- (1.) TO appreciate the objections raised by the learned Government Advocate as regards the maintainability of this revision it is necessary to set out the facts of the case in brief. The Jaipur Metals and Elecrical Limited is a public limited company having its registered office near the Railway Station, Jaipur, hereinafter referred to as the applicants, negotiated with the Industrial Financial Corporation of India for the advance of a loan of Rs. 7-1/2 lacs to them and the Corporation sent to the applicant two drafts of documents to be executed and registered by the applicant in favour of the Corporation. One of these documents is an indenture between the applicant, its managing agents and the Corporation regarding the taking of the loan and containing therein the postponement of the first charge of the debenture on the fixed assets of the company in favour of the first charge of the Corporation. The other is an indenture between the applicant and the Trustees of the Debenture Trust regarding the postponement of their charge in favour of the Corporation. The applicant, in order to have an adjudication from the Collector, regarding the stamp duty payable on the aforesaid two documents submitted an application to the Collector, under sec. 31 of the Indian Stamp Act. The Collector wrote down the words 'r. A. ' on the margin of the application. The office put up a note on 28. 4. 56 before the Collector who passed an order on 26. 5. 1956. As regards the merits the decision of the Collector runs as below : - "a perusal of the deeds executed in favour of the Industrial Finance Corporation of India shows that it contains two distinct matters, one being a mortgage without possession in favour of the Corporation for a sum of Rs. 7-1/2 lacs and the other the creation of second charge by the first mortgagees for the sum of Rs. 10 lacs advanced by them to the Company. It is obvious that there are two distinct matters and, therefore, the consideration for this deed for the purposes of stamp duty according to sec. 5 of the Indian Stamp Act amounts to Rs. 17-1/2 lacs and not merely Rs. 7-1/2 lacs and is chargeable as per Art. 40 (b) of the Schedule I of the Rajasthan Stamp Law Adaptation Act. The proper stamp duty on this deed, therefore, comes to Rs. 17,500/- (Rupees seventeen thousand and five hundred only ). The second deed is a supplement to the above deed and can therefore, be executed on a stamp paper of Re. 1/-only as per sec 4 of the Stamp Act. The party may be informed accordingly and asked to present the original copy of the deeds for the necessary adjudication certificate. " It appears that subsequently on 21st June, 1956 the applicants put up an application before the Collector alleging therein that the S. D, O. who had heard the applicant's counsel was of the opinion that the stamp duty required on the documents was Rs. 7500/- only, 1% of Rs. 7-1/2 lacs but that the decision of the Collector was entirely different. It was also alleged in the application that the principles of natural justice were not observed as the decision was passed against the applicants without an opportunity being afforded to them to put up their case before him. The learned Collector observed on the application as below : - "i have passed an order after having discussed it with the S. D. M. The only remedy for the petitioner is to get the order reviewed by a superior revenue authority. " This revision was there-after filed in the Board by the applicant on 26. 6. 1956.
(2.) THE learned counsel appearing for the applicant has laid great emphasis on the fact that the Collector passed the order without hearing him or without applying his mind to the facts of the case and the relevant provisions of law governing the same. The learned Government Advocate has met this argument with the reply that there is no occasion for the Board to go into the propriety or otherwise of the decision of the procedure followed by the Collector in giving his adjudication under sec. 31 of the Indian Stamp Act. We have given our serious consideration to the argument raised by the learned Govt. Advocate. Section 31 which was invoked by the applicants runs as below - (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, and 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. (2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, for the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly. " This section provides for the adjudication by the Collector of the proper stamp duty leviable upon any instrument. It is intended for those subjects who are not sure what duty is payable and yet are anxious to stamp the instrument properly. The difficulty, however, arises when the decision of the Collector is unpalatable to the subject approaching him or is considered improper. Is it open to the subject to have it revised before the Chief Controlling Revenue Authority or not ? The scope of tecs. 56 and 57 of the Indian Stamp Act war examined by a special Bench of the Calcutta High Court (A I. R. 1932 Calcutta 736 ). In that case a reference was made to the High Court under sec. 57 of the Indian Stamp Act by the Board of Revenue. A certain document after it had been executed was brought to the Collector under sec. 31 of the Stamp Act with the object of having the opinion of the Collector as to the duty with which the instrument was chargeable. The Collector held that the document was chargeable under Art. 40 (b) and gave his reason for holding that it was not covered by clause (c) of that Article. The total stamp duty according to the Collector chargeable on that instrument was 16983/12/ -. The subjects considered this decision as disappointing and did not think it fit to pay the duty so determined. They applied to the Board of Revenue requesting it to over ride or interfere with the ruling of the Collector and to arrive at a decision more favourable to the subjects. The Board of Revenue made a reference to the High Court under sec. 57 of the Indian Stamp Act. Their Lordships rejecting the reference as being incompetent observed as below : - "now it is well held in all the High Courts that unless the revenue authority has still resting upon it the duty of disposing of a case it is not intended by the statute that it should have a right to make a reference to the High Court. The opinion of the High Court is merely to guide it in disposing of an actual and concrete case. Some of the cases which have in times past been stated to the High Court have failed to answer this test satisfactorily and of these some have failed because of the fact that the particular case was entirely disposed of and completed before the reference was made (of. 25 Mad 751 and 752 ). In the present case we have to consider a somewhat different objection under the same heading because we have to investigate whether the chief controlling revenue authority had begun to have any duty whatsoever in the matter of the particular instrument which is now before us. When we inquire into that we find it very noticeable that the general power of control given to the chief controlling revenue authority by sub-section (1) of sec. 56 includes powers exercisable by the Collection under Ch. 4 and Ch. 10 of the Act, and it plainly does not include powers exercisable under Chapter 5 The next sub-section deals not only with secs. 40 and 41 of Chapter 4 but gives the Collector power when acting under see. 31 to state a case to the Board of Revenue if he is in doubt as to the proper decision. In the present case, however, the Collector did not state a case to the Board of Revenue and, therefore, the second sub-section of sec. 56 did not operate to impose any duty upon the Board of Revenue with reference to this instrument. Turning, therefore, to the consideration of the case under sec. 31 it has to be observed that under that section the instrument may or may not have been executed and it may be brought to the Collector merely for the purpose of getting a decision. " "it may be that after the decision the parties will come to the conclusion that the instruments should not be entered into at all. It may be that they will still come to the conclusion that the instrument should be entered into and that other steps will have to be taken. The present instrument is an instrument which was executed and, when it was brought to the Collector for his opinion, the subjects were in this position that either they could go on and pay under sec. 32 what the Collector required or they would be liable to have the Collector exercise his powers under sec. 33 to impound the instrument and commence proceedings under sec. 40 to compel payment of the amount chargeable. Without complying with the Collector's order and without attempting to get a certificate under sec. 32 which could only be got by a payment the subjects in this case applied to the Board of Revenue omitting to notice that under sec. 50 the Board of Revenue had no controlling power over the Collector at that stage it seems that they were threatened that the document would be impounded but the document has not so far been impounded. There is, therefore, in my judgment no duly shown for performance by the Board of Revenue entitling the Board of Revenue to ask us to decide the matter. I am quite clear that the wide words "or otherwise coining to its notice" can only be given effect to in cases where the controlling words of sec. 59 can also be given effect to. This somewhat narrow technical difficulty is one which is capable no doubt of removal. It would be very easy for the Collector to impound the document and a case to be commenced under sec. 40 and according to ruling given in the case of reference under Stamp Act (1) the Board of Revenue would be able to intervene in such a proceeding if it intervened before it was completed. The learned Advocate General, however, in this case prefers that the matter should be dealt with strictly and that we should not decide this reference without having proper jurisdiction and he prefers that proceedings for impounding the instrument may be taken and that under sec. 40 and other relevant sections of the Act, the parties should be given their rights. It may be that in these circumstances, the Board of Revenue will not think it necessary and no party will think it necessary to refer the matter for the decision of this Court. In this view it appears to me that the present reference is not competent and that, we ought accordingly to reject it on that ground. ' A similar view was expressed by the Madras High Court in a case reported in ILR. 24 and 23 Madras page 751. In that case two documents were forwarded for adjudication of stamp duty under sec. 31 to the Deputy Collector. He levied duties amounting to Rs. 70; 12/-and Rs. 0hb/12/- The mortgagees applied to the Hoard of Revenue for a refund on the ground that the documents were not chargeable under Art. 40 (c ). It was observed by the High Court that the Collector determined the duty with winch the instruments were chargeable under sec. 31 of the Act and that the effect of sec. 32 of the Act was to make that determination by the Collector as final. It was also observed that there was a case which could be referred to by the Revenue authorities to the High Court under sec. 57 of the Act. The word 'case' as used in that section means a matter which has to be disposed of by the Revenue authorities conformable to the judgment of the High Court on the case referred to it for opinion by the Revenue authorities. The point which was referred to in that case was not held to be a case within the meaning of sec. 57 of the Act and the reference was rejected. The learned counsel appearing for the applicant has not been able to show us any decision to the contrary. For these reasons we are, therefore, of the opinion that the decision of the Collector being under sec. 31 is not open to revision by the Chief Controlling Revenue Authority, and the revision is hereby rejected. .;