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The Dewarkhand Cement Company, Limited Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1610 of 1936
Judge
Reported inAIR1939Bom215; (1939)41BOMLR297
AppellantThe Dewarkhand Cement Company, Limited
RespondentThe Secretary of State for India
DispositionSuit dismissed
Excerpt:
.....of stated (1926) i.l.r. 50 mad. 499, referred to.;the term 'revenue' used in the section includes duty payable under the indian stamp act, 1899.;the plain meaning of section 25 of the indian stamp act, 1899, is that where there is a conveyance and the consideration for the conveyance is an annuity or other sum payable periodically, the consideration for such conveyance shall be deemed to be (a) where the sum is payable for a definite period so that the total amount to be paid can be previously ascertained-such total amount; (b) where the sum is payable in perpetuity or for an indefinite time not terminable with any life in being at the date of the conveyance-the total amount which, according to the terms of the conveyance, will or may be payable during the period arbitrarily fixed! at..........two cases, which were instituted in this court, a somewhat similar question as regards the proper duty payable arose, and no suggestion was made, right from the beginning of the original trial up to the privy council, that the courts had no jurisdiction to entertain the suit by reason of the provisions of section 106(2) of the government of india act. that undoubtedly is so. but it is clear from the decisions that no exception to the jurisdiction of the court was specifically pleaded in these cases. merely because the cases were disposed of by their lordship of the privy council on the assumption that the courts had jurisdiction, i am not prepared to hold that the contention raised on behalf of the defendant under the excepting section is not substantial.11. it was then argued that the.....
Judgment:

Rangnekar, J.

1. This case raises a question of importance with regard to the jurisdiction of this Court under Section 106 of the Government of India Act, 1919, and another question with regard to the proper stamp duty to be charged on a deed of transfer of a lease. After setting out the facts of the case the judgment proceeded.:

2. The defendant pleads, first, that this Court has no jurisdiction to entertain the suit by reason of Section 106(2) of the Government of India Act, 1919. He further pleads that as the stamp duty in respect of the document was duly determined, in accordance with the provisions of the Indian Stamp Act, 1899, by the authorities specially empowered thereunder to determine the matter, this Court has no jurisdiction to entertain the suit. On the merits, his defence is that the document was not duly stamped, and that the case fell within the provisions of Section 25(a) of the Indian Stamp Act, and not under Section 25(b) as the plaintiffs contended.

3. Section 106 was first enacted in the year 1781 by Geo. III, c. 7, Section 8, and it is well known that the necessity for the enactment of the section lay in the historical conflict between Warren Hastings and the then Supreme Courts. Why this section continued to be retained in the subsequent Government of India Acts, including the Act of 1919 (9 & 10 Geo. V, c. 101), which, it is common ground, applies to this case, and even finds a place in the present Government of India Act of 1935 (26 Geo. V. c. 2), is difficult to appreciate. The conflict had ceased long ago, and as has been said, there is not the slightest justification for retaining this antiquated fossil on the Statute Book. As Mr. Maneckshaw for the plaintiffs put it, it is absurd that under the section, if it applies, the High Court in the exercise of its original jurisdiction cannot entertain a suit of this nature, whereas, unless there is any specific bar provided by any other statute, such a suit can obviously be brought, provided all other circumstances justified it, in any Court in the provinces. But I have nothing to do with the wisdom or the policy of the legislature. My plain duty is to construe the section as I find it and to give effect to it.

4. The material part of Section 106(2) is in the terms following:

The High Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

5. As seems to be clear from the terms of the section, it falls, in two parts, and it is clear that under the first part of the section this Court has no jurisdiction to entertain a suit1 with regard to any matter concerning the revenue, and the second part deals with any act ordered or done in the collection thereof (omitting unnecessary words) in accordance with the law for the time being in force. Now, if the section had stopped just before the words 'the law for the time being in force,' it is quite clear that there would have been an end of this action. It is admitted by Mr. Maneckshaw that the duty paid in respect of stamps to the stamp authorities goes to Government, and when the contention is that the stamp authorities were not entitled to charge any particular duty, it must be a 'matter concerning the revenue.' Similarly, it seems to me that any act ordered to be done in the collection of the revenue would be a matter concerning the revenue. There is unfortunately no decision in point, and it is difficult to construe the section as it stands. But it does appear that two different ideas are expressed by the two respective parts of the section, and there is some support for this view in the observations of their Lordships of the Privy Council in Alcock, Ashdown & Co. v. Chief Revenue Authority Bombay (1923) L.R. 50 IndAp 227 : 25 Bom. L.R. 920. This was a case where the question was whether the Chief Revenue-authority under Section 51 of the Indian Income-tax Act, 1918, was under the circumstances of the case bound to state a case and refer it to the High Court when in the course of an assessment a serious question of law arose, and whether on his refusal a mandamus under Section 45 of the Specific Relief Act, 1877, would lie. It was objected that a mandamus could not lie, as under Section 45 of the Specific Relief Act the section did not authorise the High Court 'to make any order which is otherwise expressly excluded by any law for the time being in force.' And, as pointed out by Lord Phillimore, the excluding law was suggested to be Section 106(2) of the Government of India Act. Dealing with that objection, Lord Phillimore observed as follows (p. 234):

In their Lordships' view the order of a High Court to a revenue officer to do his statutory duty would not be the exercise of 'original jurisdiction in any matter concerning the revenue,' and the latter part of the clause need not be considered, for the proceedings in this case had not to do with the collection of the revenue, but with the preliminary assessment to ascertain what that revenue was.

6. These observations, it seems to me, do appear to suggest that the first part of the section refers to the preliminary proceedings taken for the purpose of determining what stamp duty is chargeable in respect of a document which is liable to stamp duty, and the second part refers to any act, that is to say, any process taken by the stamp authorities for the purpose of enforcing the payment of the duty that is determined by them to be properly payable in respect of such document. It is, therefore, argued, not without force, that the present case falls within the latter part of the section, and the argument is that in this case, not only there was a determination of duty, but an act for the purpose of collecting the duty or recovering it was done by the stamp authorities, which was not in accordance with law. In other words, the contention is that the construction put by the stamp authorities with regard to the facts of this case on Section 25, Clauses (a) and (b), was erroneous, and that was not in accordance with law, and, therefore, the jurisdiction of this Court was not taken away. It seems to me, however, that the object of the statute plainly was to bar the jurisdiction of the Courts in any matter concerning the revenue and for the purpose of protecting the revenue. Therefore, in a protective statute of this nature it is difficult to construe the words in the latter part of the section in their literal and etymological meaning. For, it is obvious that if an act is done by the revenue authorities for the purpose of collecting the revenue, which they consider to be properly leviable in accordance with law, no special statutory protection is needed. The act is done in accordance with law and can never give rise to any cause of action against the officers or the Secretary of State. This is pointed out in the remarks in Maxwell on the Interpretation of Statutes (8th edn.) at p. 205 in these words:

It is obvious that the provisions in numerous statutes which limit the time and regulate the procedure for legal proceedings for compensation for acts done in the execution of his office by a justice or other person, or 'under' or 'by virtue' or 'in pursuance' of his authority, do not mean what the words, in their plain and unequivocal sense, convey, since an act done in accordance with law is not actionable, and therefore needs no special statutory protection. Such provisions are obviously intended to protect, in certain circumstances, acts which are not legal or justifiable, and the meaning given to them by a great number of decisions seems, in the result, to be that they give protection in all cases where the defendant did, or neglected, what is complained of, while honestly intending to act in accordance with his statutory powers and, whether reasonably or not, believing in the existence of such facts or state of, things as would, if really existing, have justified his conduct.

7. The same question arose in the well-known case of Spooner v. Juddow (1850) 4 M.I.A. 353 and, dealing with the contention that the Court had no jurisdiction, their Lordships observed as follows (p. 379):

The point, therefore, is, whether the exception of jurisdiction only arises where the Defendants have acted strictly, according to the usage and practice of the country, and the Regulations of the Governor and Council. But upon this supposition the proviso is wholly nugatory ; for if the Supreme Court is to inquire whether the Defendants in this matter concerning the public revenue were right in the demand made, and to decide in their favour only if they acted in entire conformity to the Regulations of the Governor and Council of Bombay, they would equally be entitled to succeed, if the Statutes and the Charters contained no exception or proviso for their protection. Our books actually swarm with decisions putting a contrary construction upon, such enactments, and there can be no rule more firmly established, than that if parties bona fide and not absurdly believe that they are acting in pursuance of Statutes and according1 to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act.

8. In this case there is no allegation that the defendant acted mala fide or wantonly and not honestly.

9. This view derives support from the Madras decisions on which Mr. Shavaksha for the defendant relies. (See Messrs. Best & Co. Ltd. v. The Collector of Madras : (1918)35MLJ23 , Chief Commissioner of Income-tax v. North Anantapur Gold Mines Ltd. and Govindarajulu Naidu v. Secretary of State I.L.R. (1926) Mad. 449. It is true that these cases were under different Acts, and the provisions of those Acts are quite different from the provisions of the Indian Stamp Act, and there is force in the contention that unfortunately the public have no remedy against what may turn out to be a wrong and arbitrary decision of the stamp authorities with regard to the payment of duty chargeable in respect of any particular document, save and except the somewhat doubtful remedy pointed out by Section 56 of the Indian Stamp Act, which, however, does not confer upon the public any right to compel the stamp authorities to refer the question arising in any particular case to the decision of the Court. It is also true that the decision of the stamp authorities practically for all purposes is final ; but, in spite of these considerations, it seems to me that it is difficult to get away from the plain mean Ring of the words in Section 106(2) of the Government of India Act ; and, apart from authority, I am clear in my mind that the present suit falls within the provisions of that section.

10. It is pointed out by Mr. Maneckshaw that in two cases, which were instituted in this Court, a somewhat similar question as regards the proper duty payable arose, and no suggestion was made, right from the beginning of the original trial up to the Privy Council, that the Courts had no jurisdiction to entertain the suit by reason of the provisions of Section 106(2) of the Government of India Act. That undoubtedly is so. But it is clear from the decisions that no exception to the jurisdiction of the Court was specifically pleaded in these cases. Merely because the cases were disposed of by their Lordship of the Privy Council on the assumption that the Courts had jurisdiction, I am not prepared to hold that the contention raised on behalf of the defendant under the excepting section is not substantial.

11. It was then argued that the word 'the revenue' in Section 106(2) of the Government of India Act cannot, by any stretch of imagination, apply to the duty payable under the Indian Stamp Act, because the learned Counsel stated that when the section was, first enacted in 1781, the only revenue then known to legislature was land revenue and no other revenue. Historically that may or may not be true. Of course, when the words of a statute are ambiguous, it may be legitimate to refer to the construction put upon the expression by the Courts throughout a long course of years for the purpose of ascertaining the intention of the legislature and as evidencing what must presumably have been its intention at that remote period. But I feel bound to construe a recent statute, which is before me, according to its own terms, when these are brought into controversy, and not according to its historical origin or otherwise, and I am not aware of any rule of interpretation which compels me to resort to history for the purpose of finding out that in 1781 the only revenue, which was intended to be protected by the excepting section, was land revenue and no other kind of revenue; nor can I attach any particular importance to the word ' the' preceding the word ' revenue', or, for the matter of that, to the fact that in the corresponding Section 226 of the Government of India Act, 1935, the word 'revenue' is used in the singular, whereas in Section 228 of that Act the word 'Revenues' is used, as, under Section 13 of the General Clauses Act (X of 1897), 'words in the singular shall include the plural, and vice versa.' The word 'revenue' is defined in the Oxford Dictionary as meaning (1) the return, yield, or profit of any lands, property, or other important source of income ; (2) that which comes in to one as a return from property or possessions, especially of an extensive kind ; income from any source (but especially when large and not directly earned) ; (3) the annual income of a government or state, from all sources, out of which the public expenses are defrayed. In view of the admission made by Mr. Maneckshaw, it seems to me that the stamp duty falls within the terms of this section, and this Court has no jurisdiction to entertain the present suit.

12. This brings me to the second issue raised on behalf of the defendant. As I understand Mr. Shavaksha, he said that, in as much as there is a complete procedure laid down in the Indian Stamp Act which is being followed by the officers specially empowered under that Act, and that procedure is exhaustive, the Court's jurisdiction is impliedly barred. I understand the Advocate General, who interposed for a short time in the case, to say that he did not press this issue, and it is not, therefore, necessary to record any definite finding on the issue ; but, if it had become necessary to do so, I would have found considerable difficulty in holding that the jurisdiction of the Court is impliedly barred by reason of the fact that the officers specially empowered under the Act acted in their discretion and in accordance with the provisions of the Act which are stated to be exhaustive. What is meant by 'an implied bar' is very well put, as Mr. Maneckshaw points out, by an eminent authority in Mulla's Civil Procedure Code in these words:

The jurisdiction of the Court is impliedly barred in cases where a special tribunal is appointed by an Act of the Legislature to determine questions as to the rights which are the creation of the Act, as in disputed Municipal elections.

13. However, the question need not be further pursued.

14. This is sufficient to put an end to this suit ; but as the case is likely to go further, I proceed to deal with the dispute on merits.

15. It is common ground that what is the proper stamp duty chargeable in the present case depends upon the construction of the deed of transfer as a whole and Article 63 of the Indian Stamp Act read with Section 25 of that Act, and the whole argument of counsel before me has proceeded upon the footing that, having regard to the option reserved to the lessee by the lease of 1930 and having regard to the further option given by the deed of transfer to the plaintiffs to terminate the lease in the event of the mines getting exhausted, the lease cannot be said to be for a definite period so as to attract the terms of Sub-clause (a) of Section 25 of the Indian Stamp Act, but the case must fall under the provisions of Sub-clause (b) of Section 25 of the Act. Section 25 of the Indian Stamp Act is in these terms:

Where an instrument is executed to secure the payment of an annuity or other sum payable periodically, or where the consideration for a conveyance is an annuity or other sum payable periodically, the amount secured by such instrument or the consideration for such conveyance, as the case may be, shall, for the purposes of this Act, be deemed to be

(a) where the sum is payable for a definite period so that the total amount to be paid can be previously ascertained-such total amount;

(b) where the sum is payable in perpetuity or far an indefinite time not terminable with any life in being at the date of such instrument or conveyance-the total amount which, according to the terms of such instrument or conveyance, will or may be payable during the period of twenty years calculated from the date on which the first payment becomes due ; and

(c) where the sum is payable for an indefinite time terminable with any life in being at the date of such instrument or conveyance-the maximum amount which will or may be payable as aforesaid during the period of twelve years calculated from the date on which the first payment becomes due.

16. The argument on both sides has proceeded upon the assumption that the question to be determined is, whether the lease is for a definite period or an indefinite period, but it seems to me that that is not the true way of looking at the section. The plain meaning of the section is that, where there is a conveyance, and the consideration for the conveyance is an annuity or other sum payable periodically, the consideration for such conveyance shall be deemed to be,-(a) where the sum is payable for a definite period so that the total amount to be paid can be previously ascertained-such total amount; (b) where the sum is payable in perpetuity or for an indefinite time not terminable with any life in being at the date of the conveyance-the total amount which, according to the terms of the conveyance, will or may be payable during the period arbitrarily fixed at twenty years calculated from the date on which the first payment becomes due ; and provision is made in Sub-clause (c) for ascertaining the stamp duty in the case where the sum is payable for an indefinite time terminable with any life in being at the date of the conveyance, and the period there fixed is a period of twelve years. Now, reading this section, I am clearly of opinion that what the section aims at is the ascertainment of the sum which is payable, and which alone is to be taken into consideration for the purpose of calculating the stamp duty. Where a period is fixed, as in the case of a lease, for the subsistence of the lease, a Stamp Officer, who has to determine the stamp duty when the document is presented to him, can immediately ascertain the total sum payable for the fixed period. Obviously, this is not possible, where the lease is in perpetuity or where there is no definite time fixed during which the lease is to subsist. In the first case, the case would fall under Sub-clause (a) ; in the second case, it would come under Sub-clause (b). All that, therefore, the stamp authorities have to see is, 'Can I ascertain in regard to this particular lease, which is said to be transferred or assigned by a deed, the total sum payable by the lessee? If I can do so, I must proceed under Sub-clause (a) ; if I cannot do so, then I must take the total sum to be the capitalised sum for 20 years. 'The period, therefore, during which the lessee is to hold the estate, or the period when the lease expires or can be determined either by reason of a provision contained in that behalf in the lease or otherwise in accordance with law, has nothing to do with the section and is not of so much importance to the stamp authorities. True, that in that sense, the duration of the lease may be coeval with the duration of the period during which the payment is to be made ; but it seems to me that the two ideas are quite distinct. What is aimed at there is the ascertaining of the total amount when the document is presented. For instance, when a lease is given for thirty years at a rent of say Rs. 100 payable every six months, the sum payable can be previously ascertained in accordance with Sub-clause (a). But, suppose, there is a lease, which provides that the lessee may hold the property as a tenant for a period of thirty years at a rent of Rs. 100 payable every six months, and thereafter free of rent for a further period of ten years. In that case the duration of the estate of the lessee is clearly forty years. But it seems to me that it will be difficult to say that the consideration for the lease would be anything more than the periodical rent to be paid for the period of thirty years. The word 'lease' is not defined) by the Indian Stamp Act, but it is defined by Section 105 of the Transfer of Property Act, and the definition is in these terms:

A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

17. It is clear from this definition that the right to enjoy the property must be given for a certain period, express or implied, or in perpetuity. The transaction is none the less a lease, because the interest may be determined before the expiry of the time fixed or after the expiry of the time fixed, and that, I think, brings out the distinction, which seems to me to be clear on the terms of this section.

18. If these considerations are borne in mind, the position in this case presents no difficulty. The whole argument of the plaintiffs in this case is that the lessee may terminate the lease at any time during the period by giving a notice to the lessor, and the period for which royalty is to be paid cannot be determined, and, therefore, the period of the lease is indefinite. Similarly, if the mines get exhausted and proper notice is given, in that case also it cannot be said that the period is fixed. In my opinion, that is not the proper way of looking at the section. In the present case, the sum payable is so payable for a definite period of ninety-nine years. True, the lessee may terminate the lease after one year, or the mines may get exhausted after ten or twenty years, but that is at the option of the lessee. Conceivably he may not terminate it, or the mines may not get exhausted for the whole period of ninety-nine years, and then he gets the estate conveyed to him for ninety-nine years certain, and will be, under the obligation to pay the royalty fixed for that period. The view, which I am taking, is supported by a decision in Mount Edgcumbe (Earl) v. Inland Revenue Commissioners [1911] 2 K.B. 24 and the point, which I am dealing with, is brought out very clearly by the following observations of the learned Judge in that case (p. 30):

The words are 'for and during the term of ninety-nine years,' and I do not think it is possible to say of this instrument that the term or time is not defined in it at all. It is said, justly, that you must read the whole habendum together, and, so reading it, give effect to the words which follow, 'if' the three persons named 'or any one of them shall so long happen to live. 'Although we cannot now tell for what length of time the term or interest will be enjoyed, still, as the instrument has to be presented for stamp duty and the duty has to be paid at the time of the grant of the lease, it does not seem a complete answer to say ' We do not know how long the interest will last.' Conceivably the interest may last for the whole ninety-nine years. But I see no reason to doubt that when the Legislature said 'If the term exceeds thirty-five years' it meant 'If the instrument states that the term is to be measured by a definite number of years, and that definite number of years exceeds thirty-five. 'The term is none the less definitely stated and in excess of thirty-five years because there are certain concurrent incidents upon which the continuance of the chattel interest is dependent, although all of them may cease within the time named.

19. It is said on behalf of the plaintiffs that this case was one of contingency which may or may not happen ; but this argument, in my opinion, may apply to the case where there is an option to terminate the lease. This, too, may be a case of contingency. A tenant may give notice or may not give notice. There are in the section itself indications that the word 'indefinite' is used in the sense in which I am construing it. For instance, in Sub-clause (c), where the lease is terminable with any life in being at the date of the conveyance, the words are 'where the sum is payable for an indefinite time.' So that the legislature do not seem to have made any distinction between Sub-clause (c), which is, a case of contingency, and Sub-clause (b). In Sub-clause (b) also, where the lease is not terminable with any life in being at the date of the conveyance, the words are 'where the sum is payable in perpetuity or for an indefinite time. 'In this respect, I see no distinction between the two cases falling within Sub-clause (b) and Sub-clause (c).

20. It is said by Mr. Maneckshaw that the view which I am taking would in the circumstances of this case lead to an absurdity. For, he says, if his clients had taken a lease for perpetuity, they would have to pay Rs. 50,000, but having taken the lease for ninety-nine years, they have to pay much more. But the hardship, if any, in an individual case is no ground for rejecting what seems to me to be the plain meaning upon the words of the section. In my opinion, therefore, the deed of transfer was properly stamped by the stamp authorities.

21. The questions raised in this case are not free from difficulty, but, upon the whole, I have come to the conclusion that the suit must fail.

22. Before parting with the case, however, I should like to say that it is a matter of regret that in a case of this obscurity the Chief Controlling Revenue Authority should have refused to refer the case to the Court under Section 56 of the Indian Stamp Act. The result is that, apart from the expense to the parties, a good deal of time is taken before me and, if the case goes further, some more time would be taken.

23. In the result, the suit must be dismissed with costs.


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