M.C. Jain, J.
1. The State of Rajasthan has filed this writ petition for quashing the order of the Board of Revenue dated December 19, 1972 (Ex. 8) whereby it quashed the order of the Collector, Bika-ner, dated September 6, 1971 (Ex. 6) as being without jurisdiction.
2. The present writ petition relates to the Rajasthan Stamp Law (Adaptation) Act, 1952 (Act No. VII of 1952) (hereinafter referred to as 'the Act').
3. I may advert to the relevant facts in brief.
4. A deed of sale was executed on the 9th day of September, 1970, by Maharaja Shri Kami Singh, Ex-Ruler of Bikaner State (respondent No. 1), through his lawful attorney Maharai Kumar Shri Narendra Singh (respondent No. 2) in favour of Kami Charitable Fund Trust, Bikaner (respondent No. 3). Land measuring 19,23,803 sq. ft. situated within Lallgarh Palace area was transferred by the aforesaid sale deed for a consideration of Rs. 10,000/-. The document was presented for registration before the Sub-Registrar, Bikaner, on 9-9-1970 and the Sub-Registrar, Bikaner, made a note after perusal of the document that the rate of the land situated around the Lallgarh Palace area is much more and so the consideration, said to have been received in the document, is not acceptable being untrue and incorrect. The value of the land sold is much more than what has been shown in the sale deed. In order to save the stamp duty the document has been undervalued by showing less consideration. It was stated that after registration of the document, the document will be sent to the Collector, Bikaner, under Section 47-A of the Act for realisation of the deficit stamp duty. After registration of the document the Sub-Registrar submitted a report Ex. 3 to the Collector, Bikaner. It was expressed in the report that the site plan annexed with the document, had an endorsement of the word 'gift' and the same has been erased and in its place the word 'sold' has been written, therefore, the document is a gift, so it should have been valued for purposes of stamp duty under Rule 33 on the market value of the land and the word 'sold' has been used for the purpose of saving the stamp duty. It was also written by the Sub-Registrar that even if the document is considered to be a sale deed, still the document has been undervalued by mentioning lesser consideration. The prayer was to make an inquiry under Section 47-A and thereafter the deficit stamp duty may be recovered. The required evidence shall be produced at the time of the inquiry.
5. On the above report of the Sub-Registrar, a notice (Ex. 4) was issued to the respondent No. 1 under Section 47-A of the Act, whereby the respondent No. 1 was called upon to give the correct valuation of the land sold and he was also called upon as to why sanction for prosecution under Section 64 (a) be not given. It was stated in the notice that in the document the value of the property sold has not been correctly stated and the property has been undervalued in order to save stamp duty, Thus, Section 27 has been contravened.
6. A reply to the notice (Ex. 5) was filed, in which it was stated that consideration of the document has been correctly stated and a lesser consideration has not been shown. The learned Collector, after hearing the parties ordered on September 6, 1971, that the Superintending Engineer, P. W. D. (B. & R.), Bikaner, should proceed on the spot and assess the value of the land and submit his valuation report within one month of the receipt of the order. Dissatisfied with this order of the Collector respondent No. 1 approached the Board of Revenue under Section 56 of the Indian Stamp Act, 1899 as adopted in Rajast-han. The Board of Revenue, after hearing the parties, quashed the order of the Collector as being without jurisdiction. Aggrieved against the order of the Board of Revenue, the State of Rajast-han has filed this writ petition on the ground, which I shall proceed to consider hereinafter.
7. Mr. R. P. Dave, learned Deputy Government Advocate, for the State of Rajasthan, has contended that the order of the Collector, Bikaner, was appealable under Section 47-A and so the revision petition filed by the respondent No. 1 before the Board of Revenue was incompetent. He pointed out that under Sub-section (3) of Section 47-A, as was in force at the relevant time, an appeal against the order of the Collector would lay before the principal Civil Court of original jurisdiction, so the order of the Collector could not be challenged before the Board of Revenue under Section 56 of the Act. Mr. Dave placed reliance on a Division Bench decision of this court given in Civil Writ Petn. No. 425 of 1981, Banwarilal v. Board of Revenue, decided on 13-10-1981, which has been followed in Civil Writ Petition No. 1786 of 1981, State of Rajasthan v. Shanker Nath, decided on 8-12-1982.
8. The above contention of Shri Dave, in my opinion, is untenable, in view of the language of Section 47-A. Section 47-A, as it stood then, prior to its amendment by the Rajasthan Act No. 33 of 1976, was as under:--
'47-A. Instruments undervalued, how to be valued:-- (1) Where, in the case of any instrument relating to any immovable property chargeable with an ad valorem duty on the value of the property, or the consideration, as set forth in the instrument, the registering officer has, while registering the instrument, reasons to believe that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, send it, in original, to the Collector to determine the value or consideration and to assess and charge the duty in conformity with such determination.'
(2) On receipt of the instrument under Sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an inquiry in the prescribed manner, determine the value or consideration and the duty payable thereon as if that were the value or consideration set forth in the instrument : and if the amount of duty so determined exceeds the amount of duty already paid the deficit amount shall be payable by the person liable to pay the duty.
(3) Any person aggrieved by an order of the Collector under Sub-section (2) may, within thirty days from the date of the order prefer an appeal before the court and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules made under this Act.
(4) for the purpose of enquiries under this section, the Collector shall have power to summon and enforce the attendance of witnesses, including the parties to the instrument or any of them, and to compel the production of documents by the same means, and (so far as may be) in the same manner, as is provided in the case of civil court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908):
Explanation:-- For the purpose of Sub-section (3), 'Court' means a principal Civil Court of original jurisdiction, and includes a court which the State Government may, by notification in the Official Gazette, appoint within specified local limits to perform the functions of the Court under that sub-section.'
9. A bare scrutiny of the above provision would show that under Sub-section (3) it is only the final order passed under Sub-section (2) which is appealable. The impugned order is not an order falling under Sub-section (2). It is only an interim order whereby the Superintending Engineer has been directed to submit his report regarding the valuation of the land. The Collector has not so far determined the value or consideration and the duty payable thereon, after enquiry and he has not determin-ed the deficit amount, if any. It is only such an order of determination, which is appealable under Sub-section (3). All orders passed during the course of inquiry have not been made appealable under Sub-section (3). It is only the final order passed after inquiry, which appealable. So I held that the order of the Collector dated 6-9-1971 was not an order as contemplated under sub-sec-lion (3), so was not an appealable order, The decisions, on which reliance has been placed by Shri Dave, have no application, as admittedly in those decisions there were final orders passed by the Collector. It is not in dispute before me that if a final order would have been passed under Sub-section (2) of Section 47-A, then such an order could be challenged by way of appeal before the Court of District Judge under Sub-section (3).
10. It is next urged by Shri N. P, Dave, learned Dy. Government Advocate, for the State, that the Board of Revenue had no authority to set aside the order of the Collector under Section 35 of the Stamp Act. The Board of Revenue could not have interfered with the order of the Collector, as the Collector has only proceeded to hold an inquiry under Section 47-A. The ground on which the Board of Revenue interfered with the order of the Collector was that the Sub-Registrar became functus officio after registration of the document and that being so, he could not move the Collector for taking action under Section 47-A.
11. In this connection it may be pointed out that Section 56 of the Stamp Act confers power of control on the Chief Controlling Revenue Authority, that is, the Board of Revenue, over the powers exercisable by the Collector under Chapter IV and Chapter V and under Clause (a) of the first proviso to Section 26. The powers exercisable by the Collector under these two chapters and under the provisions of Section 26, proviso first clause (a), have been subjected to the control of the Chief Controlling Revenue Authority. Section 47-A falls under Chapter IV, so the powers exercisable by the Collector under Section 47-A are subject to the control of the Board of Revenue and the Board of Revenue is competent to go into the question as to whether the Collector has properly exercised his powers under Section 47-A or not. The word 'control' is of very wide import. Within the expression 'control' may fall not only final orders, but even interim orders or actions, which are taken by the Collector under various provisions of Chapter IV and Chapter V. However, I may make it clear that so far as the final order passed under Section 47-A is concerned it cannot be taken up for consideration by the Board of Revenue in exercise of its power of control under Section 56 in view of the fact that the final order under Sub-section (2) of Section 47-A has been specifically made appealable. Section 47-A is a special provision for appeal against the final order passed under Section 47-A (2) and it is a well settled principle that the revisional powers or powers of control cannot be exercised by an authority in whom such a power is vested over an order which is appealable. The remedv of appeal alone has to be availed for questioning or agi-tating the order, which is appealable. I may here profitably refer to a decision of the Special Bench of this Court in Jaidyal Shanti Kumar v. Gajadhar (AIR 1956 Rai 155), wherein Wanchoo, C. J. (as he then was) speaking for the special Bench, in para 13 observed as under:--
'On a review of these authorities, we are of opinion that Section 56(1) gives powers to the Board to interfere with the orders of the Collector passed under chapters IV and V, and under clause (a) of the first proviso to Section 26, whether the Collector is about to exercise these powers or has exercised these powers, subject however to such provisions in the Stamp Act, which declare the orders of the Collector conclusive, as for example Section 40, Sub-section (2)'.
The above observations have to be read further in the light of what I have discussed relating to the provisions contained in Section 47-A. From the above discussion, therefore, it can be concluded that where the order can be appealed against under Section 47-A, such an order cannot be agitated under Section 56 (1) before the Board of Revenue but till that stage is reached, the Board of Revenue is competent to exercise its power of control over all the powers exercisable by the Collector under Chapter IV and Chapter V and under Clause (a) of the first proviso of Section 56.
12. So far as the ground of interference is concerned I agree with the learned Deputy Government Advocate that the Board of Revenue could not interfered and set aside the order of the Collector on the basis that after registration of the document the Sub-Registrar had become functus officio. It appears that the learned member of the Board of Revenue proceeded to consider the entire matter in the light of the facts of another revision petition, which was also disposed of by the Board by its impugned order. The other case related to a gift deed and that document was executed as far back as on 17-10-1961 and was admitted for registration on 5-3-1962. It is in connection with this document it was observed by the learned member of the Board of Revenue that under Section 47-A. the Collector can be moved by the Registrar, soon after the registration of the instrument. The learned member observed that in the instant case the registration has taken place long ago. This observation can have no relevance so far as the deed of sale is concerned. Under Section 47-A the registering authority is empowered to send the original instrument for proper assessment and for charging the proper duty to the Collector, if he has reason to believe while registering the instrument, that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument. The reference or report by the Sub-Registrar to the Collector under Section 47-A, so far as the sale deed is concerned, was legal, proper and justified, as the Sub-Registrar noticed that there has been undervaluation. He made a report on record, while registering the instrument and after registration of the same, reported the matter to the Collector under Section 47-A. I need not go into the question as to whether the Sub-Registrar had reason to believe or not that the value of the property or consideration has been truly set forth in the instrument or not. But so far the stage at which the report has been made, is concerned, it cannot be said that the report was not made by the Sub-Registrar at the proper stage.
13. Mr. M. M. Vyas, learned counsel for the respondents, however, urged that the learned member of the Board of Revenue recorded the respondents' contention to the effect that the Collector had no jurisdiction to go into the question of determination of the value of the property, as the document is chargeable under Article 23 of the Act and the relevant consideration under Rule 23 is 'consideration of the document'. The determination of the value of the property for the purpose of chargeability of stamp duty is irrelevant under Article 23, when there is cash consideration, It can be relevant, when the consideration is in kind. When the order of the Collector directing determination of the value of the property by the Superintending Engineer is without jurisdiction and when the same was agitated before the Board of Revenue, though the Board of Revenue did not proceed to decide that question, still when the order is without jurisdiction and void, this court in exercise of its jurisdiction under Article 226 of the Constitution, need not quash the order of the Board of Revenue, as by that order an illegal order of the Collector has been quashed.
14. Thus, the main question, which requires consideration in the present writ petition, it is as to whether the order of the Collector is without jurisdiction and if it is found that it is without jurisdiction, this Court would not be justified in interfering with the order of the Board of Revenue. For, interference in the order of the Board of Revenue would mean that an illegal order or an order without jurisdiction, is restored. In this connection I may refer to a Full Bench decision of this Court in Jagan Singh v. State Transport Appellate Tribunal, Rajasthan (AIR 1980 Raj 1). In that case the State Transport Appellate Tribunal allowed the appen and set aside the order of the Regional Transport Authority varying a condition of the petitioner's permit, as respects the route, on the ground that the R.T.A. admittedly did not follow the procedure prescribed under Section 57 (3), (4) and (5) of the Motor Vehicles Act, and the order of the Tribunal was challenged by a writ petition on the ground that the Tribunal had no jurisdiction to entertain the appeal under Section 64 (1) (b) of the Motor Vehicles Act, The High Court refused to interfere with the appellate order on the ground that allowing the writ petition would result in restoring the illegal order of the R.T.A. and it was also observed that there had been no failure of justice, as well,
15. Thus, it is to be seen as to whether the order of the Collector is with jurisdiction or without jurisdiction and for determination of this question reference is required to be made to the relevant charging provision, which is admittedly Rule 23. Art, 23 deals with conveyance. Stamp duty leviable on conveyance is based on the amount or value of the consideration for such conveyance as set forth therein, Section 47-A makes reference to two expressions with regard to chargeability of stamp duty. An instrument relating to an immovable property may either be chargeable with an ad valorem duty on the value of the property, or it may be chargeable on consideration, as set forth in the instrument. There are documents, which are chargeable on the value of the property and there are documents, which are chargeable on considerations, which are shown in the instrument itself. If the document is chargeable on the value of the property and if the value of the property is not correctly set forth in the instrument, then the Collector is empowered to hold an inquiry under Section 47-A. Similarly if the instrument is chargeable on the basis of consideration set forth in the instrument and if that consideration is not true and a correct one, then also an inquiry can be conducted by the Collector under the above provision. So far as the instant case is concerned in view of the notice issued by the Collector, it would be clear that the Collector has proceeded to consider the question on the basis that the instrument is chargeable on the value of the property and he proceeded to hold an inquiry of the value of the property. It is significant that the Collector had not proceeded to hold an inquiry into the incorrectness of the consideration shown in the instrument, that is, it is not the case of the Collector, as stated in the notice, that the consideration of the instrument is over and above Rs. 10,000/- and consideration shown is less than the actual agreed consideration. So far as the question of chargeabilityof conveyance is concerned the questionhas been set at rest by a decision of theSupreme Court in Himalaya House Co.Ltd. v. The Chief Controlling RevenueAuthority (AIR 1972 SC 899). In thatcase 'Nil Valuation' was made in theAssignment Deed and the question ofchargeability of the deed arose for con-sideration. Their Lordships of the Su-reme Court, after reviewing the (sic)law observed as under:--
'No decision taking a contrary (sic) was brought to our notice. The (sic) arising for decision in this case is (sic) by stare decisis. We are ent(sic) agreement with the view expressed those decisions. Even if we had been dined to place a different interpretation on Article 23, we would have hesitated to do so in view of the long line of decisions to some of which we have already made reference. The Legislature may have had good reasons for not empowering the Revenue to make an independent inquiry as regards the valuation of the right sought to be assigned.'
Reference may also be made to a decision of the Kerala High Court in the District Collector. Ernakulam v. Ittiavirah John (1975 Ker LT 486) : (AIR 1976 Ker 97). There was a deed of conveyance executed by the respondents for consideration of Rs. 3,500/-. On objection being taken, to the sufficiency of the stamp duty, the Collector held that stamp duty had to be levied on the market value of the property as assessed by the Tahsil-dar in his report, viz., Rs. 48,000/-. The respondent paid stamp duty on the consideration shown in the instrument under Article 21 of the Kerala Stamp Act, which is analogous to Article 23 of the Central Act. The respondent preferred an appeal to the District Court under Section 54-A, which is analogous to Section 47-A of the Rajasthan Act. The District Court took the view that the Collector's action was unjustified and his order was unsustainable having regard to the provisions in the Stamp Act. The matter came up before the Division Bench of the Kerala High Court. The Kerala High Court agreed with the view taken by the District Court. In that case, it was observed as under (at p. 98):--
'Section 28 of the Act requires that the consideration and all other facts and circumstances affecting the chargeability of any instrument shall be fully and truly set forth therein. And Section 45-A allows the Collector to determine the correctness of the value or consideration of any instrument within two years from the date of registration. Having regard to the language used in Rule 21, viz. stamp duty had to be paid on the amount or value of the consideration for such conveyance, it was not open to the Collector to direct payment of stamp duty of the market value of the property as assessed by the Tahsildar in his report. It might have been open to the Collector to find that the consideration had not been duly and correctly stated as required by Section 28 and to direct an investigation under Section 45-A (2) and to take action accordingly. But as pointed out by counsel for the respondent, there was no such case and no action on the basis of the Section was taken. Therefore, the finding of the. Collector that stamp duty had to be paid on the market-value was unjustified and was rightly vacated by the District Judge.'
The view of the District Judge was held to be correct in the absence of appropriate legislative amendment to Rule 21 of the Kerala Stamp Act. Reference was made to the aforesaid Supreme Court decision and it was observed that 'the Supreme Court referred to a series of decisions which had taken the view that in order to see whether a document had been sufficiently stamped, the document itself as it stands, had to be looked at and not any collateral facts. This view taken by the Courts was endorsed and accepted as correct by the Supreme Court on the principle of stare decisis.' This Kerala case, in my opinion, is on all fours. The Collector had no jurisdiction to launch an inquiry into the value of the land. He could, however, proceed to hold an inquiry as to whether consideration has been truly set forth in the instrument or not, but proceeding to hold an inquiry regarding the valuation of the land, was uncalled for and was without authority and jurisdiction. In this view of the matter and in the light of the Full Bench decision of this Court referred to supra, the order of the Board of Revenue does not call for any interference in the exercise of the extraordinary jurisdiction of this Court.
16. No other point has been argued before me and nor any other point survives for consideration.
17. In the result, this writ petition is hereby dismissed with no order as to costs. However, I may observe that in view of the report of the Sub-Registrar it would be open to the Collector to hold an inquiry into the question as to whether the consideration shown in the sale deed has been truly set forth or not.