ORDER K.P. Singh, J.
1. Aggrieved by the judgment and order of Sri Kaushal Kishore, Chief Controlling Revenue Authority, Member, Board of Revenue, U.P., Allahabad dated 13-6-1984, the petitioner has approached this Court under Article 226 of the Constitution.
2. Shorn of unnecessary details, one Sheo Dulare Srivastava, an Arbitrator filed the award regarding partition of immoveable property belonging to the petitioner and opposite parties Nos. 4 and 5 and prayed for making the award a rule of Court The prayer of the Arbitrator was rejected by the Civil Judge as is evident from the order dated 18-3-1976 in Civil Suit No. 76 of 1973 contained in Annexure T attached with the writ petition. The Civil Judge passed the following order : --
"Application for making award rule of the Court is rejected. Objections of opposite parties Nos. 1 and 2 are allowed It is made clear that award is vitiated for want of compulsory registration and proper stamp duty same is impounded. Let the award be sent to Collector for necessary action."
3. The judgment of the Civil Judge has been upheld by the highest Court of this country. It appears that the petitioner filed an application on 8-9-1981 for adjudication of stamp duty. On 15-7-1983 the Collector has passed the following order : --
"Prarthi Sri Maheshwar Dayal dwara prastut prarthana sweekar karate huye aadesh diya jata hai ki nyayaiaya Civil Judge, Sitapur se mool award mangaya jaye. Usme varnit sampatti ka mutyankan karaya jaye. Tadanusar kami stamps evam penalty ka nirdharan kiya jaye. Patrawali 3-8-83 ko prastut ho."
4. Aggrieved by the order of the Collector, the contesting opposite party Neelkantheswar Dayal, now represented by opposite party No. 4 in the present writ petition, had filed a revision petition under Section 56(1) of the Indian Stamp Act which was allowed by the Chief Controlling Revenue Authority through his judgment dated 13-6-1984. Feeling aggrieved by the order of the Chief Controlling Revenue Authority, the petitioner has approached this Court.
5. The main contention of the learned counsel for the petitioner before me is that the impugned order is without jurisdiction and it should be quashed. The second contention raised on behalf of the petitioner before me is that the officer concerned has patently erred in observing that the whole exercise has started with multiple misconceptions and, according to the learned counsel for the petitioner, the observation made by the learned Chief Controlling Revenue Authority are wholly unjustified and unwarranted. It has been emphasised that the Collector was within his power to pass the order dated 15-7-1983, contained in Annexure '3' to the writ petition and the Chief Controlling Revenue Authority has patently erred in interfering with the order of the Collector.
6. The learned counsel for the contesting opposite party has tried to support the impugned judgment He has contended that substantial justice has been done in the present case and the petitioner has no right or interest in getting determination of the stamp duty on the award and, therefore, no interference should be made with the impugned judgment of the revisional Court. It is well known that futile writs need not be issued in view of the rulings reported in K. N. Guru Swamy v. State of Mysore, AIR 1954 SC 592, Mahesh Chandra v. Tara Chand Modi, AIR 1958 All 374 (FB). It has also been submitted that duty and penalty can he realised only when after payment of such duty the document can he validated. In this connection, he has relied upon the ruling reported in Indurthi Srinivasa Rao v. Indurthi Venkata Narasimha Rao, AIR 1963 Andh Pra 193. The third submission made on behalf of the contesting opposite parties is to the effect that the award has not been held as a valid document for want of stamp duty and registration. Therefore, it is not an 'instrument' within the meaning of the proviso to Section 2(14) of the Indian Stamp Act.
7. 1 have heard learned counsel for the parties at great length. In the facts and circumstances of the present case, the relevant question arises whether the revisional Court had jurisdiction to deal with the order passed by the Collector on 15-7-1983. In paragraph 3 of the impugned judgment, the learned Member, Board of Revenue, has made the following observation : --
"........To begin with, the learned Collector has slated various aspects of the case, without yet receiving any reference from the civil Court where an award without registration and without payment of stamp duty was filed. 1 have not been shown any provision under which the Collector has power to ask the impounding authority, here a civil Court, to send the document to him. Section 47-A(4) does not apply here because it deals with enquiry into the market value on a reference after registration. Since the document was impounding u/s, 33(1), only Sections 35, 37, 38, 40 and 42 can apply and not even Section 33(4) of the Act. The proceedings are, therefore, premature. The Collector has to wait till he can really start action Under Section 40(1) of the Act. He should not have been a tool in the hands of fighting parties."
8. In other paragraph of the impugned judgment, the learned Member has expressed his opinion which is not much relevant for the purposes of the present ease. It is enough to say that the revisional Court has set aside the order dated 15-7-1983 and allowed the revision petition filed by the predecessor-in-interest of opposite party No. 4 in the present writ petition.
9. Section 56(1) of the Indian Stamp Act reads as below :
"56. (1) The powers exercisable by a Collector under Chapter IV and Chapter Y and under Clause (a) of the first proviso to Section 26 shall in all cases be subject to the control of the Chief Controlling Revenue Authority."
(2) If any Collector acting under Section 31, Section 40 or Section 41 feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer, it with his own opinion thereon, for the decision of the Chief Controlling Revenue Authority.
(3) Such authority shall consider the case and send a copy of its decision to the Collector, who shall proceed to assess and charge the duly if any in conformity with such decision."
10. In the present case, it appears that the learned member has exercised power under Section 56(1) of the Act. He has failed to indicate whether the order passed by the Collector was under Chapter IV or V of the Indian Stamp Act. Unless the learned Member comes to the conclusion that the impugned order was either under Chapter IV or under Chapter V, he had no jurisdiction to decide the revision preferred by the contesting opposite party.
11. The learned Member has failed to consider whether the order passed by the Collector was a final order or revisable order. If the order passed by the Collector was in the nature of interlocutory order, it was incumbent upon the learned Member to show in his impugned judgment that it was a fit case where revisional interference was needed.
12. A bare perusal of the judgment indicates that the learned Member has not applied his mind to the problem before him reasonably and has proceeded against the order of the Collector under some preconceived notion. To my mind, the impugned judgment of the revisional Court suffers from patent error of law in so far as it has failed to consider the question of its own jurisdiction in dealing with the impugned order passed by the Collector.
13. After hearing learned counsel for the parties, another relevant Question also arises in the facts and circumstances of this case, i.e. whether the Collector could proceed with the application filed by the petitioner on 18-9-1981. The learned counsel for the petitioner has emphasised before me that the Collector could take action under Section 38(2) of the Stamp Act read with Section 33 of the Act. Section 38 reads as below :
"38. (1) When the person impounding an instrument under Section 33 has, by-law or consent of parties, authority to receive evidence and admits such instrument 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 this behalf.
(2) In every other case the person so impounding an instrument shall send it in original to the Collector."
A perusal of the order passed by the Collector on 15-7-1983 indicates that the original award had not been sent to the Collector. Therefore, it is difficult to accept the contention of the petitioner that the Collector had proceeded in pursuance of the provisions of Section 38(2) of the Act. The learned counsel for the petitioner has referred to Section 33(1) to justify the action of the Collector in passing the order dated 15-7-1983. In my opinion, it is not necessary to deal with the submission made by the parties at length. It would be open to the parties to rake up all legal pleas before the Collector whether he has jurisdiction to determine the stamp duty in the facts and circumstances of the present case.
14. In my opinion, ends of justice would be met by quashing the judgment of the revisional Court and asking the Collector to deal with the question whether he could pass the impugned order dated 15-7-1983 in the facts and circumstances of the present case.
During the course of argument, the learned counsel for the petitioner has not been able to point out specific section under which the application dt. 18-9-1981 was moved by the petitioner. At present, I do not agree with the submission of the contesting opposite parties that substantial justice has been done between the parties, therefore, the writ petition should be dismissed specially when the order of the revisional Court, appears to me, suffering from patent error of law and it appears to have been passed under some preconceived notion.
15. As I am sending, the case back to the Collector for dealing with the claims of the parties it is not necessary to express my opinion on the submissions made by the learned counsel for the opposite parties. As no final order has been passed by the Collector, it would be premature to close the chapter without providing an opportunity to the Collector to deal with the question of levying stamp duty on a document which has come to notice of the civil Court. On the question of stamp duty, really the State is an interested party but the State has not taken any steps in this regard. Therefore, it would be for the Collector to examine this aspect of the matter and see whether 6n the instance of the petitioner he could proceed with the determination of the stamp duty in the facts and circumstances of the present case.
16. On my inquiry, the learned counsel for the petitioner has submitted that if the award is duly stamped, it can be enforced. The learned counsel for the contesting opposite parties has tried to meet the submission of the learned counsel for the petitioner by pointing out that the award in question was rejected for want of registration and period for registration has expired in view of the provisions of Sections 23 and 25 of the Indian Registration Act. According to the learned counsel for the contesting opposite parties, the award in question cannot be enforced in the present case as the Arbitrator is dead and the award cannot be made a rule of the Court as it is an unregistered document dealing with the property worth more than Rs. 100/-.
17. In the above mentioned circumstance, I think it proper to direct the Collector to address himself on this aspect of the matter also whether at the instance of the petitioner he can proceed with the matter and any useful purpose would be served. At present it is not necessary to deal with the rulings cited by the counsel for the parties in support of their contentions. The submission of the learned counsel for the parties and the rulings cited by them on my inquiry are not very much relevant for the controversy raised in the present writ petition.
18. However, it is necessary to direct that the Collector should keep in view the observation made by their Lordships of the Supreme Court in Hindustan Steel Ltd. v. Dilip Construction Co., AIR 1969 SC 1238 in paragraph 5 as below : --
"......The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments; it is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue."
In view of the above observation, it would be for the Collector to decide whether he should proceed with the matter at the instance of the petitioner.
19. For the foregoing discussion, this writ petition succeeds and is allowed. The judgment and order of the learned Member dated 13-6-1984 is hereby quashed and the Collector, opposite party No. 3 in the present writ petition, is directed to deal with the claims of the parties strictly in accordance with law.
20. Parties are directed to bear their own costs.