JUDGMENT
T.H.B. Chalapathi, J.
1. By this order, writ petitions No. 4845, 4846, 4897 and 4898 of 1982 are disposed of as the question involved in these four writ petitions is one and the same. However, for the purpose of judgment, facts have been taken from CWP No. 4845 of 1982.
2. This writ petition is filed to quash the orders of the Financial Commissioner dated 26.2.1982 (vide Annexure P-4).
3. The petitioner is a co-operative Society. It obtained loan from the Central Cooperative Bank Limited, Jullundur by mortgaging its properties. The Mortgage Deeds were registered on 13.3.1974, 28.7.1976 and 18.2.1976 and as the co-operative Society i.e. the mortgagor was exempted from payment of stamp duty under the notification issued by the Government of Punjab, no stamp duty was paid on the said Mortgage Deeds and the Sub Registrar also registered these Mortgage Deeds which were executed by the petitioner-society in favour of the Central Co-operative Bank Ltd., Jullundur. Thereafter in the year 1981 the notices were issued to the petitioner-society stating that the stamp duty was liable to be paid on the documents and calling upon the petitioner-society for payment of the stamp duty failing which the same would be recovered as arrears of land revenue. Accordingly, the petitioner-society paid the stamp duty on the Mortgage Bond, but applied to the Financial Commissioner who is exercising the powers of Chief Controlling Revenue Authority for the refund of the amount paid on the ground that though Mortgage Deed was unstamped but registered, there is no provision in the Indian Stamp Act empowering the State to collect the stamp duty. By the impugned order, the said application was dismissed by the Financial Commissioner. Aggrieved by the same, the petitioner approached this Court by way of this Writ Petition.
4. It is not disputed before me that the Mortgage Deeds executed by the petitioner-society were liable to be stamped and the petitioner society was not exempted from payment of the stamp duty. But the question is whether the Government or its authorities have got the power to collect the stamp duty which was leviable on the documents in this case i.e. Mortgage Deeds. The procedure for the collection of stamp duty on documents which were either not stamped or insufficiently stamped, was provided in Chapter IV of the Indian Stamp Act which deals with instruments not duly stamped. Section 33 of the Indian Stamp Act provides that 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 of his functions, shall if it appears to him that such instrument is not duly stamped, impound the same. Thus Section 33 empowers any person before whom the document was produced in evidence, to impound the same. Section 35 of the Act makes the instruments not duly stamped, inadmissible in evidence. Proviso to Section 35 of the Act empowers the authority to admit such document in evidence if a penalty amounting to 10 times of the proper duty has been paid. Section 38 of the Act provides how to deal with instruments which have been impounded and no penalty has been paid Under Section 35 of the Act. Thus a reading of these provisions clearly makes out that an unstamped document or insufficiently stamped document if it is produced before any authority as a piece of evidence, can be impounded and stamp duty and penalty can be levied on such duty only when such document has been produced before the authority which is empowered to receive the same in evidence. At the time when these documents were registered i.e. in 1974 and 1976, there was no provision in the Stamp Act which enabled the Government to recover the stamp duty payable on such documents. Therefore, to avoid non-payment of stamp duty and in order to collect proper stamp duty, the State Legislature introduced Section 47A in the Stamp Act by way of amendment by Punjab Act 2 of 1980. Under the said provisions, the Collector is empowered to examine the instrument for the purpose of satisfying himself as to the correctness of its value or consideration and the duty payable thereon, but Section 47-A has no application to the facts of the present case. The said Section was introduced only in the year 1980. As the documents in question were registered in the year 1974 and 1976, Section 47-A of the Indian Stamp Act has no application to the facts of the present case. I am, therefore, of the opinion that the notice issued to the petitioner for payment of the stamp duty on the Mortgage Deeds is not proper and not in accordance with law. Therefore, the petitioner is entitled to get the refund of the stamp duty paid on receiving tie notice from the Tehsildar to avoid coercive steps being taken for recovery of same.
5. The writ petition is, therefore, allowed and the impugned order dated 26.2.1982 (Annexure P-4) is quashed and the respondents are directed to refund the amount collected under the notice issued by the Tehsildar within three months from today. However, this order does not preclude any authority before whom the Mortgage Deed was produced for any purpose whatsoever as evidence to impoaned the same and to collect the proper stamp duty and penalty. There will be no order as to costs.