. 226 of the Constitution in the Allahabad High Court challenging the legality of the imposition of the stamp duty and the penalty and prayed for a writ of certiorari. A full bench of the High Court quashed the order of the Collector and the State of U. P. has come in appeal to this Court.
2. The decision of this appeal depends upon the interpretation of Ss. 31, 32 and 33 of the Stamp Act. The relevant portion of S. 31 provides:-
Section 31 (1) "When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, any pays a fee of such amount (not exceeding five rupees and not less than eight annas) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable .
It is admitted that the document in dispute was submitted to the Collector for his opinion under S. 31 and the opinion of the Collector was sought as to what the duty should be. Under S. 32 of the Act when such an instrument is brought to the Collector under S. 31 and he determines that it was already fully stamped or he determines the duty which is payable on such a document and that duty is paid, the Collector shall certify by endorsement on the instrument presented that full duty with which it is chargeable has been paid and upon such endorsement being made, the instrument shall be deemed to be fully stamped or not chargeable to duty as the case may be. Under the proviso to S. 32, the Collector is not authorised to make the endorsement if an instrument is brought to him a month after the date of its execution. Then follows S. 33 which is as follows:
Section 33. "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom an instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
2. For that purpose every such person 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 British India
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
