Fazl Ali, C J - (1.) This is a reference made to this Court by the Revenue Commissioner of Orissa under Section 57, Stamp Act, in the following circumstances: In 1939 the Chief Minister of Orissa while touring in Koraput district noticed that a number of Kabulis were lend-ing money at an exorbitant rate of interest, and to quote the words of the Collector of the district he was told by the Chief Minister that "their activities needed to be curtailed." Therefore the Collector instructed his Sub-divisional Officers and the Taluk Officers or Tahsildars to make certain enquiries and in pursuance of his instruction the Tahsildar of Jeypore summoned certain Kabulis to produce their chittas and one of them Payanda Khan of Kotapad produced a volume of documents which were found to be in the nature of mortgages of immovable property bearing only one anna stamp each. The Tahsildar submitted the entire volume to the Sub-divisional Officer and solicited his instructions in the matter. The Sub-divisional Officer was of opinion that the documents should be impounded under Section 33 of the Act and though the Tahsildar was himself doubtful as to whether he had jurisdiction to impound them, he eventually proceeded to do so and transmitted the book through the Sub-divisional Officer to the Collector who passed an order to the effect that a deficit stamp duty of Rs. 46/ll together with a penalty of Rs. 780, be realised from Payanda Khan. Payanda Khan thereupon appealed to the Revenue Commissioner who being in doubt whether the Tahsildar could be held to have been acting in the performance of his functions when the documents came up before him has referred this case to the High Court under Section 57, Stamp Act.
(2.) Section 33, Clause (1) under which the documents were impounded provides that 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 any 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. The question to be considered is whether the documents were produced or came before the Tahsildar in the performance of his functions and whether he had jurisdiction to impound them. The learned Revenue Commissioner in dealing with this question has referred only to two Acts under which it might be possible to argue that the documents were produced or came before the Tahsildar in the performance of his functions, these being Madras Act 3 of 1869 (Madras Revenue Summons Act) and Madras Act 5 of 1893 (Madras Revenue Enquiries Act). The latter Act, as pointed out by him, gives power to Government by order to confer upon an officer deputed to make an enquiry the power to summon any person for the purpose of the enquiry. The Revenue Commissioner rightly points out that this Act does not apply to the present case because there is no specific formal order of Government investing the Tahsildar with such power. Thus upon the statement of the case as found in the reference the only question to be decided is whether the case . falls under the Madras Act 3 of 1869 which was an Act promulgated to empower the revenue officers to summon persons to attend at their kutoheries for the settlement of matters conneoted with the revenue administration.
(3.) The Preamble of the Act refers to the necessity for the enactment which is stated in these words: Whereas it is found that the revenue administration of the country is retarded because the revenue officers, namely, the Collectors .... Tahasildars and Deputy Tahasildars are not made competent, by express provision of law, to issue summons for the attendance of persons or the production of documents, in certain cases in which it is their duty to hold investigation etc.;