1. This application for the issue of a writ of certiorari or Mandamus, as the case may be, raises the question whether the Assistant Registrar of Joint stock Companies had exercised his jurisdiction properly in impounding the document land adjudicating the stamp duty thereon. The petitioner entered into an agreement on 21-3-1954 with Raka Corporation Ltd., Madras, a private limited company registered under the Indian Companies Act 1913, agreeing to appoint the latter as its sales agent and sole distributors on certain terms, which it is unnecessary for the purposes of this writ to consider.
Pursuant to Sections 109 and 277 of the Companies Act, the particulars of the intending charge which the agreement created were furnished to the Assistant Registrar, Eluru, West Godavari District. The agreement dated 21-5-1954 was also sent to him as per his direction. The Assistant Registrar required particulars of She transactions and in reply to his reference dated 6-7-1954, the applicant submitted that as a sale agency agreement, stamp duty was payable under Article 4 of the Schedule I-A, as such it was duly stamped with Rs. 1-8-0.
In further reply to his reference dated 5-8-1954 the Assistant Registrar was also informed that no possession, of goods was given or intended to be given by the agreement in question. The Assistant Registrar thereafter communicated to the Applicant the order that
'the document is a hypothecation of moveables for Rs. 50,000/- falling under Article 33 of Schedule I-A of the Indian Stamp Act 1899. The document is therefore chargeable with a stamp duty of Rs. 750/-. But since the document bears a stamp duty of Rs. 1-8-0, only, the company is directed to pay the deficit stamp duty of Rs. 748-8-0 and a penalty of Rs. 5/- and report the name and address of the payer.'
In a subsequent order dated 27-11-1954 from the Assistant Registrar to the Company in answer to the representation contained in the letter dated 2-5-11-1954 stating that it had consulted their legal adviser who had advised that the document in question is not a mortgage and only a sales agency agreement requiring a stamp of Rs. 1-8-0, it was stated that the Assistant Registrar had consulted the Inspector General of Registration to whom the matter was sent for authoritative opinion and that he had in his proceedings 473 GI, dated 2-9-1954ordered that the document should be classified as a hypothecation of moveables and that the document treated as deficiently stamped has been impounded under the provisions of Stamp Law and consequently the Registrar directed the deficit stamp duty to be paid.
2. The order of the Assistant Registrar is challenged on the ground that (a) under the Stamp Act he had no authority to adjudicate and demand payment; all that he can do under Article 35 was to impound the document and send it to the Collector, (b) if it is held that the Assistant Registrar was the Collector and he felt n doubt, he was not authorised to consult the Inspector General of Stamps under Section 56(2) as he was not the Chief Controlling Revenue Authority within, the moaning of Section 3(10) of the General Clauses Act, and (c) that the applicant was not given an Opportunity to represent his case. Having regard to these submissions learned advocate for the applicant contends that the order is one without jurisdiction and therefore must be quashed.
3. The 1st respondent in his counter stated that the Assistant Registrar and Registrar of Companies. Andhra State, are competent to impoundand adjudicate the document by virtue of the powers delegated to them under the Board Resolution No. 1818 dated 29-11-1945, that the Assistant Registrar was competent to impound and adjudicate the document as the powers of the Collector under Section 38(2) were delegated to the District Registrars who were appointed Ex-Officio Assistant Registrars of the Joint Stock Companies.
Further it was contended that the Inspector General of Registration was competent to pass orders in view of B. P. Misc. 340 dated 1-3-1946 and Board Resolution No. 1818 dated 29-11-1945. It was also stated that by virtue of powers conferred under Section 2(9) the State Government had delegated the power under the Stamp Act to the Board of Revenue in G.O. 2911, Separate Revenue, dated 6th October, 1914, under which the following Officers have been appointed as Collectors in respect of the powers conferred under Section 2(9) of the Stamp Act within the limits of their respective jurisdictions:
All Tahsildars, Deputy Tahsildars in independent charge and the Assistant Tahsildar of Trichinopoly; all registering officers appointed under Act III of 1877 and all District Registrars, all Sub-Collectors, Head Assistant Collectors and Deputy Collectors who are First Class Magistrates in charge of divisions. For the aforesaid reasons it was contended that the Ex-Officio Assistant Registrar of Joint Stock Companies did not act without jurisdiction, nor was he in error in referring the matter to the Inspector General of Registration.
It was further contended that the applicant was given an opportunity as is shown by the correspondence between the applicant and the Assistant Registrar and the allegation in this behalf by the applicant was untenable.
4. In order to appreciate these contentions it is necessary to examine the following provisions of the Stamp Act,
2 (9) 'Collector'
(a) means within, the limits of the towns of Calcutta, Madras and Bombay, the Collector of Calcutta, Madras and Bombay respectively and without those limits the Collector of a district; and
(b) includes a Deputy Commissioner and any Officer whom the State Government may, by notification in the Official Gazette, appoint in this behalf;
33(1) 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 a police, before whom any instrument, chargeable, in his opinion, with duty is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
38 (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 (hereof, 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. (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 of one and a half annas, one anna or half an anna only or a mortgage of crop (Article 34 (a) of Schedule 1-A) chargeable under Clauses (aa) or (bb) of Section 3 with a duty of four annas 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 penalty of five 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 fit, remit the whole penalty prescribed by this Section.
(2) Every certificate under Clause (a) of Subsection (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.
56. (1) The powers exercisable by a Collector under chapter IV and Chapter V and under Clause (a) of the first proviso to Section 26 shall in all cases be subject to the control of the Chief Controlling Revenue Authority.
(2) If any Collector, acting under Section 31, Section 40 or Section 4, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue Authority.
(3) Such authority shall consider the case and send a copy of its decision to the Collector, who shall proceed to assess and charge the duty (if any) in conformity with such decision.
5. It would appear from the above provisions that a person in charge of a public office, or the Collector himself, apart from the person having by law or consent of parties, the authority to receive evidence, can impound a document which is produced before or comes to him in the performance of his functions, if it appears to him that such instrument is not duly stamped, After impounding the document, if he is any person other than the Collector or a person empowered to receive evidence, he should send it in the original to the Collector.
The Collector under Section 33, either with respect to the instrument impounded by him or received by him as aforesaid, subject to the exceptions specified in Section 40, has to adopt the procedure set out in Clauses (a) and (b) of Section 40 that is, if in his opinion the instrument is not chargeable with the duty or has been duly charged he will certify that the same is duly stamped or that it is not chargeable, as the case may be, and if the instrument is chargeable with duty and is not duly stamped he shall require the payment of proper duty or the amount required to make up the same, together with a penalty of five rupees or ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees.
I am not in this case concerned with the proviso to Section 40 (1) (b). In the case of an instrument impounded and sent to the Collector under Sub-section (2) of Section 38, the Collector under Sub-section (3) of Section 40 returns the same to the impounding officer if he has dealt with it as provided in Section 40. In case the Collector has any doubt as to the amount of duty chargeable on the instrument, he can draw up a statement of case and refer it with his opinion thereon for the decision of the Chief Controlling Revenue Authority, which under Section 3(10) of the General Clauses Act in the States having a Board of Revenue is the Board; and such authority shall then consider the case and send a copy of its decision to the Collector who shall proceed to assess and charge the duty in conformity with such decision. Vide Section 56(2) and (3).
Further, the Chief Controlling Revenue Authority under Section 57 in cases referred to it under Section 56 or otherwise coming to its notice has been vested with the power to refer such cases with its own opinion to the High Court and the High Court under Section 57 will adjudicate upon the matter. This, in short, is the scheme of the above referred provisions.
6. It may further be stated that Section 2(9) of the Stamp Act defines a Collector as including Deputy Commissioner and any officer whom the collecting Government may, by notification in the Official Gazette, appoint in this behalf. The State Government has delegated the power to appoint Collectors under the Act to the Board of Revenue under G. O. 2911. Separate Revenue. Dated 6th October, 1914. The Board pursuant to the delegated powers has by resolution No. 1818 dated 29-11-1945 appointed the District Registrars as Ex Officio Assistant Registrars of the Joint Stock Companies under the Indian Companies Act. There is therefore no question of the District Registrars who were acting as Ex Officio Assistant Registrars of Joint Stock Companies not being empowered toexercise the powers vested in the Collector underthe provisions of the Stomp Act and it is in exercise of these powers that the document in question was impounded.
The only question therefore is whether the Ex Officio Assistant Registrar of Joint Stock Companies followed the procedure laid down by the provisions of the Stamp Act. In my view, this procedure has not been followed. Admittedly the document was referred to the Inspector General of Registration, because the Ex Officio Assistant Registrar seems to have entertained a doubt as to the nature of the document and the article under which the stamp duty is leviable thereon. Once he entertains a doubt in this behalf, he was bound to refer the matter with his opinion thereon for the decision of the Chief Controlling Authority which in this ease is the Board of Revenue.
This he did not do; but instead, referred the matter to the Inspector General of Stamps and Registration and acted upon his decision. There appears to be no power in the Act, at any rate nothing has been brought to my notice, under which the powers of the Chief Controlling Authority could be delegated to the Inspector General or to any other person nor has the State Government purported to delegate the same. Learned Government Pleader has drawn my attention to notification B. P. Misc. No. 340 dated 1-3-1946 which is in the following terms:
'Page 8: Note 2 under Section 2 insert thefollowing as item 6: the Assistant Registrar of JointStock Companies Madras City and the PersonalAssistant to the Inspector General of Registration.'
31. 32. 38 (2), 40, 41, 42, 48 and 56.
7. The delegation of powers, however, is under Section 2(9) and the Personal Assistant to the Inspector General of Registration has only been vested with the powers of a Collector for the purposes of the sections specified therein. In my View therefore, the Ex Officio Assistant Registrar did not exercise his jurisdiction vested by law in adjudicating on the proper stamp duty leviable on the document under the provisions of the Stamp Act. He also acted in excess of jurisdiction by referring to an authority which is not legally vested with the decision in the matter and in acting on that decision.
8. For these reasons this writ petition is allowed with costs and the order of the Ex Officio Assistant Registrar dated 27-11-1954 is quashed Advocate's fee Rs. 100/-.