John Beaumont, Kt., C.J.
1. This is a reference by the Superintendent of Stamps and Chief Controlling Revenue Authority, Bombay, raising a question as to the stamp duty to be charged upon a certain instrument alleged to be an instrument of exchange. Under the instrument in question the Trustees of the Port of Bombay conveyed certain land to the Secretary of State for India in exchange for other land conveyed to the Trustees by the Secretary of State, and for equality of exchange the Trustees paid to the Secretary of State a sum of over Rs. 3 lakhs. It is suggested by the learned Advocate General that having regard to the substantial sum paid in cash the transaction was not an exchange. But it would appear from the duty charged that the land conveyed by the Secretary of State was of the estimated value of over Rs. 89 lakhs. So that it comes to this, that the Port Trustees transferred land worth about Rs. 86 lakhs and Rs. 3 lakhs in cash in return for land worth Rs. 89 lakhs conveyed to them by the Secretary of State. In my opinion, having regard to the relative value of the land and the money paid for equality of exchange, this was clearly an exchange and not a sale.
2. The document was assessed to stamp duty as an exchange, and the duty was paid. The suggestion is now made by the Secretary of State, who acquired the land conveyed to him on behalf of the Great Indian Peninsular Railway, that the instrument is exempt from stamp as falling within Clause 85 of the Notification of Exemption under the Indian Stamp Act, dated September 12, 1931, that notification having been made in pursuance of the powers conferred by Section 9 of the Indian Stamp Act. Clause 85 exempts from stamp duty instruments of exchange executed by a private person where land is given by him for public purposes in exchange for other land granted to him by the Government. The terms of the exemption suggest at once two questions. First of all, are the Trustees of the Port of Bombay a 'private person', and, secondly, was the land given by the Trustees to the Government in exchange given for public purposes? So far as the first point is concerned, the expression 'private person' is not a term of art; it must be construed, I think, with reference to the context in which it appears. 'Private person' may be used in contradistinction to an 'official person' or to a Government servant; it may have many meanings. In Article 149 of the Indian Limitation Act it seems to be used in contradistinction to Government, because that Article provides that time runs against the Secretary of State from the same date as it would in a suit against a private person. And in Section 59 of the Criminal Procedure Code, which deals with arrest by a private person, the expression is clearly used in contradistinction to a police-officer. It seems to me that in this exemption it is used in contradistinction to Government. It is to be noticed that under proviso (1) to Section 3 of the Act, no duty is chargeable in respect of any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for such exemption, the Government would be liable to pay the duty chargeable in respect of such instrument. Under Section 29, in the case of an exchange, each party has to bear half the stamp duty; so that in the case of an exchange with Government, proviso (1) to Section 3 does not in terms apply, because Government is not liable to pay the duty chargeable in respect of such instrument, it is only liable to pay half the duty. It seems to me that the exemption contained in Clause 85 is intended to bring in all exchanges between any person and Government where the land is being acquired by Government for public purposes. Therefore, I think that the Trustees of the Port of Bombay are a private person within Clause 85.
3. Then the next question which arises is, whether this land was conveyed to the Secretary of State for public purposes. Now, it appears from the terms of the deed itself, and the schedule thereto, that the land was acquired for use in connection with the G.I.P. Railway. The G.I.P. Railway is owned by the Government of India. It is true that under special arrangements embodied in an Act of Parliament the Government of India pays one-twentieth of the profits to the shareholders in the company, but that does not alter the fact that the railway itself is owned by the Government. The question we have to consider, therefore, is whether land acquired by Government for the purposes of a railway owned by Government is land acquired for public purposes. The Advocate General has argued at it is not. He says that 'public purposes' must mean some purpose other than mere commercial user of the land. He points out that land used for the purposes of a railway is really land used for commercial purposes, which, he says, is not a public purpose, and he argues with some force that if land used by Government for the purpose of a commercial undertaking is to be treated as used for a public purpose, it is difficult to see what effect can be given to the expression ' public purpose' in Clause 85 of this exemption, since on that construction all land acquired by Government would be used for a public purpose. On the other hand, I see many difficulties in the way of the construction contended for by the Advocate General. Government may in many ways use land for purposes which are really commercial. The business of the Post Office is really as much a commercial concern as the business of a railway company, and the same may be said of such undertakings as telephones or communications by aircraft which might be taken over by Government. It is difficult to say that land acquired for such purposes would not be acquired for public purposes. In my opinion, if we once come to the conclusion, as I think we must here, that the land was acquired for the purpose of user in connection with a railway owned by Government, which can be used for strategic as well as for commercial purposes, we must hold that the land was acquired for public purposes. In my opinion, therefore, we must answer the question propounded to us, 'Whether the instrument of exchange, dated September 8, 1932, between the Trustees of the Port of Bombay and the Secretary of State for India in Council is exempt from stamp duty under the above exemption?' in the affirmative.
4. I agree.
5. I agree.