P L D 1959 (W (PLP)

WAHIDUDDIN AHMAD, J.-This writ petition is directed against the order of the Chief Revenue Controlling Authority, dated 30-12-1957 refusing to refer a case under section 57 (1), Stamp Act. Briefly, the facts leading to the present petition are that the petitioner submitted a document purported to be a Declaration of Trust in respect of 3% Government of India Loan, 1946 of the value of Rs. 1,42,700, 4% Government of India Loan, 1960-70 of the value of Rs. 93,700 and 768 Habib Bank, Ordinary Shares of the face value of Rs. 15,360, to the Sub-Registrar of Assurance, at Karachi, for registration. This document was stamped under Article 64 (A). By this document a trust was created for the benefit of the petitioner's three daughters in respect of the above mentioned movable properties. According to the terms of the deed, three trustees have been appointed to administer it, the trust is for a period of seven years with a right of extension for a further period of five years, the income of the property is to be used for the benefit of the three daughters or their legal heirs, on the expiry of the period of Trust the properties and the Trust Fund, shall be distributed amongst the three daughters in equal shares and in case of death their shares are to devolve on their heirs, and if the daughters and their heirs become extinct, then the income of the Trust shall be spent on and utilized for the mainte nance of any Zoroastrian Mazdayesna (God Worship) Society in the discretion of the Trustees. Thus this deed contains all the terms to carry out its objects. This deed was impounded as a deed of Settlement and for warded to the Collector of Karachi for necessary action. The Collector agreed with the views of the Sub-Registrar and treating it as a Deed of Settlement demanded from the petitioner Rs. 15,086 as deficit stamp duty and an equal amount as penalty. An appeal was filed to the Chief Controlling Revenue Authority, Federal Capital; Karachi, viz., the Chief Commissioner. By an order dated 8-3-1957 reproduced below, the same was rejected "Heard the appellant and seen the report of the Collector. I agree that the document is one of settlement rather than that of trust. I have gone through the original of the document and it leaves no doubt in my mind that the purpose of the Instru ment is the distribution of the property among the members of the family of the settlor. I, therefore, hold that the orders passed by the learned Collector are un-exceptionable. The appeal is rejected". Thereupon the petitioner moved two applications dated 28-3-1957 and 18-11-1957 to the Chief Controlling Authority under section 57, Stamp Act, to either review his order or to state the case in respect of the said document for the opinion of the High Court. This request was not acceded to and an intimation to this effect was communicated to the petitioner by a letter dated 30th December 1957 reproduced below:- "Chief Commissioner's Secretariat No. 8/25/56-Rev. Karachi, the 30 Dec.

57. To Dr. Pashaton S. Dulbash, C/o Mr. Abbas Farooqi & Co., Advocate, 7, B. K. Trust Building, Bunder Road, (Near Denso Hall), Karachi. Subject :-Application for referring the case to the High Court of West Pakistan under section 57 of the Stamp Act. Reference :-Your application dated 18 November, 1957. In view of Chief Commissioner's order dated 8 March 1957, it is not necessary to refer the case to the High Court of West Pakistan. Your application has therefore been rejected. (Sd.) SHAIKH MAHMOOD, Assistant Secretary to the Chief Commissioner, Karachi". The petitioner has challenged the action of the Revenue Authorities in impounding the said document as deed of settle ment and the order of the Chief Revenue Controlling Authority dated 30-12-57 in refusing to state the case for the opinion of the High Court under section 57 of the Stamp Act and prays that an appropriate writ may be issued calling upon him to refer the matter for the opinion of this Court. The respondents have strongly opposed this application on the ground that it was entirely in the discretion of the said authority to state a case and refer this matter to the High Court, that this Court cannot compel the said authority to do so, that the impugned order is justified as the document impounded is clearly a deed of settlement and not a declaration of trust and there being no doubt and no intricate question of law involved, it was not deemed necessary to make a reference to the High Court. The decision of this petition depends on the answer to the short question whether the discretion to refer the matter entirely rests with the said Revenue Authority and if not, whether this is a fit case to call upon the said Revenue Authority to refer the matter to the High Court for opinion. Mr. Abbas Farooqi, the learned counsel for the petitioner has taken us through the contents of the document and the allegation in the petition and invited our attention to certain peculiarities of the present case. He urged that more than half of the pro perties which are the subject-matter of the trust, belonged to the beneficiaries themselves; who transferred them to the petitioner to enable him to include them in the trust. In support of this fact the learned counsel produced certain documents to show that originally a substantial portion of the 3% Government of India Conversion 1,9anr 1946 and 4% Government of India Loan, 1960-70 in dispute belonged to the grandmother of the beneficiaries and were gifted to them. There is much force in this contention and the question whether in such circumstances the document under consideration can be treated as a deed of settlement is not free from doubt. This question was specifically raised in the appeal filed before the Chief Revenue Controlling Authority, and it does not appear from the impugned order whether this aspect of the case was considered in the disposal of the appeal. A settle ment is a disposition of one's own property, generally couched in the form of a trust either in consideration of marriage or far religious and charitable purposes or as a provision for family dependents or others. But in the present case, if the `benefi ciaries' property has also been included in the trust, the contention that it should be construed as a deed of settlement certainly raises an intricate and important question of law. It is in the light of these facts that this Court shall have to consider the propriety of the order of the Chief Controlling Revenue Authority in declining to refer the matter to the High Court under section 57, Stamp Act. The learned counsel for the petitioner is perfectly correct in the contention that the provisions of section 57 of the Stamp Act are both for the benefit of the public and the Revenue authorities. It was contended on behalf of the respondent that the word used in section 57 is "may" and therefore it does not cast any duty on the authority to refer the case at the instance of a private party. Section 57 of the Stamp Act reads as under:- "

57. Statement of case by Chief Controlling Revenue Authority to High Court or Chief Court.-(1) The Chief Con trolling Revenue Authority may state any case referred to it under section 56, subsection (2), or otherwise coming to its notice, and refer such case, with its own opinion thereon,- (a) If the case arises in the Punjab, the North-West Frontier Province, or Baluchistan, to the High Court at Lahore; (b) if it arises in Sind or the Capital of the Federation, to the Chief Court of Sind; (c) If it arises in East Bengal, to the High Court at Dacca. (2) Every such case shall be decided by not less than three Judges of the High Court or Chief Court to which it is referred, and in case of difference the opinion of the majority shall prevail". The language of the section empowers the Revenue Authority concerned not only to refer a case referred to him by the Collector under section 56 (2) but also a case which otherwise comes to his notice. The word "otherwise" is of very wide connotation and in my opinion will also include the case of a person interested in .the document, which has come to the notice of the said Autho rity through an appropriate application. This is obvious from a bare reading of the language of the said provision of law. Turning now to the question whether the authority concerned is under an obligation to refer a case brought to his notice by a private person, it will be observed that the power conferred on the Revenue Authority is not for his benefit. This power is coupled with a duty cast upon him as a public officer to do justice to the parties affected by the decision of the question involved in the matter. In my opinion, whenever an important and intri cate question of law in respect to the construction of a document arises, the power referred to in section 57 of the Stamp Act casts a duty on him as a public servant to refer it for the opinion of the High Court. Similar provisions in other statutes have been interpreted by their Lordships of the Privy Council in this very sense. The leading case on the subject is the well known case of Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford and another in ((1880) 5 A C 214). Their Lordships observed :- "They confer a faculty or power, and they do not of them selves do more than confer a faculty or power. But there may be something in the nature of the thing, empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so". This principle of interpretation of statutes was also approved by their Lordships of the Privy Council in Alcock Ashdown & Com pany v. The Chief Revenue Authority, Bombay (A I R 1923 P C 138 (144)). Their Lord ships were considering the nature of the power conferred under, section 51 of the Income Tax Act and observed:- "It is said that, though under this section the Chief Revenue Authority may, if he thinks fit, draw up a statement of the case and refer it to the High Court, he is not bound to do so, even on the application of the person to be assessed, if he is satisfied that the application is frivolous or that the reference is unneces sary, and that the Authority has in the present case shown that he is satisfied that the application was frivolous and the refer ence was unnecessary. Their Lordships however, agree with the Bombay High Court that this is too narrow a construction of the section. Take first the case which is last in the clause. If the assessee applies for a case, the Authority must state it, unless he can say that it is frivolous or unnecessary. He is not to wait for the Court to order him to do it; it will be a misfeasance and a breach of the statutory duty if he does not do it. Put that case aside. The rule here is supported upon the earlier part of the section. No doubt that part does not say that he shall state a case, it only says that he may. And as the learned counsel for the respondent rightly urged, "may" does not mean `shall'. Neither are the words `it shall be lawful' those of compulsion: Only the capacity or power is given to the Authority ; Bat when a capacity or power is given to a public authority, there may be circumstances which couple with the power a duty to exercise it: To use the language of Lord Cairn in the case of Julius v. The Bishop of Oxford. `There may be a something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person m whom the power is reposed to exercise that power when called upon to do so. In their Lordships' view, always supposing that there is a serious point of law to be considered, there does lie a duty upon the Chief Revenue Authority to state a case for the opinion of the Court, and if he does not appreciate that there is such a serious point, it is in the power of the Court to control him and to order him to state case": It seems to me that the principle deducible from these autho rities is that when a faculty or power is given to an authority for a particular purpose or for the benefit of particular persons under certain specified circumstances and it is shown that such circum stances exist, then an obligation is cast upon the authority to exercise it. Now the power conferred under section 57 is for the benefit of resolving important questions of law arising in matters connect ed with the construction of documents under the Stamp Act. This power no doubt is to be exercised if there is doubt about the nature of a particular document. It is both for the benefit and advantage of the Revenue Department and the public at large and if such circumstances exist, I have little doubt in my mind that the authority concerned is bound to exercise this power on an application of a person affected. I am fortified in this view by two decisions of the India Courts The Chief Controlling Revenue Authority Bombay v. Maharashtra Sugar Mills, Ltd. (A I R 1948 Bom, 254) and The Chief Controlling Revenue Authority Bombay v. Maharashtra Sugar Mills, Ltd. (AIR 1950 S C 218). Their Lordships of the Supreme Court of India in the last-mentioned case were also considering the power con ferred under section 57, Indian Stamp Act and in that connection observed: "This reasoning and conclusions although they have not now the compelling force they had before 26th January 1950, are entitled to great respect : Apart from that, we entirely agree with that line of reasoning and the conclusion. In our opinion, in the present case the power to make a reference under section 57 is not only for the benefit of the appellant. It is coupled with a duty cast on him, as a public officer to do the right thing and when an important and intricate question of law in respect of the construction of a document arises, as a public servant it is his duty to make the reference : If he omits to do so it is within the power of the Court to direct him to discharge that duty and make a reference to the Court". It has already been observed, that in this matter also several important and intricate questions of law are involved. In my opinion the Revenue Authority concerned has omitted to discharge the duty cast on him as a public officer under section 57 and the petitioner is justified in seeking the aid of this Court to call upon the Revenue Authority to state a case on all the important and intricate questions of law in respect of the construction of the document in dispute. I would therefore order the respondents to state the case and refer the matter to the High Court for opinion in accordance with law :- I will further order that if the petitioner furnishes sufficient security to the satisfaction of the Collector, Karachi for the pay ment of deficit stamp duty and penalty, the amount claimed from him in this respect will not be recovered till the decision of the reference likely to be made to the High Court. In the circumstances of the case, I will make no order as to costs. S. A. RAHMAN, C. J.-I agree. A. H. Order accordingly.