# GOVERNMENT OF ANDHRA PRADESH & ORS v. SMT. P. LAXMI DEVI - **Citation:** [2008] 3 S.C.R. 330 - **Court:** Supreme Court of India - **Decided:** 2008-02-25 - **Case number:** Civil Appeal No. 8270 of 2001 - **Bench:** H.K. Sema, Markandey Kat Ju - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/government-of-andhra-pradesh-ors-v-smt-p-laxmi-devi-24396 - **Pages:** 47 ## Headnote Stamp Act, 1899 - s. 47 A (as amended by Andhra ... Pradesh Act 8 of 1998) - State amendment imposing deposit c of 50% of deficit stamp duty as a condition precedent for making reference to Collector - Constitutional validity of - Held.· The provision as amended is constitutional - It is not violative of Articles 14, 19 or any provision of the constitution - The amendment is an economic measure with aim for D plugging the loopholes for quick realization of duty- It is within the power of State Legislature - Invalid order by an authority under a statute does not make the statute itself unconstitutional -.y - A legal remedy is available against such invalid order - Constitution of India, 1950 - Articles 14 and 19, Seventh E Schedule List II Entry 63 rlw List Ill Entry 44. Judicial Review - Of statute - Scope of - Held: Invalidation of statute, being a grave step has to be taken in rare and exceptional circumstances - Statute can be declared unconstitutional not because it is possible to hold so, but only F when that is the only possible view not open to rational question .._ - In case of possibility of two views, one for and the other against the constitutional validity, the former will be preferred - Court not to decide the wisdom of the legislature - There is presumption in favour of Constitutionality of a statute and the G court should uphold it even by giving strained/narrower/wider meaning to the provisions thereof - Courts should practice great restraint while dealing with economic statutes, and should be activist in defending the civil liberties and fundamental rights of the citizens. ... H 330 GOVERNMENT OF ANDHRA PRADESH & ORS. v. 331 SMT. P. LAXMI DEVI Interpretation of Statutes- Taxing statutes - Interpretation A of- Held: Such statutes should be construed strictly- Hardship is not a relevant factor for construing such statutes - If the words used, are clear, one cannot try to find out the intention and object of the statute. Respondent filed a writ petition seeking declaration 8 thats. 47A of Stamp Act, 1899 as amended by Andhra Pradesh Act 8 of 1998 which required a party to deposit 50% deficit stamp duty as a condition precedent for a reference to the Collector under Section 47A, was unconstitutional. High Court held it as unconstitutional. C Hence the present appeal. Allowing the appeal, the Court HELD: 1.1 Section 47 A of the Stamp Act, 1899 as amended by Andhra Pradesh Act 8 of 1998 is constituD tionally valid and the judgment of the High Court declaring it unconstitutional is not correct. The right to appeal which is a statutory right can be conditional or qualified. There is no violation of Articles 14, 19 or any other provision of the Constitution by the enactment of Section E 47A as amended by the A.P Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and for quick realization of the stamp duty. Hence it is well within the power of the State legislature vide Entry 63 of List II read with Entry 44 of List Ill of the Seventh F Schedule to the Constitution. [Paras 18, 24 & 27] [348-D; 349-8; 346-E-F] Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors. 1999(4) SCC G 468; Vijay Prakash D. Mehta vs. Collector of Customs (Preventive) 1968(4) SCC 402; Anant Mills Ltd. vs. State of Gujarat 1975(2) SCC 175 - relied on. Mis. Elora Construction Company vs. The Municipal Corporation of Gr. Bombay and Ors. AIR1980 Bombay 162; H 332 SUPREME COURT REPORTS [2008] 3 S.C.R. \~ A Shyam Kishore and Ors. vs. Municipal Corporation of Delhi and Anr. 1993(1) SCC 22 - referred to. 1.2 It cannot be said that the document can be returned if the party does not want to get it stamped. A B perusal of s. 33 of Stamp Act shows that when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a + police officer) before whom any instrument chargeable wit ## Text _Characters 0–39,895 of 91,979. This is a partial read: ask again with offset=39895 for what follows._ [2008] 3 S.C.R. 330 ~r A GOVERNMENT OF ANDHRA PRADESH & ORS. v. SMT. P. LAXMI DEVI (Civil Appeal No. 8270 of 2001) B FEBRUARY 25, 2008 [H.K. SEMA AND MARKANDEY KAT JU, JJ.] Stamp Act, 1899 - s. 47 A (as amended by Andhra ... Pradesh Act 8 of 1998) - State amendment imposing deposit c of 50% of deficit stamp duty as a condition precedent for making reference to Collector - Constitutional validity of - Held.· The provision as amended is constitutional - It is not violative of Articles 14, 19 or any provision of the constitution - The amendment is an economic measure with aim for D plugging the loopholes for quick realization of duty- It is within the power of State Legislature - Invalid order by an authority under a statute does not make the statute itself unconstitutional -.y - A legal remedy is available against such invalid order - Constitution of India, 1950 - Articles 14 and 19, Seventh E Schedule List II Entry 63 rlw List Ill Entry 44. Judicial Review - Of statute - Scope of - Held: Invalidation of statute, being a grave step has to be taken in rare and exceptional circumstances - Statute can be declared unconstitutional not because it is possible to hold so, but only F when that is the only possible view not open to rational question .._ - In case of possibility of two views, one for and the other against the constitutional validity, the former will be preferred - Court not to decide the wisdom of the legislature - There is presumption in favour of Constitutionality of a statute and the G court should uphold it even by giving strained/narrower/wider meaning to the provisions thereof - Courts should practice great restraint while dealing with economic statutes, and should be activist in defending the civil liberties and fundamental rights of the citizens. ... H 330 GOVERNMENT OF ANDHRA PRADESH & ORS. v. 331 SMT. P. LAXMI DEVI Interpretation of Statutes- Taxing statutes - Interpretation A of- Held: Such statutes should be construed strictly- Hardship is not a relevant factor for construing such statutes - If the words used, are clear, one cannot try to find out the intention and object of the statute. Respondent filed a writ petition seeking declaration 8 thats. 47A of Stamp Act, 1899 as amended by Andhra Pradesh Act 8 of 1998 which required a party to deposit 50% deficit stamp duty as a condition precedent for a reference to the Collector under Section 47A, was unconstitutional. High Court held it as unconstitutional. C Hence the present appeal. Allowing the appeal, the Court HELD: 1.1 Section 47 A of the Stamp Act, 1899 as amended by Andhra Pradesh Act 8 of 1998 is constituD tionally valid and the judgment of the High Court declaring it unconstitutional is not correct. The right to appeal which is a statutory right can be conditional or qualified. There is no violation of Articles 14, 19 or any other provision of the Constitution by the enactment of Section E 47A as amended by the A.P Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and for quick realization of the stamp duty. Hence it is well within the power of the State legislature vide Entry 63 of List II read with Entry 44 of List Ill of the Seventh F Schedule to the Constitution. [Paras 18, 24 & 27] [348-D; 349-8; 346-E-F] Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors. 1999(4) SCC G 468; Vijay Prakash D. Mehta vs. Collector of Customs (Preventive) 1968(4) SCC 402; Anant Mills Ltd. vs. State of Gujarat 1975(2) SCC 175 - relied on. Mis. Elora Construction Company vs. The Municipal Corporation of Gr. Bombay and Ors. AIR1980 Bombay 162; H 332 SUPREME COURT REPORTS [2008] 3 S.C.R. \~ A Shyam Kishore and Ors. vs. Municipal Corporation of Delhi and Anr. 1993(1) SCC 22 - referred to. 1.2 It cannot be said that the document can be returned if the party does not want to get it stamped. A B perusal of s. 33 of Stamp Act shows that when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a + police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his c functions, it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. The use of the word 'shall' in Section 33(1) makes it mandatory to impound a document produced before him or which comes before him in the D performance of his functions. A registering officer under the Registration Act is certainly a person who is in charge ~ of a public office. Section 33(3) applies only when there is some doubt whether a person holds a public office or not. There can be no doubt that a Sub-Registrar holds a E public office. Hence, he cannot return such a document to the party once he finds that it is not properly stamped, and he must impound it. [Paras 16 and 17] [345-G; 346-A, B, C, D, E] 1.3 In case of a situation where the demand is F exhorbitant, it is always open to a party to file a writ petition " challenging the exorbitant demand made by the registering officer under the proviso to Section 47A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it G is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47A of the Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution. Hence, ... the party is not remedy-less in this situation. [Para - 29] H f349-E, F, G] GOVERNMENT OF ANDHRA PRADESH & ORS. v. 333 SMT. P. LAXMI DEVI ''/ Maneka Gandhi vs. Union of India AIR 1978 SC 597 - A relied on. 1.4 There is always a difference between a statute and the action taken under a statute. The statute may be valid and constitutional, but the action taken under it may B not be valid. Hence, merely because it is possible that the order of the registering authority under the proviso to f Section 47 A is arbitrary and illegal, that does not mean that the proviso to Section 47 A is also unconstitutional. This aspect must always by kept in mind while adjudicating on the constitutionality of a statute. [Para 30] c [349-G; 350-A, B] 1.5 It is well settled that stamp duty is a tax, and hardship is not relevant in construing taxing statutes which are to be construed strictly. There is no equity in a D tax. If the words used in a taxing statute are clear, one -t< cannot try to find out the intention and the object of the statute. Hence the High Court fell in error in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which will be ·caused to a party by the impugned amendment of 1998. E [Para 19) [346-G; 347-A] Commissioner of Income Tax vs. Firm Muar AIR 1965 ,' SC 1216; Bengal Immunity Co. Ltd. vs. State of Bihar AIR f ).. 1955 SC 661 (685); Income Tax Officer vs. TS Devinatha F Nadar AIR 1968 SC 623 - relied on. Partington vs. Attorney-General 1969 LR 4 HL 100 - referred to. 2.1 In view of the theory in jurisprudence of the eminent jurist Kelsen (The Pure Theory of Law), the Courts G have the power to declare an Act of the Legislature to be invalid. In every country there is a Hierarchy of legal ~ norms, headed by as the 'Grundnorn' (The Basic Norm). ~ If a legal norm in a higher layer of this hiearachyconlictsl clashes with a legal norm in a lower layer, the former will H 334 SUPREME COURT REPORTS [2008] 3 S.C.R. A prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature B is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non· enforceable). [Paras 31, 32 and 34] [350-D, E, F; 351-A, B, C] C Marbury v. Madison 5 U.S. (1Crach) 137 (1803)- referred to 'The General Theory of Law and State' by Kelson - referred to D 2.2 The Court must always remember that invalidating a statute is a grave step, and must therefore be taken in very rare and exceptional circumstances. While the Court has power to declare a statute to be unconstitutional, it should exercise great judicial restraint in this connection. E [Paras 38 and 39] [352-B, CJ F Commonwealth ex. Rel O'Hara vs. Smith 4 Binn. 117 - referred to. 'The Least Dangerous Branch' by A. Bickel - referred to. Article 'The Origin and Scope of the American Doctrine of Constitutional Law' by James Bradley Thayer published in the Harvard Law Review in 1893- referred to 2.3 Adjudication must be done within the system of G historically validated restraints and conscious minimization of the judges personal preferences. The Court must not invalidate a statute lightly, for, invalidation of a statute made by the legislature elected by the people is a grave step. The Court should, therefore, ordinarily H defer to the wisdom of the legislature unless it enacts a f GOVERNMENT OF ANDHRA PRADESH & ORS. v. 335 SMT. P. LAXMI DEVI law about which there can be no manner of doubt about A its unconstitutionality. [Paras 54 and 55l [360-A, 8, C] M.H. Quareshi vs. State of Bihar AIR 1958 SC 731 - relied on. 2.4 A Court can declare a statute to be B unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question. In other words, the Court can declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly c unconstitutional, and there is no way of avoiding such decision. The philosophy behind this view is that there is broad separation of powers under the Constitution, and the three organs of the State -the legislature, the executive and the judiciary, must respect each other and must not D ordinarily encroach into each other's domain. Also the judiciary must realize that the legislature is a democratically elected body which expresses the will of the people, and in a democracy this will is not to be lightly frustrated or obstructed. [Para 41] [353-F, G, H; 354-A] E 'Felix Frankfurter Reminisces' by H. Phillip 299-300, 1960 - referred to. 2.5 There is one and only one ground for declaring ' >- an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of F the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways, e.g. if a State legislature makes a law which only the Parliament can make under List 1 to the Seventh Schedule, in which case it will violate Article 246 (1) of the G Constitution, or the law violates some specific provision · . ,, .. of the Constitution (other than the directive principles) . But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the H 336 SUPREME COURT REPORTS [2008] 3 S.C.R. A Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that B requires giving a strained construction or narrowing down its scope. Also, if it is necessary to uphold the constitutionality of a statute to construe its general words narrowly or widely, the Court should do so. [Paras 44 and 64] [354-E, F, G, H; 355-A; 365-D, E] C Mark Netto vs. Government of Kera/a and Ors. AIR 1979 SC 83; Kedarnath vs. State of Bihar AIR 1962 SC 955; In re Hindu Women's Right to Property Act AIR 1941 FC 72 - relied on. 0 Bartels vs. Iowa 262 US 404 412(1923); West Virginia vs. Barnette 319 U.S. 624 (1943) - referred to. Principles of Statutory Interpretation, by GP. Singh 9th Edition, 2004 page 497' - referred to. The Influence of James B Thayer Upon the Work of E Holmes, Brandeis and Frankfurter' by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978)- referred to. . 2.6 The legislature must be given freedom to do F experimentations in exercising its powers, provided of . course it does not clearly and flagrantly violate its constitutional limits. [Para 49] [358-D] G Keshvananda Bharati vs. State of Kera/a AIR 1973 SC 1461 - followed. New State Ice Co. vs. Liebmann 285 U.S. 262 (310-11)- referred to. Essay on Justice Holmes of the U.S. Supreme Court in the dictionary of American Biography, by Justice Frankfurter; H 'Thi~ Public and its Government' By J~stice Franl- 2.9 As regards fiscal or tax measures greater latitude is given to such statutes than to other statutes. All F decisions in the economic and social spheres are essentially ad hoc and experimental. Since economic matters are extremely complicated, this inevitably entails special treatment for special situations. The State must therefore be left with wide latitude in devising ways and means of fiscal or regulatory measures, and the Court G ,,, should not, unless compelled by the statute or by the ~ Constitution, encroach into this field, or invalidate such law. [Paras 68 and 69] [366-D, E; 368-E, F] R.K. Garg vs. Union of India and Ors. 1981 (4) SCC 675 H 338 SUPREME COURT REPORTS [2008) 3 S.C.R. ,, . A - followed. American Federation of Labour vs. American Sash and Door Co. 335 U.S. 538 (1949); New State Ice Co. vs. Liebmann 285 U.S. 262 (1932); Secretary of Agriculture vs. Central Reig B Refining Co. (1949) 338 U.S. 604 (617) - referred to. Lochner vs. York, 198 U.S. 45(1903); Schenck vs. U.S. 249 U.S. 47 (1919); Abrams vs. U.S. 250 U.S. 616 624 (1919); 'Footnote Four' in United States vs. Carotene Products Co. 304 U.S. 144 - referred to. c 2.10 While Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. The Courts are guardians of the rights and liberties of the citizens, and they will be failing D in their responsibility if they abdicate this solemn duty towards the citizens. When a law of the legislature ;,.- encroaches on the civil rights and civil liberties of the people mentioned in Part Ill of the Constitution the Court will not grant such latitude to the legislature as in the case E of economic measures, but will carefully scrutinize whether the legislation on these subjects is violative of the rights and liberties of the citizens, and its approach must be to uphold those rights and liberties, for which it may sometimes even have to declare a statute to be unconstitutional. This is necessary because though .. .. F ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding G Fathers of the Constitution in their wisdom provided fundamental rights in Part Ill of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 • and the Declaration of the Rights of Man during the Great • French Revolution of 1789. [Paras 73, 74, 83 and 86] t-l [373-F, G; 374-A, E, F; 370-A, B, CJ GOVERNMENT OF ANDHRA PRADESH & ORS. v. _339 SMT. P. LAXMI DEVI [MARKANDEY KAT JU, J.) ' iManeka Gandhi vs. Union of India, AIR 1978 SC 597 - A followed. Terminiel/o vs. Chicago 337_ US 1 (1949); Bridges vs. California 314 US 252 (1941); Wood vs. Georgia 370 U.S. 375(1962); Ghani vs. Jones (1970) 1 Q.B. 693 (709) - referred B to. f 2.11 The Courts have taken an activist approach in upholding the civil liberties and rights of the citizens, because freedom and liberty is essential for progress, both economic and social. Without freedom to speak, c freedom to write, freedom to think, freedom to experiment, freedom to criticize (including criticism of the Government) and freedom to dissent there can be no progress. [Para 92] [375-D, E] Maneka Gandhi vs. Union of India, AIR 1978 SC 597; D ~ Joginder Kumar vs. State of UP, AIR 1994 SC 1349; 0. K. Basu vs. State of West Bengal, AIR 1997 SC 610, etc - followed. 2.12 In view of the fact that the impugned amendment E is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, the said amendment, being an economic measure, cannot be said to be unconstitutional. [Para 94] [376-8] ' t ).._ CIVIL APPELLATE JURISDICTION: Civil Appeal No.8270 F of 2001. From the final Judgment and Order dated 8/5/2001 of the High of Judicature, Andhra Pradesh at Hyderabad in W.P. No. 12649/2000. G Manoj Saxena, Rajneesh Kr. Singh, Rahul Shukla and T.V. George for the Appellants. .. The Judgment of the Court was delivered by MARKANDEY KAT JU, J. 1. This appeal by special leave H 340 SUPREME COURT REPORTS [2008] 3 S.C.R. A has been filed against the impugned judgment of the Andhra ,, , Pradesh High Court dated 8.5.2001 in Writ Petition No.12649 of 2000. 2. Heard learned counsel for the parties and perused the B record. 3. The writ petition was filed in the High Court praying for a declaration that Section 47 A of the Indian Stamp Act as amended by A.P. Act 8of1998 which requires a party to deposit 50% deficit stamp duty as a condition precedent for a reference c to the Collector under Section 4 7 A is unconstitutional. By the impugned judgment the High Court has declared it unconstitutional. Hence, this appeal. 4. Under Section 3 of the Indian Stamp Act, 1899 certain D instruments are chargeable with the duty mentioned in the Schedule to the Act. Item 23 in the Schedule to the Act mentions a 'conveyance' as one of the documents requiring payment of " - stamp duty. A 'conveyance' is defined in Section 2(10) of the Act and includes a sale deed. Since in the present case we are E concerned with payment of stamp duty on a sale deed, we have referred to the above provisions. 5. Experience showed that there was large scale under valuation of the real value of the property in the sale deeds so as to defraud the Government's proper revenue. In the original F Stamp Act there was no provision empowering the revenue ' "" authorities to make an enquiry about the value of the property conveyed for determining the correct stamp duly. Hence amendments were made to the Indian Stamp Act from time to time in several States including amendments by the Andhra G Pradesh Legislature e.g. by the Indian Stamps (A.P. Amendment) Act 22 of 1971, Indian Stamps (A.P. Amendment) Act 17 of 1986 and ultimately by the AP Act 8 of 1998 (with effect from 1.5.1998). The scheme of Section 47A was to deal .. with such cases where parties clandestinely undervalued the • H property to evade payment of the correct stamp duty. GOVERNMENT OF ANDHRA PRADESH & ORS. v. 341 SMT. P. LAXMI DEVI [MARKANDEY KAT JU, J.] ~ ~ 6.Afterthe 1998 amendment, Section 47A(1) of the Indian A Stamp Act as applicable in the State of Andhra Pradesh reads as under: "47 A Instruments of conveyance, etc. how to be dealt with - (1) Where the registering officer appointed B under the Registration Act, 1908, while registering any instrument of conveyance, exchange, gift, partition, f settlement, release, agreement relating to construction, development or sale of any immovable property or power of attorney given for sale, development of immovable property, has reasqn to believe that the market value of c the property which is the subject matter of such instrument has not been truly set forth in the instrument, or that the value arrived at by him as per the guidelines prepared or caused to be prepared by the Government from time to fime has not been adopted by the parties, he may keep D ~ pending such instrument and refer the matter to the Collector for determination of the market value of the property and the proper duty payable thereon. Provided that no reference shall be made by the E registering officer unless an amount equal to fifty per cent of the deficit duty arrived at by him is deposited by the party concerned." 7. Under sub-clause (2) of Section 47A of the Stamp Act ~ ~ on receipt of a reference under sub-section(1 ), the Collector F has to give opportunity of making a representation to the parties, and after holding such enquiry as prescribed by the Rules, shall determine the market value of the property which is the subject matter of the instrument, and the duty thereon. 8. The respondent herein, had agreed to purchase land G bearing S.No.594/B situated at village Kapra of Keesara Mandal of Ranga Reddy District. The agreement of sale was • ~ entered into on 25.1.1989 and as there was breach of performance of the contract on the part of the prospective vendor, a suit being O.S. No.1416 of 1997 was filed before the II H 342 SUPREME COURT REPORTS [2008) 3 S.C.R. .i, • A Additional Senior Civil Judge, Hyderabad and the same was decreed. When the sale deed was not executed pursuant to the decree, Execution Petition No.5 of 2000 was filed. An officer of the Court was deputed to present the sale deed, which was stamped according to the directions of the Senior Civil Judge. 8 9. The registering authority raised objection with regard to the quantum of non-judicial stamp on which the sale deed was engrossed. By letter no.288/2000 dated 19.2.2000, the registering authority. the Sub-Registrar, Malkajigiri, Ranga c Reddy District, conveyed to the Second Senior Civil Judge, City Civil Court, Hyderabad that the document has to be referred under Section 4 7 A and as a condition precedent for such reference, called upon the party i.e. the respondent herein, to pay duty on 50% of the differential amount according to the estimate made by him. Against this demand the respondent D filed a writ petition in the High Court. 10. In the writ petition filed by the respondent herein, it was .,. _ inter-alia, contended that the estimate made by the registering authority was only provisional, and that will attain finality only E after the Collector on a reference under Section 47 A adjudicates the same, and for the reference for such adjudication no obligation can be imposed to deposit 50% of the deficit duty. Hence the said provision contained in the proviso to Section 47A is arbitrary and unreasonable violating the Fundamental F Rights guaranteed in Articles 14 and 19(1)(g) of the Indian Constitution. ... 11 . A counter affidavit was filed by the State Government in the writ petition. The relevant paragraphs in the counter affidavit are quoted below : G "In reply to the allegations made in the affidavit it is stJbmitted that a sale deed was executed by II Senior Civil Judge City Civil Court on 6.1.2000 and presented before me on 7 1 2000 through one of the staff members. The ~ • sale deed was admitted to registration and kept pending H for want of clarification with regard to market value. The GOVERNMENT OF ANDHRA PRADESH & ORS. v. 343 SMT. P. LAXMI DEVI [MARKANDEY KAT JU, J.] • J. market value is arrived at Rs.6,17,80,500/- as per the A market value guidelines for 33 acres 12 guntas whereas the sale deed executed was for a consideration of Rs.2,40,000/-. Thus there is huge loss to the Government Exchequer to a tune of Rs.70,77,160/- in stamp duty. Therefore, I sought clarification from the District Registrar, 8 R.R. District (2nd Respondent). The 2nd respondent in his letter dated 473/G1/2003 dated 9.2.2000 ordered me to -!" take action under Section 4 7 A of Indian Stamp Act for determination of market value. Hence the action taken by the 3rd respondent i.e. Sub-Registrar, Malkajgiri is true c and proper in the matter. In reply to the allegations made paras 6 to 8 of the petitioner's affidavit it is submitted that the petitioners are liable to pay 50% of the deficit amount as per the Indian Stamp (A.P. Amendment) Act, 1998. The appeal filed by D the petitioner is without any merits and is liable to be dismissed with a direction to the petitioner that 50% of the deficit amount assessed by the Sub-Registrar concerned and as per the directions of the Hon'ble Chief Judge, City Civil Court, Hyderabad should be deposited before a E reference could be made under Section 47A of the Indian Stamp Act, as amended through Act No.8 of 1998. It is submitted that the proviso under Section 47A(2) was amended and the amendment has come into force with t ;.. effect from 1.5.1998. Hence, it is necessary that the F petitioner shall deposit the deficit duty as determined by the registering officer". 12. By the impugned judgment the High Court has declared Section 47A of the Indian Stamp Act as applicable to State Government to be unconstitutional. G 13. In the impugned judgment the High Court has obseNed: ~ "The imposition of deposit of 50% of the differential - stamp duty for referring the document to the Collector runs beyond the object and intendment of the above statutory H 344 SUPREME COURT REPORTS [2008] 3 S.C.R. ... ' A provision. The object and intendment of the Stamp Act is to collect the proper stamp duty and such proper stamp duty is dependent upon the determination of the market value of the subject matter of the document and such determination is only made by the Collector and until such B determination is made by the Collector, the document which is received for registration even after collection of whatever stamp duty deposited and the registration fee is paid by the party, is not released to the party, but is kept pending registration and such document kept pending registration c is not having any evidentiary value and is not entered into the books of registration and no certified copy of the same can be granted and no rights flow from such document, be it sale, exchange, gift, mortgage, lease, etc. By keeping the document pending registration, there is enough D safeguard for collecting the deficit stamp duty, as in the event of the Collector accepting the valuation suggested by the Registering Office and the party not paying the said ""' stamp duty, the document remains under pending registration and even may be returned to the party for E want of the payment of the differential stamp duty. This being the aim and intendment of the stamp duty protecting the public exchequer, there is absolutely no nexus for calling upon the party to deposit 50% of the differential stamp duty as a condition for making reference. It is not that a party seeks a reference on his own, but the Registering F Officer is duty bound to refer the moment a party does not .. _ accept the valuation suggested by him. The party presenting a document is the master of his choice as to whether he should deposit the deficit stamp after determination of the Collector or not. If he feels that the G market value determined by the Collector is exorbitant, then he may resile from going ahead with the registration of the document and may take return of the document. • There is nothing to stop him from doing so. Stamp duty is • not skin to a compulsory tax such as, property taxes levied H upon the house properties, sales tax levied upon the turn- GOVERNMENT OF ANDHRA PRADESH & ORS. v. 345 SMT. P. LAXMI DEVI [MARKANDEY KAT JU, J.] r f over, income-tax levied upon the income prescribed etc. A If a party wants to have his document registered, he should pay stamp duty and should he feel that it is exorbitant and he cannot bear the same, he can resile from the same even after presenting the document. The authority under the Stamp Act cannot force upon the party to compulsorily B pay the stamp duty. Such compulsion is imposed only upon the party's insistence for registration of the document and not otherwise. In such circumstances, the imposition of deposit of 50% of the amount towards the differential stamp duty as a condition for referring the matter to the c Collector runs beyond the scope, intendment and object of the act and, thus, offends equal protection of laws guaranteed under Article 14 of Indian Constitution and thus, is arbitrary and the said proviso to Section 47A of Indian Stamp Act which reads : D "Provided that no reference shall be made by the ~~ registering officer unless an amount equal to fifty per cent of the deficit duty arrived at by him is deposited by the party concerned." is unconstitutional and is accordingly struck down." E 14. We regret our inability to agree with the view taken by the High Court that the amended Section 47 A is unconstitutional. 15. Section 33(1) of the Stamp Act states : F r ~ "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 any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance in his functions G shall, if it appears to him that such instrument is not duly stamped, impound the same". .,._ 16. A perusal of the said provision shows that when a ,. document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence H 346. SUPREME COURT REPORTS [2008] 3 S.C.R "" 1 A and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his functions. it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. B The use of the word 'shall· in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so In our opinion, the word 'shall' in Section 33(1) does not mean ·may' but means 'shall'. In other words. it is mandatory to impound a document produced c before him or which comes before him in the performance of his functions. Hence the view taken by the High Court that the document can be returned if the party does not want to get it stamped is not correct. 17. In our opinion. a registering officer under the D Registration Act (in this case the Sub-Registrar) is certainly a person who is in charge of a public office. Section 33(3) applies ... only when there is some doubt whether a person holds a public office or not. In our opinion, there can be no doubt that a SubRegistrar holds a public office. Hence, he cannot return such a E document to the party once he finds that it is not properly stamped, and he must impound it. 18. In our opinion, there is no violation of Articles 14, 19 or any other provision of the Constitution by the enactment of Section 47A as amended by the AP Amendment Act 8of1998. F This amendment was only for plugging the loopholes and for .. quick realization of the stamp duty. Hence it is well within the power of the State legislature vide Entry 63 of List II read with Entry 44 of List Ill of the Seventh Schedule to the Constitution. G 19. It is well settled that stamp duty is a tax. and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar AIR 1965 SC '"' 1216. If the words used in a taxing statute are clear. one cannot • H try to find out the intention and the object of the statute. Hence GOVERNMENT OF ANDHRA PRADESH & ORS. v. 347 . ..,. SMTP LAXMI DEVI [MARKANDEY KAT JU. J] the High Court fell in error in trying to go by the supposed object A and intendment of the Stamp Act, and by seeking to find out the hardship which will be caused to a party by the impugned amendment of 1998. 20. In Partington vs. Attorney-General (1969) LR 4 HL B 100. Lord Cairns observed as under: "If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind. On the other hand if the court seeking to recover the tax cannot bring the subject within c the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be." The above observation has often been quoted with approval by this Court, and we endorse it again. In Bengal D •+ Immunity Co. Ltd. vs. State of Bihar AIR 1955 SC 661 (685) this Court held that if there is hardship in a statute it is for the legislature to amend the law, but the Court cannot be called upon to discard the cardinal rule of interpretation for mitigating a hardship. E 21. It has been held by a Constitution Bench of this Court in Income Tax Officer vs T.S Devinatha Nadar AIR 1968 SC 623 (vide paragraph 23 to 28) that where the language of a • • taxing provision is plain, the Court cannot concern itself with the intention of the legislature. Hence, in our opinion the High Court F erred in its approach of trying to find out the intention of the legislature in enacting the impugned amendment to the Stamp Act. • 22. In this connection we may also mention that just as the G reference under Section 47 A has been made subject to deposit of 50% of the deficit duty. similarly there are provisions in various .... statutes in which the right to appeal has been given subject to , some conditions. The constitutional validity of these provisions has been upheld by this Court in various decisions which are H 348 SUPREME COURT REPORTS [2008] 3 S. C.R. ~· A noted below. 23. In Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors. 1999(4) SCC 468, this Court referred to its earlier decision in Vijay B Prakash D. Mehta vs. Collector of Customs (Preventive) 1968(4) SCC 402 wherein this Court observed : "The right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. c The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant." 24. In Anant Mills Ltd. vs. State of Gujarat 1975(2) SCC 175 this Court held that the right of appeal is a creature of the statute and it is for the Legislature to decide whether the right of D appeal should be unconditionally given to an aggrieved party or ,, - it should be conditionally given. The right to appeal which is a statutory right can be conditional or qualified. 25. In M/s. Elora Construction Company vs. The E Municipal Corporation of Gr. Bombay and Ors. AIR1980 Bombay 162, the question before the Bombay High Court was as to the validity of Section 217 of the Bombay Municipal Act which required pre-deposit of the disputed tax for the entertainment of the appeal. The Bombay High Court upheld the said provision and its judgment has been referred to with .. F approval in the decision of this Court in Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors. (supra). This Court has also referred to its decision in Shyam Kishore and Ors. vs. Municipal Corporation of Delhi and Anr. 1993(1) SCC 22 in which a G similar provision was upheld. 26. It may be noted that in Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of t'tie city of Ahmedabad .. • and Ors. (supra) the appellant had challenged the constitutional H validity of Section 406(e) of the Bombay Municipal Corporation GOVERNMENT OF ANDHRA PRADESH & ORS. v. 349 . .;- SMT. P. LAX.Ml DEVI [MARKANDEY KAT JU, J.] t, Act which required the deposit of the tax as a precondition for A entertaining the appeal. The proviso to that provision permitted waiver of only 25% of the tax. In other words a minimum of 75% of the tax had to be deposited before the appeal could be entertained. The Supreme Court held that the provision did not violate Article 14 of the Constitution. · B 27. In view of the above, we are clearly of the opinion that Section 47 A of the Indian Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct. c 28. We may, however, consider a hypothetical case. Supposing the correct value of a property is Rs. 1 O lacs and that is the value stated in the sale deed, but the registering officer erroneously determines it to be, say, Rs. 2 crores. In that case while making a reference to the Collector under Section D ... 47A, the registering officer will demand duty on 50% of Rs.2 crores i.e. duty on Rs.1 crore instead of demanding duty on Rs. 10 lacs. A party may not be able to pay this exorbitant duty demanded under the proviso to Section 47A by the registering officer in such a case. What can be done in this situation? E 29. In our opinion in this situation it is always open to_ a party to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to Section 47A alleging that the determination made is arbitrary and/or ""' based on extraneous considerations, and in that case it is F always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 4 7 A of the Indian Stamp Act by declaring the demand ~ arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi vs. Union of India AIR G 1978 SC 597. Hence, the party is not remedy-less in this situation. ~ , 30. However, this would not mean that the proviso to Section 47A becomes unconstitutional. There is always a difference between a statute and the action taken under a statute. H 350 SUPREME COURT REPORTS (2008] 3 S.C.R. -;, . A The statute may be valid and constitutional, but the action taken t under it may not be valid. Hence. merely because it is possible that the order of the registering authority under the proviso to Section 4 7 A is arbitrary and illegal, that does not mean that the proviso to Section 4 7 A is also unconstitutional. We must always B keep this in mind when adjudicating on the constitutionality of a statute. 31. Since we have dealt with the question about constitutionality of Section 47A of the Stamp Act, we think it necessary to clarify the scope of judicial review of statutes, since C Courts often are faced with a difficulty in determining whether a statute is constitutionally valid or not. We are, therefore, going a little deep into the theory of judicial review of statutes, as that will give some guidance to the High Courts in future. A Do Courts have the power to declare an Act of the Legislature to be invalid? D The answer to the above question is : Yes.