1. The material question is whether an affidavit, where the deponent swears and not affirms, requires a stamp duty of Re. 1/-/- as prescribed in Article 4 of Schedule I-B of the Stamp Act, as amended by the U. P. Taxation Laws Amendment Act, 1969 (U. P. Act No. XI of 1969). Amended Article 4 runs as below:--
'Affidavit, including an affirmation or declaration in the case of persons by law allowed to affirm or declare instead of Swearing--
(a) for the immediate purpose of being filed or used in any Court or before an officer of any Court ..... One Rupee;
(b) in any other case ..... Four Rupees and fifty paise.
Exemptions -- Affidavit or declaration in writing when made--
(a) as a condition of enrolment under the Army Act, 1950, the Air Force Act, 1950 or the Navy Act, 1957, or
(b) for the sole purpose of enabling any person to receive any pension or charitable allowance.';
It shall be found that prior to the amendment affidavits made for the immediate purpose of being filed or used in any Court or before an officer of any Court were exempted from duty; but as a result of the amendment, such affidavits are chargeable with stamp duty, though the rate prescribed is lower than for other affidavits.
2. It is contended before us that the U. P. Taxation Laws Amendment Act, 1969, in so far as Article 4 of Schedule I-B is concerned, is beyond the competence of the State Legislature and hence is invalid; and secondly, that Article 4 cannot apply to affidavits where the deponent has sworn the contents thereof.
3. The material provisions of the Seventh Schedule of the Constitution are Items 91 and 97 of List I Union List; Item 63 of List II State List; and Item 44 of List III Concurrent List. Item 91 of List I and 63 of List II speak of 'rates of stamp duty.' Consequently the State Legislature has the power to amend the rates of stamp duty in respect of documents other than those specified in Items 91 of List I. Naturally, under Item 63 the State Legislature can merely vary the rates of stamp duty on documents which under the Central law are chargeable with stamp duty, and it cannot impose stamp duty on a document not covered by the Central law.
4. Item 44 of List III runs as below:--
'Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty.'
This Item clearly excludes 'rates of stamp duty', that is, matters falling under Item 91 of List I and 63 of List II. The expression 'stamp duties' is a general one and shall empower the State Legislature to amend or modify, in accordance with, the provisions of the Constitution, the Stamp Act so as to make other documents also chargeable with stamp duty. Item 44, however, excludes such, matters where the duty or fee is to be collected by means of judicial stamps. Judicial stamps are often called court-fee stamps. The exception is in respect of duties or fees collected by means of judicial stamps only, and not of documents on which, such duty or fee by means of judicial stamps is payable. The State Legislature, therefore, has the power to impose stamp duty on a document in addition to court-fee. However, such, a law shall not prevail in the State unless reserved for the consideration of the President and has received his assent (vide Article 254(2) of the Constitution). The U. P. Taxation Laws Amendment Act, 1969, received the assent of the President on September 28, 1969 and under Notification No. AST-4034/X-556(1)-69 dated September 30, 1969 came into force on October 1, 1969. The Amendment Act is thus a valid piece of legislation and it became operative from the above date.
5. To understand the scope of Article 4 of Schedule I-B of the Stamp Act, it shall be proper to make a reference to the definition or scope of 'affidavit' as contained in the various enactments or rules. The term 'affidavit' has been defined in Section 4 (3) of the U. P. General Clauses Act to 'include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing'. As shall be evident from Section 6 of the Oaths Act, 1873, 'making an oath' is a general rule and the making of a declaration by affirmation is an exception, applicable only to Hindus or Muhammadans, or persons having an objection to making an oath. When the making of a statement on oath is a rule, and not an exception an affidavit shall ordinarily be a document in which, facts are stated on oath; but because Section 6 of the Oaths Act permits a person to make a statement by affirmation, and not necessarily on oath, even an affidavit where facts are affirmed shall be an affidavit.
6. Under Section 7 of the Oaths Act, the High Court has the power to prescribe the forms of oaths and affirmations. In so far as affidavits are concerned, the forms have been prescribed in Chapter IV Rule 17 of the Rules of Court, 1952. Rule 21 thereof also clarifies that an affidavit includes a petition or other documents required to be sworn and 'sworn' shall include 'affirmation'.
7. At this place it may also be observed, though it is not necessary to express a final opinion, that by virtue of Rule 21 'affidavit' shall not only be a document bearing the heading of an affidavit but also a petition or other document requiring to be sworn or affirmed.
8. From the above it shall be clear that an affidavit is a document which is either sworn or affirmed by the deponent. Ordinarily the affidavit is to be sworn, and not affirmed, but Hindus or Muhammadans, or persons having an objection to making a statement on oath, can make a statement by affirmation. Keeping this in mind, the expression 'including an affirmation or declaration in the case of persons by law allowed to affirm or declare instead of swearing' used in Article 4 of Schedule I-B of the Stamp Act, shall be by way of clarification, and not to restrict the scope of 'affidavit'. They make it clear that an affidavit where facts are affirmed and not sworn, shall also be an affidavit. The word 'including' also indicates that the above expression is not exhaustive but illustrative.
9. In this connection it may be observed that the above expression can be regarded to be superfluous in the view of the fact that the term 'affidavit' has been defined in the U. P. General Clauses Act, and the scope of 'affidavit' is evident from the Oaths Act also. In other words Article 4 of Schedule I-B of the Stamp Act governs all the affidavits irrespective of whether the facts therein have been sworn or affirmed. Where such affidavits are meant for the immediate purpose of being filed or used in any Court or before an officer of any Court, a stamp duty of Re. 1/-shall, under the above mentioned Amendment Act, be chargeable.
10. The second question of importance arising in this case is whether an affidavit not duly stamped under Article 4 of Schedule I-B of the Stamp Act, has to be impounded and sent to the Collector, in the alternative, the document can be admitted in evidence on payment of the deficit stamp duty and the penalty, or no penalty is payable and the Court may act upon the affidavit on the deficit stamp duty being made good.
11. Sections 33 35 and 36 of the Stamp Act speak of an 'instrument', an expression which, has been defined in Section 2(14) of the Stamp Act as:
'Instrument' includes every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded;'
Section 2 is preceded by the words 'In this Act, unless there is something repugnant in the subject or context'. Consequently, the above definition of 'instrument' shall have to be given effect to unless it leads to some repugnancy: in such circumstances, the Courts of Law can depart from the meaning of the term as defined in Section 2(14).
12. It is true that the definition contained in Section 2(14) of the Stamp Act is not exhaustive; but it shall not be permissible to enlarge the scope of the nature of documents. In case the intention of the Legislature was to treat every kind of document' to be an 'instrument', it would not have been necessary to include the words 'by which any right or liability ..... or recorded' in the definition and in the manner of English Law, 'instrument' could have been defined to include every document. Words used in an enactment are not to be assumed to be superfluous. The Courts of law can omit or add words only when a grammatical interpretation will lead to some absurdity or ambiguity. Where no absurdity or ambiguity exists and the words used in the enactment are plain and can be given their ordinary meaning, the Courts of law must adopt an interpretation which gives due weight to all the words used in the enactment. What can, therefore, be said is that the term 'instrument' as defined in Section 2(14), covers every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded; it cannot include those documents by which no right or liability has been so created etc. On the application of the principle of ejusdem generis, it can be said that the term 'instrument' can also include documents of a like nature.
13. Affidavits coming before the Courts of law do not ordinarily create, transfer, limit, extend, extinguish or record rights or liabilities of the parties. They generally contain a recital of such right of liability. Where a right or liability is simply asserted or recited in a document, it cannot rightly he said that the document creates, transfers, limits, extends, extinguishes or records such right or liability. It can, therefore, be rightly urged that the term 'instrument' as defined in Section 2(14), cannot extend to each and every affidavit. However, as already observed above, this definition shall not be applicable where it shall be repugnant in the subject or context, i.e., where the provision by itself makes it clear that a much wider meaning be assigned to the term.
14. The relevant provisions on this point are those contained in Sections 3 33 35 and 36 of the Stamp Act. Section 3 lays down, in brief, that each instrument referred to therein shall be chargeable with duty. Consequently, if any document does not fall within the definition of 'instrument' as contained in Section 2(14) of the Stamp Act and still it is an instrument referred to in Section 3, it shall be an instrument chargeable with duty. Thus, for purposes of Section 3 all instruments mentioned therein, even though not falling within the definition of 'instrument', shall be instruments chargeable with duty.
15. Section 33(1) of the Stamp Act casts a duty upon 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 to impound an instrument chargeable with duty which is not duly stamped, when it is produced before him or comes in the performance of his functions. The words 'instrument chargeable with duty' are of significance and make it clear that reference is to the provisions of Section 3, and not to the definition of 'instrument' as contained in Section 2(14). Similarly, Sub-section (2) of Section 33 casts a duty upon every such person to examine every instrument so chargeable and produced or coming before him, in order to ascertain whether it is duly stamped with a duty of the value and description when such instrument was executed or first executed.
16. Section 35 provides that no instrument chargeable with duty shall be admitted in evidence or acted upon by the persons detailed in Section 33, unless such instrument is duly stamped. This section also makes reference to 'instrument chargeable with duty', and not to 'instrument' as defined in Section 2(14). However, under proviso (a) to Section 35 an instrument not duly stamped can be admitted in evidence on payment of the deficit stamp duty and a penalty of Rs. 5/- or ten times the deficiency, whichever is more. The words 'such instrument' used in the proviso can have reference to only instruments chargeable with duty, and not to instruments as defined in Section 2(14) of the Act. Consequently, an instrument chargeable with duty but not duly stamped can be admitted in evidence only on payment of the deficit stamp duty and penalty as laid down in the proviso. But if such an instrument has been admitted in evidence, its admission cannot, by virtue of Section 36 of the Stamp Act, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
17. To sum up, for purposes of Sections 3 33 35 and 36 of the Act, an 'instrument' means an instrument chargeable with duty, irrespective of whether such instrument falls or does not fall within the definition thereof contained in Section 2(14) of the Stamp Act. An affidavit is chargeable with duty under Article 4 of the Schedule I-B of the Stamp Act, and hence every affidavit shall be an instrument for purposes of Sections 3 33 35 and 36 of the Stamp Act. If the affidavit has not been duly stamped, it can be admitted in evidence only on payment of the deficit stamp duty and penalty as laid down in proviso (a) to Section 35 of the Stamp Act. Irrespective of whether such an instrument has or has not been admitted in evidence, it shall be impounded under Section 33, if not duly stamped, and action taken in accordance with Section 38 of the Stamp Act. Further, where an instrument not duly stamped has been admitted in evidence, it can be acted upon in the same suit or proceeding, though it shall also have to be impounded under Section 33 and sent to the Collector for further action. Whether an instrument has or has not been admitted in evidence shall depend upon the facts and circumstances of each case. In so far as this Bench entertaining fresh petitions under Articles 226 and 227 of the Constitution is concerned, an affidavit shall be deemed to have been admitted in evidence as soon as It is made the basis of an order.
18. Whether an instrument chargeable with duty is or is not duly stamped shall, inter alia, depend upon three factors, firstly, whether the prescribed stamp duty has been paid, secondly, whether 'impressed stamp', and not 'adhesive stamp', in excess of the prescribed limits, has been used and the document has been written in the manner laid down in Section 13 of the Stamp Act, and thirdly, whether the instrument was so stamped before or at the time of execution vide Section 17 of the Stamp Act.