Yatindra Singh, J. - (1.) These four writ petitions are for restraining the respondents from charging or demanding stamp duty on instruments for auction sale of resin or by way of allotment on quota basis; and for quashing of general letter dt. 30.4.83 requiring deposit of stamp duty: These petitions have similar facts and raise common questions of law and as such are being decided together. For the sake of convenience, the WP Number 23889/88; M/s. Bhatt Industries v. Divisional Forest Officer is taken to be leading case and the reference to the facts annexures will be in respect of this case. Facts :
(2.) Petitioner purchase resin from the forest department on the basis of quota allotment or auction sale. They enter into contract with the forest department1. The stamp duty was payable on the same but was exempted under 41, 48, 55 and 56 to remit the duties so chargeable in respect of instruments of other classes hereinafter described. C.-Forest Department 11. Instalments in the nature of a conveyance on behalf of the state of standing trees or any other forest produce in a Government forest; and also the following instruments : (i) Contract for collection of minor produce barks, etc. (ii) Contract for selling and removing trees; (Hi) Contract for the purchase of timber or firewood to be felled or cut departmentally; (iv) Contract of the usufruct of trees and topes; (v) Contract for the felling or cutting and purchase of timber or firewood; and (vi) Agreement for felling and conversion of timber;.
(3.) The relevant part of the notification is as follows No. SR 102/X-500(98)/80 Dated: Lucknow : January 14, 1982. In exercise of the powers under clause (a) of subsection (1) of Section (9) of the Indian STAMP ACT, 1899, 1899 (Act No. 11 of 1899) the Governor is pleased to make the following amendments in the Government notification no. M-599A-501, dated March, 25, 1942 which shall come into force with effect from January 20, 1982 .- Amendments In the aforesaid Notification in the heading'C-Forest Department;- (a) For the existing item 11, the following item 11 shall be substituted : "11 Instalments In the nature of a conveyance on behalf of the state of standing trees or any other forest produce in a Government forest; and also the following instruments where the amount or value specified therein does not exceed five thousand rupees : (i) Contract for collection of minor produce, barks, etc. (ii) Contract for selling and removing trees; (iii) Contract for the purchase of timber or firewood to be felled or cut departmentally: (iv) Contract of the usufruct of trees and topes, (v) Contract for the felling or cutting and purchase of timber or firewood; and (vi) Agreement for felling and conversion of timber; (b) Items 23 and 25 shall be deleted. By order Sd/- R. Venkstanarayanan Sansthagat Vitt Sachi v. amended by another notification dt. 14.1.82 ('the subsequent Notification' for short). A letter dated 30.04.19834, addressed to the personnel of Public Works Department and Forest Department, was sent by Deputy Commissioner, Stamp, Bareilly. It says that in view of the Notification dated 14.01,1982 certain instruments, like present one, which \vere earlier exempted now require stamps and accordingly the stamp duty may be charged. Petitioner challenges this letter. He prays that direction be issued to the respondents not to charge or demand any stamp duty in respect of contract of Resin for auction sale or by way of allotment on quota basis, Points for Determination. 3. We have heard the counsel for the parties. Following points arise for determination. (i) The subsequent notification was issued under Section 9 of the Act. This section is not the charging section. Whether the stamp duty can be imposed by a notification issued under that section? (ii) Whether the duty on the contract is payable by the State. Can any duty be charged in view of proviso to Section 3(bb) of the Act? (iii) Whether the limit of five thousand rupees qualifies six kinds of specific instruments mentioned in item No. 11 of the amended notification only or applies to general instruments mentioned in the same item? Whether the contract in question falls in the six specific instruments or under general instruments mentioned in item No. 11? (iv) In case we hold the third point against the State : should the stamp duty be refunded? Should the guarantee of the petitioner in pursuance of stay order be realised in case he has not passed it on to the others? 1st Point- Whether the Notification dated 14.1.1982 Imposes Fresh Duty.;