http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: GOVERNMENT OF UTTAR PRADESH AND OTHERS

       Vs.

RESPONDENT: RAJA MOHAMMAD AMIR AHMAD KHAN

DATE OF JUDGMENT: 16/02/1961

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1961 AIR  787            1962 SCR  (1)  97

ACT: Stamp Duty Instrument presented to Collector for opinion as to  duty chargeable-Collector assessing duty-Impounding  and demand  of  duty Legality of Indian Stamp Act, 1899  (11  of 1899),ss- 31, 32, 33.

HEADNOTE: The  respondent executed an instrument and presented  it  to the  Collector for his opinion under s. 31 Stamp Act  as  to the  duty chargeable.  The Collector,, after a reference  to the Board of Revenue, determined the duty payable.  He  then impounded  the  instrument  and ordered that  the  ditty  be deposited within 98 fifteen   days.   Later,  a  notice  was  served  upon   the respondent  to deposit the amount of stamp duty and  penalty within   one    month  and  threatening  that   in   default proceedings  would  be taken to recover them as  arrears  of land revenue.  The respondent challenged the legality of the impounding  of the instrument and demand of stamp  duty  and penalty.  Held,  that  after  determination of  the  stamp  duty  the Collector  became functus officio and could not impound  the instrument or demand duty and penalty.  Under s. 31 the Col- lector  has merely to determine the proper amount  of  duty. If  the person executing the instrument wants to  effectuate the instrument or to use it for purposes of evidence he  has to make up the duty and under s. 32 the Collector makes  the necessary endorsement.  Section 33 empowers every person  in charge  of  a  public  office  before  whom  an   instrument chargeable with duty is produced or comes in the performance of his functions to impound the instrument if it is not duly stamped.   When an instrument is presented to the  Collector under s. 31 for determination of duty it cannot be said that it  "is  produced  or  comes  in  the  performance  of   his functions"  as  contemplated by S. 33.   These  words  refer firstly  to  production before judicial  or  other  officers performing judicial functions as evidence of any fact to  be proved,  and  secondly refer to other officers who  have  to perform  any  function in regard to those  instruments  when they come before them, e.g., registration.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

In  Re  Cooke and Kelly, (1932) I.L.R. 59  Cal.  1171,  held obiter. Collector,  Ahmednagar  v. Rambhau Tukaram  Nirhali,  A.I.R. 1930  Bom.  392, Paiku v. Gaya, I.L.R. [1948] Nag.  950  and Chunduri Panakala Rao v. Penugonda Kumaraswami, A.1,R.  1937 Mad. 763, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 369 of 1957. Appeal  from the judgment and decree dated the  January  27, 1956, of the Allahabad High Court (Lucknow Bench) at Lucknow in Civil Misc.  Application No. 17 of 1954 (0.  J.). C.   B. Agarwala and C. P. Lal, for the appellant. V.   D. Misra, for the respondent. 1961.  February 16.  The Judgment of the Court was delivered by KAPUR., J.-This is an appeal against the judgment and  order of  the High Court of Allahabad on a certificate granted  by that court.  The respondent filed a 99 petition under Art. 226 of the Constitution praying that the imposition of stamp duty by the Collector of Sitapur, of Rs. 85,595/7/- and a penalty of Rs 5/- was against law and could not  be  realized against him and prayed that the  order  be quashed.,, On September 12, 1948, the, respondent executed a wakf by oral recitation of Sigha and then it was written  on a  stamped  paper  which was signed by  the  respondent  and attested  by,  Witness.   On  September  15,  1948,  it  was presented to the Collector for his opinion under s. 31 as to the duty chargeable.  As the Collector himself was in doubt, he referred the matter to the Board of Revenue which,  after a  fairly  long time, held that the document was  liable  to duty  in  accordance  with Art. 58 of  the  Stamp  Act.   On October  29,  1951, the Collector held that  Rs.  85,598/7/- were payable as stamp duty and ordered that it be  deposited within  fifteen days.  Notice to this effect was  served  on the  respondent  on  November,  10,  1951.   Thereupon   the respondent filed a petition in the High Court under Art. 226 which  was dismissed on November 3, 1952 on the ground  that it was premature.  On February 2, 1954, a further notice was served  upon  the respondent to deposit the  amount  of  the stamp  duty  plus  the penalty of Rs.  5/-  within  a  month otherwise proceedings would be taken against him under s. 48 of  the  Stamp  Act.   Thereafter  on  March  1  1944,   the respondent   filed  a  petition  under  Art.  226   of   the Constitution  in  the Allahabad High Court  challenging  the legality  of  the,  imposition of the  stamp  duty  and  the penalty  and prayed for a writ of certiorari.  A full  bench of the High Court quashed the order of the Collector and the State of U.P. has come in appeal to this Court. The decision of this appeal depends upon the  interpretation of ss, 31, 32 and 33 of the Stamp Act.  The relevant portion of s. 31 provides:-,               S.    31(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               100               not  less than eight annas) as  the  Collector               may  in each case direct, the Collector  shall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

             determine the duty (if any) with which, in his               judgment, the instrument is chargeable." It is admitted that the document in dispute was submitted to the Collector for his opinion under a. 31 and the opinion of the  Collector  was sought as to what the  duty  should  be. Under s. 32 of the Act when such an instrument is brought to the  Collector,  under a. 31 and he determines that  it  was already  fully  stamped or he determines the duty  which  is payable  on  such  a document and that  duty  is  paid,  the Collector  shall  certify by endorsement on  the  instrument presented  that  full duty with which it is  chargeable  has been  paid  and  upon  such  endorsement  being  made,   the instrument  shall  be  deemed to be  fully  stamped  or  not chargeable to duty as the case may be’ Under the proviso  to s.  32,  the  Collector  is  not  authorised  to  make   the endorsement if an instrument is brought to him a month after the date of its execution.  Then follows s.  33 which is  as follows:               S.    33  "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 an 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.               (2)   For that purpose every such person shall               examine every instrument so chargeable and  so                             produced  or  coming  before him  in  order  t o               ascertain  whether it is stamped with a  stamp               of  the value and description required by  the               law  in  force  in  British  India  when  such               instrument was executed or first               executed:  Provided that-               (a)   nothing herein contained shall be deemed               to  require  any  Magistrate  or  Judge  of  a               Criminal  Court to examine or impound,  if  he               does  not think fit so to do,  any  instrument               coming  before  him  in  the  course  of   any               proceeding other than a proceeding               101               under Chapter XII or Chapter XXXVI of the Code               of Criminal Procedure, 1898;                (b)  in the case of a Judge of a High  Court,               the  duty  of  examining  and  impounding  any               instrument under this section may be delegated               to such officer as the Court appoints in  this               behalf.               (3)   For  the  purposes of this  section,  in               case of a doubt,-               (a)   the collecting Government may  determine               what  offices  shall be deemed  to  be  public               offices; and (b) the collecting Government may               determine who shall be deemed to be persons in               charge of public offices." The decision of this appeal depends upon the  interpretation to  be  put  upon  the words  "before  whom  any  instrument chargeable........................  is produced or comes  in the performance of his functions".  Dealing with these words the High Court held:-               "  With all respect, therefore, we agree  that               the learned Judges deciding Chuni Lal Burman’s               (1) case took a correct view of the words " is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             produced  or comes in the performance  of  his               functions"  used in Section 33 of the  Act  to               mean   "that  production  of  the   instrument               concerned  in evidence or for the  purpose  of               placing  reliance upon it by one party or  the               other." The  High Court was also of the opinion that the  object  of paying  the  whole  stamp duty was  to  get  the  instrument admitted into evidence or its being acted upon or registered or  authenticated  as provided in ss. 32(3), 35,  38(1)  and 48(1) of the Stamp Act. Counsel  for the State referred to the various  sections  of the  Act;  first to the definition  section;  Section  2(11) which defines what is "duly stamped"; s. 2(14) which defines "instrument" and s. 9(12) which defines "executed".  He then referred to s. 3 which lays down what "chargeable" means and then to s. 17 which provides that all instruments chargeable with duty and executed by any person in British India  shall be stamped before or at the time of the execution.   Certain other sections i.e. ss. 35 and 38(1) were also (1)  A.I.R. 1951 All. 851. 102 referred  to and so also ss. 40(1)(a), 41, 42 and 48 but  in our opinion it is not necessary to refer to these  sections. What  has to be seen is what is the consequence of a  person applying  to  a Collector for his determination  as  to  the proper  duty on an instrument.  The submission on behalf  of the  State  (appellant) was that if  an  instrument  whether ’stamped  or  not  is  submitted  for  the  opinion  of  the Collector  before it is executed, i.e., it is  signed,  then the  Collector is required to give his determination of  the duty  chargeable  and  return the  document  to  the  person seeking  his  opinion but if the document is  scribed  on  a stamped  paper  or  unstamped paper  and  is  executed  then different  consequences follow.  In the latter case  it  was submitted  that  under s. 33 the Collector  is  required  to impound  the  document  if  he finds that  it  is  not  duly stamped.   On the other hand it was submitted on  behalf  of the respondent that on his giving his opinion the  Collector becomes functus officio and can take no action under s.  33. It  is  these  two rival contentions  of  the  parties  that require to be decided in this case. After  an inordinately long delay, the Collector  determined the  amount  of  duty payable and  impounded  the  document. Power  to impound is given in s. 33 of the Act.  Under  that section  any  Person  who is a Judge or is  in-charge  of  a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions  is required to impound the instrument if it appears to him  not to  be  duly stamped.  The question is does  this  power  of impounding  arise  in the present case?. The  instrument  in dispute was not produced as a piece of evidence nor for  its being  acted upon e.g. registration, nor for endorsement  as under  s. 32 of the Stamp Act but was merely brought  before the  Collector for seeking his advise as to what the  proper duty  would be.  The words "every person............  before whom any instrument............ is produced or comes in  the performance  of his functions" refer firstly  to  production before  judicial  or  other  officers  performing   judicial functions as evidence of any fact to be proved and  secondly refer to other officers who have to perform any 103 function  in  regard  to those instruments  when  they  come before  them e.g. registration.  They do not extend  to  the determination  of the question as to what the  duty  payable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

is.  They do not cover the acts which fall within the  scope of s. 31, because that section is complete by itself and  it ends  by saying that the Collector shall determine the  duty with  which, in his judgment, the instrument is  chargeable, if  it is chargeable at all.  Section 31 does not  postulate anything  further  to  be done by  the  Collector.   It  was conceded  that  if  the instrument is  unexecuted  i.e.  not signed,  and the opinion of the Collector is sought, he  has to  give his opinion and return it with his opinion  to  the person seeking his opinion.  The language in regard to  exe- cuted and unstamped documents is no different and the powers and  duties of the Collector in regard to those  instruments are the same, that is, when he is asked to give his opinion, he  has to determine the duty with which, in  his  judgment, the instrument is chargeable and there his duties and powers in  regard to that matter end.  Then follows s.  32.   Under that section the Collector has to certify by endorsement  on the instrument brought to him under s. 31 that full duty has been  paid,  if  the instrument is duly stamped,  or  it  is unstamped  and the duty is made up, or it is not  chargeable to  duty.   Under that section the endorsement can  be  made only  if the instrument is presented within a month  of  its execution.   But what happens when the instrument  has  been executed  more than a month before its being brought  before the Collector?  Section 31 places no limitation in regard to the time and there is no reason why any time limit should be imposed  in  regard  to seeking of opinion as  to  the  duty payable. Chapter IV of the Act which deals with instruments not  duly stamped  and  which  contains as. 33  to  48,  provides  for impounding of documents, how the impounded documents are  to be  dealt  with,  Collector’s powers  to  stamp  instruments impounded  and  how  the  duties and  penalties  are  to  be recovered.   It  would  be an extraordinary  position  if  a person  seeking the advice of the Collector and not  wanting to rely upon 104 an  instrument  as  evidence of any fact to  be  proved  nor wanting to do any further act in regard to the instrument so as to effectuate its operation should also be liable to  the penalties  which unstamped instruments used as  above  might involve.  The scheme of    the Act shows that where a person is  simply  seeking the opinion of the Collector as  to  the proper  duty in regard to an instrument, he  approaches  him under  s.  31.  If it is properly  stamped  and  the  person executing  the document wants to proceed  with  effectuating the document or using it for the purposes of evidence, he is to make up the duty and under s. 32 the Collector will  then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning.  But if he does not   want   to  proceed  any  further  than   seeking   the determination  of the duty payable then no consequence  will follow  and an executed document is in the same position  as an  instrument which is unexecuted and unstamped  and  after the determination of the duty the Collector becomes  functus officio  and  the provisions of s. 33 have  no  application. The  provisions of that section are a subsequent stage  when something  more  than  mere asking of  the  opinion  of  the Collector is to be done. Our attention was drawn to the observations of Rankin C.  J. in Be Cooke and Kelly (1) but those observations are  obiter as the High Court held that the reference under s. 57 of the Stamp Act was incompetent.  The doctrine of functus  officio was  applied  in several cases: Collector, Ahmednagar  v.  , Rambhau Tukaram Nirhali (2).  In that case a certificate  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

sale  had  been  signed but the  certificate  was  not  duly stamped  which was pointed out when it was sent to the  Sub- Registrar for registration.  The Sub-Registrar informed  the Judge  about it and the Judge got back the certificate  from the purchaser and thinking that he had power to impound  the document  and to impose a penalty asked for the  opinion  of the  high Court and it was held that after he had signed  it he  was  functus officio and could not act any  further  and could not impound it.  The same principle was laid down in (1) (1932) I.L.R. 59 Cal. 1171. (2) A.I.R. 1930 Bom. 392. 105 Paiku v. Gaya (1) and in Chunduri Panakala Rao v.  Penugonda Kumaraswami (2) and in our opinion as soon as the  Collector determined the duty he became functus officio and he,  could not  impound  the instrument under a. 33  and  consequential proceedings could not’) therefore, be taken. The appeal is therefore dismissed with costs. Appeal dismissed.