M. C. JAIN, Actg. C. J. - (1.) THIS writ petition is directed against the order of reference passed by Collector, Jalore, dated 10. 7. 85. (Annex. 1) and the order of the Board of Revenue dated 22-10-86. (Annex. 2) whereby it was held that the document in question is liable to stamp duty of Rs. 2,02,747. 25 and ten times penalty imposed by the Collector, Jalore, was reduced to Rs. 20,274/ -.
(2.) WE may state a few relevant facts in order to comprehend the controversy, which requires decision in the present writ petition. One Surendra Kumar presented a sale deed before the Sub-Registrar, Ahore, district Jalore, for registration. The consideration mentioned in the document was rupees fifteen lacs. Petitioners no. 1 to 6 had sold agricultural land measuring 95 bighas and 9 biswas to the Co-operative Society known as Rajendra Grah Nirman Sahakari Samiti, Ahore. The stamp duty which was fixed on the document was only Rs. 14/- and exemption was claimed under State Govt. Notification dated 2. 2. 67. The document was impounded by the Sub-Regstrar and was sent to the Collector u/s 38 for the determination of the stamp duty and penalty u/s 40 of the Rajasthan Stamp Act. After notice, the Collector decided the matter and made reference to the Board of Revenue and the learned Member of the Board of Revenue held that exemption as claimed under the Notification is not available and the document is liable to stamp duty to the tune of Rs. 2,02,747. 25. However, the learned Member of the Board of Revenue reduced the penalty as stated above. The main question which arises for consideration in the present writ petition is as to whether the petitioners can claim exemption under the Notification dated 2. 2. 67. The Notification has been issued by the State Govt. in exercise of the powers conferred u/s 44 of the Rajasthan Co-operative Societies Act. Section 44 (1) clause (a) reads as under:- "44 Exemption from certain taxes, fees and duties- (l) The Government may, by notification in the Official Gazette remit in respect of any class of co-operative societies:- (a) the stamp duty chargeable under any law for the time being in force in respect of any instrument executed by or on behalf of a co-operative society, or by an officer or member thereof any relation to the business of such society, or any class of such instruments or in respect of any award or order made under this Act, in cases where, but for such remission, co-operative society officer, or member, as the case may be, would be liable to pay such stamp duty;" In exercise of the powers conferred by the aforesaid provision, the following Notification was issued by the State Government: "in exercise of the powers conferred by clause (a) of sub-section (1) of Section 44 of the Rajasthan Co-operative Societies Act, 1965 (Rajasthan Act 13 of 1965) and in supersession of this Department Notification No. F 25 (2)/1/coop/53 dated 23/26. 07. 1954 published in the Rajasthan Rajpatra No. 58 part IV (c) dated 31. 7. 1954 the State Government hereby remits the stamp duty, chargeable under any law for the time being in "force, in respect of any instrument executed by or on behalf of a co-operative society or by an officer or member thereof and relating to the business of such society, or any class of such instruments or in respect of any award or order made under the said Act. " It would appear from the aforesaid provision contained in clause (a) of sub-sec-tion (1) of s. 44 that Govt. may remit in respect of any class of co-operative societies a stamp duty in respect of any instrument executed by or on behalf of a co-operative society, or by an officer or member thereof and relating to the business of such society, or any class of such instruments or in respect of any award or order made under the Act. The power which has been conferred on the State Govt. does not relate to any instrument executed by any officer or number of any Co-operative society in their personal capacity. The instrument should be executed by them in their capacity as officer or member and it must relate to the business of the society. The Notification which, has been issued by the State Govt. in exercise of the said power is confined to the provision contained in sub section (1) clause (a) and no Notification can go beyond that. The Notification in question does not go beyond the provision contained in s- 44 (1) (a ). If a member of a co-operative society executes any instrument in his personal capacity in favour of the co-operative society of which he is a member, then no exemption can be claimed in respect of such instrument either under the Notification or under (clause (a) of sub-section (l)of s. 44. We agree with the view taken by the learned Member of the Board of Revenue that instrument, which has been executed by a Member in favour of the co-operative society and which is not related to the business of the society in their personal capacity, is not exempt from stamp duty. Stamp duty has been rightly levied on the instrument in question by the authorities below. Counsel for the petitioners further submitted that in the circumstances of this case no penalty should be levied on the petitioners as there were earlier orders of the Addl. Collector, Jodhpur, based on orders and Circulars of the Inspector General of Stamp and Registration, of which reference has been made in Annex. 3, passed by the Addl. Collector Jodhpur, dated. 19. 4. 83 in Stamp Cases No. 184/83 to 187/83. This aspect has also been considered by the learned Member of the Board of Revenue and taking that into consideration, the learned Member of the Board of Revenue though it proper to reduce the penalty. However, we are of the opinion that in the circumstances", the petitioners should not be made liable to pay any amount of penalty. It may be an act on the part of the petitioners based on the earlier orders passed by the Addl. Collector and also of the Inspector General of Stamp and Registration. Thus, the act appears to be a bonafide act on the part of the petitioners and as such, we are of the opinion that no penalty should be imposed on the presentation of the document for insufficient stamp duty. Accordingly, the writ petition is partly allowed and the order imposing penalty by the Board of Revenue to the tune of Rs. 20, 274/- is quashed and set-aside. The petitioners may present the document with requisite stamp duty for registration and for which, they are permitted to withdraw the amount deposited by them in fixed deposit in the name of. District Registrar, Jalore. . ;