# Dr.N.B. Khare v. The Stale of Delhi Mukhnjea]

- **Citation:** [1950] 1 S.C.R. 536
- **Court:** Supreme Court of India
- **Decided:** 1947-09-02
- **Case number:** Civil Appeal No. XII of 1950
- **Bench:** SHR1 HARILAL KANg C. J, SAIYID FAzL Au, Patanjali Sastri, Mehr Chand Mahajan, Mukherjea J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-n-b-khare-v-the-stale-of-delhi-mukhnjea-136
- **Pages:** 12

## Headnote

Indian Stamp Act (II of 1899), ss. 57, 59 (2)-Reference lo
High Court-Nature of power .to refer-Duty to refer on reque.11
of party affected-Order directing Chief Controlling Authority
to refer-Whether
"matter
concerning
revenues"-furisdiction
of Original Side of High Court-Government of India Act, 1935,
s. 266(1).
The power conferred on the Chief Revenue Authority by
Sec. 57 of the Indian Stamp Act, to make a reference to the High
Court is not intended for the benefit of the Revenue Authority
alone, but ensures, also for the benefit of the party affected by the
assessment. It is
th~reforc coupled with a duty
to make a
reference when he is called upon to do so by the party affected, and
if he declines to do so, it is within the power of the Court to
direct him to
discharge that ducy and make a reference to the
Court.
Alcock Ashdown & Co., Ltd. v. Chief Revenue Authority
(SO I.A. 227) and /ulius v. Bishop of Orford (5 A.C. 214) applied.
S.C.R.
SUPREME COURT REPORTS
537
The order of a High Court to a revenue officer to do his duty
would not be the exercise of original jurisdiction in a matter
concerning the
revenue within the meaning of Sec. 226 of the
Government of India Act, 1935, and the jurisdiction of the High
Court to direct the Chief Controlling Revenue Authority to make
a reference under Sec. 57 of the Stamp Act was not barred by
Sec. 226 of the Government of India Act.
The fact that the proceedings had passed beyond the stage
-:if enforcing payment does not preyent the High Court from
directing the Revenue Authority to make a reference, for, if the
opinion of the Court on the reference is against the Revenue Autho-
. rity he will have to refund whatever has been recovered in excess,
under Sec. 59 (2) of the Act.
APPEAL from
the High Court of Judicature at
Bombay : Civil Appeal No. XII of 1950.
This was an appeal from a judgment and order of
the High Court of Bombay (Chagla, Acting C. J. and
Bhagwati J.)
dated 2nd September, 1947, in
Appeal
No. 60 of 1946.
The facts are fully set out in the
judgment.
C.
K. Daphtary,
Advocate-General
of Bombay
(M. M. Desai, with him) for the appellant.
M. C. Setalvad,
Attorney-General for India (S.S.
Ragnekar, with him) for the respondent.
1950.
May 27.
The judgment of the Court was
delivered by .
·
KANIA C. J.-This is an appe-al from a judgment
of the High Court at Bombay
and it relates
to the
jurisdiction of the Court to direct · the Chief Controlling
Revenue Authority and the Superintendent of Stamps
at Bombay to state a case for the opinion of the Court
under section 57 of the Stamp Act.
The respondent
company,
for
its
business,
borrowed money from the Central Bank of India Ltd.
at Bombay.
In order to secure the loan a document
was executed on the 22nd of March, 1945, with a
stamp of Rs. 16-8-0,
on the footing that it was a deed
of· hypothecation
without possession of the goods.
When the deed
was
sent to the
Sub-Registrar
for
registration he impounded
the same and sent it to the
Stamp Office.
The Assistant Superintendent of Stamps
1950
Chief Conli'ollina
Rev. Authority
v.
MaharashlTa
Sugar Mills Ltd.
Kania C.J.
1950
CliiAJ ConJrol/ing
Rev. Aflthori!J
Vo
Maharashlr•
Gug«r Mills-W.
Eam•C.J.
538
SUPREME COURT REPORTS
[1950]
wrote to the respondent that the document was a
mortgage with possession,
chargeable with duty under
article 40
(a)
of the Schedule and inquired why it
was not duly stamped before execution.
The respondent's solicitors
in their reply contended that the
document was not,
and was
never intended by the
parties to be,
a mortgage with possession.
They
pointed out that no possession
of the
property had
been given or was intended to 'be given,
except in
certain contingencies
and therefore
the document was
properly
stamped.
In reply
the Assistant
Superintendent intimated that the document
was chargeable
with duty of Rs. 56,250 and a penalty of Rs. 5,000
had been imposed.
The respondents were asked
to
pay the amount forthwith.
On the 27th July,
1945,
the respondent filed
a sui

## Text

1950
Dr.N.B. Khare
v.
The Stale of Delhi
Mukhnjea].
1950
536
SUPREME COURT REPORTS
[19501
force,
and consequently the order made by the District
Magistrate in the present case cannot stand.
I would,
therefore,
allow the application
and
quash
the
externment order that has been passed
against the petitioner.
Petition dismissed.
Agent for the petitioner: Gan pat Rai.
Agent for the opposite party: P. A. Mehta.
CHIEF CONTROLLING REVENUE AUTHORITY
AND
SUPERINTENDENT OF STAMPS
ti.
MAHARASHTRA SUGAR MILLS
LTD.
[SHR1 HARILAL KANg C. J., SAIYID FAzL Au,
PATANJALI SASTRI, MEHR CHAND MAHAJAN
and MUKHERJEA J J.)
Indian Stamp Act (II of 1899), ss. 57, 59 (2)-Reference lo
High Court-Nature of power .to refer-Duty to refer on reque.11
of party affected-Order directing Chief Controlling Authority
to refer-Whether
"matter
concerning
revenues"-furisdiction
of Original Side of High Court-Government of India Act, 1935,
s. 266(1).
The power conferred on the Chief Revenue Authority by
Sec. 57 of the Indian Stamp Act, to make a reference to the High
Court is not intended for the benefit of the Revenue Authority
alone, but ensures, also for the benefit of the party affected by the
assessment. It is
th~reforc coupled with a duty
to make a
reference when he is called upon to do so by the party affected, and
if he declines to do so, it is within the power of the Court to
direct him to
discharge that ducy and make a reference to the
Court.
Alcock Ashdown & Co., Ltd. v. Chief Revenue Authority
(SO I.A. 227) and /ulius v. Bishop of Orford (5 A.C. 214) applied.
S.C.R.
SUPREME COURT REPORTS
537
The order of a High Court to a revenue officer to do his duty
would not be the exercise of original jurisdiction in a matter
concerning the
revenue within the meaning of Sec. 226 of the
Government of India Act, 1935, and the jurisdiction of the High
Court to direct the Chief Controlling Revenue Authority to make
a reference under Sec. 57 of the Stamp Act was not barred by
Sec. 226 of the Government of India Act.
The fact that the proceedings had passed beyond the stage
-:if enforcing payment does not preyent the High Court from
directing the Revenue Authority to make a reference, for, if the
opinion of the Court on the reference is against the Revenue Autho-
. rity he will have to refund whatever has been recovered in excess,
under Sec. 59 (2) of the Act.
APPEAL from
the High Court of Judicature at
Bombay : Civil Appeal No. XII of 1950.
This was an appeal from a judgment and order of
the High Court of Bombay (Chagla, Acting C. J. and
Bhagwati J.)
dated 2nd September, 1947, in
Appeal
No. 60 of 1946.
The facts are fully set out in the
judgment.
C.
K. Daphtary,
Advocate-General
of Bombay
(M. M. Desai, with him) for the appellant.
M. C. Setalvad,
Attorney-General for India (S.S.
Ragnekar, with him) for the respondent.
1950.
May 27.
The judgment of the Court was
delivered by .
·
KANIA C. J.-This is an appe-al from a judgment
of the High Court at Bombay
and it relates
to the
jurisdiction of the Court to direct · the Chief Controlling
Revenue Authority and the Superintendent of Stamps
at Bombay to state a case for the opinion of the Court
under section 57 of the Stamp Act.
The respondent
company,
for
its
business,
borrowed money from the Central Bank of India Ltd.
at Bombay.
In order to secure the loan a document
was executed on the 22nd of March, 1945, with a
stamp of Rs. 16-8-0,
on the footing that it was a deed
of· hypothecation
without possession of the goods.
When the deed
was
sent to the
Sub-Registrar
for
registration he impounded
the same and sent it to the
Stamp Office.
The Assistant Superintendent of Stamps
1950
Chief Conli'ollina
Rev. Authority
v.
MaharashlTa
Sugar Mills Ltd.
Kania C.J.
1950
CliiAJ ConJrol/ing
Rev. Aflthori!J
Vo
Maharashlr•
Gug«r Mills-W.
Eam•C.J.
538
SUPREME COURT REPORTS
[1950]
wrote to the respondent that the document was a
mortgage with possession,
chargeable with duty under
article 40
(a)
of the Schedule and inquired why it
was not duly stamped before execution.
The respondent's solicitors
in their reply contended that the
document was not,
and was
never intended by the
parties to be,
a mortgage with possession.
They
pointed out that no possession
of the
property had
been given or was intended to 'be given,
except in
certain contingencies
and therefore
the document was
properly
stamped.
In reply
the Assistant
Superintendent intimated that the document
was chargeable
with duty of Rs. 56,250 and a penalty of Rs. 5,000
had been imposed.
The respondents were asked
to
pay the amount forthwith.
On the 27th July,
1945,
the respondent filed
a suit against the Central Bank
contending that
the document
was not
a mortgage
with possession.
It was alleged
that since a doubt
had arisen as to whether the document gave effect to
the common
intention
of
the
parties
the Court's
directions were sought for and if the Court found that
the document as framed did not
give effect to the said
common intention
of
the parties the instrument may
be rectified.
On 9th August,
1945,
the respondent's
solicitors
informed
the
Assistant
Superintendent
that such a
suit
had been
filed and
requested
that the demand for payment of stamp duty and
penalty
may not
be
pressed
under
the circumstances.
In the further correspondence,
on behalf
of the appellant, the demand was reiterated
and
resort to the coercive procedure
of section 48 of the
Stamp Act was threatened.
The Collector thereafter
sent ·a letter to the respondents on the 17th January,
1946, demanding payment. On the 25th of January,
1946.
the suit filed by the respondent was disposed of
by the Court and the rectification as prayed was ord.
ered.
The respondent's solicitors immediately intimated
the result of the suit to the Assistant Superintendent
and sent a copy of the deed showing the rectifications
made in the original document.
A similar letter was
also sent to the Collector of Bombay.
On the Jst
February,
1946,
the respondent's solicitors enquired of
S.C.R.
SUPREME COURT REPORTS
539
the Assistant
Superintendent of Stamps whether he
was agreeable to make a reference under section 56 (2)
to the appellant,
as the question of liability to pay the
stamp duty and penalty
involved important questions
of
law.
A petition
on
behalf
of
the
respondent to the
appellant was
also
filed
on
the 5th
of
February
in
which
it
was prayed
that either the order of the Assistant Superintendent
of Stamps be rescinded or
in the alternative a case
may be referred under section 57 of the Stamp' Act for
the opinion of the High Court.
This petition was
rejected on the 4th July,
1946.
The respondent thereupon filed a petition in the High Court on the 19th of
July,
i94b, praying that a writ of certiorari way be
issued against the appellant, or an order may be made
against him under section 45 of
the Specific Relief
Act,
to cancel the levy of the stamp duty and penalty
as claimed on behalf of the appellant or in the alternative the appellant may be ordered under section 57
of the Stamp Act to refer the matter to the High
Court for its opinion.
The matter came for hearing
before Mr. Justice Blagden who did not grant the first
relief but directed the appellant
to state a case
under
section 57 of the Stamp Act to the Court for its
opinion.
The appellant filed an appeal but failed. He
has now co.me . in appeal to this Court.
Two points have been urged on behalf of the appellant.
The first is whether under section 57 of the
Stamp Act there is an obligation on the appellant to
state a case,
and if not whether the High Court had
jurisdiction to give a direction to that effect. The second
point is whether having regard to the terms of section
226 (1) of the Government of India Act,
1935, ' the
High Court had jurisdiction to order the appellant to
state the case,
it being a matter relating to the revenue.
Under this head it is also argued that the matter had
proceeded beyond the stage of assessment and had
reached the stage of recovery.
Therefore,
the High
Court of Bombay had no jurisdiction to pass the order
it did.
The material part of section 57 of the Stamp
Act runs as follows :
"57. (1) The Chief Controlling Revenue-authority
1950
Chief Conlrolling
Rev. Authori~v
v.
MaharasMra
Sugar Mills Ltd.
KaniaC.J.
C/JUf ConJrolliog
a ••. AuJiiorit7
Y,
Maharashtra
Sugar Mills Lid.
KaiaC.J.
540
SUPREME COURT REPORTS
[19501
may state any case referred
to it under
section 56.
sub-section (2),
or otherwise coming to its notice, and
refer such case, with its own opinion thereon-
*
*
*
•
(b) if it arises in the Province of Bombay,
to
the High Court at Bombay; ...... "
Section 226 (l) of the Government of India
Ac~,
1935, runs as follows :-
"226. (l) Until otherwise provided by Act of the
appropriate -legislature,
no High Court shall have any
original
jurisdiction in any
matter
concerning the
revenue,
or concerning any act ordered or done in the·
collection thereof according to the usage
and
practice
of the country or the law for the time being in force."
On behalf of the appeilant it is contended
that
the very words of section 57 of the Stamp Act show
that it is a power given to the appellant to _state
a
case and it is not an obligation.
The section is framed
and worded only to give the benefit thereof to the
appellant and it is not for
the benefit
of any
other
party.
The word
"may"
used
in the section
was
deliberately used
for
that purpose.
It was
pointed
out that under section 56 (2) of the Stamp Act if the
Collector felt
doubt as to
the amount of duty with
which the instrument was chargeable
"he may draw
up a statement of the case and refer it with his opinion
for the
decision
of the Chief
Controlling
Revenue
Authority". Similarly under section 60 if any
Court
felt doubt as to the amount of .!uty to be paid it was
given power to draw up a statement of case for the
opinion of_ the High Court.
It was argued that both
these sections gave only power to the Collector and the
Court to make a reference for their own benefit.
Section
57,
it was argued, was on the same lines for the benefit
of the appellant.
In none of these,
any other party
had any right to insist on a reference.
It was pointec\
out that under the Stamp Act a Collector could certify
that the document was
properly
stamped,
although
it was not sufficiently stamped oh a true construction,
and when such a certificate was given the Controlling
Authority could do nothing.
He had not even
the
S.C.R.
SUPREME COURT REPORTS
541
power to refer that case to the Court to levy a higher
stamp duty.
For these reasons,
it was contended that
the scheme of the Stamp Act was materially
different
from the scheme of the Income Tax Act.
In our opinion the appellant's contentions are
unsound.
The first contention that section 57 of the
Stamp Act gives only a discretion and does not cast a
duty on the appellant
to make a reference
overlooks
the fact that the appellant has not to make a reference
only when he is in doubt about his decision or conclusion.
In his conclusion
the party
liable
to pay the
assessed stamp duty
is
materially interested.
The
appellant's
decision is not necessarily based only on
the reading of the entries in the Schedule to the Stamp
Act.
As in the present case,
the question under what
item stamp duty· is levia:ble may depend on tfie true
construction of a document.
It may also involve the
decision of the question,
as in the present case,
as to
what is the effect of the .Court's order directing a rectification of the instrument.
It does not appear,
on
principle, sound to hold
that these difficult questions
should be left under the Stamp Act to the final decision
of the appellant,
and if the party affected by the
assessment has a grievance
there is no relief
at all in
law for him.
The construction of a document is not
always an easy matter and on the ground that it is a
substantial question of law,
parties have been permitted to take the matter up to the highest Court.
If so,
it appears difficult
to start with the assumption that
because this is a Revenue Act
the decision of the
appellant should be
considered final
and conclusive.
The provisions of· section 56 (2) afid section 60 giving
power to the Collector and the Court to send a state-
. ment of case to the appellant and the · High Court
respectively,
in our opinion,
instead of helping the
appellant,
go against his contention.
In those two
sections this power is given when the referring authority
has a doubt to solve for himself.
The absence of the
words
"feels doubt as to the amount of d.uty to be paid
~n respect of an instrument" . in section 57 supports the
, view that the reference contemplated under that section
is not for the benefit of the appellant only but ,enures
1950
Chief Controlling
Rev. Authority
v.
Maharashtra
Sugar Mills Ltd.
KaniaC.J.
1950
CloiefConfrollillg
.Rto. Authoritf
v.
.Maharashlra
·Sugar Mills Lid.
KaniaC.J.
542
SUPREME COURT REPORTS
(1950]
also for the benefit of the party affected by the assessment.
In our opinion,
the power contained in section
57 is in the rtature of an obligation or is coupled with
an obligation and undor the circumstances can be demanded to be used' also by the parties affected by the
assessment of the stamp duty.
Our attention has been drawn in this connection
to the decision of the Judicial Committee of the Privy
Council in Alcock, Ashdown & Co. Ltd. v. Chief Revenue
Authority,
Bobmay ( 1 ). In that case a question arose
about an .assessee's right to ask the Commissioner of
Income Tax to state a case for the opinion of the Court
under section 51 of the Indian Income
Ta.J,C Act,
1918.
The material part of that section was in these terms :-
"51. (1) If, in the course of any assessment under
this Act
or any proceeding in connection therewith
other than]. proceeding uilder Chapter VII,
a question
has arisen with reference to the interpretation of any
of the ptovisions of this Act or of any rule thereunder,
the Chief Revenue Authority may, either on its own
motion or on reference from any Revenue officer subprdinate«to it,
draw up a statement of the case, and
refer it,
with its own opinion thereon,
to the High
Court, . and shall so refer any such question on the
l)pplication of the assessce,
unless it is satisfied that
the application is frinolous or . that a reference is unnecessary.
(3) The High Court upon the hearing of any
such case shall decide
the
questions
raised thereby,
and shall deliver its judgment thereon containing the
grounds on which such decision is founded,
and shall
send to the Revenue authority by which the case was
stated a copy
of such judgment under the seal of the
Court and the signature of the Registrar,
and the
Revenue-authority shall dispose of the case accordingly,
or,
if the case arose on reference from any Revenue-0flicer subordinate to it, _ shall forward· a copy of·
such judgment to such officer who shall dispose of the
case conformably to such judgment".
In that case,
. after the a§CSSlllent was made and
(') 50 I.A,227.
•
S.C.R.
SUPREME COURT REPORTS
543
the proceedings went to the
Commissioner of Income
Tax,
the assessee requested that a case may
be stated
for the opinion of the Court under the aforesaid section,
but the Commissioner refused
to do so.
Thereupon,
a Rule was obtained from the High Court calling upon
the ~hief Revenue Authority;
Bombay, to show cause
why a case should
not be so stated.
It was
argued.
before the High Court that . the Court had no jurisdiction
to order
the Commissioner to state a case for its
opm1on.
When the matter reached the Privy Council
the objection to the jurisdiction
was p,ut more broadly.
Before the High Court the only question raised was
whether the Authority had a duty,
in the
~ircum
stances,
to state a case.
The point raised before the
Judicial Committee of the Privy Council took the form
of saying that even if the Authority had a duty,
the
Court could not require him to exercise it ;
and for this
purpose
reliance was placed · upon
the
well-known
general purview of the Indian Legislation which excludes matter of revenue from the consideration of the
ordinary civil Courts,.
the principle being exemplified
in the case of Spooner v. /t1ddotli (1)
and upon section
106 (2) of the Government of India Act, 1915. The
judgment of the Board consisting of Viscount Haldane,
Lord Phillimore and Lord Carson was delivered by
Lord Phillimore.
In the judgment it is
stated
as
follows :-"It is Sjlid that,
though under this section,
the Chief Revenue Authority may,
if he thinks fit,
draw up a statement of the case and refer it to the
High Court he is not bound to do so even on the appli1.:atlon of the person to be assessed,
if he is satisfied
that the application is frivolous
or that the reference
is unnecessary and that the Authority has in the present
case shown that he is satisfied that the application was
frivolous and the reference was unnecessary.".
This
argument was rejected by the High Court.
Their
Lordships of the Privy Council agreed with the view
of the High Court that this was too narrow a construction of the section.
They observed :
"Take first the
case which is last in the -clause. ·If the assessee applies
for a case the Authority must state it unless he can
(1} (1850) 4 Moo. I.A. 353.
'
1950
Chief Controllin8
Rtv. Authority
v.
M ahara.rhlra
Sugar Mills Ltd.
KaniaC.]-
1950
ChUf Controlling
Re~. Authori!1
v.
Mah11Tashlra
.Sugar Mills Lid.
Eania C. ].
544
SUPREME COURT REPORTS
fl950]
say that it is frivolous or unnecessary.
He 1s not .to
wait for the court to order him to do it ;
it will be a
misfeasance and a breach of
the statutory duty if
he does not do it."
The
judgment did not
end by
relying only on that portion of ·section 51 (!) of the
Indian Income Tax Act,
1918.
It proceeds to state as
follows :-"Put that case aside.
The rule here is supported upon the earlier
part of the section.
No doubt
that part does
not say that he shall state a case,
it
only says that he may.
And as
the learned counsel
for the respondent rightly urged,
may
does not mean
'shall'.
Neither are the words 'it shall be lawful'
those of compulsion.
Only the capacity or power
is
given to the Authority.
But when a capacity or power
is given
to a public authority there may be circumstances which couple with the power a duty to exercise
it.
To use the language of Lord Cairns in the case of
/ulius v. Bishop of Oxford ( 1 ):
'There may be something in the nature of the thing empowered to be done,
something in the object for which it is to be done,
something in the conditions under which it is to be done,
something in the title of the
person
or persons
for
whose benefit
the power is to be exercised,
which may
couple the power with· a duty,
and make it the duty
of the person in whom the power is reposed to exercise
that power when called upon to do so.'
In their
Lordships'
view,
always supposing. that there is a
serious point of law to be considered,
there does lie a
ducy upon the Chief Revenue Authority to state a case
for the opinion of the Court,
and if he does not apyreciate that there is such a serious point,
it is in the
power of the Court to control him and to order him to
state a case."
This reasoning and
conclusions,
although
they
have not now the compelling force they had before the
26th of January,
1950,
are entitled to great respect.
Apart from that, we entirely agree
with that line of
reasoning and the conclusion.
In our opinion,
in the
present case the power to
make a reference under
section 57 is not only for the benefit of the appellant.
(') 5 A.C. '214, 222.
S.C.R.
SUPREME COURT REPORTS
545
It is coupled with
a duty cast on him,
as a public
-0flicer to do the right thing and when an important ·and
intricate question of law in respect of the construction
of a document arises,
as a public servant it is his duty
to make the reference.
If he omits· to ·do so it is
w,ithin the power of the Court to direct him to discharge that duty and make .a reference to the Court.
Mr. Daphtary on behalf of the appellant
tried to
distinguish ' this
case on the ground that the scheme
-of the Income Tax Act was different from the scheme
-Of the Stamp Act.
In our opinion, . the observations
quoted above and ·the principles underlying
the same
are applicable to the duty cast on the am>ellant under
section 57 of the Stamp Act· and minor points of distinction between the schemes of the two Acts are immaterial for the present discussion.
In t;.he words of
Lord Cairns the very nature. · of the thing empowered to
be. done by t;he
appellant
and
the conditions under
which he has to fix the amount of the duty,
couple the
power with the duty to state a case for the opinion of
the Court.
The provisions of section 51 (1) and (3) run
on the same lines as section 59 of the Stamp Act.
Mr.
Daphtary next pointed out that there · was a difference
in the scheme of the Act,
because when the Collector
issued a certificate under section 32,
even though his
assessment might be faulty and against the interest of
the State,
the State or the appellant had no remedy.
This overlooks the provisions of the . section empowering the Collector to issue
the certificate.
The scheme
of the Stamp Act may be briefly noticed. Chapter II
• contains provisions
about the liability
of
instruments
'tq duty,
of the time of stamping instruments,
of valuations for· duty and provisions as to the person by whom
duty is payable.
Chapter III which contains only two
.. sections deals with the adjudication as to stamps.
The
first (section 31) is where an
instrument,
whether
·executed or not and
whether ·previously stamped
or
not,
is brought to the Collector with an application to
· have his opinion as to the duty with which it is chargeable.
For obtaining that opinion the applicant has to
pay a "fee. , The Collector mav call for information and
t.akc evidence. · After he ·has done so he determines the
1950
Chief Controlling
Riv. Authoril.J
v •.
Maharashtra
Sugar Mills Lid.
KaniaC.J.
1950
Chief CmitrDlling
&f}. Authority
v.
ftlaharashlra
S•gar MiJu Ltd.
546
SUJ,>REME COURT REPORTS
[19501
amount of the stamp duty and
certifies under
section
32 thar the full duty with which it is chargeable has
been paid,
It is obvious that the party applying
is
interested in obtaining the opinion and therefore
he
cannot object to the certificate of the Collector.
If the
Collector himself is in doubt he has the power under
section 56 (2) to ask for the opinion of the appellant.
It is therefore clear that in respect of these two provisions under Chapter III no grievance could exist on
either side.
From section 33 and Chapter IV onwards
there are provisions in which the opinion of the Stamp
Officer and of the party interested in paying the stamp
duty may come in conflict.
The sections in Chapters
IV, V and VI ending with section 61, deal with situations arising from such difference of opinion.
Section
57 (!) falls under this .heading.
In our opinion, there·
fore, this contention of the aP,pellant fails.
The next point urged was whether tl'ie High Coun
has jurisdiction to order the Revenue Authority to
state a case in face of the provisions of section 226 of
the Government of India Act,
1935. The argument
was urged in two parts :
Firstly,
that this
being a
revenue matter,
the jurisdiction of the Court was excluded.
Secondly,
that the matter had ceased to be in
the stage of assessment but had reached the stage of collection of stamp duty.
On that ground the present case
was sought to be distinguished from A/cock's case ( ').
In our opinion this argument of the appellant must also
fail.
A similar argument based on the wording of the
corresponding section
106 (2) of the Government
of
India Act,
1915,
as mentioned above,
was urged in
Alcock'; case ( 1 ). On that point their Lordships observed
i!S follows :-"Upon the
point
thus broadly stated
their Lordships have
no difficulty in pronouncing a
decision.
To argue that if the legislature says that a
public officer.
even a revenue officer, shall do a thing
and he,
without cause or justification,
refused to do
that thing,
yet the Specific Relief Act would not be
applicable and there would be
no power in the Conn
to compel him to give relief to the subject is to state a
(') 50 I.A. 227.
"
s.c.R.
SUPREME COURT REPORTS
547
proposition
to which their Lordships
must refuse
assent."
In dealing with the argument that because
of section 106 (2) of the Government of India Act, 1915
the High Court had no jurisdiction to make the order,
the Board observed as follows :-"In their
Lordships'
view the order of a High Court to a revenue officer to do
his statutory duty would not be the exercise of original .
jurisdiction in any matter concerning the revenue."
In
our opi_n_ion,
in the present case also the respondent seeks
the Court's intervention to make the appellant perform
his statutory duty to state a case.
That is not exercising the original jurisdiction of the Court in any matter
concerning the revenue.
It is only asking the appellant
to perform his statutory duty. · The further
argument
that the proceedings in this case had passed beyond
. the stage of assessment and had · reached the stage of
. enforcing payment is again irrelevant because
by the
-relief granted by the High Court no attempt is made
·to obstruct the
Revenue
Authority in the discharge
of his duties.
At one stage an injunction was granted
_ against the appellant but that has been cancelled.
In
fact,
this aspect of the discussion
is only academic
because if payment .is enforced and the opinion
of the
Court, on the statement of the
case is against the
appellant,
he will have to act in conformity with that
. opinion under section 59 (2) of the Stamp Act and
refund whatever may be held to be recovered in excess.
In our opinion therefore
the contentions of
the:
appellant fail and the appeal is dismissed with costs.
Appeal dismissed.
Agent for the appellant: R. S. Narula.
Agent for the respondent: Tanuhhai C. Desai.
3-5 S. C India (N.D.> 58
1950
Chief Con1,,,l/ing
Rtv. Authorit.7
v.
Maharashtra
Sugar Mills lJd.
KaniaC.J.