Appeal No 369 of 1957
Appeal from the judgment and decree dated the January 27 1956 of the Allahabad High Court Lucknow Bench at Lucknow in Civil Misc
Application No 17 of 1954 0 J
C B Agarwala and C P Lal for the appellant
V D Misra for the respondent
February 16
 J This is an appeal against the judgment and order of the High Court of Allahabad on a certificate granted by that court
The respondent filed a 99 petition under article 226 of the Constitution praying that the imposition of stamp duty by the Collector of Sitapur of Rs 855957 and a penalty of Rs 5 was against law and could not be realized against him and prayed that the order be quashed
 On September 12 1948 the respondent executed a wakf by oral recitation of Sigha and then it was written on a stamped paper which was signed by the respondent and attested by Witness
On September 15 1948 it was presented to the Collector for his opinion under section 31 as to the duty chargeable
As the Collector himself was in doubt he referred the matter to the Board of Revenue which after a fairly long time held that the document was liable to duty in accordance with article 58 of the Stamp Act
On October 29 1951 the Collector held that Rs 855987 were payable as stamp duty and ordered that it be deposited within fifteen days
Notice to this effect was served on the respondent on November 10 1951
Thereupon the respondent filed a petition in the High Court under article 226 which was dismissed on November 3 1952 on the ground that it was premature
On February 2 1954 a further notice was served upon the respondent to deposit the amount of the stamp duty plus the penalty of Rs 5 within a month otherwise proceedings would be taken against him under section 48 of the Stamp Act
Thereafter on March 1 1944 the respondent filed a petition under article 226 of the Constitution in the Allahabad High Court challenging the legality of the imposition of the stamp duty and the penalty and prayed for a writ of certiorari
A full bench of the High Court quashed the order of the Collector and the State of UP has come in appeal to this Court
The decision of this appeal depends upon the interpretation of ss 31 32 and 33 of the Stamp Act
The relevant portion of section 31 provides  section 311 When any instrument whether executed or not and whether previously stamped or not is brought to the Collector and
the person bringing it applies to have the opinion of that officer as to the duty if any with which it is chargeable and pays a fee of such amount not exceeding five rupees and 100 not less than eight annas as the Collector may in each case direct the Collector shall determine the duty if any with which in his judgment the instrument is chargeable
 It is admitted that the document in dispute was submitted to the Collector for his opinion under a 31 and the opinion of the Collector was sought as to what the duty should be
Under section 32 of the Act when such an instrument is brought to the Collector under a 31 and he determines that it was already fully stamped or he determines the duty which is payable on such a document and that duty is paid the Collector shall certify by endorsement on the instrument presented that full duty with which it is chargeable has been paid and upon such endorsement being made the instrument shall be deemed to be fully stamped or not chargeable to duty as the case may be  Under the proviso to section 32 the Collector is not authorised to make the endorsement if an instrument is brought to him a month after the date of its execution
Then follows section 33 which is as follows section 33 Every person having by law or consent of parties authority to receive evidence and every person in charge of a public office except an officer of police before whom an instrument chargeable in his opinion with duty is produced or comes in the performance of his functions shall if it appears to him that such instrument is not duly stamped impound the same
2 For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order t o ascertain whether it is stamped with a stamp of the value and description required by the law in force in British India when such instrument was executed or first executed Provided that a nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound if he does not think fit so to do any instrument coming before him in the course of any proceeding other than a proceeding 101 under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 b in the case of a Judge of a High Court the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf
3 For the purposes of this section in case of a doubt a the collecting Government may determine what offices shall be deemed to be public offices and b the collecting Government may determine who shall be deemed to be persons in charge of public offices
 The decision of this appeal depends upon the interpretation to be put upon the words before whom any instrument chargeable    is produced or comes in the performance of his functions
Dealing with these words the High Court held  With all respect therefore we agree that the learned Judges deciding Chuni Lal Burman s 1 case took a correct view of the words  is produced or comes in the performance of his functions used in Section 33 of the Act to mean that production of the instrument concerned in evidence or for the purpose of placing reliance upon it by one party or the other
 The High Court was also of the opinion that the object of paying the whole stamp duty was to get the instrument admitted into evidence or its being acted upon or registered or authenticated as provided in sections 323 35 381 and 481 of the Stamp Act
Counsel for the State referred to the various sections of the Act first to the definition section Section 211 which defines what is duly stamped section 214 which defines instrument and section 912 which defines executed
He then referred to section 3 which lays down what chargeable means and then to section 17 which provides that all instruments chargeable with duty and executed by any person in British India shall be stamped before or at the time of the execution
Certain other sections ie sections 35 and 381 were also 1 AIR 1951 All
851 102 referred to and so also sections 401a 41 42 and 48 but in our opinion it is not necessary to refer to these sections
What has to be seen is what is the consequence of a person applying to a Collector for his determination as to the proper duty on an instrument
The submission on behalf of the State appellant was that if an instrument whether stamped or not is submitted for the opinion of the Collector before it is executed ie it is signed then the Collector is required to give his determination of the duty chargeable and return the document to the person seeking his opinion but if the document is scribed on a stamped paper or unstamped paper and is executed then different consequences follow
In the latter case it was submitted that under section 33 the Collector is required to impound the document if he finds that it is not duly stamped
On the other hand it was submitted on behalf of the respondent that on his giving his opinion the Collector becomes functus officio and can take no action under section 33
It is these two rival contentions of the parties that require to be decided in this case
After an inordinately long delay the Collector determined the amount of duty payable and impounded the document
Power to impound is given in section 33 of the Act
Under that section any Person who is a Judge or is in charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions is required to impound the instrument if it appears to him not to be duly stamped
The question is does this power of impounding arise in the present case
The instrument in dispute was not produced as a piece of evidence nor for its being acted upon eg registration nor for endorsement as under section 32 of the Stamp Act but was merely brought before the Collector for seeking his advise as to what the proper duty would be
The words every person  before whom any instrument  is produced or comes in the performance of his functions refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly refer to other officers who have to perform any 103 function in regard to those instruments when they come before them eg registration
They do not extend to the determination of the question as to what the duty payable is
They do not cover the acts which fall within the scope of section 31 because that section is complete by itself and it ends by saying that the Collector shall determine the duty with which in his judgment the instrument is chargeable if it is chargeable at all
Section 31 does not postulate anything further to be done by the Collector
It was conceded that if the instrument is unexecuted ie not signed and the opinion of the Collector is sought he has to give his opinion and return it with his opinion to the person seeking his opinion
The language in regard to exe cuted and unstamped documents is no different and the powers and duties of the Collector in regard to those instruments are the same that is when he is asked to give his opinion he has to determine the duty with which in his judgment the instrument is chargeable and there his duties and powers in regard to that matter end
Then follows section 32
Under that section the Collector has to certify by endorsement on the instrument brought to him under section 31 that full duty has been paid if the instrument is duly stamped or it is unstamped and the duty is made up or it is not chargeable to duty
Under that section the endorsement can be made only if the instrument is presented within a month of its execution
But what happens when the instrument has been executed more than a month before its being brought before the Collector Section 31 places no limitation in regard to the time and there is no reason why any time limit should be imposed in regard to seeking of opinion as to the duty payable
Chapter IV of the Act which deals with instruments not duly stamped and which contains as
33 to 48 provides for impounding of documents how the impounded documents are to be dealt with Collector s powers to stamp instruments impounded and how the duties and penalties are to be recovered
It would be an extraordinary position if a person seeking the advice of the Collector and not wanting to rely upon 104 an instrument as evidence of any fact to be proved nor wanting to do any further act in regard to the instrument so as to effectuate its operation should also be liable to the penalties which unstamped instruments used as above might involve
The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument he approaches him under section 31
If it is properly stamped and the person executing the document wants to proceed with effectuating the document or using it for the purposes of evidence he is to make up the duty and under section 32 the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning
But if he does not want to proceed any further than seeking the determination of the duty payable then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of section 33 have no application
The provisions of that section are a subsequent stage when something more than mere asking of the opinion of the Collector is to be done
Our attention was drawn to the observations of Rankin C J in Be Cooke and Kelly 1 but those observations are obiter as the High Court held that the reference under section 57 of the Stamp Act was incompetent
The doctrine of functus officio was applied in several cases Collector Ahmednagar vs  Rambhau Tukaram Nirhali 2
In that case a certificate of sale had been signed but the certificate was not duly stamped which was pointed out when it was sent to the Sub Registrar for registration
The Sub Registrar informed the Judge about it and the Judge got back the certificate from the purchaser and thinking that he had power to impound the document and to impose a penalty asked for the opinion of the high Court and it was held that after he had signed it he was functus officio and could not act any further and could not impound it
The same principle was laid down in 1 Cal 1171
2 AIR 1930 Bom
105 Paiku vs Gaya 1 and in Chunduri Panakala Rao vs Penugonda Kumaraswami 2 and in our opinion as soon as the Collector determined the duty he became functus officio and he could not impound the instrument under a 33 and consequential proceedings could not  therefore be taken
The appeal is therefore dismissed with costs
Appeal dismissed


Summary:
On July 7 1949 the then State of Mysore passed the Mysore Administration of Evacuee Property Emergency Act 1949 providing inter alia for the appointment of a Custodian of Evacuee Property for the State of Mysore for the purpose of administering evacuee property in the State
By section 6 all evacuee property vested in the Custodian under section 5 had to be notified by him in the Mysore Gazette while section 8 provided that any person claiming any right to any property notified under section 6 might prefer a claim to the Custodian on the ground that the property was not evacuee property
Section 30 provided for an appeal to the High Court where the original order under section 8 had been passed by the Custodian an Additional Custodian or an Authorised Deputy Custodian
This Act was replaced by the Mysore Administration of Evacuee Property Second Emergency Act 1949 which came into force on November 29 1949
Section 532 of that Act provided that anything done or any action taken in the exercise of any power conferred by the earlier Act shall be deemed to have been done or taken in the exercise of the powers conferred by the later Act
Under the second Act instead of the High Court an appeal from the order of the Custodian lay to the Custodian General appointed by the Government of India under the provisions of the Administration of Evacuee property Ordinance 1949 which had come into force on October 18 1949  and in addition section 25 Of that Act provided for revision by the Custodian General of orders passed by the Custodian
The  which was passed by Parliament and which came into force on April 17 1950 provided substantially for all matters contained in the second 856 Mysore Act
Section 27 gave the Custodian General powers of revision against the orders of the Custodian and section 58 as amended and given retrospective operation provided that  if immediately before the commencement of this Act there was in force in any State to which this Act extended any law which corresponded to this Act and which was not repealed  that corresponding law shall stand repealed
 On September 21 1949 the Custodian issued a notification declaring the properties of the respondents as evacuee properties and claims filed by them under section 8 of the earlier Mysore Act were investigated by the Deputy Custodian who dismissed the same on April 17 1950
Appeals were filed against the said order before the Custodian and were allowed on August 22 1950
on the ground that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated as evacuee properties
On October 3 1950 the Custodian General gave notice to the respondents under section 27 of the  in respect of the order of the Custodian dated August 22 1950 and asked them to show cause why the said order be not revised
On February II 1952 the Custodian General set aside the order and directed the Custodian to dispose of the cases afresh
On December 2 1952 the Custodian passed an order by which he held that the respondents were evacuees and that their properties were evacuee properties
Against this order the respondents filed two appeals to the High Court and also two writ petitions under article 226 of the Constitution as they had doubts whether any appeal lay to the High Court
The High Court took the view that the Custodian General bad no power under section 27 of the Act to revise the order of the Custodian and that as the proceedings in these cases began under section 8 of the first Mysore Act and as there was nothing corresponding to that section either in the second Mysore Act or in the Act of 1950 the High Court was entitled to hear the appeal from the order of December 2 1952 as that order must be held to have been passed in proceedings under the first Mysore Act
The High Court then went into the matter as an appellate court and came to the conclusion that the order of the Custodian dated December 2 1952 Was erroneous
Held that the High Court erred in holding that the order of the Custodian General dated February II 1952 was without jurisdiction
Considering the purpose for which the Administra tion of Evacuee Property Act 195o was passed and the successive saving clauses in the second Mysore Act and in the Act the Custodian General bad the power under S  27 to call for the record of the proceeding in which the order of August 22 1950 was passed and consider its legality or propriety
Held further that the High Court was also in error in holding that appeals to it lay from the order of December 2 1952
857 An order made in a proceeding commenced under section 8 of the
first Mysore Act must be deemed to be an order made under section 51 of the second Mysore Act or under section 71 of the Act in view of section 532 of the second Mysore Act and section 583 of the Act
Consequently by necessary intendment the legislature must have intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act
Garikapatti Vecraya vs N Subbiah Choudhury   referred to
Since the main question for decision in these cases was whe ther the respondents were evacuees and as such a question was one of fact the High Court was not justified in looking into the order of December 2 1952 as an appellate court in dealing with applications for a writ of certiorari under article 226 of the Constitution
Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others   applied