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Mahant Ishwari Sharan Deo Guru Ramcharandas Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 423 of 1977
Judge
Reported inAIR1982MP177
ActsStamp Act, 1899 - Sections 47A, 47A(4), 56, 57 and 59
AppellantMahant Ishwari Sharan Deo Guru Ramcharandas
RespondentState of Madhya Pradesh
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateR.K. Verma, Dy. Adv. General
Cases ReferredKomalchand v. State
Excerpt:
.....has been created and a revision was filed before the board of revenue under section 56. the learned member has also recommended that the order passed by the sub-divisional officer has to be quashed as it is in complete disregard of the provisions of the act and the rules and that the matter has to be remanded so that the sub-divisional officer may follow the procedure prescribed under section 47-a and dispose of the matter. so far as this matter also is concerned, the learned member is not in doubt and has not sought any opinion of this court on this question but he has clearly come to the conclusion that this order must be set aside 9. except these two questions, the order of the board does not disclose any other question and a perusal of the order clearly goes to show that the..........under what provisions of law the sub-divisional officer was acting but it has been observed by the learned member of the board of revenue that by m. p. second amendment act, 1975, the provisions of stamp act have been amended and a new section 47a has been inserted and this has come in force from 7-5-1975 and as the gift-deed was registered on 26-12-1975, this section 47a would be applicable. but the learned member felt that under this section, rules have been framed and the sub-divisional officer has proceeded under section 47-a but has not fallowed at all the rules and the procedure prescribed under the scheme under section 47-a itself.4. the learned member also felt that as the sub-divisional officer did not follow the procedure the aggrieved party could not avail of his right of.....
Judgment:

Oza, J.

1. This is a reference under Section 57 of the Stamp Act made by the Board of Revenue, Madhya Pradesh being the chief controlling revenue authority.

2. This reference has been made under very peculiar circumstances. The proceedings started in Case No. 18-B/103 of 1975-76 before the Sub-Divisional Officer (Collector Stamps), Bematara on a report of the Sub-Registrar dated 26-12-1975. The Sub-Registrar reported that the petitioner Mahant Ishwari Sharan Deo had undervalued a gift-deed executed in favour of Nimbark Sanskrit Vidyalaya Samiti. The deficit was estimated at Rs. 17,100/- and receiving this report, the Sub-Divisional Officer passed an order on 14-5-1976 accepting the report of the Registrar and directing fee party to be summoned and ultimately, on 26-10-1976 in the presence of the person who had submit-ed the document for registration, the Sub-Divisional Officer directed the payment of the amount by instalments of Rs. 2,500/- per month.

3. Against this order of the Sub-Divisional Officer a revision was preferred to the Board of Revenue which after hearing the arguments observed that ordinarily orders passed by the Sub-Divisional Officer would have been set aside as it is not clear under what provisions of law the Sub-Divisional Officer was acting but it has been observed by the learned Member of the Board of Revenue that by M. P. Second Amendment Act, 1975, the provisions of Stamp Act have been amended and a new Section 47A has been inserted and this has come in force from 7-5-1975 and as the gift-deed was registered on 26-12-1975, this Section 47A would be applicable. But the learned Member felt that under this section, rules have been framed and the Sub-Divisional Officer has proceeded under Section 47-A but has not fallowed at all the rules and the procedure prescribed under the scheme under Section 47-A itself.

4. The learned Member also felt that as the Sub-Divisional Officer did not follow the procedure the aggrieved party could not avail of his right of appeal under Sub-section (4) of Section 47-A and thereby a confusion has been created and a revision was filed before the Board of Revenue under Section 56. The learned Member has also recommended that the order passed by the Sub-Divisional Officer has to be quashed as it is in complete disregard of the provisions of the Act and the rules and that the matter has to be remanded so that the Sub-Divisional Officer may follow the procedure prescribed under Section 47-A and dispose of the matter. But the learned Member of the Board felt a difficulty that the Board sitting as the Chief Controlling Revenue Authority could not set aside the order of the Sub-Divisional Officer in exercise of jurisdiction under Section 56(1), and feeling this difficulty, it appears that the learned Member of the Board felt that what the Chief Controlling Authority could not do under Section 56 could be done by this Court exercising jurisdiction under Section 57 and, therefore, this reference has been made.

5. The learned Member of the Board came to this conclusion in view of a decision of this Court reported in Chaturbhujdas v. State of M. P., 1975 Revenue Nirnaya 453 : (AIR 1975 Madh Pra 209) where it was held that the Chief Controlling Revenue Authority exercising jurisdiction under Sub-section (1) of Section 56 is not competent to exercise appellate powers and to this extent, the view taken by the learned Member of the Board appears to be correct. The other decision which has been referred to by the learned Member of the Board i.e. Komalchand v. State, 1965 Revenue Nirnaya 374 pertains to the jurisdiction of the Registrar but in view of amended provisions contained in Section 47-A that decision will have ro application and in view of these amended provisions now the Board has jurisdiction as a second appellate Court. But that jurisdiction could only be exercised if an appeal is preferred to the Board of Revenue against an order passed by the Commissioner of the Division exercising the jurisdiction as a first appellate Court under Section 47-A (4).

6. On receiving a reference, jurisdiction of this Court has been provided in Section 59 of the Stamp Act and it has been provided that this Court will, after hearing, decide the question raised in the reference order and it further provides that this Court will send a copy of the judgment to the Revenue Authority who has made the reference and the Revenue Authority is expected to dispose of the case in conformity with the judgment of this Court.

7. In this reference, there is no specific question referred to this Court for its opinion. What appears from the order of the learned Member of the Board of Revenue is:--

That he felt the difficulty that as the matter has come to his notice by way of a revision petition exercising jurisdiction under Section 56, the Board is not competent to set aside the order passed by the Sub-Divisional Offices (Collector, Stamps).

But it is clear from the order that the learned Member did not seek the opinion of this Court on this question.

8. The other question discussed in the order passed by the learned Member is that the order passed by the Sub-Divisional Officer being an order under Section 47-A of the Stamp Act is in total disregard of the provisions of Section 47-A and the rules framed thereunder and, therefore, it cannot be maintained. So far as this matter also is concerned, the learned Member is not in doubt and has not sought any opinion of this Court on this question but he has clearly come to the conclusion that this order must be set aside

9. Except these two questions, the order of the Board does not disclose any other question and a perusal of the order clearly goes to show that the reference is not being made to get the opinion of this Court on any question of law but the learned Member fell the difficulty that the order passed by the Sub-Divisional Officer which has to be set aside but exercising jurisdiction under Section 56, the learned Member of the Board of Revenue could not exercise that jurisdiction and, therefore, the learned Member felt that what the Board as the Chief Controlling Revenue Authority could not do under Section 56, this Court exercising jurisdiction under Sections 57 and 59 could do it and, therefore, in substance the learned Member expects this Court to set aside the order passed by the Sub-Divisional Officer and remand the case so that the Sub-Divisional Officer (Collector, Stamps) be directed to proceed in accordance with the provisions of Section 47-A and rules framed thereunder. But unfortunately, this could not be done by this Court in exercise of jurisdiction under Sections 57 and 59.

10. Section 57 provides for a reference to this Court and it reads:--

'57. Statement of case by Chief Controlling Revenue Authority to High Court.-- (1) The Chief Controlling Revenue Authority may state any case referred to it under Section 56, subsection (2), or otherwise coming to its notice, and refer such case, with its own opinion thereon--

(a) if it arises in a State, to the High Court for that State;

(b) if it arises in the Union Territory of Delhi or Himachal Pradesh, to the High Court of Punjab;

(c) if it arises in the Union territory of Manipur or Tripura, to the High Court of Assam;

(d) if it arises in the Union territory of the Andaman and Nicobar islands, to the High Court of Calcutta; and

(e) if it arises in the Union territory of the Laccadive, Minicoy, Aminidevi islands, to the High Court of Kerala.'

And what this Court can do is provided in Section 59 and the provisions of Section 59(2) clearly provide that this Court could only send a copy of its judgment (opinion on the question referred to it) to the Chief Controlling Revenue Authority and the Chief Controlling Revenue Authority will dispose of the matter in conformity with the opinion expressed by this Court. It is, therefore, clear that even if on the question of the legality of the order passed by the Sub-Divisional Officer, an opinion is recorded and sent to the Chief Controlling Revenue Authority (Board of Revenue), the Board could not set aside the order of the Sub-Divisional Officer as the learned Member himself expressed his inability, as Section 56 does not confer jurisdiction ob the Chief Controlling Revenue Authority to entertain a revision and set aside the ordar passed by the Collector of Stamps in exercise of jurisdiction under Section 47-A as if the learned Member of the Board could dispose of the matter, he has clearly held about the orders of the Sub-Divisional Officer that they are not in accordance with Section 47-A and rules and, therefore, a reference to this Court was not necessary, (sic)

11. It is, therefore, dear that the reference, has been made to this Court by the learned Member of the Board only because he felt that what he could not do in exercise of jurisdiction under Section 56 this Court could do in exercise of Section 57 read with Section 59 but it appears that the learned Member of the Board is not correct Learned counsel for the petitioner who filed the revision before the Board of Revenue and tbe learned Deputy Advocate General appearing for the State frankly conceded that this Court has not sucfa jurisdiction under Section 57 read with Section 59 as is probably understood by the learned Member of the Board of Revenue. It would have been a different matter if a petition (sic) under Article 226 or 227 before this Court.

12. Section 47-A which has been inserted by the said Amendment and admittedly applicable to the facts of the case clearly provides for fee procedure to be followed by toe Collector on receiving a reference under Sub-section (1) of Section 47-A from the Registering Officer appointed under the Registration Act. Sub-section (2) of Section 47-A provides for the procedure and it appears that rules have been framed for action under this provision. Subsection (4) of Section 47-A reads:--

'(4) Any person aggrieved by an order of the Collector under Sub-section (2) or sub-tion (3) may in the prescribed manner appeal against such order to the Commissioner of the division.'

This provision clearly provides for filing of an appeal before the Commissioner and it is clear that if the order is passed by the Sub-Divisional Officer acting as a Collector of Stamps, under Section 47-A (2) or (3), the only course open to the aggrieved party was to prefer an appeal to the Commissioner of the Division as provided for in Sub-section (4). Sub-section (5) of this section further provides that any person aggrieved by the order of the Commissioner of the Division may prefer an appeal against the order of the Commissioner to the Chief Controlling Revenue Authority and it could not be doubted that if the matter had come to the Board of Revenue under Sub-section (5) of Section 47-A, it would have been possible for the learned Member of the Board of Revenue to consider the order of the Sub-Divisional Officer and set it aside if he came to the conclusion that the order of the Sub-Divisional Officer was not in accordance with law. But it appears that the learned Member of the Board felt that as the order of the Sub-Divisional Officer did not indicate as to the provisions under which he was acting, it prevented the petitioner to prefer an appeal under Sub-section (4) of Section 47-A. But the learned Member having come to this conclusion, the only course open to him was to return the revision memo presented to the Court with a direction that the petitioner should prefer an appeal to the Commissioner under Sub-section (4) and what has been stated by the learned Member of the Board about the absence of indication of the provisions under which the Sub-Divisional Officer was acting which created confusion in the mind of the petitioner, could have been used by the petitioner as a good ground for condonation of delay when he had received the revision back and preferred an appeal before the Commissioner of the Division. But instead of doing that the learned Member probably felt that in exercise of jurisdiction under Sections 57 and 59 this Court could pass any orders setting aside the order passed by the Sub-Divisional Officer (Collector of Stamps) and, therefore, made this reference without mentioning the question on which he sought the opinion of this Court, only hoping that this Court will do the needful. But as discussed above, the jurisdiction of this Court under Section 57 read with Section 59 is not as is understood by the learned Member of the Board of Revenue.

13. Learned counsel for the petitioner, although agreed that this Court could not decide the matter and set aside the order in exercise of jurisdiction under Section 57 read with Section 59 yet expressed the difficulty that the petitioner having been directed to pay substantial amount and if he prefers an appeal now to the Commissioner of the Division, it may be thrown out only on the ground of limitation. The apprehension of the learned counsel, no doubt, appears to be well founded but it could not be doubted that in a state of confusion in which the Sub-Divisional Officer proceeded with the matter and the manner in which the matter has been referred to this Court, as has been discussed in detail above, will afford to the petitioner with a sufficient cause which could be placed before the appellate authority for consideration of the question of condonation of delay.

14. In our opinion, therefore, the reference could not be accepted. But the only course open to the learned Member of the Board of Revenue appears to be to return the memo of revision with a direction that the petitioner may file it after amending it as an appeal before the Divisional Commissioner. Consequently, the reference is rejected. In the circumstances of the case, parties are directed to bear their own costs.


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