Proper adjudication of stamp duty under S.31 of the Kerala Stamp Act and the applicability of S.33 when a person seeks the opinion of the Collector but does not want to proceed with effectuating the document or using it for the purposes of evidence.

1. The petitioner challenges Ext. P1 order passed by the Sub-Collector, Ottapalam directing him to pay stamp duty on three documents within 15 days of receipt of Ext. P-1.

2. The petitioner executed three documents conveying his rights in favour of three persons. There were doubts regarding the proper stamp duty payable. He therefore applied to the Sub Collector, Ottapalam, the first respondent herein, under S.31 of the Kerala Stamp Act, 1959 (Act 17 of 1959) hereinafter referred to as the Act, inviting a decision by the concerned authority about the stamp duty that has to be levied. In the counter-affidavit filed by the State, it is stated that the decision of the concerned authority was invited, the document was properly drawn up and executed and the document makes mention of passing of consideration. Thus, there is a proper adjudication under S.33 and hence Ext. P1 is not open to challenge.

3. There is some misapprehension on the part of the authorities in this case. S.31 of the Act deals with adjudication as to the proper stamp. S.32 deals with certificate by Collector and S 33 deals with examination and impounding of instruments. The petitioner's counsel would contend that stamp duty can be levied and action taken only when the instrument executed is either presented before the Registrar for registration or produced before a court of law as a piece of evidence. If a person executes a document and keeps quiet, without resorting to the two procedures mentioned above, he cannot be charged with stamp duty for the instrument so executed by him.

4.. The matter is concluded by the pronouncement of the Supreme Court in the decision reported in Government of Uttar Pradesh v. Mohd Amir (AIR. 1961 S. C. 787). Para 6 in the above decision makes the position abundantly clear and meets the contentions raised by the State fully. Para 6 read as follows:

"Chapter IV of the Act which deals with instruments not duly stamped and which contains S.33 to 48, provides for impounding of documents, how the impounded documents are to be dealt with. Collector's powers to stamp instruments impounded, and how the duties and penalties are to be recovered. It would be an extraordinary position if a person seeking the advice of the Collector and not wanting to rely upon an instrument as evidence of any fact to be proved nor wanting to do any further act in regard to the instrument so as to effectuate its operation should also be liable to the penalties which unstamped instruments used as above might involve. 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 S.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 S.32 the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning. But if he does not want to proceed any further than seeking the determination of the duty payable, then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of S.33 have no application. The provisions of that section area subsequent stage when something more than mere asking of the opinion of the Collector is to be done."

In view of what is stated above, it is not necessary to add more regarding the contentions raised.

5. The writ petition is allowed. The respondents are restrained from enforcing Ext. P1 and from initiating proceedings by way of recovery of the stamp duty levied under Ext. P1. The parties are directed to bear their costs.

Allowed.