1. This writ petition is preferred against an endorsement of the Revenue Divisional Officer, Guntur, dated 2-3-1981, informing the petitioner that he is not competent to revise the orders passed by the learned Subordinate Judge, Guntur, who had impounded certain documents produced by the petitioner hi a suit, and which were sent to the R. D. O. The writ petition arises in the following circumstances:--
2. Petitioner is the plaintiff in O. Section No. 17 of 1979, on the file of the learned Principal Subordinate Judge, Guntur. While P.W.2 was being examined on his behalf, the petitioner (plaintiff) wanted to have three documents admitted in evidence through P. W. 2. Immediately thereupon, an objection was raised by the defendants about the admissibility of the documents under the provisions of the Stamp Act. It appears that the Court, thereupon, sent the original documents to the Collector (Revenue Divisional Officer, Guntur), for impounding the same. The R. D. O., however, returned the documents to the Court stating that, according to law, the documents have to be impounded first by the Court before which they are produced and then sent to the Collector and that, therefore, the documents may be impounded first and then sent to him. Accordingly, the Court impounded the documents and determinedthe stamp duty and penalty payable thereon. The petitioner (plaintiff), instead of paying the duty and penalty and getting the documents admitted in evidence, filed a petition stating that the documents may be sent to the Collector, under Sub-section (2) of Section 38. The original documents were, accordingly, sent to the Collector (R. D. O.). Before the R. D. O., the petitioner applied for ascertainment of the stamp duty and penalty leviable thereon. It is on that application that the 1st respondent (Revenue Divisional Officer, Guntur) made the impugned endorsement.
3. Mr. A. L. Narayana Rao, the learned counsel for the petitioner, contends that the view taken by the 1st respondent in the impugned Memo is not sustainable in law. And I am inclined to agree with him. It is necessary to refer to the relevant provisions of the Stamp Act for this purpose.
4. Sub-section (1) of Section 33 of the Act says that every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, shall, if it appears to him that an instrument produced before him is not duly stamped, impound the same. Sub-section (2) makes clear what the 'impounding' means and signifies. It says that, for the purpose of impounding, such person shall examine the instrument to ascertain whether it is duly stamped in accordance with the law obtaining at the time of its execution. Section 35 says that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, nor shall it be acted upon or registered, or authenticated by any such person or by any public officer, unless it is duly stamped, Proviso (a) to this section says that any such instrument can be admitted in evidence on payment of duty with which it is chargeable, ns also penalty, which shall be ten times the duty payable, or the deficit duty payable, as the case may be.
5. Sub-section (1) of Section 38 then says that when the person or Court impounding a document under Section 33. admits such instrument upon payment of penally as provided in Section 35, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied, and also send the amount to him. Sub-section (2) says that in every other case, the person impounding a document shall send the original to the Collector. Since Sections 38 and 40 are crucial to the decision of thiscase, it would be appropriate to set out these sections in full:--
'38. Instruments impounded how dealt with: (1) When the person impounding an instrument under Section 33' has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original, to the Collector.'
'40. Collector's power to stamp instruments impounded: (1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under Section 38. Sub-section (2), not being an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note, he shall adopt the following procedure:--
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penally of live rupees; or if he thinks fit an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees:
Provided that, when such instrument has been impounded, only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks tit, remit the whole penalty prescribed by this section.
(2) Every certificate under Clause (a) of Sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under Section 38, Sub-section (2) the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer'.
6. A reading of Sections 33, 35, 38 and 40, makes the following position clear : if a document not duly stamped comes before a Court, or any person empowered by law or by consent of parties to receive evidence, the Court (or such person) shall have to impound the same. The Court or such person, as the case may be, can admit the document in evidence on payment of the duty and penalty, mentioned in proviso (a) to section 35, If the document is so admitted, an authenticated copy thereof together with a certificate in writing, along with the amount collected, shall be sent to the Collector by the Court, or the person, as the case may be. Sub-section (2) of Section 38, however, gives an option to the person concerned to apply to the Court or such person, as the case may be, to send the original document to the Collector. In other words, if the person concerned is not satisfied with the decision of the Court on the nature of the document, or with respect to the amount of duty and penalty payable thereon, he can apply to the Court for sending the original document to the Collector, which necessarily means that the document will not be admitted in evidence at that stage.
Once the original document is sent to the Collector under Section 38(2), the Collector has to follow the procedure prescribed by Section 40. Clauses (a) and (b) of Sub-section (1) of Section 40 make it clear that it is for the Collector to decide what is the proper duty payable thereon, and whether and what penalty should be levied thereon. Clause (a) makes it clear that the Collector may come to the opinion that the document is duly stamped, or is not chargeable with duty; and if he comes to that opinion, he shall certify to that effect, which is declared to be conclusive evidence by Sub-section (2) of Section 40. Clause (b) of Sub-section (1) further makes it clear that the Collector can form his own opinion as to the proper duty payable, and also the penalty to be levied thereon.
7. In the face of the clear language of Clauses (a) and (b) of Sub-section (1), it is not possible to agree with the view taken by the Revenue Divisional Officer (Collector) that, since the Court has already determined the duty and penalty leviable on the documents, it is not competent for the Collector to go into that question again. The Act makea it clear that in cases where the document (which means, the original document) is sent to the Collector under Sub-section (2) of Section 38, it is for the Collector to form an opinion about the duty payable and the penalty leviable thereon. After collecting the duty and penalty, if any, he shall have to send back the document to the Court or the person, vide Sub-section (3) of Section 38. The position, however, is different where the document is dealt with under Sub-section (1) of Section 38, i.e., where the Court admits the document after collecting the duty and penalty, if any, which according to it, is, leviable thereon.
In such a case, the Collector cannot sit in judgment over the determination made by Court regarding the duty and penalty payable. In fact, in such a case, the original document does not come before him at all; it remains in the custody of the Court, and as a part of the record of that case. Only a copy of the document and the amount collected by way of duty and penalty is sent to the Collector. In such a case, two courses are open to him. One is the course provided by Section 39. He can, in his discretion, refund the penalty, partly or wholly, as provided by that section: the second is to adopt the course indicated in Section 61. Section 61 provides that if the Collector is of the opinion that the duty and penalty collected by Court is not in accordance with law and that, it ought to have been more, he can apply to the higher Court (indicated in the section), which will go into the matter. If such Court decides that a lesser amount has been collected, it can impound the document, determine the proper duty and penalty payable thereon, and send it to the Collector for collection of the amount.
8. Ordinarily, one would think that it would not be proper or desirable to allow the Collector to go into the nature of the document, or into the amount of duty and penalty payable, once the very same matter has been adjudicated by the Court. But, in view of the specific language of Sub-section (1) of Section 40, it is not possible to hold that the decision of the Court is conclusive and binding upon the Collector where the document is sent to him under Section 38(2). Probably, the reason behind Sub-section (1) of Section 40 is that, since the matter pertains to the revenue of the State, it is the Collector who must have the final say where the original document is sent to him under Sub-section (2) of Section 38.
9. As pointed out by Ramachandra Raju, J., in B. V. R. Reddy v. Adoni Cooperative Central Stores Ltd., : AIR1975AP96 , the Court cannot compel a party, producing a document, to pay the duty and penalty as assessed by it and have the document admitted in evidence. It is for the party to choose Whether to have thedocument admitted on payment of the duly and penalty as assessed by the Court, or to apply to the Court to send the document to the Collector under Section 38. Once the document is sent to the Collector under Section 38(2), it has to be dealt with in accordance with Section 40, as already explained above. But, at the same time, 1 must clarify that a party who applies for sending the document to the Collector under Section 38(2) cannot, at the same time, ask the Court to stay the trial of the suit pending decision of the Collector under Section 40. The Collector, no doubt, will send back the document under Sub-section (3) of Section 40; but, the Court need not stay the trial awaiting the orders/action of the Collector either under Sub-section (1) or Sub-section (3) of Section 40.
10. I am, therefore, of the opinion that the Revenue Divisional Officer was in error in holding that he is not competent to decide the proper duty and penalty, if any, payable on the documents in question. He is obliged to do so under Clause (b) of Sub-section (1) of Section 40 and, accordingly, he has to be directed to do so.
11. Mr. A. Hanumantha Rao, the learned counsel for the 2nd respondent, relied upon a decision of this Court in Balaji Chit Fund v. B. Satyanarayana, (1967) 2 Andh WR 268, in support of his contention that once the Court determines the duty and penalty payable, the Collector cannot again go into the same question. But, I find that the said decision does not help the learned counsel in this case. That was a case where the duty and penally was assessed and collected by the Court as contemplated by subsection (1) of Section 38. Subsequently, the Court-fee Examiner raised an objection that the document calls for further duty and penalty. The learned Munsif, thereupon, directed -- following a Full Bench decision of the Hyderabad High Court -- that the document in original be sent, under Section 38(2) of the Act, to the Collector for adjudication by him in accordance with the provisions of the Act. It was that order which was challenged before this Court. The learned Judge held that, inasmuch as in the case of the document concerned therein, duty and penally was assessed and collected as contemplated by Sub-section (1) of Section 38 and the document admitted in evidence, the Collector can have no power to go into the same question over again, though in his discretion he may grant a refund under Section 39 of the Act,
In my opinion, the principle of the said decision has no application here. This isnot a case, where the plaintiff has paid the amount of duty and penalty as assessed by the Court, so as to attract Sub-section (1) of Section 38. Unless the duty and penalty as determined by the Court is paid, Sub-section (1) of Section 38 is not attracted; and once Sub-section (1) is not attracted, it is Sub-section (2) under which action has to be taken. The mere fact that before calling upon the party, the Court determines the duty and penalty payable, does not mean that Sub-section (1) of Section 38 is attracted. Sub-section (1) will be attracted -- as already indicated above --only where the party concerned pays the duty and penalty as determined by the Court and gets the document admitted in evidence. Since this has not been done in the present case, it is Sub-section (2) of Section 38 that applies and, as a matter of fact, the original documents were also sent to the Collector in this case, which necessarily means that the action taken was under Section 38(2) alone. If so, the Collector has to proceed under Section 40, and determine the duty and penalty, if any, payable on the documents, and take further steps as provided by Section 40.
12. The writ petition is, accordingly, allowed and the Revenue Divisional Officer is directed to determine the nature of the documents and the duty and penalty, if any, payable thereon as contemplated by Sub-section (1) of Section 40, and after collecting the same, send the documents back to the Court, as contemplated by Sub-section (3) of Section 40. It is, however, made clear that the suit need not wait for the orders of the Collector (R. D. O.). Since the plaintiff has not chosen to pay the duty and penalty as determined by the Court and have the documents admitted in evidence, he is not entitled to seek the stay of the suit. The suit and other connected proceedings shall go on according to law, without waiting for the return of the documents from the Collector (R. D. O.). If, however, the documents are received from the R. D. O., as contemplated by Sub-section (3) of Section 40, before the disposal of the suit, they shall be dealt with and considered according to law, and subject to proof and relevancy.
13. There shall be no order as to costs in this writ petition. Advocate's fee: Rs. 100/-.