Patna High Court
Life Insurance Corporation Class I ... vs The State Of Bihar And Ors. on 10 August, 1992
Equivalent citations: AIR1993PAT106, 1993(41)BLJR621, AIR 1993 PATNA 106, (1993) 1 BLJ 412, 1993 BBCJ 109, (1992) 2 PAT LJR 403, 1993 BLJR 1 621
ORDER Binod Kumar Roy, J.
1. Since common questions of facts and law are involved in these two writ applications which in terms of order dated 4-3-1992 passed in C.W.J.C. No. 5878 of 1991 have been together, are being disposed of by this common judgment.
2. In C.W.J.C. No. 380 of 1990 the petitioners pray to quash the communication dated 2-4-1987 (as contained in Annexure-5) of the Sub-Registrar, Danapur (Respondent No. 4) addressed to the Collector, Patna (Respondent No. 2) impounding the sale deed dated 30-3-1987 of the petitioners under Section 33 of the Stamp Act (hereinafter to be referred to as the Act) and for restraining the Respondents Nos. 2 and 3 from proceeding further with Impound Case No. 43 of 1988-89 started against petitioner No. 1.
3. In C.W.J.C. No. 5878 of 1991 the petitioners pray to quash a similar communication, though dated 20-3-1987 of Respondent No. 4 addressed to the Collector, Patna (Respondent No. 2) impounding the sale deed dated 19-3-1987 of the petitioners under Section 33 of the Act (as contained in Annexure-5) and also for restraining Respondents Nos. 2 and 3 from proceeding further with Impound Case No. 42 of 1988-89 drawn up against petitioner No. 1.
4. Petitioner No. 1 in both the case is a Housing Co-operative Society of Class I Officers of the Life Insurance Corporation of India. It is also registered under the Co-Operative Societies Act. By registered sale deeds dated 19-3-1987 and 30-3-1987 the Society purchased 1.155 acres of land in village Kothura, P.S. Khagaul in the district of Patna and 1.235 acres of land in village Jalalpur, P.S. Danapur in the district of Patna for Rs. 6,65,280/- and Rs.7,11,360/-respectively. The sale deed dated 19-3-1987 was presented before the Sub-Registrar, Danapur (Respondent No. 4) for its registration on 19-3-1987 and the sale deed dated 30-3-87 was presented for its registration before Respondent No.4 on 31-3-1987. No stamp was demanded. On 17-12-1988 petitioner No. 1 was served with a notice dated 21-12-1988 (as contained in Annexure-1 of both the writ petitions) issued by the Stamp Deputy Collector, Patna (Respondent No. 3) In impound Case Nos. 42 of 1988-89 and 43 of 1988-89 stating therein that amounts of Rs. 82,178.25 P. and Rs. 87,863.25 P. respectively are short on the deeds of the Society and to show cause as to why the said amount be not realised along with penalty. Petitioner No. 1 filed show cause (as contained in Annexure-2 of both the cases) stating to the effect that Section 9-A of the Act, as inserted by Bihar Ordinance No. 18 of 1986 under which the stamps are required to be paid, not being in force, it is not required to pay the amounts requesting to drop the proceedings. The Indian Stamp (Bihar Amendment) Ordinance, 1986 (Bihar Ordinance No. 18 of 1986) was promulgated by the Governor of Bihar under Article 213 of the Constitution of India and it was published in the Bihar Gazette on 30-9-1986. Section 2 of the aforesaid Ordinance inserted Section 9-A in the Indian Stamp Act, 1899 providing charges with duty for the instrument executed by or on behalf of or in favour of the Society or its members. The said Ordinance came into force on 1-11-1986 vide notification dated 29-10-1986 (as contained in Annexure-3). However, the said Ordinance expired on 19-4-1987 which is evident from the letter sent by the Special Secretary to the Government of Bihar, Department of Finance (as contained in Annexure-4). The said Ordinance was also not re-promulgated which is evident from Annexure-4 itself. The Indian Stamp (Bihar Amendment) Act, 1988 (Bihar Act No. 15 of 1988) was enacted by the State Legislature re-inserting Section 9-A of the Act in terms inserted by the Ordinance. It has been stated in paragraph 14 of the writ petitions that till date Bihar Act No. 15 of 1988 has not come into force as the State Government has not issued any notification as provided under Section 1(3) of the Act. It has also been stated that Bihar Act No. 15 of 1988 has not provided for any Saving clause and does not save any action under the Bihar Ordinance No. 18 of 1986. The continuance of the proceedings after the expiry of the Ordinance is clearly illegal and without jurisdiction and thus fit to be quashed by issuance of a writ.
5. In the counter-affidavit filed on behalf of Respondent No. 1 it has been admitted that the Ordinance expired on 19-4-1987 though it was quite in order to charge Stamp duties before its expiry and the claim of the petitioners for exemption is not valid. The question of demanding Stamps at the time when the deeds were presented for their registration does not arise at all since as per the rules, they had to be affixed by the party concerned. Accordingly, there is no question of dropping the proceedings.
6. Mr. Chandramauli Kumar Prasad, learned counsel appearing for the petitioners, submits as follows:-- The Ordinance in question having admittedly expired on 19-4-1987, issuance of notice on 21-12-1988 were not justified inasmuch as on that day the Ordinance was no longer in force. Even no saving clause was provided in the Bihar Act No. 15 of 1988 which is not retrospective, the ordinance in question was a temporary Statute and in view of the ratio decidendi of this Court in Bhola Singh v. The State of Bihar reported in 1978 PUR 219 : (1978 Cri LJ 1506) the petitioners are entitled to the reliefs claimed for by them in these writ petitions.
7. Learned Government Advocate appearing on behalf of the Respondent in reply, however, submits as follows: The writ petitions are without any substance. The authorities were justified in demanding Stamps and impounding the documents as the day on which the deeds were presented, the Ordinance was in force, the provisions of which would govern notwithstanding its expiry and/or non-retrospective character of Section 9-A of the Act as inserted by Bihar Act No. 15 of 1988.
My Findings:--
8. Admittedly the Bihar Ordinance No. 18 of 1986 expired on 19-4-1987. Bihar Act No. 15 of 1988 by which Section 9-A of the Act was further inserted, however, in terms of Section 1(3) of the Act came into force only with effect from 31-3-1990. I do not find any Saving clause in respect to Section 9-A of the Act as introduced by the Bihar Ordinance No. 18 of 1986. The question, therefore, before me is as to whether the authorities were correct in impounding the documents in question? The Ordinance in question was a temporary Statute. B.D. Singh, J,, as he then was, had occasion to examine the Bihar Gift of Goods (Sale, Purchase and Unlawful Possession) Ordinance, 1968 with reference to various decisions of the Apex Court viz. S. Krishnan v. State of Madras, AIR 1951 SC 301 : (1951 (52) Cri LJ 1103), State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84 : (1955 Cri LJ 254) Gopichand v. Delhi Administration, AIR 1959 SC 609 : (1959 Cri LJ 782) and State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945 and held that if an Ordinance is not continued beyond the period, in which it was operative, any prosecution of a person under the Ordinance would be illegal. Patanjali Sastri, J., in the case of S. Krishnan (supra) held that in absence of special provision to the contrary, proceedings which are being taken against a person under a temporary Statute will ipso lacto terminate as soon as the Statute expires. In State of Orissa v. Bhupendra Kumar (supra) it was also held that it is true for instance that offences committed against temporary Acts must be prosecuted and punished before the Act expires and if a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate.
9. The Ordinance in question was not repealed by the Bihar Act No. 15 of 1988. Any Saving clause was also not inserted. Section 9-A of the Act, as introduced by the Bihar Act No. 15 of 1988, is not even retrospective. In this view of the matter, the ratio decidendi, as laid down by the Apex Court as well as this Court, referred to above, is binding on me. A fortiori, I have no hesitation in holding that the Authorities were not justified in either impounding the documents in question and/or demanding Stamps thereon.
10. In the result, the impugned notices as also the directions/orders as contained in Annexures 1 and 5 of both writ applications are quashed and these writ applications are allowed. However, there will be no order as to costs. As a necessary consequence, Respondent No. 4, the Sub-Registrar, Danapur, Patna is commanded to return the documents in question to the petitioners after its registration, if not already completed.
11. Let appropriate writs issue accordingly.