( 1 ) THIS is an application Under Article 226 of the Constitution for the issue of a writ of certiorari of prohibition to quash an order made by the Collector of Aligarh impounding a document which was sent to him Under section 31 of the Stamp Act for his opinion as to the stamp duty payable thereon.

( 2 ) THERE was a partnership firm known as the New Ram Chand Cotton Mills Co. at Hathras, in the district of Aligarh. There were several partners in this firm. There were differences and disputes between them. A suit was filed by the applicant in the Court of the Civil Judge at aligarh for establishing his rights of joint management and ether reliefs. During the pendency of the suit the matters in dispute were referred by the parties to the arbitration of L. Gauri Shanker and B. Daulat Ram. The arbitrators wanted to give an interim award On the 15th Sept. 1944 they sent a draft of the interim award with an application Under section 81 of the Stamp Act to the collector of Aligarh for his opinion as to the duty payable on the document. The Collector asked them to deposit a fee of Rs. 5. On the 13th December 1944 the arbitrators deposited the fee of rs. 5 and also sent the completed interim award duly executed by them on the nth December 1944 on a stamp-paper of Rs. 9/6/0 In the application accompanying this completed award the arbitrators asked the Collector to determine the amount of stamp duty payable so that if the amount already paid on the instrument was insufficient they might make good the deficiency. After reference to the Board of Re-venue, the Collector informed the arbitrators on the 12th July 1948 that a sum of Rs. 24,778/2/0 was payable on the instrument, the instrument being treated as an award directing a partition of joint property. The arbitrators and the parties concerned had treated the irstrument as merely a conveyance of certain shares of property to certain parties, As a conveyance, the instrument required a lesser amount of stamp duty. Upon receipt of the collectors opinion, the arbitrators applied to him for the return of the document because the parties did not intend that it be acted upon. They also mentioned that the document could not be registered because a period of more than three months had elapsed after the execution of the document and, as such, the document had become useless.

( 3 ) THE Collector referred the matter to the Board of Revenue suggesting that the document should be impounded Under section 33, Stamp Act, and that an action be taken for recovery of duty and penalty Under section 48 of the Act. The Board of Revenue agreed with this suggestion and informed that the document might be impounded and the duty and the penalty recovered as proposed by him. On the 20th August 1949, the Stamp Officer Aligarh, instructed the Tahsildar of Hathras to recover the deficit stamp duty of Rs. 24,768/10/0 and penalty of Rs 5 from the various partners of the firm. The petitioner moved the Board of Revenue for reconsideration of its opinion but the application was rejected. The petitioner alleged that he was not given an opportunity of being heard before the penalty was imposed upon him.

( 4 ) IN this application the petitioner contends that the document having come in the possession of the Collector for opinion Under section 31 of the Act, he had no jurisdiction to impound it Under section 33 of the Act. In our opinion, this contention is well founded. Section 83 runs as follows:

" (1) Every persons 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 any 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 "

( 5 ) THE question is whether the document in question was "produced or came before the collector in the performance of his functions" At first