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Manganti Suryanarayana Vs. the Board of Revenue, Government of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCase Referred No. 10 of 1972
Judge
Reported inAIR1976AP150
ActsStamp Act, 1899 - Sections 35, 40, 45, 45(2), 49, 50, 56, 57 and 151
AppellantManganti Suryanarayana
RespondentThe Board of Revenue, Government of Andhra Pradesh
Appellant AdvocateT. Ramakrishna Rao, Adv.
Respondent AdvocateGovt. Pleader for Revenue (Non-Service)
Excerpt:
- - the board must be satisfied that stamp duty in excess of that which is legally chargeable has been charged and paid under section 35 or section 40 in order to invoke its power to grant refund of the excess amount, otherwise not. 6. it is well settled that the civil courts have inherent jurisdiction to pass necessary orders to meet the ends of justice and section 151 of the code of civil procedure does not confer any powers but affirms the authority which already exists in civil courts to enable them to pass such order as may be necessary for securing the ends of justice. the board of revenue, when it was constituted had judicial authority just like a court of judicature but subsequently that judicial power of authority was specifically abrogated. shyam sunder [1962]2scr339 relating.....kondaiah, j.1. pursuant to the direction of this court in writ appeal no. 222/68 dated february 25, 1971, the board of revenue has submitted a statement of case under section 57 of the indian stamp act (ii of 1899) (hereinafter called 'the act') for our decision on the following question: 'whether the petitioner (vendee) is entitled to refund the excess stamp duty paid on the deed dated 12-6-1962 registered as document no. 2014 of 1962 in the sub registrar's office, kaikalur under the provisions of the indian stamp act (act ii of 1899) or otherwisein order to appreciate the scope of the reference, it is not only profitable but necessary to state the facts that give rise to the question and which are not in dispute and lie in a short compass, sri jasti venkataratnam and his sons had.....
Judgment:

Kondaiah, J.

1. Pursuant to the direction of this court in Writ appeal No. 222/68 dated February 25, 1971, the Board of Revenue has submitted a statement of case under Section 57 of the Indian Stamp Act (II of 1899) (hereinafter called 'the Act') for our decision on the following question:

'Whether the petitioner (vendee) is entitled to refund the excess stamp duty paid on the deed dated 12-6-1962 registered as document No. 2014 of 1962 in the Sub Registrar's Office, Kaikalur under the provisions of the Indian Stamp Act (Act II of 1899) or otherwise

In order to appreciate the scope of the reference, it is not only profitable but necessary to state the facts that give rise to the question and which are not in dispute and lie in a short compass, Sri Jasti Venkataratnam and his sons had executed a document styled as 'sale deed' on June 12, 1962 in favour of Sri Manganti Suryanarayna, the petitioner herein, in respect of a land for a consideration of Rs.5,980/-. The vendee paid a sum of Rs. 1,000/- as advance and agreed to pay the balance of sale consideration with interest on June 11, 1963 and obtain another deed so as to complete the transaction. The vendee was put in possession of the property and the document was registered as document No.2014/62 in the Sub Registrar's Office, Kaikalur with the requisite stamp duty for a sale deed. In accordance with the terms stipulated in the deed dated June, 12, 1962, another document was executed on September 2, 1963, whereunder the executant-vendor acknowledged the full consideration (i.e., the intended sale amount and the interest thereon). It also indemnified the claims against a loss to an extent of Rs. 2,700/-. The document was executed on a stamp paper worth Rs.44/- only treating it as a supplemental deed confirming the original sale deed which was registered as document No. 2014/62. The Sub Registrar, Kaikalur, before whom the second document was presented for registration, impounded it as dificiently stamped. On a dispute raised by the petitioner with regard to the nature of the second document, the District Registrar, Krishna adjudicated the document as a regular deed of sale for a cash consideration of Rupees 6,492/- and ordered the collection of the deficient stamp duty of Rs. 475/- together with a penalty of Rs. 5/-. Aggrieved by the decision of the District Registrar, the petitioner filed a revision petition under Section 56(1) of the Act before the Board of Revenue which framed the following two issues for consideration and order :

(1) Whether the earlier document executed and registered as document No.2014/62 of S.R.O. Kaikalur was a sale deed for consideration of Rs.5,980/- or an agreement to sell? and

(2) Whether the subsequent document executed on 2-9-1963 is a sale deed for Rupees 6,492/- or a supplemental deed confirming the earlier sale with an indemnity for a sum of Rs.2,700/-?

The Board of Revenue, on a consideration of the facts and circumstances, held that the first document which was styled as a sale deed, is only an agreement of sale executed primarily to record the receipt of a portion of the purchase price in order to safeguard the vendee against fresh demand as the vendee was put in possession of the land, and that the second document was a regular sale deed for a cash consideration of Rs.6,492/- and, therefore, the stamp duty as a sale deed was leviable on it. In the result, the Board of Revenue upheld the decision of the District Registrar and upheld the revision petition on March, 9, 1965, observing that 'since stamp duty leviable on a sale deed was collected on the earlier document, the party is at liberty to seek refund of the excess duty paid under Section 45 of the Stamp Act and that the party may approach the District Collector, Krishna under Section 45 with a refund application.' The Inspector General of Registration and Stamps, Andhra Pradesh, Hyderabad in his letter dated May 6, 1965, pointed to the Board of Revenue that stamp duty on the first document was paid voluntarily but not charged either under Section 35 or S. 40 of the Act and that S. 45 of the Act refers to refund of stamp duty charged either under Section 35 or Section 40 and so the petitioner was not at all entitled for the refund. The Board of Revenue, after examining the entire material on record, realised the mistake committed by it on being apprised by the Inspector General, Registration and Stamps, and rectified its earlier order dated 9-8-1965 in so far as the observation relating to the refund of stamp duty on document No. 2014/62 of S.R.O. Kaikalur is concerned after affording reasonable opportunity to the petitioner herein. Writ petition No. 1888/65 filed by the petitioner to quash the aforesaid orders of the Board of Revenue was rejected on March 22, 1965. A Division Bench allowed the Writ petition preferred by the petitioner against the order of dismissal of the writ petition and directed the Board to make a reference to this Court under Section 57 of the Act as, in its opinion, a substantial question of law arises. Hence this reference.

2. Sri T. Ramakrishna Rao, the learned counsel for the petitioner, contended that the Sub Registrar, Kaikalur has charged and collected the stamp duty on the instrument executed in favour of his client by the vendors on 12-6-1962, although it is agreement of sale and, therefore, the Chief Controlling Revenue Authority is empowered to refund the excess stamp duty under Section 45(2) of the Act and in any event, the Board of Revenue has inherent power and jurisdiction to refund the excess stamp duty even if the excess amount is said to have been paid by the petitioner by mistake. This claim of the petitioner is resisted by the learned Government Pleader for Revenue contending inter-alia that the provisions of Section 45(2) are not attracted as the excess stamp duty was paid voluntarily but not legally charged and paid under Section 35 or Section 40, and there is no other provision in the Act which authorises the Board to refund the excess amount of stamp duty and there is no inherent power vested in the Board to order refund of the excess.

3. Upon the respective contentions of the parties and the facts, the following points arise for decision:

(1) Whether, on the facts and in the circumstances, the provisions of Section 45(2) are or are not attracted?

(2) Whether the Board of Revenue has inherent jurisdiction to order refund of the excess stamp duty paid by a citizen voluntarily and by mistake in registering a document?

4. The answer to point No. 1 rests upon the provisions of Section 45 of the Act, which is the only section that provides for the refund of penalty or excess duty in certain cases indicated therein. Under sub-section (1) of Section 45, the Chief Controlling Revenue Authority is competent to refund the whole or any part of the penalty paid under Sec. 35 or 40. The party seeking refund has to apply in writing within one year from the date of the payment. Sub-section (2) which provides for the refund of excess stamp duty, reads as follows :

'Where, in the opinion of the Chief Controlling Revenue Authority, stamp duty in excess of that which is legally chargeable has been charged and paid under section 35 or Section 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess.'

It is the Chief Controlling Revenue Authority, which is the Board of Revenue in the State of Andhra Pradesh, that is authorised to order refund of the excess stamp duty. The power or authority of the Chief Controlling Revenue Authority to refund the excess payment of stamp duty is circumscribed in the statute itself. Hence, the Board of Revenue is not empowered to order refund under Section 45 in every case where excess payment of stamp duty or penalty has been paid by a party. The Board must be satisfied that stamp duty in excess of that which is legally chargeable has been charged and paid under Section 35 or Section 40 in order to invoke its power to grant refund of the excess amount, otherwise not. It is, therefore, pertinent to examine in every case where a claim for refund of the excess stamp duty has been made by the party, as to whether stamp duty in excess has been charged and paid either under Section 35 or 40. Section 35 bars the admission of any document in evidence for any purpose unless it is duly stamped. The proviso to Section 35 provides for the admission of such document on payment of the duty with which the same is chargeable, together with penalty. Sec. 40 authorises the Collector to stamp instruments impounded. It is not the case of the petitioner that the excess stamp duty has been charged and paid under Section 35 or Sec. 40. Hence, the provisions of Section 45(2) cannot be invoked by the petitioner to claim refund of the excess stamp duty. In fact, the excess stamp duty was paid by the party voluntarily and due to mistake. No one compelled the party to pay the excess stamp duty on the agreement of sale executed on 12-6-1962 and registered before the Sub Registrar, Kaikalur on the basis of a regular sale deed. The Legislature did not intend a case for voluntary or mistaken payment of stamp duty to fall under sub-section (2) to Section 45. The Chief Controlling Revenue Authority, which is the Board of Revenue is not competent to direct the refund of the excess stamp duty paid voluntarily or under a mistaken impression of law by the party at the time of the registration of the document dated 12-6-1962. As the Act empowering the Board of Revenue to refund the excess amount of the stamp duty (sic) in the case on hand. Nor could I lay my finger on any such provision in the Act or the rules made thereunder. The party who voluntarily or by mistake paid the excess stamp duty cannot resort to the provisions of sub-section (2) of Section 45 of the Act. We have no hesitation to hold that the petitioner is not entitled to refund of the excess duty under the provisions of the Act.

5. It next falls for our decision whether the Board of Revenue has inherent jurisdiction to order refund of the excess stamp duty. The submission of the petitioner's counsel is that the Board of Revenue has all the attributes of a Court of Civil Judicature and, therefore, it has inherent jurisdiction to refund the excess stamp duty to meet the ends of justice. This plea of inherent jurisdiction of the Board of Revenue was not raised by the petitioner either in his application or in the writ proceedings. He however, relies upon the use of the word 'otherwise' in the question framed by this Court while calling for the statement of the Chief Justice from the Board of Revenue and contends that the scope of the reference is wide enough to take in this point. True, the expression 'otherwise' finds a place in the question framed by this Court. But the reference itself being under Section 57 of the Act, the scope of the question, in our considered opinion has to be limited to the provisions of the Act. However we shall deal with this aspect of the question on merits.

6. It is well settled that the Civil Courts have inherent jurisdiction to pass necessary orders to meet the ends of justice and Section 151 of the Code of Civil Procedure does not confer any powers but affirms the authority which already exists in Civil Courts to enable them to pass such order as may be necessary for securing the ends of justice. The Provisions of the Code of Civil Procedure do not control the inherent power limiting it or otherwise affecting it, as the same has not been conferred upon the Courts but it is inherent in the Courts by virtue of their duty to do justice between the parties before them: see Manohar Lal v. Seth Hiralal : AIR1962SC527 The inherent powers of the Courts are in addition to the powers specifically conferred on them by the Code of Civil Procedure and they are, therefore complementary to the powers already vested in them. The inherent jurisdiction must be exercised by the Courts for the purposes indicated in Section 151 of the Code. Such inherent jurisdiction can also be exercised by the Courts in matters relating to procedure to be followed in deciding cases before them but the same cannot override the substantive rights of the parties. The Courts or Tribunals must be conferred or invested with specific power or authority for passing any order affecting the rights of a citizen: see Padam Sen v. State of U.P. 0065/1960 : 1961CriLJ322 .

7. Before adverting to the question whether the Board of Revenue is a Court as contended by the applicant or only a tribunal exercising quasi-judicial power under Section 56 of the Act, I may usefully refer to what is meant by 'Court' and 'Tribunal'. The expression 'Court' and 'Tribunal' have not been defined in the Civil P.C. or the Andhra Pradesh (Andhra Area) Board of Revenue Regulation (I of 1803) whereunder the Board of Revenue was constituted. In the New English Dictionary (Vol. II, p. 1090, 1091) 'Court' is meant to be--

'an assembly of Judges or other persons legally appointed ad acting as a tribunal to hear and determine any cause, civil ecclesiastical, military or naval'.

As rules by the Supreme Court in Harinagar Sugar Mills v. Shyam Sunder : [1962]2SCR339 .

'All tribunals are not Courts, though all Courts are Tribunals. The word 'Courts' is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish 'wrongs'. Whenever there is an infringement of a right or an injury, the Courts are there to restore the vineulum juris, which is disturbed............... With the growth of civilization and the problems of modern life, a large number of administrative tribunals have come into existence.

'These tribunals have the authority of law to pronounce upon valuable rights; they act in the judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative law. They are very similar to Courts but are not Courts. When the Constitution speaks of 'Courts' in Article 136, 222 or 228 or in Articles 233 - 237 or in the Lists it contemplates Courts of Civil Judicature but not tribunals other than such Courts. This is the reason for using both the expressions in Article 136 and 227. By 'Courts' is meant Courts of Civil Judicature and by 'tribunals', these bodies of men who are appointed to decide controversies arising under certain special laws ............ before tribunals, and the residue goes before the ordinary Courts of Civil Judicature.'

8. Applying the aforesaid principles, I shall examine whether the Board of Revenue can be said to be a Court. The Board of Revenue was constituted by the Andhra Pradesh (Andhra Area) Board of Revenue Regulation 1803 (hereafter called 'the Regulation'). This is a Regulation 'for defining the duties of the Board of Revenue, and for determining the extent of the powers vested in the Board of Revenue.' The Board of Revenue is responsible for discharge of duties of its subordinate officers under Section 33 of the Regulation. Sections 44 to 47 of the Regulation invested judicial powers in the Board of Revenue in districts where no Zilla Courts were established. But these Sections have been repealed by Madras Regulation II of 1806 subsequent to the establishment of the Courts of Judicature for the purpose of administering justice in all causes, civil and criminal. The Board of Revenue, when it was constituted had judicial authority just like a Court of Judicature but subsequently that judicial power of authority was specifically abrogated. This may be noticed from the material portion of the preamble to the Regulation which reads thus :

'Whereas it has hitherto been usual for the Board of Revenue to exercise judicial authority in the determination of certain cases of civil nature appealed from the decision of the Collectors, who were entrusted with the administration of the revenue and the distribution of justice in their respective districts; and whereas Courts of judicature have been established for the purpose of administering justice in all cases, civil and Criminal, it is expedient that the judicial authority heretofore exercised by the Board of Revenue should be formally abrogated in those districts where Zilla Courts have been established; and whereas it is important to the security of the persons and property of those for the protection of whom the said Courts have been established, that the powers and authorities entrusted to the said Board of Revenue in respect of the executive administration of the revenue should be defined and published................'

Section 4 prescribes the duties of the Board of Revenue whereas Section 5 declares its authority to superintend and control all persons employed in the executive administration of the pubic revenue. The very Regulation is to define the duties of the Board and to determine the extent of the powers vested in it. The provisions of the Regulation do not indicate the vesting of any judicial authority or power in the Board of Revenue as in the case of a Court of judicature established for the purpose of administering justice in all, causes, civil and criminal. In fact, the judicial authority or powers exercised by the Board prior to Regulation II of 1806 have been specifically abrogated. On a careful consideration of the entire provisions of the Regulation and on the application of the principles laid down by the Supreme Court in Harinagar Sugar Mills v. Shyam Sunder : [1962]2SCR339 relating to the distinction between a Court and a Tribunal, I am satisfied that the Board of Revenue is not a Court of judicature but only an administrative tribunal constituted under the Regulation to discharge its duties and exercise its powers as indicated therein. Apart from the provisions of the Regulation, no other statute or statutory rule investing the Board of Revenue with judicial authority to enable it to function as a Court of judicature has been brought to our notice. The provisions of Sections 56 and 57 of the Stamp Act (Indian Stamp Act) relied upon by the applicant's counsel is support of his plea that the Board of Revenue functions as a Court of judicature in adjudicating upon the rights of the parties relating to determination of proper stamp duty or refund in cases of excess payments, do not come to his aid. Sub-sections (1) and (2) of the Section 58 of the Act vest in the Board of Revenue only quasi-judicial power or authority to determine the questions referred to it by the District Collectors, or to adjudicate upon the rights of the parties relating to the determination of proper stamp duty or refund in cases of excess payments by virtue of its powers under Section 45. The powers vested in the District Collectors under Chapters IV and V and under Clause (a) of the first proviso to Section 56 shall be subject to the control of the Board of Revenue. The Board of Revenue therefore, by virtue of its controlling powers envisaged under sub-section (1) of Section 56, is competent to pass appropriate orders in respect of the instruments not duly stamped and allowances for stamps in certain cases where the Collectors have taken decisions. Where any Collector, in the exercise of his powers under Section 31, 40 or 41 feels any doubt as to the amount of stamp duty with which an instrument is chargeable, he has to draw up a statement of the case and refer with his opinion thereon for the decision of the Board of Revenue. The Board of Revenue shall, by virtue of its powers under sub-section (3) of the Section 56, consider and decide the case and send copy of the decision to the Collector who shall thereupon proceed to assess and charge stamp duty in conformity with the decision of the Board. Where the Board of Revenue feels any difficulty or doubt in determining the question as to the amount of duty with which an instrument is chargeable in cases where references have been made by the Collectors under Section 50(2), it may in its turn, state a case and refer such case to the High Court for its opinion. The Board of Revenue also has to submit a statement of case to the High Court for its opinion if a direction has been issued in the form of a Writ of Mandamus. The power or authority vested in, and exercised by the Board of Revenue under Section 50 or Section 57 must be held to be one of quasi-judicial character and, therefore, it must exercise such power fairly, reasonably and in accordance with the rules of natural justice and pass appropriate orders. I have, therefore, no hesitation to hold that the Board of Revenue is not a Court having inherent jurisdiction but only an administrative tribunal which had to exercise its powers and discharge its functions under Sections 56 and 57 of the Act as a quasi-judicial tribunal.

9. This view of mine gains support from the decision of the Supreme Court in Board of Revenue v. Vidyawati : AIR1962SC1217 . While considering the nature and character of the duty cast upon the Board of Revenue under Section 50(2) of the Act, the learned Judge, Wanchoo, J., speaking for the court observed thus :

'It is clear therefore that Section 50(2) deals with cases where there is a doubt in the mind of the Collector in regard to an instrument which comes up before him under the above provisions of the Act as to the construction of the instrument and the provisions of the Act applicable to it. Such doubt itself shows that the point raised for the Collector's decision is a difficult point of law and from the very nature of the duty to be performed in such circumstances it appears clear that the Chief Controlling Revenue Authority has to decide the matter judicially and would thus be a quasi-judicial tribunal...........

The question before the Board under Section 50(2) being one of construction of an instrument and the application o the Act to it being a pure question of law which may result in payment of large amounts by the executants of the document, it would not in our opinion be improper to hold that for the determination of such a question the legislature intended that the party affected by the decision of the Board of Revenue should be given a hearing, and that the Board should act judicially in deciding a pure question of law.

10. I shall now advert to the decision cited by the counsel for the petitioner. Strong reliance is placed by him on the decision of the Supreme Court in Bharat Bank v. Employees of Bharat Bank : (1950)NULLLLJ921SC ; Vishwamithra Press v. Workers of Vishwamitra Press : (1953)ILLJ184SC ; Durga Shankar v. Raghuraj Singh : [1955]1SCR267 ; Harinagar Sugar Mills v. Shyam Sundar (AIR 1961 SC 1969); Engineering Mazdoor Sabha v. Hind Cycles Ltd., : (1962)IILLJ760SC ; A.C. Companies v. P.N. Sharma : (1965)ILLJ433SC and Jugal Kishore v. Sitamarhi Central Co-op. Bank : 1967CriLJ1380a in support of his contention that the Board of Revenue is a Court of Judicature and it has inherent jurisdiction.

11. The decision of Bharat Bank's case : (1950)NULLLLJ921SC arose under the Industrial Disputes Act, 1947. In that case, the Supreme Court held that the Industrial Tribunal discharges judicial functions very near to those of a Court although it is not a court in the technical sense of the word and the words 'determination', 'cause or matter' and 'tribunal' used in Article 136 of the Constitution of India appear to have a special significance which is wide enough to give jurisdiction to the Supreme Court to entertain an application for leave to appeal. Strong reliance has been placed on the following observation of Mahajan, J., (as he than was) at page 202:

'It was again urged by Mr. Alladi that the word 'tribunal' was introduced in the article to provide for cases of tribunals like the Board of Revenue. The suggestion does not appear to be sound because a Board of Revenue has all the attributes of a Court of justice and falls within the definition of the word 'Court' in matters where it adjudicates on rights of parties.'

The aforesaid observation of the learned Judge has to be construed in the context in which it was made. As pointed out earlier, the Supreme Court had to consider the scope of Article 136 of the Constitution and whether the Industrial Tribunal is a tribunal for purposes of Article 136. The Court opined that the Industrial Tribunal is a tribunal within the meaning of Article 136. In any event, this observation is in conflict with the view of the Supreme Court in Board of Revenue v. Vidyawati : AIR1962SC1217 referred to earlier, which is a direct authority on the point of issue and, therefore, it cannot be considered to have any binding force.

12. The scope of the decision in Bharat Bank's case : (1950)NULLLLJ921SC has been stated by the Supreme Court in Durga Shankar v. Raghuraj Singh : [1955]1SCR267 at page 522 thus :

'It is now well settled by the majority decision of this Court in the case of Bharat Bank Ltd., v. Employees of the Bharat Bank Ltd. : (1950)NULLLLJ921SC , that the expression 'tribunal' as used in Article 136 does not mean the same thing as 'court' but includes, within its ambit all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.'

The same view has been reiterated by the Supreme Court in Engineering Mazdoor Sabha v. Hind Cycles Ltd. : (1962)IILLJ760SC . The learned Judge Gajendragadkar, J., (as he then was) while considering the impact of the decision in the Bharat Bank's case : AIR1962SC1217 observed thus :

'The majority decision of this Court was that the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions and so, though the Tribunal is not a Court, it is nevertheless a Tribunal for the purposes of Article 136.'

The decision of the Supreme Court in Viswamitra Press v. Workers of Viswamitra Press : (1953)ILLJ184SC also arose under the Industrial Disputes Act. What was held by the Supreme Court in Harinagar Sugar Mills v. Shyam Sunder : [1962]2SCR339 was that the Central Government exercising appellate powers under S. 111 of the Companies Act, 1956 is a tribunal within the meaning of the 136 of the Constitution, exercising judicial functions. In A.C. Companies v. P.N. Sharma : (1965)ILLJ433SC the Supreme Court held that the State Government exercising appellate jurisdiction under rule 6 (5) and (6) of Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952, is a tribunal within the meaning of Articles 136 and 227 of the Constitution of India.

13. The decision of the Supreme Court in Jugal Kishore v. Sitamarhi Central Co-op. Bank : 1967CriLJ1380a relied upon by the petitioner is also distinguishable on facts. Therein, it fell for decision under Bihar and Orissa Co-operative Societies Act is or is not a court subordinate to the High Court for the purposes of Sec 3 of Contempt of Courts Act. On a consideration of the several provisions of the Bihar and Orissa Co-operative Societies Act it was held that the Registrar in adjudicating upon a dispute referred to him under Section 48 of that Act, is a Court discharging the same functions and duties of a Court of law. The learned Judge, Mitter, J., speaking for the Court observed:

'It will be noted from the above that the jurisdiction of the ordinary civil and revenue Courts of the land is ousted under Section 57 of the Act in case of disputes which fell under Section 48. A Registrar exercising powers under Section 48, must, therefore be held to discharge the duties which would otherwise have failed on the ordinary civil and revenue Courts of the land. The Registrar has not merely the trappings of a Court but in may respect he is given the same powers as are given to ordinary Civil Courts of the land by the Civil P.C. including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues to review his own order and even exercise the inherent jurisdiction of Courts mentioned in Section 151 of Civil P.C. In such a case there is no difficulty in holding that in adjudicating upon a dispute referred under Section 48 of the Act, the Registrar is to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do.'

Hence, that case does not assist the petitioner. The decisions of the Supreme Court referred to above are distinguishable on facts and do not come to the aid of the petitioner but on the other hand, the distinction between a tribunal and a Court of justice has been noticed.

14. The counsel for the petitioner has pressed upon us an unreported decision of this Court in R.C. No. 23 of 1969 dated 6-12-1971. That was a reference under the Income-tax Act, 1961. Therein, it was held that the Income Tax Appellate Tribunal has inherent powers to set aside an ex parte order by it, on merits if it is of the view that the appellant has sufficient cause for non-appearance. That decision was reached by the Court on a consideration of the provisions of Section 33 (4) of the Income Tax Act, 1922 which invested the Income Tax Appellate Tribunal with the power of widest amplitude analogous to those of any appellate authority under the Civil P.C. although it is not strictly a court. That decision does not assist the petitioner herein as the Board of Revenue is held by us to be an administrative tribunal exercising quasi-judicial functions in discharge of its duties under Sections 56 and 57 of the Act.

15. As observed by the Supreme Court in I.T. Cmmr., Bombay v. Walchand and Co. : [1967]65ITR381(SC) .

'Though the tribunal is not a Court, it is invested with judicial power to be exercised in manner similar to the exercise of power of an appellate court acting under the Code of Civil Procedure. Authority to 'pass such orders thereon as it thinks fit' in Section 33 (4) of the Income Tax Act, 1922, is not arbitrary ; the expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of the subject matter of the appeal in the light of the evidence and consistently with the justice of the case................ the nature of the jurisdiction predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and consolidation and record its reasons in support of the decision.'

Hence, decisions relating to the jurisdiction of the Income Tax Appellate Tribunal arising under the Income-tax Act are not applicable to the case on hand. The decision of the Supreme Court in Central Bank of India v. Gokal Chand : [1967]1SCR310 is an authority for the proposition that the Rent Control Tribunal under Delhi Rent Control Act (59 of 1968) has all the powers vested in a Court under Civil P.C. when hearing an appeal. That conclusion was arrived at on a consideration of the provisions of the statute. In Mewenakshi Mills Ltd., v. Their Workmen : (1958)ILLJ239SC the Labour Appellate Tribunal was held to have jurisdiction to review its own order as the Civil P.C. applies to the proceedings before it. The decision arising under the Industrial Disputes Act as well as those arising under the Estates Abolition Act and Rent Control Acts have no application to the case on hand. On the same analogy, the decision of the Supreme Court in Board of Revenue v. R.B. Agencies : [1973]3SCR492 which is an authority for the proposition that revisional jurisdiction has been conferred on the Board of Revenue to pass any order relating to Sales tax to remedy any injustice perpetrated to the assessee, will have no application. A number of other decisions have been cited by the petitioners counsel but we do not prefer to consider them as they are not relevant to the point at issue. Whether the Board of Revenue is a Court or not, depends upon its constitution and the powers vested in it under the statute, whether a particular tribunal is a Court or not depends upon the facts and circumstances governing its constitution, functions and powers. As pointed out earlier, we have, on a consideration of the provisions of the Regulation whereunder the Board of Revenue was constituted and the provisions of Sections 56 and 57 of the Act arrived at a conclusion that the Board of Revenue is only the Chief Controlling Revenue Authority which is an administrative tribunal empowered to act and function as a quasi-judicial authority in the exercise of the powers under Sections 56 and 57 of the Act, but not a Court having inherent jurisdiction. The powers of the Board to refund any excess duty are circumscribed by the very statute. The Board cannot travel beyond the limitation provided under the Act.

16. The further submission of Mr. Ramakrishna Rao that the petitioner is entitled to refund of the excess stamp duty on the application of the provisions of Section 72 of the Indian Contract Act and the doctrine of unjust enrichment, cannot be acceded to. This Court should not be obsessed with the fact that the petitioner was not liable to pay stamp duty on the first document on the basis of a regular sale deed as it has been found to be only an agreement to sell. This Court is also not now concerned with the power of the State Government to order refund of the excess stamp duty. The Government is not a party before us. Nor can the scope of the reference be enlarged so as to take in such questions.

17. Section 57(1) of the Act casts a duty on the Chief Controlling Revenue Authority to state any case referred to it under Section 56(2) or otherwise coming to its notice when a substantial question of law is involved and refer such case to the High Court. A citizen also has a right to have such a case stated to, and determined, by the High Court . Section 58 empowers the High Court to call for further particulars relating to the case stated whereas Section 59 requires the High Court to decide the question or questions raised in the case stated and deliver its judgment thereon containing the grounds on which decision is funded. Under sub-section (2) to Section 59, this Court has to send a copy of its judgment to the Board of Revenue which shall, on receiving such copy, dispose of the case in accordance with and in conformity with such judgment. The opinion of the High Court expressed in a reference under Section 57 of the Act is binding on the Board of Revenue. The jurisdiction of the High Court while hearing references under Section 57 of the Act is not either original or appellate jurisdiction but it is only advisory in character just as in the case of reference under the Income-tax Act. The High Court would not be concerned with the collection of revenue nor would it interfere with the collection of revenue in the exercise of its jurisdiction under Section 57; See Banarasi Dass v. Chief Controlling Revenue Authority, Delhi : [1968]1SCR685 and Chief Controlling Revenue Authority, Bombay v. Maharashtra Sugar Mills Ltd. (AIR 1948 Bom 254). The High Court is bound to express its opinion and advise only on the question or questions referred to it but is not competent to express its opinion on any matter or matters not referred to it vide Guru Estate v. Commr., of Income Tax : [1963]48ITR53(SC) . The answer to the question or questions referred must be limited to the facts stated in the statement of facts and the High Court cannot travel beyond the statement of the case and permit the petitioner to argue any points which have been neither raised before nor decided by the Board of Revenue. The facts found by the Board of Revenue which is the final fact-finding authority, are binding on this Court while hearing a reference under Section 59. In the present reference, this court is not called upon to give a general advice to the State Government about the advisability of, or justice in refusing the excess stamp duty paid by the petitioner voluntarily and out of mistake of law or of fact on the application of the doctrine of unjust enrichment. Nor can the provisions of Section 72 of the Indian Contract Act be applied. It was open to the petitioner to file a regular suit within the period of limitation or institute any other appropriate proceeding against the State for the recovery of the excess stamp duty paid by him by mistake or law or of fact, though voluntarily. The petitioner did not pray even in the writ petition for the refund of the excess stamp duty paid by him but only prayed for a Mandamus directing the Board of Revenue to submit a statement of case and refer the question for the opinion of this court under Section 57 of the Act. Though the petitioner failed before the learned Single Judge, he succeeded in getting the issuance of Mandamus to the Board, before the Division Bench. This Court is therefore called upon to answer the question in the circumstances stated by the Board of Revenue. The petitioner seems to be particular in establishing the law relating to the power and jurisdiction of the Board of Revenue to refund the excess stamp duty paid by a citizen voluntarily due to a mistake of fact or of law rather than seeking the relief of refund of the excess stamp duty paid by him.

18. For all the reasons stated, the question is answered in the negative and in favour of the Board of Revenue and against the petitioner.

Xx xx xx xx xx xx

Venkatarama Sastry, J.

19. The point that has been referred to Full Bench for decision is as follows:--

'Whether the appellant vendee is entitled to the refund of excess stamp duty paid by him on the deed dated 12-6-1962, registered as document No. 2014 of 1962 in the office of the Sub-Registrar, Kaikalur under the provisions of The Indian Stamp Act (Act 2 of 1889) or otherwise?

20. The facts giving rise to this reference are briefly the following: One Jasti Venkataratnam and his sons executed a deed on 12-6-1962 in favour of Maganti Suryanarayana the appellant, in this case, for a sum of Rs.5,980/- styling it as an agreement of sale. They received an advance of Rs.1,000/- and the balance consideration had to be paid with interest on 11-6-1963 and another deed should be executed by the vendee to complete the transaction of sale. The possession of the property was given to the vendee. Though the transaction was an agreement of sale, as it was for consideration of Rs.5,980/- it was stamped properly as if it was a sale deed. It was registered as document No. 2014 of 1962 in the office of the Sub-Registrar, Kaikalur.

21. In accordance with the stipulation in the earlier deed, another deed was executed on 2-9-1963 in which the vendors acknowledged receipt of full consideration together with interest and also indemnified the purchaser against any loss to the extent of Rs.2,700/-. But this time the same deed was executed on a stamp paper worth Rs.44/- only treating it as a supplemental deed, confirming the original sale deed, which was registered as document No. 2014 of 1962 as aforesaid. When the second document was presented to the Sub-Registrar, Kaikalur for the purpose of registration, he impounded it as one which was insufficiently stamped. He ultimately required the petitioner herein to pay the deficit stamp duty of Rs.475.60 and a penalty of Rs.5/-. It was also decided by the District Registrar, to whom the document was sent, that he second document was a sale deed for cash consideration of Rs.6,492/- and the balance stamp-duty had therefore to be paid. The first document was held by him to be an agreement to sell. Against the order of the District Registrar, Machilipatnam the petitioner carried the matter in revision to the Board of Revenue under Section 56(1) of the Indian Stamp Act. The Board framed to points for consideration.

(1) Whether the earlier document executed and registered as document No. 2014/62 of S.R.O. Kaikalur was a sale deed for consideration of Rs.5,980/- or an agreement to sell and

(2) Whether the subsequent document executed on 2-9-1963 is a sale deed for Rs.6,492/- or a supplemental deed confirming the earlier sale deed as indemnity for a sum of Rs.2,700/-.

The Board decided that the first document was an agreement to sell, eventhough possession was delivered to the purchaser under that document and the second document was only a sale deed for cash consideration of Rupees 6,492/- as the sale transaction was completed by this document and full consideration was paid thereunder. It was therefore held that the additional stamp duty and penalty levied on the petitioner was properly levied. The revision was therefore dismissed on 9-3-1965. But while dismissing the revision the Board observed 'that stamp duty leviable on a sale deed was collected on the earlier document, the parties are at liberty to seek refund of the excess duty paid under Section 45 of the Stamp Act and that the party may approach the District Collector, Krishna under Section 45 with a refund application.'

22. The Inspector General of Registration, Andhra Pradesh, Hyderabad informed the Board on 6-5-1965 that the last observation of the Board in the above order is not warranted as the stamp-duty on the first document was paid voluntarily, but not charged under Section 35 or 40 of the Stamp Act, and so the petitioner was not at all entitled for the refund. The Board considered that letter, gave an opportunity to the petitioner and rectified its earlier order dated 9-3-1965, by deleting the direction in regard to the refund of stamp-duty made in the last portion of the earlier order.

23. The petitioner thereupon preferred Writ petition No. 1888 of 1965 for quashing the orders of the Board of Revenue. That writ petition was however dismissed. In the Writ Appeal No. 222 of 1968, preferred by the petitioner against the said decision their Lordships, K.V.L. Narasimham and Kuppuswami JJ., held on 25-2-1971, that a case for reference has been made out under Section 57(1) of the Act as a substantial question arose. Hence they directed the aforesaid question to be referred to the High Court.

24. The Board accordingly submitted a reference on the first occasion on 13-4-1972. But the question referred by it was not in accordance with the directions given in the writ appeal. Hence we called for a fresh reference. In pursuance of that direction, the Board has preferred the question that is now posed before us.

25. Sri T. Ramakrishna Rao, learned counsel has argued the matter elaborately for the petitioner and Mr. S. Rajalingam, learned Government Pleader has argued for the State. Elaborate citations were made by the petitioner's counsel and reference will be made to some of them, which are considered to be necessary.

26. There is no dispute about some of the facts. The first document, which was really an agreement of sale, was stamped as a sale deed and full stamp duty was paid, no doubt voluntarily by the petitioner. The second document which was styled as supplemental deed was impounded by the Collector and excess stamp duty has been collected under the provisions of the Stamp Act. Therefore, it was registered as document No. 14 of 1963 by the Sub-Registrar, Kaikalur on 2-9-1965. The petitioner herein has put in an application even on 28-4-1964 bringing it to the notice of the Board that stamp-duty has been paid twice for the same transaction and that is causing hardship and it may be refunded. A reminder was also sent on 12-7-1964.

26-A. The question now posed before us is, whether the excess stamp-duty paid by the petitioner on the deed dated 12-6-1962 registered as document No. 2014/62 can be refunded under the provisions of the Indian Stamp Act?

27. It has not been paid after the document has been impounded, but the contention of the petitioner is that the second document on which a lesser stamp was sufficient was impounded and he was asked to pay stamp-duty once again. If the second document is treated to be the proper sale deed, the stamp affixed thereon is the proper stamp payable thereon. Hence there is no question of refund of that stamp duty. But it is the contention of the petitioner that for the same transaction he had to pay stamp duty twice. Hence the excess stamp duty paid on document No.2014/62 may be refunded to him.

28. Section 33 of the Stamp Act provides that any officer before whom any instrument chargeable with duty is produced and it appears that such instrument is not duly stamped, he can impound the same. Section 35 of the Act says that no document, which is not properly stamped, shall be admitted in evidence for any purpose. We are not concerned with the question of admissibility of the document in this case. Under Section 38, the person impounding the instrument under Section 33, shall send the document to the Collector stating the amount of duty and penalty levied in respect thereof. Section 40 provides that if the Collector receives any document under Sec. 38 sub-section (2) and if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of proper stamp-duty and penalty.

29. Now in this case such excess stamp duty was demanded and penalty was levied on the second document. Section 45 of the Stamp Act runs as follows:--

'45. (1) Where any penalty is paid under Section 35 of Section 40, the Chief Controlling Revenue Authority may, upon application in writing made within one year from the date of payment, refund such penalty wholly or in part.

(2) Where, in the opinion of the Chief Controlling Revenue Authority, stamp-duty in excess of that which is legally chargeable has been charged and paid under Section35 or Section 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess.'

30. The Chief Controlling Revenue Authority here is the Board of Revenue. It has got power wherever stamp duty in excess of that, which is legally chargeable, has been charged and paid under Section35 or 40, and it may, upon an application made within three months, order the refund of the excess. In this case the excess stamp-duty has been demanded under Section 40 on the second document. There is therefore power in the Collector to order refund only the excess stamp duty paid on the second document, that is permissible under the provisions of this section. But the petitioner is not asking for that relief. Hence on the wording of Section 45 it does not appear that the petitioner can bring his case for refund under this section.

31. Section 49 of the Act also provides for allowance for spoiled stamps. It runs as follows:--

'49. Subject to such rules as may be made by the State Government as to the evidence to be required, or the enquiry to be made, the Collector may, on application made within the period prescribed in Section 50, and if he satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned namely:---

(a) to (c) xx xx xx xx

(b) the stamp used for an instrument executed by any party thereto which:--

(1) to (5) xx x xx xx

(6) becomes useless in consequence of the transaction intended to be thereby effected being effected by some other instrument between the same parties and bearing a stamp of not less value.'

In my opinion, the case of the petitioner can be brought under this provision. The first document has now become as a sale deed, as a transaction intended to be effected as a sale was effected validly by the second document. The second document is also between the same parties. It also been a stamp of not less value than the first document. On the other hand the stamp used for the second document is of more value than the stamp used for the first document. There is no other provision under this section, which disentitles the petitioner from claiming an allowance for the spoiled stamps as the first document as per Section 49. The only limitation provided by this section is that the application should be made as per the provisions of Section 50. Section 50 provides specific period only in the case of documents coming within clause (d) sub-clause (5) and there is no clear provision regarding the period of limitation in regard to documents coming within clause (d) sub-clause (6). The provisions of Section 50, sub-section (3) run as follows:

'Section 50. The application for relief under Section 49 shall be made within the following periods, that is to say:---

(1) and (2) xx xx xx xx

(3) in the case of a stamped paper in which an instrument has been executed by any of the parties thereto, within six months after the date of the instrument, or, if it is not dated, within six months after the execution thereof, by the person by whom it was first or alone executed:

Provided that (a) xx xx xx

(b) when, from unavoidable circumstances, any instrument for which another instrument has been substituted cannot be given up to be cancelled within the aforesaid period, the application may be made within six months after the date of execution of the substituted instrument.'

32. According to Section 50(3) second proviso, the application can also be made within six months after the execution of the substituted document. If the application of the petitioner is well within the time as per the provision, there is no reason why the refund contemplated by Section 49 should not be made to the petitioner. Even assuming that the application was not within that period, since the petitioner has been pursuing his remedy by challenging the order impounding the second document by means of a revise to the Board, a writ petition to the High Court and writ appeal and thereafter a reference under Section 56 of the Act, it can be taken that there is a bona fide prosecution of proceedings, which entitles him to ask for extension of the period within which he can ask for refund under that provision.

33. My answer therefore to the first portion of the point that is referred to it is, that the petitioner has a right to ask for refund of excess stamp duty paid by him on the document dated 12-6-1962, registered as document No. 2014 of 1962 under Section 49 of the Act.

34. Assuming that the above view is not correct, the next question is whether the petitioner is entitled to the refund otherwise? Elaborate arguments have been addressed on the question that the Chief Controlling Revenue Authority, that is the Board of Revenue in this case, has got ample powers to order refund of excess stamp duty paid in this case, which was not really due on a document executed as an agreement of sale in the first instance. A lot of case-law has been cited and elaborate arguments were addressed on the question as to whether the Revenue Board is a Court or tribunal and consequently if it is a Tribunal, whether it has got inherent powers to order refund of the excess stamp duty paid in this case.

35. On the first question whether the Revenue Board is a court or Tribunal, we have got authoritative decisions of the Supreme Court. In Bharat Bank v. Employees of Bharat Bank : (1950)NULLLLJ921SC Mahajan J., observed at page 202 in paragraph 40 as follows:--

'It was again urged by Mr. Alladi that the word 'Tribunal' was introduced in the article to provided for cases of 'Tribunals' like the Board of Revenue. The suggestion does not appear to be sound, because a revenue Board has all the attributes of a Court of justice and falls within the definition of the word 'Court' in matters where it adjudicates on rights of parties. The word 'tribunal' has been used in the previous legislation in a number of statutes and it is difficult to think that the Constitution when it introduced this word in Article 136 intended to limit its meaning to only these tribunals which though not described as Courts strictly speaking, were discharging the same or analogous functions as were being discharged by Courts.'

The view of the learned Judges was that as the Revenue Board has all the attributes of a Court of Justice, it falls within the definition of a Court in matters where it adjudicates on the rights of the parties. The subsequent decisions of the Supreme Court have treated the Revenue Board coming in proceedings under Section 56 of the Stamp Act as a Quasi Judicial Tribunal.

36. In Board of Revenue v. Vidyawati : AIR1962SC1217 , Wanchoo J., speaking for the court observed at page 1220 as follows:--

'It is clear therefore that Section 56(2) deals with cases where there is a doubt in the mind of the Collector in regard to as instrument which comes up before him under the provisions of the Act as to the construction of the instrument and the provisions of the Act applicable to it. Such doubt itself shows that the point raised for the Collector's decision is a difficult point of law and from the very nature of the duty to be performed in such circumstances it appears clear that the Chief Controlling Revenue Authority has to decide the matter judicially and would thus be a quasi-judicial Tribunal.'

37. In banarasi Dass v. Chief Controlling Revenue Authority, Delhi : [1968]1SCR685 their Lordships dealing with the application for reference involving substantial question of law, under Section 57(1) of the Stamp Act have observed that the Chief Controlling Revenue Authority is in a similar position as the Income-tax Tribunal under analogous provisions of the Income Tax Act.

38. Thus the latest view of their Lordships of the Supreme Court in regard to the Chief Controlling Revenue Authority is that it is a quasi-judicial Tribunal deciding cases judicially.

39. The distinction between a court and a Tribunal has been elaborately explained by Gajendragadkar, j., in Engineering Mazdoor Sabha v. Hind Cycles ltd. : (1962)IILLJ760SC ; at page 878 the learned Judge observed as follows:--

'The expression a 'Court' in the technical sense is a Tribunal constituted by the State as a part of ordinary hierarchy of courts which are invested with the State's inherent judicial powers. The Tribunal as distinguished from the Court, exercises judicial powers and decides matters brought before it judicially or quasi-judicially, but it does not constitute a Court in the technical sense. The Tribunal, according to the dictionary meaning is a seat of justice; and in the discharge of its functions, it shares some of the characteristics of the Court. A domestic Tribunal appointed in departmental proceedings, for instance, or instituted by an industrial employer cannot claim to be a Tribunal under Article 136(1). Purely administrative Tribunals, are also outside the scope of the said Article. The Tribunals which are contemplated by Article 136(1) are clothes with some of the powers of the Courts. They can compel witnesses to appear, they can administer oath, they are required to follow certain rules of procedure; the proceedings before them are required to comply with rules of natural justice, they may not be bound by the strict and technical rules of evidence, but nevertheless, they must decide on evidence adduced before them, they may not be bound by other technical rules of law, but their decision must, nevertheless, be consistent with the general principles of law. In other words they have to act judicially and reach their decisions in an objective manner and they cannot proceed purely administratively or have their conclusions on subjective tests or inclinations. The procedural rules which regulate the proceedings before the Tribunals and the powers conferred on them in dealing with matter brought before them, are sometimes described as the 'trappings of a Court' and in determining the question as to whether a particular body or authority is a Tribunal or not sometimes a rough and ready test is applied by enquiring whether the said body or authority is clothed with the trappings of a Court.'

The learned single Judge also referred in the decisions in Durga Shankar v. Raghuraj Singh : [1955]1SCR267 and Harinagar Sugar Mills v. Shyam Sunder : [1962]2SCR339 besides referring to the observations made in Bharat Bank v. Employees of Bharat Bank : (1950)NULLLLJ921SC . Again the same learned Judge held in Indo China Steam Navigation Co., v. Jasjit Singh : 1964CriLJ234 what are the trappings of a Court; for instance it was mentioned that the right of the Tribunal to compel witnesses to appear before it and administer oath to them, that it was required to follow certain rules of procedure or to comply with the rules of natural justice or the fact that the Tribunal was required to deal with the matters before it fairly, justly and on the merits and not be guided by subjective considerations, and held that these are all indicative of the trappings of the Court, which are required to show that it should adopt judicial or quasi-judicial approach. Apart from these tests of trappings another test of importance is whether the body or authority has been constituted by the State Government and the State has conferred on it, its inherent judicial power. If these tests are satisfied then it is a Tribunal disposing of the matters judicially.

40. In A.C. Companies v. P.N. Sharma : (1965)ILLJ433SC the learned Judge again followed this decision and laid down the same principles. It can therefore fairly be taken to be well settled now that the Chief Controlling Revenue Authority, i.e. the Board of Revenue in this case, is a quasi-judicial Tribunal and is required to act judicially.

41. The next question that arises for our consideration is whether in the exercise of this judicial power it has not inherent powers to order refund in this case. The State has got inherent judicial powers, which are delegated to courts and the Tribunals. The Courts and Tribunals being the creatures of the State, also have got inherent powers. Section 151 C.P.C. gives, in addition, certain inherent powers to the Courts in the following terms:--

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

42. It was held by their Lordships of the Supreme Court in Manmohan Lal v. Hiralal : AIR1962SC527 that it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duly to do justice between the parties before it.

43. There is therefore clear authority that the courts have got inherent powers apart from the powers conferred upon the by Section 151 C.P.C. In the case of Tribunals which are also creatures of the State to deal with specific and special matters and on whom some of the inherent judicial powers of the State are conferred, it would stand to reason and would not be opposed to any principles of law or public policy if we hold that such tribunals also have inherent powers to pass orders in the ends of justice.

44. In R.C. 23 of 1969 (Andh Pra.) their Lordships K.V.L. Narasimham, C.J., and Kuppuswami J., considered the question whether the Income tax Appellate Tribunal had power to set aside an ex parte decree. There is no provision in the Act or rules for such a situation. Their Lordships on an elaborate consideration of the entire position held that the Tribunal has got inherent powers to set aside an ex parte decree passed on merits, if it is of the opinion that the appellant has just cause for non-appearance. The reasoning given by the learned Judges is as follows :---

'The very basis of recognising inherent powers in a Court is that the law cannot make express provisions to suit all cases and it is the duty of a Judge to take care to see that justice is done. For instance, it is recognised at one of the highest duties of the Court to see that the acts of the Court do not cause injury to any of the suitors. Therefore, if a court or a tribunal makes a clerical mistake, it should have the power to correct its own mistake. Similarly, when a fraud has been played upon a court or Tribunal and a decision has been obtained the court or Tribunal should have power to intervene and set aside the decision which has been obtained by fraud. Again if a decision has been rendered without notice at all the parties or otherwise opposed to the principles of natural justice, it should be open to the Tribunal to set aside its order. Similarly, it would have inherent powers to pass orders for the proper disposal of the appeal, even though no specific provision is made in the Act or the rules regarding the same. In Martin Burn Ltd., v. R.N. Banerjee : (1958)ILLJ247SC it was held that the Labour Appellate Tribunal has jurisdiction to set aside an ex parte order and restore the appellant's application to its file.'

After citing this decision their Lordships say as follows:

'From this decision it is clear that the Supreme Court recognised that a Tribunal has inherent powers to set aside an ex parte order for the ends of justice.'

Reference was also made to the decisions in Sub Divisional Officer v. Srinivasa : [1966]2SCR970 .

45. The various instances, where such inherent powers can be used, cannot be exhaustively mentioned. It depends upon the circumstances. In this particular case the petitioner has paid stamp duty twice for the same transaction. The State Government is not entitled to collect stamp-duty twice for the same transaction. The liability of the petitioner under the Stamp Act is only to pay stamp-duty once under Section 17 of the Act. If in such a situation excess stamp-duty has been paid, either by mistake or as a voluntary payment, without knowing the consequence, the citizen should not be penalised for such an excess payment. The State Government cannot in fairness retain the amount so paid for a transaction which was near in existence. It also amount to unjust enrichment on the part of the State. The Chief Controlling Revenue Authority opined that the stamp-duty has been paid by mistake on the first document, though it was considered to be an agreement for sale. It was therefore eminently a fit case in which the Chief Controlling Revenue Authority should direct the refund of excess stamp-duty paid by a citizen, which the State was not entitled to retain any more as proper stamp-duty has been paid on the second document which was considered as a sale deed.

46. In this view my answer to the second portion of the reference is that the Chief Controlling Revenue Authority has also got inherent power to order refund of excess stamp-duty paid in such circumstances, as this, wherein the State cannot in fairness retain in its hands the stamp-duty paid on a document either voluntarily or un-intentionally or by mistake.

47. In the above view, I express my inability to accept the view pronounced by my learned brothers and dissent from the same.

Xx xx xx xx x

48. Punnayya, J.

I have had the advantage of perusing the separate and different judgments prepared by my learned brothers Kondaiah, J., and Venkatarama Sastry, J. I find myself in full agreement with the conclusions arrived at and the reasons assigned therefor by Kondaiah J.

49. However, I wish to add the following few liens. The petitioner is claiming refund of the excess stamp-duty paid by him voluntarily on the first document. Section 45(2) of the Stamp Act is the only provision which deals with the refund of excess stamp duty. The power conferred upon the Chief Controlling Revenue Authority is circumscribed by the circumstances mentioned therein. Unless and until the excess stamp-duty has been charged and paid under Section35 or Section 40, the said authority also is not competent to refund excess stamp-duty. There is no other provision either in the Act or the rules made thereunder to exercise such power. Section 39 invests the Collector to refund penalty paid under sub-section (1) of Section 38, whereas the Board of Revenue can refund penalty by virtue of its specific powers under Section 45(1). Sections 39 and 45(2) empower the District Collector and the Board of Revenue respectively to refund penalty if the conditions specified therein are satisfied. We are not concerned with the case of refund of penalty. Section 49 provides for allowance for spoiled stamps. It is the Collector alone that is competent under Cls (a) to (d) of Section 40. Special power has to be given in the manner specified therein. The Collector is not invested with suo motu power to make allowance for spoiled stamps. But he can exercise the power only on the application made to him within the period of limitation prescribed therefor in Section 50. Further, the Collector has to make such enquiry as necessary and subject to the rules made for conducting evidence or enquiry if necessary. He must exercise only if he is satisfied as to the facts, otherwise not. Section 49 is not applicable to a case where stamp-duty has been paid in excess voluntarily or by mistake of law by a citizen. Section 49(d)(6) deals with a case of an instrument which becomes useless in consequence of the transaction intended to be thereby effected by another document between the same parties and bearing the stamp-duty of not less value. This provision also is not applicable to the case on hand. The first document which is found to be an agreement of sale has not become useless in consequence of the execution of the regular sale deed i.e. the second document. The provision of Section 49(d) are controlled by the proviso. It may be noticed that, no legal proceedings should have been commenced in which the document could and would have been offered in evidence and that the document is given up as cancelled. Unless the provision of the proviso are satisfied, Section 49(d) cannot be said to have been attracted. In this case, the first document is not given up as cancelled. It is still valid and operative document. There is another obstacle for the application of Section 49 to the case on hand. There should be an application by the petitioner for claiming allowance and relief for spoiled stamps under Section 49 and such application must be made to the Collector within six months after the date of the execution of the first document. Admittedly there is no application to the Collector under Section 49. Therefore, the provisions of Section 49(d)(6) would not come to the aid of the petitioner. The petitioner is not entitled to the relief of refund under the provisions of the statute.

50. Sri T. Ramakrishna Rao, learned counsel for the petitioner, has, therefore not relied upon any of these provisions of the Stamp Act in his claim for refund. But he strenuously contends that the Board of Revenue being Tribunal for adjudicating the matters relating to the Stamp Act has inherent power to pass orders for refund.

51. It is true that the functions and duties of Tribunals like the Industrial Tribunal are very much like those of a body discharging judicial functions. It is also true that these Tribunals, whether domestic or quasi-judicial act judicially and reach their decisions in an objective manner and their decisions must be consistent with the general principles of law and they cannot proceed administratively or base their conclusions on subjective considerations and they can exercise powers to compel witnesses to appear and administer oath and they are required to follow certain rules of procedures or to comply with the rules of natural justice (Vide Engineering Mazdoor Sabha v. Hind Cycles Limited : (1962)IILLJ760SC and Indo-China Steam Navigation Company v. Jasjit Singh : 1964CriLJ234 . It is also true that the Tribunals are clothed with many of the trappings of the Court while adjudicating upon the matters referred to them. But yet they cannot be held to have been vested with the inherent powers. Unless the statute under which the Tribunal is constituted confers expressly on the Tribunal is constituted confers expressly on the Tribunal that it can exercise the inherent jurisdiction of Courts mentioned in Section 151 of Civil P.C. as in the case of Registrar under Bihar and Orissa Co-operative Societies Act (Vide Jugal Kishore v. Sitamarhi Central Co-operative Bank, : 1967CriLJ1380a ), the tribunal cannot exercise inherent powers as that of a Court of Judicature. In fact it is by virtue of exercising this inherent power that a court of judicature is held to be distinct and different from the Tribunal. Hence the Board of Revenue has no inherent power to order refund.

xx xx xx xx xx

52. ORDER:-- In view of the majority opinion, the answer to the question is in the negative and against the petitioner. There shall be no order as to costs. Advocate's fee is fixed at Rs.250/-.

53. Reference answered in favour of revenue.


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