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PETITIONER: THE VISHNU PRATAP SUGAR WORKS (P) LTD.

       Vs.

RESPONDENT: THE CHIEF INSPECTOR OF STAMPS, U.P.

DATE OF JUDGMENT: 04/05/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BACHAWAT, R.S. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR  102            1967 SCR  (3) 920

ACT: Court Fees Act, 1870 (8 of 1870), S. 7 (iv-A), (a) and S.  7 (iv-B)  (b)-Acts impositing tax-Suit for injunction  on  the ground that Acts void-court fee payable.

HEADNOTE: The appellant-company filed a suit against the State of U.P. and  Union of India for a permanent  injunction  restraining the State from proceeding to realise cess and tax under  the U.P. Sugar Cane Cess Act 1956 read with U.P. Sugar Cane Cess (Validation) Act, 1961 and the Sugar Cane Purchase Tax  Act, 1961 on the ground that the Acts were invalid and void.   On its plaint, the appellant paid court-fees under subs. (iv-B) (b)  of  s. 7 on the footing that the relief sought  was  an injunction.   The respondent the Chief Inspector  of  Stamps objected, contending that court-fees payable were under sub- s.  (iv-A)  of s. 7 on the ground that the suit  was  for  a declaratory  decree, where consequential relief  prayed  for was  an  injunction  or  of  adjudging  void  an  instrument securing  money  or other property having such  value.   The trial  Court rejected the respondent’s objection, which  the High Court reversed.  In appeal, this Court, HELD : The court-fees payable on the plaint were tinder  cl. (b)  of sub-s. (iv-B) of s. 7 and neither cl. (a) of  sub-s. (iv-A) of s. 7 nor sub-s. (iv-A) of s. 7 applied. The  plaint  when  read as a whole showed  that  though  the appellant alleged that the Acts were void and therefore non- est  for  the reasons set out therein, it did not  seek  any declaration  that they were void.  The plaint  proceeded  on the footing that the said Acts were void and that  therefore the State of U.P. or its authorities had no power to realise the  tax  -and  the cess.  It may  be  that  while  deciding whether to grant the injunction or not, the court might have to consider the ’question as to the validity or otherwise of the  said Acts.  But that must happen in almost  every  case where  an injunction is prayed for.  If for the mere  reason that  the  court might have to go into such  a  question,  a prayer  for  injunction  were to be treated  as  one  for  a declaratory  decree  of which the  consequential  relief  is injunction  all suits where injunction is prayed  for  would have  to be treated as falling under cl. (a) of sub-s.  (iv)

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of  s.  7 and in that view cl. (b) of sub-s. (iv)  of  s.  7 would be superfluous. [924E-H] Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, [1965] 1 S.C.R. 712 : referred to. Ordinarily  a statute is not an instrument unless as in  the case  of Conveyancing Act, 1881, the definition includes  it or  as  in  the  case of s. 205 (1) (viii)  of  the  Law  of Property  Act,  1925, the statute creates a  settlement  and such statute is for that ’reason treated as -,in instrument, so,  the  Acts  alleged in the plaint to  be  void  are  not instruments  within  the meaning of sub-s. (iv-A) of  s.  7. [923 G-H] Mohan  Chowdhury v. The Chief Commissioner [1964]  3  S.C.R. 442,  and  Emperor v. Ravangouda Lingangouda  Patil,  A.T.R, 1944 Bom. 259. referred to.  921

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1668  of 1966. Appeal  by special leave from the judgment and  order  dated November  2,  1965  of the Allahabad  High  Court  in  Civil Revision No. 1095 of 1965. G. N. Dixit, for the appellant. Bishan Narain and 0. P. Rana, for the respondent. The Judgment of the Court was delivered by Shelat,  J. The appellant-company filed suit No. 16 of  1963 against  the State of Uttar Pradesh and the Union of  India, inter alia, praying for a permanent injunction regaining the State  of  Uttar  Pradesh,  its  servants  and  agents  from realising  or from proceeding to realise sugarcane cess  and purchase tax amounting to Rs. 33 lakhs and odd charged under the U.P. Sugar Cane (Regulation of Supply and Purchase) Act, 1953, the Sugar Cane Cess Act, 1956 read with the U.P. Sugar Cane  Cess  (Validation) Act, 1961 and the U.P.  Sugar  Cane Purchase  Tax  Act,  IX  of 1961.  In  the  said  suit,  the appellant-company, inter-alia, alleged that the Acts for the diverse  reasons set out therein were invalid and  void  and therefore  the  State was not entitled to levy,  collect  or recover  the  said cess or the purchase tax and  prayed,  as aforesaid.   that  the  State  should  be  restrained   from proceeding to realise the said cess or tax.  The  appellant- company paid court-fees on its said plaint under sub-s. (iv- B) (b) of S. 7 on the footing that the relief sought in  the suit  was  an  injunction.  The Chief  Inspector  of  Stamps objected to the court-fees being paid under cl. (b) of  sub- s.  (iv-B)  of S. 7 contending that the  court-fees  payable were as provided under sub-s. (iv) (a) of s. 7 or under sub- s.  (iv-A) of S. 7, that is to say, on the footing that  the suit was for a declaratory decree where consequential relief prayed for was an injunction or on the footing that the suit involved cancellation of or of adjudging void an  instrument securing  money  or other property having such  value.   The trial Judge rejected the objections and held that the court- fees payable were adequate as cl. (b) of sub-s. (iv-B) of S. 7 applied.  The Chief Inspector of Stamps thereupon filed  a revision  application before the High Court reiterating  the said  objections.   The High Court rejected  the  contention that s. 7 (iv) (a) applied but held that sub-s. (iv-A) of S. 7  applied as the said Acts were instruments securing  money within  the meaning of that subsection and that  though  the relief claimed in the suit was injunction, in substance  and effect  the  suit involved adjudgment of the  said  Acts  as

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void.  Hence this appeal by special leave. Sub-s. (iv-A) of S. 7 reads as follows:-               "For   cancellation  or  ad  ’  judging   void               instruments               and   decree-In   suits   for   or   involving               cancellation of or               922               adjudging  void  or  voidable............   an               instrument  securing money or  other  property               having such value". The question which falls for determination is whether an Act passed  by the Central or the State Legislature can be  said to be an instrument and, if so, an instrument securing money or  other  property having such value.  The  Court-fees  Act does  not  define the word ’instrument’.  That being  so  we have to turn for the connotation of the word ’instrument’ to its  ordinary  dictionary meaning.   According  to  Stroud’s Judicial Dictionary, 3rd Ed.  Vol. 11, p. 1472, ’instrument’ means  ’a  writing, and generally imports a  document  of  a formal  legal kind.  Semble, the word may include an Act  of Parliament  (see Deed of Settlement) so in the Trustee  Act, 1925 (15 Geo. 5, c. 18), S. 68........... (11)  Conveyancing Act,  1881 (44 & 45 Viet. c. 41) S.  2(xiii),  "’instrument’ includes   deed,   will,  inclosure,  award,  and   Act   of Parliament".   Thus, an ’instrument’ may include  a  statute enacted  by  Parliament  if the particular  statute  in  its context includes it as an instrument.  According to Jowitt’s Dictionary  of  English Law,, p. 984 "Instrument’  means  "a formal  legal  writing,  e.g., a  record  charter,  deed  of transfer or agreement".  It is, however, observed that under the Law of Property Act, 1925, S. 205(1) (van), ’instrument’ for  the  purposes  of this Act does not  include  a  tatute unless the statute creates a settlement.  "An instrument  is a writing and generally means a writing of a formal  nature. But  where  there  is  a power to appoint  by  any  deed  or instrument  o by will, any writing, such as a letter,  which refers  to  the  power, or which can  have  effect  only  by operating  on the fund (such as a cheque or other order  for payment),  is  an instrument.  A telegram is  an  instrument within the meaning of the Forgery Act, 1912, s. 7, and so is an envelope with a postmark falsified for the purposes of  a betting fraud".  According to the same dictionary, the  word ’enact’  means  to act, perform or effect; to  establish  by law; to decree and an ’enactment’ means an Act of Parliament or  statute  or any part thereof.  A statute,  according  to Maxwell on Interpretation of Statutes, 11th Ed. p. I is -the will  of the legislature, i.e. an edict of the  legislature. A statute is, however, different from a statutory instrument as defined by -the Statutory Instruments Act (9 & 10 Geo. 6, c. 36) 1946 where power to make, confirm, or approve orders, rules,  regulations  or  other  subordinate  legislation  is conferred  on His Majesty in Council or on any  Minister  of ’the Crown., a document by which that power is exercised  is a  statutory instrument.  Similarly, where by an Act  passed before the enactment of the Statutory Instrument Act,  1946, power  to  make statutory rules is conferred  on  any  rule- making  authority,  any  document by  which  that  power  is exercised  is  a  statutory  instrument.   Thus,  whereas  a statute  is  an  edict  of  the  legislature,  a   statutory instrument as distinguished from such an edict is a document whereby the rule making power  923 is expressed.  In Mohan Chowdhary v. The Chief  Commissioner Tripura(1)  the  question  arose  whether  the  order  dated November 3, 1962, passed by the President under Art.  359(1)

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of  the Constitution suspending the right of any  person  to move  any court for the enforcement of rights  conferred  by Arts. 21 and 22 during the Proclamation of Emergency was  an instrument withinthe  meaning  of s. 8(1) of the  General Clauses Act, 1897. Inconsidering   that  question   this Court approved the meaning of the  word  ’instrument’  given by Stroud and observed:-  "The  expression  is also used to  signify  a               deed inter-  parties  or  a charter or a record  or  other               writing of a  formal  nature.  But in the  context  of  the               General  Clauses Act, it has to be  understood               as including    reference  to a  formal  legal               writing like an Order made under a statute  or               subordinate  legislation or any document of  a               formal character made under constitutional  or               statutory  authority. We have no doubt in  our               mind  for the expression ’instrument’ in S.  8               was  meant to include reference to  the  Order               made  by  the  President in  exercise  of  his               constitutional powers". The President’s Order having been made under power conferred upon him by Art. 359 that Order would have the same connota- tion  as the Statutory instrument defined by  the  statutory Instruments Act 1946 and therefore was an instrument  within the  meaning  of s. 8(1) of the General Clauses  Act.   That does  not mean that a statute like the U.P.  Court-fees  Act which  is an edict of the legislature is an instrument.   In Emperor v. Rayangouda Lingangouda Patil(1) the High Court of Bombay  considered  whether  an  order  of  the   Government delegating  its  power  to District  Magistrates  under  the Defence of India Rules was an instrument within the  meaning of s. 8(1) of the General Clauses Act.  The High Court  held that  an  instrument, generally speaking,  means  a  writing usually importing a document of a formal legal kind. in  but it  does  not include Acts of Parliament unless there  is  a statutory  definition to that effect in any Act.   There  is thus  ample authority to hold that ordinarily a  statute  is not an instrument unless as in the case of Conveyancing  Act of 1881, the definition includes it or as in the case of  s. 205  (I  )  (viii) of the Law of  Property  Act,  1925,  the statute  creates a settlement and such statute is  for  that reason treated as an instrument.  It would not therefore  be correct  to  say that the Acts alleged in the plaint  to  be void are instruments within the meaning of sub-s. (iv-A)  of s.  7. In this view, it does not become necessary to  decide whether  the  Acts are instruments securing money  or  other property  having  such value.  Sub-s. (iv-A) of s.  7  would not,  therefore, apply and the High Court was not  right  in calling upon the (1) [1964] 3 S C.R. 442. (2) A.I.R. 1944 Bom, 259. 924 appellant-company  to pay additional court-fees  under  that subsection. Mr.  Bishan Narain, however, argued that even if these Acts are not   instruments,  the  plaint  if  read  in  substance rather than in form is   for  a  declaratory   decree   with injunction as the consequential    relief and therefore sub- s. (iv) (a) of s. 7 would apply and the court-fees      paid merely  on the footing of the suit being for  an  injunction would  not be adequate.  As stated earlier, the  High  Court rejected  this contention as untenable.  Mr. Bishan  Narain, contended that he was nonetheless entitled to argue that the

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High Court was in error and that sub-s. (iv) (a) would apply and  not  cl.  (b) of sub-s. (iv-B).  For  this  purpose  he relied  on some observations in Ramanbhai Ashabhai Patel  v. Dabhi Ajitkumar Fulsinji(l), where it has been held that  as soon as special leave is granted this Court has the power to decide  all  the points arising from the  judgment  appealed against and even in the absence of an express provision like 0.  XLI, r. 22 of the Code of Civil Procedure it can  devise appropriate   procedure  to  be  adopted  at  the   hearing. Assuming that Mr. Bishan Narain can urge the contention that S.  7  (iv) (a) applies in the present case  the  contention still fails.  It is true that for purposes of the Court fees Act,  it is the substance and not the form which has  to  be considered while deciding which particular provision of  the Act  applies.   It  cannot, however, be  gainsaid  that  the actual  relief  prayed for in the plaint was  an  injunction restraining  the State and its authorities to  realise  from the  appellant-company the aforesaid cess and  the  purchase tax.  It is clear from the plaint when read as a whole  that though the appellant-company alleged that the Acts were void and  therefore non-est for the reasons set out  therein,  it did  not  seek  any declaration that they  were  void.   The plaint procedure on the footing that the said Acts were void and  that therefore  this State of U.P. or  its  authorities had  no power to realise the tax and the said cess.  It  may be  that while deciding whether to grant the  injunction  or not, the court might have to consider the question as to the validity  or  otherwise  of the said Acts.   But  that  must happen  in almost every case where an injunction  is  prayed for.  If for the mere reason that the court might have to go into  such  a question, a prayer for injunction were  to  be treated  as  one  for  a declaratory  decree  of  which  the consequential   relief   is  injunction  all   suits   where injunction is prayed for would have to be treated as falling under  cl. (a) of sub-s. (iv) of S. 7 and in that  view  cl. (b)  of  sub-s. (iv-B) of s. 7 would  be  superfluous.   The contention urged by Mr. Bishan Narain, therefore, cannot  be accepted. For  the reasons aforesaid, we are of the view that  neither cl.  (a) of sub-s. (iv-A) of s. 7 nor sub-s. (iv-A) of s.  7 would 1)   19651 1 S.C.R 712.  925 apply  and the court-fees payable on the plaint  were  under cl. (b) of sub-s. (iv-B) of S. 7. The appeal, therefore, has to be allowed.  The order of the High Court is set aside and the  order of the trial court is restored.   The  respondent will pay the appellant-company the costs of this appeal. Y.P.                                   Appeal allowed. 926