National Consumer Disputes Redressal
Sakuntala Devi Agarwal vs S.P.A. Projection (India) And Ors. on 22 January, 2002
ORDER
D.P. Wadhwa, J. (President)
1. Complainants are petitioners before us. This batch of revision petitions is directed against the order dated 27.4.2001 of the West Bengal State Consumer Disputes Redressal Commission. By the impugned order State Commission, instead of impounding the documents itself under the Indian Stamp Act, 1899 (as amended by the State of West Bengal), referred the matter to the District Collector, 24 Parganas (N) for impounding the same. In this order when we refer to the Stamp Act it would mean Indian Stamp Act as amended by the State of West Bengal in its application to that State.
2. Under the Indian Stamp Act as applicable to State of West Bengal an agreement to sell requires stamp duty payable on the Conveyance Deed under Article 23 of the Schedule 1A to that Act. That means that document of the nature of agreement to sell requires stamp duty on the basis of market value of the property which is the subject matter of the agreement. When the document was produced before the State Commission in the proceedings before it is, was required to be impounded (Section 33), to collect the deficient stamp duty and send the authenticated copy of the document to the collector (Section 38). However, instead of doing that State Commission observed that it had no machinery to impound the document and to realise the deficient stamp duty. It therefore, directed its Register 'to take proper steps in this regard by making a reference to the District Collector concerned viz. Collector, 24 Parganas (N); State Commission then adjourned the matter for further orders awaiting communication from the collector. State Commission did not agree to the submissions of the counsel of the complainant that collector had no power to impound the document.
3. In our view, approach adopted by the State Commission is not correct. Under Section 31 of the Stamp Act, Collector is empowered to adjudicate if the document is properly stamped, whether that document is already executed or not. Collector then determines the proper stamp duty payable thereon and grants a certificate as required as required under Section 32 of the Stamp Act. It is Clause (b) of Sub-section (1) of Section 33 of the Act which empowers the Collector to impound the document which is brought before him under Section 31 of the Act if the document is already executed. However, that is not the situation here. Under Clause (a) of Sub-section 1 of Section 33 of the Act when a document is brought before an authority entitled to receive the same in evidence and that authority finds the document to be under stamped it has power to impound the same. Section 38 of the Act provides as to how the instrument impounded is to be dealt with. Under Section 39 of the Stamp Act, collector is empowered to refund the penalty paid under Section 38 of the Act. Sections 31,32 33 in relevant part, Section 38 and Section 39 of the Act are as under:
"31. Adjudication as to proper stamp. - (1) 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 not less than (fifty naye paise) 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.
32. Certificate by Collector. -(1) When an instrument brought to the Collector under Section 31, is, in his opinion, one of a description chargeable with duty, and -
(a) the Collector determines that it is already fully stamped, or
(b) the duty determined by the Collector under Section 31, or such a sum as, with the duty already paid in respect of the instrument, is equal to the duty so determined, has been paid.
the Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid.
(2) When such instrument is, his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable.
33. Examination and impounding of Instruments. - [(1)(a)] Every person having, by law or consent of parties, authority to receive evidence, and very person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duly 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.
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West Bengal Amendment [(b) Notwithstanding anything contained in Section 31, but without prejudice to the provisions of Clause (a) of this sub-section, the Collector, before whom any instrument is brought under Section 31 for determining the duty with which the instrument is chargeable, shall, if it appears to him that such instrument is not duly stamped, impugned the same:
Provided that nothing contained in this clause shall be deemed to authorise the Collector to impound any instrument which has not been executed but is brought to him under Section 31 for determining the duty with which the instrument is chargeable or any instrument which he is authorised to endorse under Section 32.]
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38. Instruments Impounded how dealt with.- (1) When the person impounding an instrument under Section 33 has by law or consent of parties, authority to receive evidence and admits such instruments in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in his behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
39. Collector's power to refund penalty paid under Section 38, Sub-section (1). - (1) When a copy of an instrument is sent to the Collector under Section 38, Sub-section (1), he may, if he thinks fit refund any portion of the penalty in excess five rupees which has been paid in respect of such instrument.
(2) When such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may refund the whole penalty so paid".
4. It would be thus seen Section 31 applies when a person himself approaches the Collector for adjudication as to proper stamp duty. If the document has already been executed and the Collector finds the same to be under stamped he is empowered to impound the same which as we said is not the situation here. Document is produced before the State Commission which is an Authority authorised to receive the same in evidence. Law enjoins upon it to impound the document which admittedly was under stamped and to proceed under Section 38 of the Stamp Act. State Commission could not take shelter behind it seemingly incorrect view and give go by to its own functions as required by law on the plea that it has no machinery to impound the document. It could certainly act under Section 38 of the Stamp Act. Respondent has contended that the dispute raised by the complainants is of a technical nature. That may be so in ultimate analysis, but here it is the question of jurisdiction. Other contentions raised by the respondent are not with reference to the order impugned before us but on merit of the case which we need not refer to as the State Commission has still to decide the controversy between the parties on merit.
5. These petitions are, therefore, allowed. Order of the State Commission is set aside and the matter is remanded to the State Commission to proceed in accordance with law.