- (1.) This is an appeal against the judgment and order of the High Court of Allahabad on a certificate granted by that court. The respondent filed a petition under Art. 226 of the Constitution praying that the imposition of stamp duty by the Collector of Sitapur, of Rs. 85,598/7/- and a penalty of Rs. 5 was against law and could not be realised against him and prayed that the order be quashed. On September 12, 1948, the respondent executed a wakf by oral recitation of Sigha and then it was written on a stamped paper which was signed by the respondent and attested by witnesses. On September 15, 1948, it was presented to the Collector for his opinion under S. 31 as to the duty chargeable. As the Collector himself was in doubt, he referred the matter to the board of Revenue which, after a fairly long time, held that the document was liable to duty in accordance with Art. 58 of the Stamp Act. On October 29, 1951, the Collector held that Rs. 85,598/7/- were payable as stamp duty and ordered that it be deposited within fifteen days. Notice to this effect was served on the respondent on November 10, 1951. Thereupon the respondent filed a petition in the High Court under Art. 226 which was dismissed on November 3, 1952, on the ground that it was premature. On February 2, 1954, a further notice was served upon the respondent to deposit the amount of the stamp duty plus the penalty of Rs. 5 within a month otherwise proceedings would be taken against him under S. 48 of the Stamp Act. Thereafter on March 1, 1944, the respondent filed a petition under Art. 226 of the Constitution in the Allahabad High Court challenging the legality of the imposition of the stamp duty and the penalty and prayed for a writ of certiorari. A full bench of the High Court quashed the order of the Collector and the State of U. P. has come in appeal to this Court.
(2.) The decision of this appeal depends upon the interpretation of Ss. 31, 32 and 33 of the Stamp Act. The relevant portion of S. 31 provides:- Section 31 (1) "When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, any pays a fee of such amount (not exceeding five rupees and not less than eight annas) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable". It is admitted that the document in dispute was submitted to the Collector for his opinion under S. 31 and the opinion of the Collector was sought as to what the duty should be. Under S. 32 of the Act when such an instrument is brought to the Collector under S. 31 and he determines that it was already fully stamped or he determines the duty which is payable on such a document and that duty is paid, the Collector shall certify by endorsement on the instrument presented that full duty with which it is chargeable has been paid and upon such endorsement being made, the instrument shall be deemed to be fully stamped or not chargeable to duty as the case may be. Under the proviso to S. 32, the Collector is not authorised to make the endorsement if an instrument is brought to him a month after the date of its execution. Then follows S. 33 which is as follows: Section 33. "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom an instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. 2. For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in British India when such instrument was executed or first executed: Provided that- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3.) For the purposes of this section, in case of doubt.- (a) the collecting Government may determine what offices shall be deemed to be public offices; and (b) the collecting Government may determine who shall be deemed to be persons in-charge of public offices." 3. The decision of this appeal depends upon the interpretation to be put upon the words "before whom any instrument chargeable.....is produced or comes in the performance of his functions". Dealing with these words the High Court held: "With all respect, therefore, we agree that the learned Judges deciding Chuni Lal Burman v. Board of Revenue, U. P., AIR 1951 All 851, took a correct view of the words "is produced or comes in the performance of his functions" used in S. 33 of the Act to mean "the production of the instrument concerned in evidence or for the purpose of placing reliance upon it by one party or the other"." The High Court was also of the opinion that the object of paying the whole stamp duty was to get the instrument admitted into evidence or its being acted upon or registered or authenticated as provided in Ss. 32(3), 35, 38(1) and 48(1) of the Stamp Act.;