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PETITIONER: TRIDESHWAR DAYAL AND ANR.

       Vs.

RESPONDENT: MAHESHWAR DAYAL AND ORS.

DATE OF JUDGMENT19/12/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1990 AIR  485            1989 SCR  Supl. (2) 529  1990 SCC  (1) 357        1989 SCALE  (2)1436

ACT:     Indian  Stamp Act, 1899: Sections 33, 56 and 47-A  (U.P. State     Amendment)--Arbitration      award--Insufficiently stamped--Impounding-Limitation for--Chief Controlling  Reve- nue Authority--Whether competent to interfere with the order of Collector.

HEADNOTE:     A  dispute between the appellants and respondent  No.  1 was referred to an arbitrator who made an award and filed it before the civil court. On objection by the appellants,  the prayer for making the award a rule of the court was  reject- ed. On appeal, the High Court confirmed the same. This Court refused  special  leave and a petition for review  was  also dismissed.     Meanwhile, respondent No. 1 applied to the Collector for summoning  the award and for realising the escaped duty  and penalty.  The application was allowed. The appellants  moved the Chief Controlling Revenue Authority under Section 56  of the  Indian Stamp Act, 1899 and the authority set aside  the Collector’s order. The respondents challenged the said order in  a writ petition before the High Court which allowed  the same and remanded the case to the Collector for deciding  it afresh.     Aggrieved,  the appellants filed this appeal by  special leave, contending inter alia, that; (a) Respondent No. 1 had no  locus  standi to move the Collector for  impounding  the award:  (b) the Collector had no authority to pass  the  im- pugned  order after a decade; and (c) the Collector did  not have the power to enquire into the correct valuation of  the property which was subject matter of the award. Disposing of the appeal, this Court,     HELD: 1.1 It is well settled that if a court acts  with- out jurisdiction, its decision can be challenged in the same way  as it would have been challenged if it had  acted  with jurisdiction, i.e. an appeal would lie to the court to which it would lie if its order was with jurisdiction. [532A] 530     1.2  There is no question of limitation arising  and  it cannot  be  said that what had to be done promptly  in  1976 could  not be done later. The orders of the Collector  dated 15.7.1983  and 22.7.1983 were passed as the follow-up  steps

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in  pursuance of the civil court’s direction  dated  18.3.76 and  no valid objection can be taken against them. The  Col- lector, therefore, shall have to proceed further for  reali- sation of the escaped duty. [532G]     1.3  The  Chief Controlling Revenue Authority  had  full power  to interfere with the Collector’s order, provided  it was found to be erroneous. But this Court does not find  any defect in the Collector directing taking of steps for reali- sation of the stamp duty. [532B]     Janardan Reddy and Ors. v. State of Hyderabad and  Ors., [1951] SCR 344, relied on.     2.  The  instant  case comes from  Uttar  Pradesh  where express  provisions have been made by the insertion of  Sec- tion 47-A, authorising the Collector to examine the correct- ness of the valuation. Hence the Collector had the power  to enquire  into  the valuation of the property which  was  the subject matter of the award. [533A-B]     Himalaya  House  Co. Ltd., Bombay v.  Chief  Controlling Revenue Authority, [1972] 3 SCR 332, referred to.     3.  It is clarified that on the strength of the  present judgment it will not be open to the respondent to urge  that the effect of the High Court decision dated 8.7.1981 and the order  of this Court dismissing the special  leave  petition therefrom and later the review application have  disappeared or have got modified. [533D-E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 5055  of 1989.     From  the  Judgment  and Order dated  27.2.1989  of  the Allahabad High Court in C.M.W.P. No. 12322 of 1984.     Satish Chandra, E.C. Agarwala, Atul Sharma, Ms.  Purnima Bhatt and V.K. Pandita for the Appellants.     G.L. Sanghi, B.D. Agarwal, G. Ganesh, K.L. John and  Ms. Shobha Dikshit for the Respondents. 531 The Judgment of the Court was delivered by     SHARMA,  J. This case arises out of a  proceeding  under the Indian Stamp Act, 1899. Special leave is granted.     2.  A dispute between the appellants and the  respondent No.  1,  who  are members of a family, was  referred  to  an arbitrator,  who made an award on 9.10.1973, and  filed  the same within a few days before the civil court for making  it a rule of the court. On objection by the present appellants, the  prayer  was  rejected on 18.3.1976 and  the  order  was confirmed  by the High Court on 3.7.1981 in a regular  first appeal.  An application for special leave was  dismissed  by this  Court  on 18.4.1983 and a prayer for review  was  also rejected.  It is stated on behalf of the appellants that  in the meantime the respondent No.1 applied before the  Collec- tor  for  summoning  the award and realising  the  duty  and penalty. A copy of the award was annexed to the application. The  respondent’s prayer was opposed by the  appellants  but was allowed by the Collector on 15.7.1983; and, on a request made  to  the civil court for sending the award,  the  civil court  asked the office to do so. The appellants  moved  the Chief  Controlling  Revenue  Authority under s.  56  of  the Indian  Stamp  Act  (hereinafter referred  to  as  the  Act) against the Collector’s order dated 15.7.1983. The Authority in  exercise of its revisional power set aside the  impugned order of the Collector, inter alia, on the ground of lack of jurisdiction. The respondent challenged this judgment before the  High  Court  in a writ case which was  allowed  by  the

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impugned  judgment dated 27.2.1989. The matter was  remanded to  the Collector to decide the case afresh in the light  of the  observations. The High Court also doubted the power  of the  Chief  Controlling Revenue Authority to  entertain  the appellants’  application under s. 56 of the Act. This  judg- ment is the subject matter of the present appeal.     3.  Mr.  Satish  Chander, the learned  counsel  for  the appellants,  contended that there cannot be any doubt  about the  power of the Chief Controlling Authority to correct  an erroneous  order of the Collector. Emphasis was laid on  the language  of  s.  56 suggesting its  wide  application.  The learned counsel was also right in arguing that the Authority is  not  only vested with jurisdiction but has the  duty  to quash  an  order passed by the Collector  purporting  to  be under  Chapters  IV  and V of the Act  by  exercising  power beyond  his jurisdiction. To hold otherwise will lead to  an absurd  situation  where a subordinate  authority  makes  an order  beyond its jurisdiction, which will have to  be  suf- fered on account of its unassailability before a higher 532 authority.  This Court in Janardan Reddy and Others  v.  The State of Hyderabad and Others, [1951] SCR 344, after  refer- ring  to  a number of decisions, observed that  it  is  well settled  that  if  a court acts  without  jurisdiction,  its decision can be challenged in the same way as it would  have been challenged if it had acted with jurisdiction, i.e.,  an appeal  would lie to the court to which it would lie if  its order  was with jurisdiction. We, therefore, agree with  the appellants that the Chief Controlling Revenue Authority  had full power to interfere with the Collector’s order, provided it was found to be erroneous. Their difficulty, however,  is that we do not find any defect in the Collector directing to take steps for the realisation of the stamp duty.     4. It was contended on behalf of the appellants that the respondent  No. 1 had no locus standi to move the  Collector for impounding the award and sub-section (1) of s. 33 of the Act had no application. The learned counsel proceeded to say that  in  the circumstances it has to be  assumed  that  the Collector  acted suo motu under sub-section (4) of the  said section  and  since the proviso to sub-section  (5)  directs that no action under sub-section (4) shall be taken after  a period  of  four  years from the date of  execution  of  the instrument,  the  Collector  had no authority  to  pass  the impugned  order  after about a decade. In  reply,  Mr.  G.L. Sanghi  urged  that the order for impounding the  award  was passed  by  the  civil court itself on  18.3.1976,  and  the further  orders of the Collector dated 22.7.1983 and of  the civil  court  dated 27.8.1983 were passed merely by  way  of implementing  the  same.  The learned counsel  is  right  in relying  upon  the concluding portion of the  order  of  the civil court dated 18.3.1976 directing the impounding of  the award and sending it to the Collector for necessary  action. It is true that further steps in pursuance of this  judgment were not taken promptly and it was the respondent No. 1  who drew the attention to this aspect, but it cannot be  legiti- mately  suggested that as the reminder for implementing  the order  came  from  the respondent, who was  motivated  by  a desire  to salvage the situation to his  advantage,  further steps could not be taken. There is no question of limitation arising  in this situation and it cannot be said  that  what had to be done promptly in 1976 would not be done later. The orders of the Collector dated 15.7.1983 and 22.7.1983  must, therefore, in the circumstances, be held to have been passed as  the  follow-up steps in pursuance of the  civil  court’s direction  dated  18.3.1976, and no valid objection  can  be

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taken against them. The Collector, therefore, shall have  to proceed further for realisation of the escaped duty. 5. It was next contended that in any event the Collector did not 533 have the power to enquire into the correct valuation of  the property which was the subject-matter of the award. Reliance was  placed on the observations in Himalaya House Co.  Ltd.. Bombay v. Chief Controlling Revenue Authority, [1972] 3  SCR 332. There is no merit in this point either. The case  comes from  Uttar Pradesh where express provisions have been  made by  the insertion of s. 47-A, authorising the  Collector  to examine the correctness of the valuation.     6. Lastly Mr. Satish Chandra argued that the  respondent No.  1 is taking keen interest in the present proceeding  in an  attempt to illegally re-open the question of making  the award  a  rule of the court, which stood  concluded  by  the impugned  judgment of the High Court and the order  of  this Court dismissing the special leave petition therefrom and he can  not  be allowed to do so. The reply of Mr.  Sanghi  has been  that this aspect is not relevant in the  present  pro- ceeding for realisation of the duty and need not be  decided at this stage. His stand is that an award which is not  made rule of the court is not a useless piece of paper and can be of  some use, say by way of defence in a suit. He said  that this  question  will have to be considered if and  when  the occasion  arises. Having regard to the limited scope of  the present proceeding, we agree with Mr. Sanghi that we may not go into this aspect in the present case, but we would clari- fy the position that on the strength of the present judgment it  will  not  be open to the respondent to  urge  that  the effect  of  the High Court decision dated 8.7.1981  and  the orders  of this Court dismissing the special leave  petition therefrom  and later the review application has  disappeared or has got modified.     7. The appeal is disposed of in the above terms, but the parties are directed to bear their own costs of this Court. G.N.                                         Appeal disposed of. 534