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The Secretary to Government Vs. the Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M. Reference No. 2 of 1970 and O.P. 6283 of 1970
Judge
Reported inAIR1973Ker69
ActsKerala Stamp Act, 1959 - Sections 31, 54, 55, 55(1), 57 and 57(2); Stamp Act, 1899 - Sections 56, 57 and 59; Constitution of India - Article 226
AppellantThe Secretary to Government
RespondentThe Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. and anr.
Appellant Advocate Adv.-General in C.M. Reference No. 2 of 1970,; K.P. Kesava Menon and;
Respondent Advocate Adv.-General in O.P. No. 6283 of 1970,; K.P. Kesava Menon and;
Cases Referred and Tilokchand Motichand v. H. B. Munshi
Excerpt:
limitation - delay - section 14 of limitation act, 1963 and article 226 of constitution - no period of limitation prescribed for petitions under article 226 - time extended whenever party satisfies court that delay not due to his fault and that he acted with due care and diligence - in instant case bank acting with due diligence and expedition - no laches on part of bank - bank pursued wrong remedies but in uncertain state of law - matter was pending before district collector, board of revenue, government and high court - all forums unable to afford relief under statute from defect of jurisdiction - delay in bring petition under article 226 to be excused under principle underlying section 14. - - ' 3. we must mention that, since the matter could not wait, the bank had meanwhile, on.....raman nayar, c.j.1. on the 25th may, 1967, the united commercial bank, mavoor (for short, the bank) executed what has been called a letter of guarantee in favour of the president of india on non-judicial stamp paper of the value of rs. 40.25 -- a copy thereof has been marked as ex. p-l in the writ petition. by that instrument, the bank guaranteed, to the tune of rs. 12,37,250/- the payment to the central government by one of the bank's customers, the gwalior rayon silk mfg. (wvg.) co. ltd., mavoor (for short, the company), the rupee equivalent of foreign exchange made available to it by the central government for the import of certain goods. the central government was insisting that the instrument should be certified as duly stamped by the competent authority, and, therefore, the bank.....
Judgment:

Raman Nayar, C.J.

1. On the 25th May, 1967, the United Commercial Bank, Mavoor (for short, the Bank) executed what has been called a letter of guarantee in favour of the President of India on non-judicial stamp paper of the value of Rs. 40.25 -- a copy thereof has been marked as Ex. P-l in the writ petition. By that instrument, the Bank guaranteed, to the tune of Rs. 12,37,250/- the payment to the Central Government by one of the Bank's customers, the Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., Mavoor (for short, the Company), the rupee equivalent of foreign exchange made available to it by the Central Government for the import of certain goods. The Central Government was insisting that the instrument should be certified as duly stamped by the competent authority, and, therefore, the Bank presented it before the Additional Personal Assistant to the District Collector of Kozhikode, a Collector within the definition in Section 2 (c) of the Kerala Stamp Act, 1959 (Having been duly appointed as such thereunder -- we shall hereafter refer to him as the Collector but he is not to be confused with the District Collector) for adjudication under Section 31 of the Act.

2. By his proceedings Ex P-2 dated the 22nd July, 1967 (the reference is to the exhibits marked in the writ petition) the Collector held that the instrument was a bond within the meaning of Article 13 of the schedule to the Kerala Stamp Act, 1959, and determined the duty payable thereon as Rs. 23,264.95. He requested the Bank to pay the deficit duty of Rs. 23,224.70 as also the adjudication fee which he fixed at Rs. 5/-. This order, it would appear, was made without giving the Bank an opportunity of being heard; and the Bank being aggrieved by the order submitted the petition Ex. P-3 dated the 1st August, 1967, to the District Collector contending that the instrument was not a bond but an agreement chargeable with duty of only Rs. 2.25 and requested the District Collector to revise the order of the Collector in exercise of his powers under clause third of Section 3 of Madras Regulation VII of 1828. The District Collector rejected this petition on the llth August, 1967 on the ground that the Madras Regulation invoked by the Bank was not in force.

Thereupon, the Bank submitted a revision petition, Ex. P-4 dated the 16th September, 1967, to the Board of Revenue, an authority specified by the Government under sub-section (1) of Section 54 of the Kerala Stamp Act as an authority to whose control the powers exercisable by a Collector under Chapter IV and Chapter V and under Clause (a) of the first proviso to Section 27 are, in all cases, subject. This petition was dismissed by the Board by its proceedings, Ex. P-5 dated the llth September, 1968, on the ground that Section 31, occurring in Chapter II of the Act, was not one of the provisions in respect of which revisional power was given to the Board by Section 54. Then, by Ex. P-6 dated the 26th October, 1968, the Bank and the Company jointly petitioned the Government praying 'that the Government may be pleased to either decide the issue suo motu or in case of doubt refer the matter to the Hon'ble High Court under Section 55 of the Kerala Stamp Act, 1959, for its decision so as to fix the proper stamp duty on the impugned (sic) document.'

The Government after hearing counsel for the Bank and the Company came to the conclusion that the instrument was not a bond falling within Article 13, or a security bond falling within Article 49, of the Schedule to the Kerala Stamp Act but was a contract of guarantee chargeable as an agreement under Article 5 (c) in which case the duty would be only Rs. 2.25, a view with which, we might mention, the learned Advocate-General appearing before us on behalf of the Government concurs. (He has also drawn our attention to the second item in Article 37 of Schedule I to the Indian Stamp Act, 1899 'Letter of guarantee, See Agreement (No. 5)' which indicates that a letter of guarantee is nothing more than an agreement). But, for the same reasons as given by the Board of Revenue, the Government considered that it had no power to interfere with the orders of the Collector, and it has made the present reference Ex. P-8 dated the 24th July, 1970, referring, under Section 55 of the Kerala Stamp Act, the following questions for our decision:

'(i) Whether the instrument executed by the United Commercial Bank Ltd. is chargeable with duty as a bond (Article 13) or as an agreement (Article 5) or as a security bond (Article 49); and

(ii) If the decision on point (1) is that the instrument is chargeable as an 'agreement' or as a 'security bond', whether the Government have power to grant the refund of the value of the excess stamps to the party.'

3. We must mention that, since the matter could not wait, the Bank had meanwhile, on the 14th August, 1967, soon after the District Collector's rejection of its petition, paid the deficit duty as adjudged by the Collector and obtained from him a certificate duly endorsed on the instrument under Section 32 of the Kerala Stamp Act to the effect that the full duty had been paid.

4. In the course of the hearing of the reference, on the 24th November, 1970, a doubt was expressed as to whether the reference lay. Thereupon, counsel for the Bank and the Company (whom we shall hereafter call the petitioners) took time to file a writ petition by way of abundant caution and that is how O. P. No. 6283 of 1970 came to be filed (on the 7th December, 1970) and the reference and the petition heard together.

5. At our request the learned Advocate-General has addressed us fully on the question whether the reference lies -- if it does not, we ought not to answer it, for, we would have no jurisdiction to do so. He has submitted that the reference does not lie; but has, at the same time, made it clear that he is not taking this objection on behalf of the Government, the Government itself having made the reference.

6. We shall first consider the question whether the reference lies. The relevant provisions are Sections 54, 55 and 57 of the Kerala Stamp Act (hereinafter referred to as the Kerala Act) which are in pan materia with Sections 56, 57 and 59 respectively of the Indian Stamp Act, 1899 (hereinafter referred to as the Central Act). These provisions run as follows:

'54. Control of and statement of case to, the Government or other authority specified by the Government: (1) The powers exer-cisable by a Collector under Chapter IV and Chapter V and under Clause (a) of the first proviso to Section 27 shall in all cases be subject to the control of the Government or such other authority as may be specified by Government in this behalf.

(2) If any Collector acting under Section 31, Section 39 or Section 40, 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 bis own opinion thereon, for the decision of the Government or such other authority as may be specified by Government in this behalf.

(3) The Government or 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.'

'55. Statement of case by the Government or other authority specified by the Government to the High Court.-- (1) The Government or such other authority as may be specified by Government in this behalf may state any case referred to it under Subsection (2) of Section 54 or otherwise coming to its notice, and refer such case, with its own opinion thereon, to the High Court

(2) Every such case shall be decided by not less than three Judges of the High Court, and in case of difference, the opinion of the majority shall prevail.'

'57, Procedure in disposing of case stated:-- (1) The High Court. upon the hearing of any such case, shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded.

(2) The Court shall send to the authority by which the case was stated, a copy of such judgment under the seal of the Court and the signature of the Registrar; and the authority shall, on receiving such copy, dispose of the case conformably to such judgment.'

7. The present case is not one referred by the Collector to the Government under Sub-section (2) of Section 54 of the Kerala Act, so that there can be no question of the first part of Sub-section (1) of Section 55 applying to it. (Sub-section (2) of Section 56 and Sub-section (1) of Section 57 respectively of the Central Act -- in that Act the Chief Controlling Revenue Authority takes the place of the Govt. in the Kerala Act). The question then is whether the case falls within the second part of, in other words, is embraced by the words, 'otherwise coming to its notice' appearing in the Sub-section. These words are, no doubt, of wide import, and, as pointed out in Banarasi Dass v. Chief Controlling Revenue Authority, AIR 1968 SC 497, are by no means confined to cases that are pending before the revenue authorities. They include within their scope cases already decided and disposed of as also cases brought to the notice of the Government by an aggrieved party demanding a reference. But even so, it is quite obvious that the case must be a case arising under the Act, and, we should think, one which some provision or other of the Act brings within the purview or control of Ihe Government. (This must be some provision other than Sub-section (1) of Section 55 which confers no such power on the Government).

If we turn next to Sub-section (2) of Section 57 (Sub-section (2) of Section 59 of the Central Act) we find that the Government is to dispose of the case conformably to the judgment pronounced by the High Court under Sub-section (1). It follows then that a reference under Sub-section (1) of Section 55 can be only in respect of a case which is within the competence of the Government to dispose of in accordance with the judgment of the High Court. As we read it, Sub-section (2) of Section 57 confers no additional power on the Government (or other authority concerned, namely, an authority specified in that behalf by the Government under Subsection (1) of Section 54); it presupposes the existence of a power in the Government to dispose of the case conformably to the judgment of the High Court; in other words, the case must be one in respect of which some provision or other of the Act confers the power of disposal on the Government. That is why we said that a case that may be referred to the High Court under Sub-section (1) of Section 55 must be a case which comes within the purview or control of the Government. If it is a case referred to the Government under Sub-section (2) of Section 54, it is necessarily a case within its purview. It straightway comes within the express language of Sub-section (1) of Section 55, and it would be a case which the Government could dispose of conformably to the judgment of the High Court as required by Sub-section (2) of Section 57 by answering the reference made to it by the Collector accordingly. However, if it is not such a case and is only one 'otherwise coming to its notice', it must be shown that it is a case over which the Government has a power of disposal. Taking a case like the present case, namely, a case already decided by the Collector, it must be a case where the Collector's decision, whether already rendered or to be rendered, is subject to the control of the Government which means that where, as here, a case has already been decided by the Collector, the decision must be subject to review by the Government.

8. Sub-section (1) of Section 54 confers on the Government control in respect of certain specified powers exercisable by the Collector. The word, 'exercisable' is wide enough to include what has been exercised in the past as also what is to be exercised in the future. This was the view expressed by Sir Arnold White, C. J., in Reference under Stamp Act case, (1902) ILR 25 Mad 752 (referred with apparent approval in AIR 1968 SC 497) and we are in respectful agreement with this view despite the dissent by Bhashyam Ayyangar and Moor, JJ. But then the power exercised in the present case is not one of the powers specified in Sub-section (1) of Section 54 as subject to the control of the Government and it follows that, as held by the . Government, the Government has no power of interference whatsoever with the decision of the Collector which is final so fan as the Act is concerned. That being so, it follows from what we have already said that the case is not one that can be referred by the Government to the High Court under Sub-section (1) of Section 55, not being a case which the Government can dispose of conformably to the judgment of the High Court.,

9. If any case whatsoever arising under the Act would come within the scope of a reference under Sub-section (1) of Section 55, that would lead to difficult, indeed impossible, results. Supposing a Collector were to decide that proper stamp duty has been paid in respect of an instrument, whereas in fact it has not, or that the instrument is not chargeable with duty whereas it is, and to certify accordingly by endorsement thereon under Sub-section (2) of Section 32. Then, under Sub-section (3) of the section, the instrument shall be deemed to be duly stamped or not chargeable with duty, as the case may be, and may be acted upon accordingly. Now, if a case wrongly decided under Section 31 in favour of the Revenue is a case coming within the scope of Sub-section (1) of Section 55, a case wrongly decided in favour of the citizen must also be such a case. In such a case, namely, a case wrongly decided in favour of the citizen, what is the Government to do under Sub-section (2) of Section 57 conformably to the judgment the High Court may deliver in pursuance of a reference made to it? Is the Government to decide the case fresh, under Section 31 of send it to the Collector for making a fresh decision? There is no provision in the Act that enables it to do so and even if it did so what purpose would that serve? The certificate endorsed by the Collector under Section 32 can neither be recalled nor cancelled, for the deeming provision in Sub-section (3) of Section 32 is absolute and is not made subject to any such fresh adjudication. And even if the certificate could be cancelled, in most cases, it would be too late to serve any purpose since the certificate would already have served its purpose and the instrument would have been acted upon. Surely, it cannot be that its reception in evidence, its registration and such other instances of its being acted upon, can be recalled or are rendered null and void. It must be remembered that Section 31 places no obligation on the citizen to pay the stamp duty adjudged by the Collector. It is only if he wants the certificate under Section 32 that he need pay the stamp duty; else, he can decline to pay it and face whatever consequences might flow if, in fact, the instrument is not sufficiently stamped. How then, on the fresh adjudication being made, will the stamp duty be collected?

10. Even in a case where the wrong decision is in favour of the Revenue, what can the Government or other authority do under Sub-section (2) of Section 57 pursuant to a judgment delivered by the High Court? Even if it were to decide the case afresh conformably to such judgment, of what consequences would that be? There is no provision in the Act, at any rate, none has been brought to our notice, authorising a refund of the excess duty paid; and the fact that the Government can, in its capacity as such, not in its capacity as an authority under the Act, make a refund, if it chooses, or be compelled to do so by a suit, is scarcely relevant.

11. Supposing, to take a more telling Instance, a person has been wrongly convicted or wrongly acquitted of an offence under the Act, so far as Sub-section (1) of Section 55 is concerned, that would stand on the same footing as a wrong adjudication by the Collector under Section 31. The offences are created by the Act and even the Court that is to try them though not a creature of the Act, is specified by it (see Section 66) just as the other authorities given powers under the Act are specified. If Sub-section (1) of Section 55 is really so wide as to include within Its scope any case whatsoever arising under the Act, the wrong conviction or the wrong acquittal could be referred to the High Court thereunder. And, if Sub-section (2) of Section 57 is to be read as conferring on the Government or other authority the power to dispose of such a case conformably to the judgment of the High Court; it would follow that that authority could set aside the conviction or acquittal made by the High Court and acquit or convict the accused as the case may be.

12. It seems to us clear that Sub-section (2) of Section 57, as such, confers no power on the Government or other referring authority and only imposes on it a duty to dispose of the case conformably to the judgment of the High Court. The power to dispose of the case must be found elsewhere, as in Section 54, either by the case being subjected to the control of the Government or other authority as by Sub-section (1) thereof or being referable to it for decision as under Sub-section (2). It is only to such a case, namely, a case subject to disposal by the Government or other authority that Sub-section (1) of Section 55 applies.

13. Great reliance has been placed by counsel for the petitioners on the decisions in Chief Controlling Revenue Authority v. M. Section Mills, AIR 1950 SC 218 and Banarasi Dass v. Chief Controlling Revenue Authority, AIR 1968 SC 497 (Principally the latter which deals more specifically and at greater length with the question before us) in support of their contention that Sub-section (1) of Section 55 (Sub-section (1) of Section 57 of the Central Act) applies to every case under the Act coming to the notice of the Government or other authority, whatever be its nature. We do not think that these decisions support any such proposition. In both decisions (both rendered under the Central Act) the case considered was a case in respect of a power exercised under Chapter IV of the Central Act, so that the control of the Chief Controlling Revenue authority was attracted by Sub-section (1) of Section 56 of the Central Act thus conferring on it a power of revision. Nothing was said in either as to whether an adjudication by a Collector under Section 31, and the endorsement of a certificate by him under Section 32, which do not come within the scope of Section 56, could come within the scope of Sub-section (1) of Section 57 so as to be a proper subject-matter for a reference thereunder.

14. It is true that among the many decided cases considered in AIR 1968 SC 497 there are three, namely, Reference under Stamp Act case, (1902) ILR 25 Mad 751; In re, Cook and Kelvey, AIR 1932 Cal 736 (SB) and Eastern Manganese and Minerals v. State of West Bengal, AIR 1960 Cal 340 that relate to cases of adjudication by the Collector under Section 31. But it is to be noted that these cases were not overruled, though cases like Reference under Stamp Act case, (1902) ILR 25 Mad 752 holding with regard to cases disposed of by the Collector under Chapter IV that no reference lay, were overruled; and only that part of the reasoning on which they were based, namely, that there must be a case pending before the revenue authorities for Sub-section (1) of Section 57 to be attracted, was disapproved. This reasoning only led to the real reason underlying these decisions. That was that it is only in cases where the Revenue Authority can dispose of the case conformably to the judgment of the High Court as required by Subsection (2) of Section 59 that a reference under Sub-section (1) of Section 57 will lie. This real reason was not disapproved. What was disapproved was the view that it was only a pending case and not a disposed of case that the Revenue-apthority could dispose of conformably to the judgment of the High Court, a view based on a misconstruction of the words 'powers exercisable' in Sub-section (1) of Section 56 as excluding powers already exercised. Indeed, the decision in AIR 1968 SC 497 proceeds on the footing that, in that case, it was possible for the Revenueauthority to dispose of the case conformably to the judgment of the High Court as required by Sub-section (2) of Section 59, the decision of the Revenue-authority being at large the moment the High Court pronounced its judgment, in other words, it being possible for the Revenue-authority to decide the case conformably to the judgment of the High Court. The actual decision in the case is embodied in paragraph 9 of the judgment, the material portion of which runs thus:

'The principle underlying the decision (AIR 1950 SC 218) is that Section 57 affords a remedy to the citizen to have his case referred to the High Court against an order of a revenue authority imposing stamp duty and/ or penalty provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the Authority. If the position is as held in (1902) ILR 25 Mad 752 the mere fact that the Collector has determined the duty and closed the case would render nugatory not only the controlling jurisdiction of the Authority but the remedy which Section 57(1) gives to the citizen as also the obligation of the Authority to state the case. The difficulty which the learned judges felt in (1902) ILR 25 Mad 752 and repeated in subsequent decisions is not, in our view, a real one because as soon as a reference is made and the High Court pronounces its judgment the decision of the Authority is at large and the Authority, as required by Section 59 (2) would have to dispose of the case in conformity with such judgment.'

It is clear from this that the decision is confined to a case where there is an order of a revenue authority imposing stamp duty and/ or penalty. That is not the case here, for, as we have noticed, an adjudication under Section 31 of the Central Act does not involve the imposition of stamp duty or penalty --it is left entirely to the option of the citizen to pay or not to pay the duty adjudged.

15. We hold that the reference does not lie and we decline to answer it.

16. Turning now to the writ petition, the prayers therein are:

(1) to quash Ex. P-2, the adjudication by the Collector, the third respondent to the petition;

(2) to issue a writ of mandamus, direction or order to the first respondent (this must be a mistake for the third respondent the first respondent is the District Collector) to adjudicate the matter afresh; and

(3) to refund to the Company, the second petitioner, the excess stamp duty paid on its behalf by this first petitioner Bank. Counsel for the petitioners has, however, submitted that he is withdrawing the third prayer recognising that it is premature. He can only ask us to quash the adjudication by the Collector and not to make an adjudication ourselves and he submits that the cause of action for a refund will arise only after a fresh adjudication determining the stamp duty at less than the duty now determined is made. We express no opinion whatsoever with regard to these submissions.

17. The learned Advocate-General appearing for the respondents does not dispute that (as held by the Government in Ext. P-8, the order of reference) the instrument is not a bond and that the adjudication by the Collector is wrong in law. Nevertheless, he presses for the dismissal of the petition on two grounds, first that it is belated, and, secondly, that the determination by the Collector under Section 31, although called an adjudication in the heading to the section, is really an administrative decision not involving any adverse civil consequences (the payment of the duty adjudged being a purely voluntary payment made solely for the purpose of obtaining the certificate under Section 32 which was given) and, therefort, not amenable to judicial review.

18. We are satisfied that the view taken by the Government in Ext. P-8 that the instrument is not a bond is correct. A bond is defined in Section 2 (a) of the Kerala Act thus. (The definition in Section 2 (5) of the Central Act is the same):

'(a) 'bond' includes--

(i) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed as the case may be;

(ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another and

(iii) any instrument so attested, whereby a person obliges himself to deliver grain or Other agricultural produce to another;'

19. The instrument here in question does not fall within Clause (1) of the definition which requires first an undertaking by one person to pay money to another, the undertaking being, however, subject to the condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be -- Form No. X in Appendix F to the Code of Civil Procedure is a good example of such instrument and is rightly called a bond in the heading to the Form. But the instrument we are considering contains no such undertaking subject to a condition rendering it void. (We are not setting out the terms of the instrument since we are only affirming what is undisputed). Under it, the obligation to pay on the part of the Bank which executed it arises only on the Company failing to perform a specified act. It is not as if the Bank obliged itself to pay the money subject to the condition that the obligation would be void if the specified act was performed. The instrument is only a security for the performance of the specified act by the Company and is akin to Form No. VI in Appendix F to the Code of Civil Procedure, which is headed therein not as a bond but as merely a security.

20. It is true that, by the instrument, the Bank obliged itself to pay money to the President on the non-performance of the specified act by the Company. But then the instrument is not attested and, therefore, cannot fall within Clause (ii) of the definition and, of course, there is no question of Clause (iii) applying.

21. There still remains the question Whether the instrument falls within what might be called the Primary meaning of the word, 'bond' since, unlike the definition considered in cases like (Gisborn and Co. v. Subal Bowri, (1882) ILR 8 Cal 284) which said 'bond means', the definition we are considering says 'bond includes'.

22. The very implication of the definition in Clause (ii) is that an unattested instrument like the present, not payable to order or bearer, whereby a person obliges himself to pay money to another, cannot, unless there is something more, be a bond as coming within the primary meaning of the Word, for it if could, the insistence on at-'testation would be meaningless. Likewise with regard to the definition in Clause (i) would be the insistence on the presence of the condition that the obligation shall be void if a specified act is performed or is not performed. That something is a seal, a formality necessary to make a bond within the technical meaning of the law -- see the definition of 'bond' in Halsbury's Laws of England, 3rd Edn. Vol. 3, p. 329 which runs as follows:--

'A bond is an instrument under seal, usually a deedpoll, whereby one person binds himself to another for the payment of a specified sum of money either immediately or at a fixed future date.'

And that something the present instrument has not since it is not under seal.

23. The contention that the determination by the Collector under Section 31 of the Act is purely administrative order involving no civil consequences since any payment of duty pursuant thereto would be a purely voluntary payment for the purpose of obtaining the certificate under Section 32 does not impress us. The Stamp Act is a very complicated statute and a breach of its provisions is fraught with very serious consequences, both civil and criminal, to the citizen, even if he has acted in complete good faith. Even with the best legal advice, a mistake is more than possible, and the purpose underlying Section 31 is to set up an authority to whom the citizen could go to ascertain what the duty payable on an instrument is, and whose decision, if acted upon by the payment of the duty as determined, would, whether right or wrong, be binding on the Revenue. It seems to us that the determination to be made by the Collector under Section 31 is a quasi-judicial determination and that the section is very properly headed, 'adjudication as to proper stamping'.

24. It is true that any payment made pursuant to an adjudication under Section 31 is voluntary since there is no provision in the Act compelling that. If the citizen is so sure of himself and is prepared to take the risk, he can ignore the Collector's determination leaving the matter to be agitated, should occasion arise, under the provisions of Chapter IV or Chapter VII -- it does not appear that the Collector's determination under Section 31 is binding or even relevant in such proceedings. But, if the citizen pays the duty as determined by the Collector under Section 31, he is entitled to a certificate under Section 32 and to what we might call the immunity resulting from such a certificate, an immunity from the sufficiency of the duty being called in question by anybody, anywhere and at any time. This we regard is a valuable statutory right conferred on the citizen and an error of law made by a statutory authority affecting such a right -- to tell a man that the duty payable in order to get a certificate is Rs. 23,264.95 if, in truth, it is only Rs. 2.25 is certainly to prejudicially affect that right --is, we should think, amenable to certiorari. We might add that if, as we have held, a proceeding under Section 31 is a quasi-judicial proceeding, the adjudication made by the Collector in this case is liable to be quashed also on the short ground that the party affected was not given an opportunity of being heard.

25. So far, as the defence of delay is concerned, there is, of course, no period of limitation prescribed for petitions under Article 226 of the Constitution. But what has been called the discretionary jurisdiction under that article is not extended to the sluggard and the conventional period of what we might call quasi-Iimitation adopted by this Court for petitions of this kind is three months. However, time is extended whenever the party satisfies the court that the delay was not due to his fault and that he has acted with due care and diligence. And, in deciding whether time should be extended or not, the court pays due heed to the principles underlying the provisions of the Limitation Act permitting an extension of time without being curbed by the actual wording of those provisions. Here, there is no doubt that the Bank has been acting with due diligence and expedition, and it can hardly be said that there has been any laches on its part. It might have pursued wrong remedies, but, in the uncertain state of the law, we would not say that it was to blame for that. Within ten days of the adjudication by the Collector, the Bank moved the District Collector (who is the Collector's official superior and who is the Collector within the body of the definition in Section 2 (c)) to revise the order of the Collector. The District Collector dismissed the Bank's petition on the 11th August 1967 on the ground that he lacked jurisdiction, and, a month later, the Bank submitted a revision petition to the Board of Revenue which has revisional powers under the Act. The Board dismissed the petition a year thereafter, on the ground that it had no power to interfere, and six weeks later, the petitioners jointly moved the Government to decide the case or make a reference to the High Court. The Government made the reference on the 24th July, 1970, about two years, thereafter, and we find that we are unable to entertain it since a reference does not lie. The writ petition was brought on the 7th December, 1970, while the reference was- still pending before us, and we should think that under the principle underlying Section 14 of the Limitation Act, the delay in bringing the petition should be excused. For, excluding the periods during which the matter was pending before the District Collector, the Board of Revenue, the Government and ourselves, all of whom have, from defect of jurisdiction, been unable to afford relief under the statute, the petitioners have moved us under Article 226 of the Constitution well within the conventional period of three months.

26. It Is however, contended on the strength of the decisions in State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006 and Tilokchand Motichand v. H. B. Munshi, AIR 1970 SC 898 that, under no circumstances, should time be extended beyond the date on which a suit for the relief claimed would be barred under the provisions of the Limitation Act. It is pointed out that the petitioners' cause of action is either the wrong adjudication made by the Collector on the 22nd July, 1967, or the payment of duty made pursuant thereto on the 14th August, 1967, There is no question here of any mistake for, apparently, the Bank knew all along that the Collector's adjudication was wrong. Even if there was any payment by mistake, the mistake was discovered at least by the 1st August, 1967, when the Bank filed the petition, Ext. P-3, before the District Collector alleging that the adjudication was wrong and that the payment made was not really due. Therefore, whichever be the article of limitation that applies, whether it be Article 24 or Article 113 read with Section 17 of the Limitation Act, a suit should have been brought by the 1st August, 1970, at the latest, and, therefore, this petition brought on the 7th December, 1970, must be dismissed as out of time.

27. The principle we deduce from these two decisions of the Supreme Court is this: while delay in bringing writ petitions may be excused in the discretion of the court where good reason is shown, it would ordinarily not be a sound exercise of discretion to extend the time beyond the date by which a suit for the relief claimed would be barred under the provisions of the Limitation Act For this purpose, it does not seem to matter whether a suit would, in fact, lie or not -- if that were not so, a person would be in a better position for the injury of which he complains not being of a civil nature or for a civil suit being expressly or impliedly barred. We think the inquiry should be, when would a suit for the relief claimed be-| come barred by time if a suit lay, whether in fact it lies or not -- that saves us from going into the difficult question which haS' been argued at some length, namely, whether a suit will lie for setting aside the adjudication of the Collector. In the present case, whichever be the article of limitation that applies, the period of limitation if a suit lay (whether in fact it lies or not) would be three years from the date on which the cause of action arose. That being so, if this were an ordinary case, we should not extend the time for filing the petition beyond the 1st August, 1970, for, applying the provisions of the Limitation Act (the actual provisions, not the principles underlying them) a suit would become barred on that date. But, this we consider to be a very extraordinary case, in particular, in that the Government did entertain an application for a reference and did, in fact, make a reference, everybody concerned believing that a reference lay. And, as we have already noticed, it was while the reference was pending before us that the writ petition was brought. The petitioners have throughout acted with the utmost diligence, and, taking all the circumstances into consideration, (especially that the very party that has confessedly enriched itself unjustly at the cost of the petitioner contributed to the delay) we are not disposed to deny them relief on the score of delay.

28. We allow the petition to this extent, namely, that we quash the Collector's adjudication, Ext. P-2, dated the 22nd July, 1967. It will now be for the Collector to decide the matter afresh after giving the Bank an opportunity of being heard.

29. For the rest, we dismiss the petition. We make no order as to costs.


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