PETITIONER:
THE VISHNU PRATAP SUGAR WORKS (P) LTD.
Vs.
RESPONDENT:
THE CHIEF INSPECTOR OF STAMPS, U.P.
DATE OF JUDGMENT:
04/05/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
BACHAWAT, R.S.
BHARGAVA, VISHISHTHA
CITATION:
1968 AIR 102 1967 SCR (3) 920
ACT:
Court Fees Act, 1870 (8 of 1870), S. 7 (iv-A), (a) and S. 7
(iv-B) (b)-Acts impositing tax-Suit for injunction on the
ground that Acts void-court fee payable.
HEADNOTE:
The appellant-company filed a suit against the State of U.P.
and Union of India for a permanent injunction restraining
the State from proceeding to realise cess and tax under the
U.P. Sugar Cane Cess Act 1956 read with U.P. Sugar Cane Cess
(Validation) Act, 1961 and the Sugar Cane Purchase Tax Act,
1961 on the ground that the Acts were invalid and void. On
its plaint, the appellant paid court-fees under subs. (iv-B)
(b) of s. 7 on the footing that the relief sought was an
injunction. The respondent the Chief Inspector of Stamps
objected, contending that court-fees payable were under sub-
s. (iv-A) of s. 7 on the ground that the suit was for a
declaratory decree, where consequential relief prayed for
was an injunction or of adjudging void an instrument
securing money or other property having such value. The
trial Court rejected the respondent’s objection, which the
High Court reversed. In appeal, this Court,
HELD : The court-fees payable on the plaint were tinder cl.
(b) of sub-s. (iv-B) of s. 7 and neither cl. (a) of sub-s.
(iv-A) of s. 7 nor sub-s. (iv-A) of s. 7 applied.
The plaint when read as a whole showed that though the
appellant alleged that the Acts were void and therefore non-
est for the reasons set out therein, it did not seek any
declaration that they were void. The plaint proceeded on
the footing that the said Acts were void and that therefore
the State of U.P. or its authorities had no power to realise
the tax -and the cess. It may be that while deciding
whether to grant the injunction or not, the court might have
to consider the ‘question as to the validity or otherwise of
the said Acts. But that must happen in almost every case
where an injunction is prayed for. If for the mere reason
that the court might have to go into such a question, a
prayer for injunction were to be treated as one for a
declaratory decree of which the consequential relief is
injunction all suits where injunction is prayed for would
have to be treated as falling under cl. (a) of sub-s. (iv)
of s. 7 and in that view cl. (b) of sub-s. (iv) of s. 7
would be superfluous. [924E-H]
Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, [1965]
1 S.C.R. 712 : referred to.
Ordinarily a statute is not an instrument unless as in the
case of Conveyancing Act, 1881, the definition includes it
or as in the case of s. 205 (1) (viii) of the Law of
Property Act, 1925, the statute creates a settlement and
such statute is for that ‘reason treated as -,in instrument,
so, the Acts alleged in the plaint to be void are not
instruments within the meaning of sub-s. (iv-A) of s. 7.
[923 G-H]
Mohan Chowdhury v. The Chief Commissioner [1964] 3 S.C.R.
442, and Emperor v. Ravangouda Lingangouda Patil, A.T.R,
1944 Bom. 259. referred to.
921
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1668 of
1966.
Appeal by special leave from the judgment and order dated
November 2, 1965 of the Allahabad High Court in Civil
Revision No. 1095 of 1965.
G. N. Dixit, for the appellant.
Bishan Narain and 0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. The appellant-company filed suit No. 16 of 1963
against the State of Uttar Pradesh and the Union of India,
inter alia, praying for a permanent injunction regaining the
State of Uttar Pradesh, its servants and agents from
realising or from proceeding to realise sugarcane cess and
purchase tax amounting to Rs. 33 lakhs and odd charged under
the U.P. Sugar Cane (Regulation of Supply and Purchase) Act,
1953, the Sugar Cane Cess Act, 1956 read with the U.P. Sugar
Cane Cess (Validation) Act, 1961 and the U.P. Sugar Cane
Purchase Tax Act, IX of 1961. In the said suit, the
appellant-company, inter-alia, alleged that the Acts for the
diverse reasons set out therein were invalid and void and
therefore the State was not entitled to levy, collect or
recover the said cess or the purchase tax and prayed, as
aforesaid. that the State should be restrained from
proceeding to realise the said cess or tax. The appellant-
company paid court-fees on its said plaint under sub-s. (iv-
B) (b) of S. 7 on the footing that the relief sought in the
suit was an injunction. The Chief Inspector of Stamps
objected to the court-fees being paid under cl. (b) of sub-
s. (iv-B) of S. 7 contending that the court-fees payable
were as provided under sub-s. (iv) (a) of s. 7 or under sub-
s. (iv-A) of S. 7, that is to say, on the footing that the
suit was for a declaratory decree where consequential relief
prayed for was an injunction or on the footing that the suit
involved cancellation of or of adjudging void an instrument
securing money or other property having such value. The
trial Judge rejected the objections and held that the court-
fees payable were adequate as cl. (b) of sub-s. (iv-B) of S.
7 applied. The Chief Inspector of Stamps thereupon filed a
revision application before the High Court reiterating the
said objections. The High Court rejected the contention
that s. 7 (iv) (a) applied but held that sub-s. (iv-A) of S.
7 applied as the said Acts were instruments securing money
within the meaning of that subsection and that though the
relief claimed in the suit was injunction, in substance and
effect the suit involved adjudgment of the said Acts as
void. Hence this appeal by special leave.
Sub-s. (iv-A) of S. 7 reads as follows:-
“For cancellation or ad ‘ judging void
instruments
and decree-In suits for or involving
cancellation of or
922
adjudging void or voidable………… an
instrument securing money or other property
having such value”.
The question which falls for determination is whether an Act
passed by the Central or the State Legislature can be said
to be an instrument and, if so, an instrument securing money
or other property having such value. The Court-fees Act
does not define the word ‘instrument’. That being so we
have to turn for the connotation of the word ‘instrument’ to
its ordinary dictionary meaning. According to Stroud’s
Judicial Dictionary, 3rd Ed. Vol. 11, p. 1472, ‘instrument’
means ‘a writing, and generally imports a document of a
formal legal kind. Semble, the word may include an Act of
Parliament (see Deed of Settlement) so in the Trustee Act,
1925 (15 Geo. 5, c. 18), S. 68……….. (11) Conveyancing
Act, 1881 (44 & 45 Viet. c. 41) S. 2(xiii), “‘instrument’
includes deed, will, inclosure, award, and Act of
Parliament”. Thus, an ‘instrument’ may include a statute
enacted by Parliament if the particular statute in its
context includes it as an instrument. According to Jowitt’s
Dictionary of English Law,, p. 984 “Instrument’ means “a
formal legal writing, e.g., a record charter, deed of
transfer or agreement”. It is, however, observed that under
the Law of Property Act, 1925, S. 205(1) (van), ‘instrument’
for the purposes of this Act does not include a tatute
unless the statute creates a settlement. “An instrument is
a writing and generally means a writing of a formal nature.
But where there is a power to appoint by any deed or
instrument o by will, any writing, such as a letter, which
refers to the power, or which can have effect only by
operating on the fund (such as a cheque or other order for
payment), is an instrument. A telegram is an instrument
within the meaning of the Forgery Act, 1912, s. 7, and so is
an envelope with a postmark falsified for the purposes of a
betting fraud”. According to the same dictionary, the word
‘enact’ means to act, perform or effect; to establish by
law; to decree and an ‘enactment’ means an Act of Parliament
or statute or any part thereof. A statute, according to
Maxwell on Interpretation of Statutes, 11th Ed. p. I is -the
will of the legislature, i.e. an edict of the legislature.
A statute is, however, different from a statutory instrument
as defined by -the Statutory Instruments Act (9 & 10 Geo. 6,
c. 36) 1946 where power to make, confirm, or approve orders,
rules, regulations or other subordinate legislation is
conferred on His Majesty in Council or on any Minister of
‘the Crown., a document by which that power is exercised is
a statutory instrument. Similarly, where by an Act passed
before the enactment of the Statutory Instrument Act, 1946,
power to make statutory rules is conferred on any rule-
making authority, any document by which that power is
exercised is a statutory instrument. Thus, whereas a
statute is an edict of the legislature, a statutory
instrument as distinguished from such an edict is a document
whereby the rule making power
923
is expressed. In Mohan Chowdhary v. The Chief Commissioner
Tripura(1) the question arose whether the order dated
November 3, 1962, passed by the President under Art. 359(1)
of the Constitution suspending the right of any person to
move any court for the enforcement of rights conferred by
Arts. 21 and 22 during the Proclamation of Emergency was an
instrument withinthe meaning of s. 8(1) of the General
Clauses Act, 1897. Inconsidering that question this
Court approved the meaning of the word ‘instrument’ given
by Stroud and observed:-
“The expression is also used to signify a
deed inter-
parties or a charter or a record or other
writing of a
formal nature. But in the context of the
General Clauses Act, it has to be understood
as including reference to a formal legal
writing like an Order made under a statute or
subordinate legislation or any document of a
formal character made under constitutional or
statutory authority. We have no doubt in our
mind for the expression ‘instrument’ in S. 8
was meant to include reference to the Order
made by the President in exercise of his
constitutional powers”.
The President’s Order having been made under power conferred
upon him by Art. 359 that Order would have the same connota-
tion as the Statutory instrument defined by the statutory
Instruments Act 1946 and therefore was an instrument within
the meaning of s. 8(1) of the General Clauses Act. That
does not mean that a statute like the U.P. Court-fees Act
which is an edict of the legislature is an instrument. In
Emperor v. Rayangouda Lingangouda Patil(1) the High Court of
Bombay considered whether an order of the Government
delegating its power to District Magistrates under the
Defence of India Rules was an instrument within the meaning
of s. 8(1) of the General Clauses Act. The High Court held
that an instrument, generally speaking, means a writing
usually importing a document of a formal legal kind. in but
it does not include Acts of Parliament unless there is a
statutory definition to that effect in any Act. There is
thus ample authority to hold that ordinarily a statute is
not an instrument unless as in the case of Conveyancing Act
of 1881, the definition includes it or as in the case of s.
205 (I ) (viii) of the Law of Property Act, 1925, the
statute creates a settlement and such statute is for that
reason treated as an instrument. It would not therefore be
correct to say that the Acts alleged in the plaint to be
void are instruments within the meaning of sub-s. (iv-A) of
s. 7. In this view, it does not become necessary to decide
whether the Acts are instruments securing money or other
property having such value. Sub-s. (iv-A) of s. 7 would
not, therefore, apply and the High Court was not right in
calling upon the
(1) [1964] 3 S C.R. 442.
(2) A.I.R. 1944 Bom, 259.
924
appellant-company to pay additional court-fees under that
subsection.
Mr. Bishan Narain, however, argued that even if these Acts
are not instruments, the plaint if read in substance
rather than in form is for a declaratory decree with
injunction as the consequential relief and therefore sub-
s. (iv) (a) of s. 7 would apply and the court-fees paid
merely on the footing of the suit being for an injunction
would not be adequate. As stated earlier, the High Court
rejected this contention as untenable. Mr. Bishan Narain,
contended that he was nonetheless entitled to argue that the
High Court was in error and that sub-s. (iv) (a) would apply
and not cl. (b) of sub-s. (iv-B). For this purpose he
relied on some observations in Ramanbhai Ashabhai Patel v.
Dabhi Ajitkumar Fulsinji(l), where it has been held that as
soon as special leave is granted this Court has the power to
decide all the points arising from the judgment appealed
against and even in the absence of an express provision like
0. XLI, r. 22 of the Code of Civil Procedure it can devise
appropriate procedure to be adopted at the hearing.
Assuming that Mr. Bishan Narain can urge the contention that
S. 7 (iv) (a) applies in the present case the contention
still fails. It is true that for purposes of the Court fees
Act, it is the substance and not the form which has to be
considered while deciding which particular provision of the
Act applies. It cannot, however, be gainsaid that the
actual relief prayed for in the plaint was an injunction
restraining the State and its authorities to realise from
the appellant-company the aforesaid cess and the purchase
tax. It is clear from the plaint when read as a whole that
though the appellant-company alleged that the Acts were void
and therefore non-est for the reasons set out therein, it
did not seek any declaration that they were void. The
plaint procedure on the footing that the said Acts were void
and that therefore this State of U.P. or its authorities
had no power to realise the tax and the said cess. It may
be that while deciding whether to grant the injunction or
not, the court might have to consider the question as to the
validity or otherwise of the said Acts. But that must
happen in almost every case where an injunction is prayed
for. If for the mere reason that the court might have to go
into such a question, a prayer for injunction were to be
treated as one for a declaratory decree of which the
consequential relief is injunction all suits where
injunction is prayed for would have to be treated as falling
under cl. (a) of sub-s. (iv) of S. 7 and in that view cl.
(b) of sub-s. (iv-B) of s. 7 would be superfluous. The
contention urged by Mr. Bishan Narain, therefore, cannot be
accepted.
For the reasons aforesaid, we are of the view that neither
cl. (a) of sub-s. (iv-A) of s. 7 nor sub-s. (iv-A) of s. 7
would
1) 19651 1 S.C.R 712.
925
apply and the court-fees payable on the plaint were under
cl. (b) of sub-s. (iv-B) of S. 7. The appeal, therefore, has
to be allowed. The order of the High Court is set aside and
the order of the trial court is restored. The respondent
will pay the appellant-company the costs of this appeal.
Y.P. Appeal allowed.
926