Ramji Shamji Bhatt Vs Collector, Madhya Saurashtra, Rajkot

K.T. Desai, C.J.@mdashThe Inspector General of Registration Gujarat State, as the Chief Controlling Revenue Authority, has made this Reference, purporting to do so u/s 54(1) of the Bombay Stamp Act, 1958. He has also submitted the case to use his own words, "for instructions of the High Court". The facts leading to the Reference briefly stated are as under.

2. A special power-of-attorney was executed on the 1st day of January 1959 at Kassala in Sudan by one Jatashanker Shivshanker in favour of Ramjee Samjee Bhatt of Rajkot. Under the power-of-attorney, he authorised Ramjee Samjee Bhatt to sell his immovable property at Rajkot to one Patel Zinabhai Bhavaubhai of Rajkot for Rs. 9,100/- and to receive the said amount on his behalf. He further authorised Ramjee Samjee Bhatt to sign and execute the necessary instrument and to apply to the Registrar or any Government Department at Rajkot to register the property in the name of the buyer. This document did not bear any stamp, The document was received by Ramjee Samjee Bhatt at Rajkot. He presented the instrument to the Collector, Madhya Saurashtra, Rajkot, for adjudication. The Collector held that the document was chargeable with stamp duty of Rs. 213 and 75 naye paise under the provisions of Article 48 (f) of the First Schedule to the Bombay Stamp Act 1958. Ramjee Samjee Bhatt paid the amount of the stamp duty and obtained the certificate of the Collector on the instrument under the provisions contained in Section 32 of the aforesaid Act, He acted in exercise of the authority conferred upon him under the power-of-attorney. He was aggrieved by the decision of the Collector holding that the document was chargeable to duty of Rs. 213.75. He made an application on 27th July 1959 to the Inspector General of Registration, Bombay State, being the Chief Controlling Revenue Authority, for refund of the amount paid by him. In that application be stated that he had to affix the stamp of Rs. 213.75 as required by the Collector as he had to complete the transaction in the exercise of the power conferred upon him under the power-of-attorney as soon as possible, otherwise he would have been liable in damages for the breach of the agreement for sale. He stated in the application that the power-of-attorney was a special power-of-attorney which required the stamp only of Rs. 3/-. He accordingly applied for refund of the balance. The Chief Controlling Revenue Authority was of the view that the contention of the applicant was correct and that only a duly of Rs. 3/- was leviable in connection with that instrument. The Chief Controlling Revenue Authority, however, was of the opinion that it could not entertain the application of the applicant under the law. The Chief Controlling Revenue Authority has thereupon made the present reference in terms following:

"As Chief Controlling Revenue Authority is not authorised to entertain such a claim under the law, I refer this case for the decision of the High Court as to whether the excess stamp duty recovered can be refunded; if so by whom and under what authority; or within its powers the High Court may decide the case communicating its decision for implementation."

Looking at the power-of-attorney we are clearly of the view that the power-of-attorney is required to be stamped with a stamp of only Rs. 3/- under the provisions of Article 48 (c) of Schedule I to the Bombay Stamp Act. Article 48 (f) is only applicable in those cases where the power-of-attorney is given for consideration and authorises the attorney to sell any immovable property. In that event the stamp duty is the same as is leviable On a conveyance under Clause (a) of Article 25 for the amount of the consideration. In the present case the power-of-attorney has not been given for any consideration. It provides for the sale of the property to a third party for the consideration of Rs. 9100/- payable by the third party and for the receipt of the said amount from the third party by the holder of the power-of-attorney. We are in agreement with the views expressed by the Chief Controlling Revenue Authority in making the reference that only a stamp duty of Rs. 3/- is leviable on the instrument and the views expressed to the same effect by the learned Government Pleader who appears in support of the reference. It is clear on the facts of this case that the applicant has been made to pay Rs. 210-75 by way of stamp duty in excess of what he in law could be required to pay.

3. What we have to consider in this case is the ambit of our powers in entertaining this reference and giving any directions thereon. The right conferred upon the Chief Controlling Revenue Authority to make a reference to the High Court is embodied in section 54 of the Bombay Stamp Act, 1958. That section runs as under:--

"(1) The Chief Controlling Revenue Authority may state any case referred to it under Sub-section (2) of Section 53, or otherwise coming to its notice and refer such case, with its own opinion thereon to the High Court. ***"

Section 58(1) provides that the High Court upon the hearing of any such case, should decide the question raised thereby and should deliver its judgment thereon containing the grounds on which such decision was founded. The High Court is further required by Section 56(2) to send to the Revenue Authority by which the case was stated, a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Revenue Authority was under an obligation, on receiving such copy, to dispose of the case conformably to such judgment. The power of the Chief Con trolling Revenue Authority to state the case arises under two circumstances -- (1) Where a case has been referred to the Chief Controlling Revenue Authority under Sub-section (2) of Section 53, and (2) when a case otherwise conies to the notice of the Chief Controlling Revenue Authority. When we turn to the provisions of Section 53(2), it is there provided that if any Collector acting u/s 31, Section 39 or Section 40 felt a doubt as to the amount of duty with, which any instrument was chargeable he may draw up a statement of the case and refer it with his own opinion thereon for the decision of the Chief Controlling Revenue Authority. The case before us does not fall within this provision. In the present case, the Collector has not felt any doubt as to the amount of duty. In his view, the duty payable was Rs. 213-75. On payment of the amount of duty, he has certified the instrument as having been duty stamped. He has not drawn up any statement of the case and referred it for the decision of the Chief Controlling Revenue Authority. ''Then we are left with a case falling within the ambit of the words "otherwise coming to its notice". i.e., coming to the notice of the Chief Controlling Revenue Authority. The words "otherwise coming to its notice" are words of wide import. If the meaning of these words was not governed by the Other provisions appearing in the Act; it could have been said that on an application being made by the applicant to the Chief Controlling Revenue Authority it came to the notice of the Chief Controlling Revenue Authority that duty in excess of that which was required to be paid, had been paid at the instance of the Collector and a reference could have been made by the Chief Controlling Revenue Authority to us for a decision upon the question of the amount of stamp duty payable on the instrument. These words, however, have to be read in the light of what is required to be done by the Revenue Authority on receipt of a copy of the judgment given by the High Court in connection with the reference. Under the provisions of Section 56(2) the Revenue Authority has to dispose of the case conformably to the judgment of the High Court. The Calcutta High Court has taken the view in a case reported in Cook and Kelvey, In Re: Cook and Kelvey, that unless the Revenue Authority had still, resting upon it, the duty of disposing of a case it was not intended by the statute that it should have a right to make a reference to the High Court. The facts of that case were somewhat similar to the facts in the present case. It was there held that where the Collector, in exercise of the powers u/s 31 of the Act had adjudicated upon the question of stamp duty chargeable on an instrument, the Board of Revenue had no controlling power over the Collector before the instrument was impounded for failure to pay the duty and there was no duty imposed on the Board with regard to it. Chief Justice Rankin, in the course of his judgment in that case observes that there was no duty shown for performance by the Board of Revenue entitling the Board to ask the High Court to decide the matter. He held that the wide words "or otherwise coming to its notice" could only be given effect to in cases where the concluding words of Section 59 (corresponding to Section 56 (2) of the Bombay Stamp Act, 1952) could also be given effect to. The Court there came to the conclusion that the reference was not competent. The same view has been taken by Chief Justice Macleod in a case reported in Usuf Dadabhai Vs. Chand Mahomed, . In the course of his judgment, Chief Justice Macleod has observed that the Chief Controlling Revenue Authority could refer a case u/s 57 of the Indian Stamp Act (corresponding to Section 54 of the Bombay Stamp Act, 1958), only when there was a case, which was required to be disposed of by the Chief Controlling, Revenue Authority on receipt of the High Court''s judgment and that the Chief Controlling Revenue Authority had no power to make a reference when there was no case pending before it. In the present case, action has taken by the Collector u/s 31. That action is an action falling under Chapter III of the Act. When action is taken under Chapter III Section 31, that action of the Collector is not subject to the control of the Chief Controlling Revenue Authority. Section 53(1) provides that the powers exercisable by a Collector under Chapter IV and Chapter V and under Clause (a) of the first proviso to Section 27 would in all cases be subject to the control of the Chief Controlling Revenue Authority. There is no similar provision in connection with the exercise of the powers by a Collector u/s 31 holding that a particular document was chargeable with a particular amount of duty. When we refer to Chapter IV, there is therein included Section 39. That section lays down that when the Collector impounds any instrument u/s 33 or receives any Instrument sent to him under Sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty naye paise, or less, he is required to adopt the procedure therein laid down. If in his opinion such instrument was chargeable with duty and was not duly stamped, he is required to require the payment of proper duty or the amount required to make up the same together with certain penalty which in certain cases may be remitted.

4. This, takes us to the provisions contained in Section 33. That section provides inter alia that 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 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. Having regard to the provisions of these sections, it is clear that in all cases where the Collector has impounded a document, his action would be subject to the control of the, Chief Controlling Revenue Authority and a reference could be made to the High Court by the Chief Controlling Revenue Authority. Unfortunately for the applicant in the present case he paid the stamp duty and did not allow the document to be impounded for non-payment thereof, with the result the having regard to the present somewhat unsatisfactory state of the law, a reference cannot be made to the High Court and the Ch. Controlling Authority (hereafter could not make a refund acting upon the decision of the High Court. In connection with the question whether the Chief Controlling Revenue Authority could entertain the application for refund made to it, our attention was drawn to the provisions of Section 44 of the Act. That section, by Sub-clause (2), provides that where in the opinion of the Chief Controlling Authority stamp duty in excess of that which was legally chargeable has been charged and paid u/s 34 or Section 39, such Authority may, upon application in writing made by the party concerned within three months from the date of receipt of the order charging the same, refund the excess. The duty in the present case has not been charged and paid either u/s 34 or Section 39 with the result that the Chief Controlling Revenue Authority has felt itself helpless in entertaining the present application. In fact, in the reference made it is stated -- and rightly so -- that it was not authorised to entertain such a claim under the law. This unsatisfactory state of the law whereunder even in a clear case like the one before us the Chief Controlling Revenue Authority is unable to entertain and grant an application for refund of excess duty needs to be remedied. Under the present State of the law we have no power to entertain the reference. It is always open to the Government to give relief when a person has been obliged to pay a duty wrongly claimed and we feel quite sure that in the interests of justice if a proper approach is made, the needful will be done.

5. There will be no order as to costs.