DOLATSING PRABHATSING RANA Vs. CHIEF CONTROLLING REVENUE AUTHORITY FOR THE STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has filed this petition to compel the respondent Chief Controlling Revenue Authority hereinafter referred to as the Authority to make a reference to this Court under sec. 54(1) of the Bombay Stamp Act as to the substantial question of law which had arisen in the context of the partition deed of the petitioner. The Collector by the order dated January 1 1971 held that entry 46(b) was not applicable and therefore on the Mamlatdars report of valuation of Rs. 2100/per acre the proper stamp duty should have been paid and he accordingly imposed penalty along with the said deficit. The petitioner appoached the respondent against this order of the Collector under sec. 39(1) of the Act and requested him to make a reference of the substantial question of law to the High Court by the application dated March 27 1971 The respondent Authority however without making any reference decided this revision application under sec. 53(1) of the Act by confirming the Collectors order. On receipt of this order dated August 5 1971 the petitioner has filed the present application on February 14, 1972.

(2.) It is true that in Ramji Shamji v. Collector 3 G.L.R. 123 the Full Bench had taken the view following the Calcutta view that even though the words otherwise coming to its notice in sec. 54(1) were wide enough to envisage a reference when the claimant brought to the notice of the authority this fact that the excess duty had been required to be paid by the Collector and so a reference should be made on that question those words had to be given a narrower construction in view of sec. 56(2) by holding that this duty of the authority was attracted only when the case was pending before the authority and so it had to dispose of the case in accordance with the judgment of the High Court under sec. 56(2). That is why it was also held that where the authority itself felt no doubt as to the amount of duty and did not refer the question no reference could be compelled. This view has been clearly overruled by the decision of their Lordships in Banarasidas v. Chief Controlling Revenue Authority Delhi A.I.R. 1968 S.C. 497. Their Lordships pointed out in the context of sec. 57(1) of the Stamp Act 1899 that in such a case the authority is in similar position as the Income-tax Tribunal under the analogous provision under the Income-tax Act. Such a provision is intended as a remedy to the citizen to have his ease referred to the High Court against the order of revenue authority imposing stamp duty and/or penalty provided the application involved substantial question of law and it imposes a corresponding obligation on the authorise. to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstances such as the pendency of the case before the authority. As soon as a reference is made and the High Court pronounced its judgment the decision of the authority is at large and the authority as required by sec. 59(2) would have to dispose of the case in conformity with such judgment. Therefore their Lordships in terms overruled the Calcutta view which was followed by the Full Bench and held that when a reference has been made to the Authority or the case has otherwise come to his notice if an application is made under sec. 57(1) and it involves a substantial question of law whether the case is pending or not the Authority is bound to state the case in compliance with its obligation. This sec. 57(1) was in identical terms with sec. 54(1) of the Bombay Act because sec. 57(1) also provided that the Chief Controlling Revenue Authority may state any case referred to it under sec. 56 sub-sec. (2) or otherwise coming to its notice and refer such case with its own opinion thereonThe relevant sec. 54(1) of the Bombay Act in question also runs as under :-

(3.) Mr. Jani next argued that in any event its obligatory duty would be only In sec. 54(1A) which is introduced by the Gujarat Act 19 of 1965 which provides as under :- (1A) Notwithstanding anything contained in sub-sec. (1) any person aggrieved by the decision of the Chief Controlling Revenue Authority under sec. 53 regarding the amount of duty with which any instrument is chargeable may if the amount of duty payable as a result of such decision in a case where the instrument is not charged with any duty or the amount required to make up such duty in a case whore the instrument is charged with insufficient duty exceeds rupees two thousand by application presented within a period of sixty days from the date of such decision and accompanied by a fee of rupees one hundred require the Chief Controlling Revenue Authority to draw up a statement of the case and refer it to the High Court and the Chief Controlling Revenue Authority shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court... It should be moved that this amendment gives a right to the claimant notwithstanding anything contained in sec. 54(1) to claim this reference if he is aggrieved by the order where the amount of duty payable exceeds Rs. 2000/which event by making an application within the specified period and accompanied by the prescribed fee of Rs. 100/the reference can be sought from the Authority. This amendment had been introduced by the Legislature because of the Full Bench decision to modify the rigour of the Full Bench decision. In Hariprasad v. J. D. Divelkar A.I.R. 1957 S.C. 121 at page 131 their Lordships approved the classic passage of Lord Atkinson in his speech in 1928 A. C. 143 at p. 164 :-