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Jaidayal Shanti Kumar and anr. Vs. Gajadhar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Ref. Nos. 1 and 2 of 1955
Judge
Reported inAIR1956Raj155
ActsStamp Act, 1899 - Sections 26, 37, 40(2), 56(1) and 57; Rajasthan Stamp Law (Adaptation) Act, 1952 - Sections 6; Indian Stamp Act - Sections 75
AppellantJaidayal Shanti Kumar and anr.
RespondentGajadhar and ors.
Appellant Advocate G.N. Sharma, Adv.
Respondent Advocate S.B.L. Saxena, Adv.; C.B. Bhargava, Deputy Govt. Adv.
Cases ReferredKedarmal Raghunath v. Ratiram
Excerpt:
- - the first proviso to section 6 of the rajasthan act clearly saves the rules framed under the jaipur stamp law till the rajasthan state frames its own rules......rules were framed by the state government as provided therein. he was of the view that the jaipur stamp rules which were in force could not be said to have continued after the coming into force of the rajasthan act.thereupon, the two plaintiffs brought the matter to the notice of the board of revenue under section 56(1) of the stamp act. and the board has made these references under section 57 of the stamp act, as it is of the opinion that the jaipur stamp rules continued in force after the rajasthan act came into force by virtue of the first proviso to section 6 of the rajasthan act. the board has prayed that necessary direction be issued in this matter by this court after declaring the law.3. a preliminary objection has been raised on behalf of bhagwan sahai, opposite party, that the.....
Judgment:

Wanchoo, C.J.

1. These are two connected civil references by the Board of Revenue under Section 57 of the Stamp Act as adapted to Rajasthan by the Rajasthan Stamp Law (Adaptation) Act (No. VII of 1952) (hereinafter to be referred to as the Rajasthan Act). As the point raised in the two references is exactly the same, we propose to decide it by one judgment.

2. We set out briefly the facts which have led to these references. Two suits were pending before the Civil Judge, Gangapur, on two hundis. In both cases the hundis are said to bear sufficient stamps But of improper description. Therefore, the plaintiffs of the two suits applied to the Collector for a certificate under S- 37 of the Stamp Act.

The Collector refused to give the certificate holding that he could not issue a certificate under that section till rules were framed by the State Government as provided therein. He was of the view that the Jaipur Stamp Rules which were in force could not be said to have continued after the coming into force of the Rajasthan Act.

Thereupon, the two plaintiffs brought the matter to the notice of the Board of Revenue under Section 56(1) of the Stamp Act. and the Board has made these references under Section 57 of the Stamp Act, as it is of the opinion that the Jaipur Stamp Rules continued in force after the Rajasthan Act came into force by virtue of the first proviso to Section 6 of the Rajasthan Act. The Board has prayed that necessary direction be issued in this matter by this Court after declaring the law.

3. A preliminary objection has been raised on behalf of Bhagwan Sahai, opposite party, that the Board has no jurisdiction to make a reference to this Court under Section 57 of the Stamp Act, and the argument is that the Collector having decided the matter, there is nothing pending before him, and the Board has no jurisdiction to interfere under Section 56 and therefore cannot make a refeence under S 57 In support of this argument reliance is placed on a number of cases relating to Section 40 Sub-section (2) Of the Stamp Act.

4. Section 57 gives power to the Chief Controlling Revenue Authority, namely, the Board, of Revenue, to state any case to this Court, which may have been referred to it under Section 56(2) or which might have otherwise come to its notice. The present is not a case referred to the Board under Section 56(2).

It is a case which came to its notice otherwise. The power of the Board to make a reference to this Court under Section 57 is in very wide terms, and it can refer any case to this Court which comes otherwise to its notice. All that is necessary to make a reference competent is that there should be a case pend-ing before any revenue authority in order to enableit under Section 59(2) of the Stamp Act to dispose of the case conformably to the judgment of the High Court, which is to be forwarded to the Revenue Authority.

5. This raises the question whether a case can be said to be pending before the Board of Revenue, which is the Revenue Authority that has made the reference. In order to decide this, we have to consider what are the powers of the Board of Revenue as the Chief Controlling Revenue Authority under Section 56 (1) of the Act. That section reads as follows :

'The powers exercisable by a Collector under Chapter IV and Chapter V, and under Clause (a) of the first proviso to Section 26, shall in all cases be subject to the control of the Chief Controlling Revenue-authority.'

The present is a case under Section 37 which falls in Chapter IV. Therefore, the powers exercisable by a Collector under Section 37 are subject to the control of the Board of Revenue. It has, however, been contended on behalf of Bhagwan Sahai that under Section 56(1) the Board of Revenue can only pass orders while the case is pending before the Collector, and that after the Collector has decided a case under Chapter IV or Chapter V, or under Clause (a) of the first proviso to Section 26, the Board of Revenue has no power to revise it.

Stress in this connection is laid on the words 'powers exercisable by a Collector', and it is urged that these words mean that the Collector should not have exercised the powers, and that if he has exercised them, the Board of Revenue cannot pass any orders under Section 56(1). We are of opinion that such a restricted meaning cannot be given to these words.

What Section 56(1), in our opinion, lays down is that powers, which the Collector can exercise under Chapter IV and Chapter V, and under Clause (a) of the first proviso to Section 26, are subject to the control of the Chief Controlling Revenue-authority. That authority can, in our opinion, interfere with the orders of the Collector under these provisions even after they have been made provided there is no other provision in the Stamp Act which forbids such interference.

Section 56(1), in our opinion, gives revisory jurisdiction to the Chief Controlling Revenue Authority over those powers which the Collector can exercise under Chapters IV and V, and under Clause (a) of the first proviso to Section 26. The Chief Controlling Revenue-authority may interfere before the Collector exercises those powers, or may revise them after they have been exercised, under the provisions of Section 56(1), subject always to there being nothing in other parts of the Stamp Act which prohibits such interference.

6. We may here examine certain cases whichhave been cited by learned counsel for BhagwanSahai in support of his contention that the reference is incompetent because the Collector has already exercised his power under Section 37.

7. The first case to which reference may be made is Reference under Stamp Act Section 57, 25 Mad 752 (A) (stated under Section 57 of Act II of 1899 (Stamp Act) by the Secretary to the Commissioner of Salt, Abkari and Separate Revenue, Madras, in a letter Mis. No. G. R., 1314, dated 14th December, 1901). That case went before a Special Bench, and the facts were these. A Sub-Registrar impounded two documents which had been produced before him for registration, and forwarded them to the Deputy Collector.

The Deputy Collector certified under Section 40(1) (a) that they were exempt from stamp duty. The Inspector General of Registration disagreed with this opinion, and reported the matter to the Boardof Revenue for orders. The Board of Revenue thereupon made a reference under Section 57. It was held that the High Court had no jurisdiction to decide the question.

Each of the three Judges delivered a separate judgment. The Chief Justice was of opinion that the High Court had jurisdiction to decide the matter. The other two Judges, however, took the view that because of the provision contained in Section 40, Sub-section (2), the decision of the Collector could not be interfered with because Sub-section (2) makes every certificate under Clause (a) of Sub-section (1) of Section 40 conclusive evidence of the matters stated therein.

Further Bhashyam Ayyangar J., was of the opinion that the word 'exercisable' used in Section 56(1) showed that the Board of Revenue could only intervene before the Collector exercised the powers, and not afterwards.

Moore J., however, was of the view that the Board could interfere with the orders of the Collector, which come within the ambit of Section 53(1) subject to the other provisions of the Act. He was further of the view that if other provisions of the Act made the order of the Collector conclusive, the Board would not interfere. The three Judges thus took three different views in this case, & with all respect we are of opinion that the view taken by Moore J. is the correct view.

8. The next case, to which reference may be made, is In the matter of Khub Chand 1918 All 181 (2) (AIR V 5) (SB) (B). That was also a Special Bench decision, and the Madras Case cited above was relied upon. That case, however, was not a case under Section 40(1) (a). It was a case under Section 40 (1) (b); but the learned Judges somehow say in their judgment that under Section 40, Sub-section (2) this certificate is, for purposes of the Stamp Act, conclusive evidence of the matter stated therein.

A perusal of Section 40, Sub-section (2) would show that it does not refer to cases covered by Section 40 (1) (b). How the learned Judges made the mistake is difficult to say, but in view of this mistake, the value of this case is, if we may say so with respect, very little.

9. The next case is Usuf Dadabhai v. Chand Mahammed, 1926 Bom 51 (AIR V 13) (C). That was a case under Section 37 of the Stamp Act, and the Collector had allowed stamps of the proper description to be affixed. Thereafter, the Board of Revenue made a reference, but the documents had been admitted in evidence, and a decree had been passed on them.

In those circumstances, the learned Judges held that an abstract question could riot be referred when there was no pending case before the Chief Revenue Authority. The view taken in this case has no relevance to the interpretation of Section 56 (1) with which we are really concerned in the present case.

10. The next case, to which reference may bs made, is in re, Cook and Kelvey, 1932 Cal 736 (AIR V 19) (SB) (D). In that case a certain instrument was presented before the Collector under Section 31, and the Collector determined the duty with which it was chargeable.

The Collector, however, did not impound the document. It may be mentioned that Section 31 is in chapter III, and Section 56(1) does not apply to it. What the Board of Revenue did in that case was to make a reference before the Collector impounded the document. It was then held that the Board could not make a reference. This case also is not helpful to us for interpreting Section 56(1).

11. The next case is Thakar Das v. Emperor, 1932 Lah 495 (AIR V 19) (SB) (E). In that case. It was held that Sub-section (1) of Section 63 confersvery wide powers on the Chief Controlling Revenue Authority, and it has the power to interfere with, the order of the Collector in exercise of his powers under Section 56, and also to make a reference under Section 57.

The Madras case (A) cited above waff distinguished, and it was pointed out that that case should only be confined to cases covered by Section 40, Sub-section (2). This was a case which came under Section 40(l)(b), and was thus not covered by Section 40, Sub-section (2).

12. The last case, to which reference may be made, is Kedarmal Raghunath v. Ratiram, 1935 Nag 54 (AIR V 22) (F). In that case, it was pointed out that the certificate of a Collector under Section 40 (1) (a) was final. It was also said that probably an order under Section 40 (1) (b) is also final. That case, however, did not deal specifically with the powers of the Board of Revenue under Section 56 (1).

13. 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 those powers or has exercised those 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).

We may also remark that what we have said in this case should not be taken to decide a case coming under Ss. 40(1) (b) and 42, as this case is not of that type. But so far as other orders of the Collector are concerned which are within the ambit of Section 56 (D, the Board has the right to revise them if no provision of the Stamp Act makes them conclusive, and to make a reference in that connection if the matter comes to its knowledge otherwise.

The matter that is pending in this case is the application before the Board requesting it to set aside the order of the Collector under Section 37, and the Board, after it receives a copy of our judgment, would be entitled to deal with the application pending before it according to our judgment.

14. Now we come to Section 37 itself. That section provides that the collecting Government may make rules providing that where an instrument bears a stamp of sufficient amount, but of improper description, it may on payment of the duty, with which the stamp is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution.

15. It is clear from the words of this section that the certificate under it can only be given when there are rules framed to that effect by the State-Government. The Collector has refused a certificate in this case on the ground that there ere no rules framed by the State Government. He has also held that the rules framed under the Jaipur Stamp Act are no longer in force.

The Board of Revenue is of opinion that the rules framed under the Jaipur Stamp Law remain in force till new rules are framed by the State of Rajasthan, and as Jaipur Stamp rules allow the Collector to certify such cases, the Collector should have proceeded accordingly.

16. We are of opinion that the view taken by the Board is correct, and does not require much authority in support of it. The first proviso to Section 6 of the Rajasthan Act clearly saves the rules framed under the Jaipur Stamp Law till the Rajasthan State frames its own rules. The proviso is as follows-

'Provided that any thing done or any action taken under any such law shall be deemed to havebeen done or taken under the corresponding provision of the Indian Act, and shall continue to be In force accordingly unless and until superseded by any thing done or any action taken under the Indian Act as hereby adapted to Rajasthan:'

Now the Jaipur Rules were framed under the Jaipur Stamp Act. That was an action taken under the Jaipur Stamp Law. That action would now be deemed to have been taken under the corresponding provision of the Indian Act as adapted to Rajasthan namely Section 75 of the Stamp Act which gives power to the Government to make rules to carry out generally the purposes of the Act.

Therefore, the rules framed under the Jaipur Stamp Act continue to be in force under the first proviso to Section 6 of the Rajasthan Act as having been framed under Section 75 of the Indian Act as adapted to Rajasthan. The Collector, therefore, was not right in holding that the Jaipur rules were not in force, and he should have disposed of the application made to him under Section 37 according to Jaipur rules.

The Board of Revenue, where the matter is now pending, is entitled to revise the order of the Collector, and to pass an order in conformity with the Jaipur Stamp rules, and dispose of the application before it under its powers under Section 56 (1) of the Stamp Act.

17. A copy of this judgment will be sent tothe Board of Revenue. In the circumstances ofthe case, we pass no order as to costs.


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