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2019 SCC OnLine Del 6536 : (2019) 256 DLT 775 : AIR 2019 Del
90 (FB) : (2019) 2 KLT (SN 43) 36

In the High Court of Delhi at New Delhi

(BEFORE SANJIV KHANNA, RAJIV SAHAI ENDLAW AND JAYANT NATH, JJ.)

In Re : Chief Controlling Revenue Authority …

Petitioner;
O. REF. No. 2/2016
Decided on January 17, 2019
Advocates who appeared in this case:
Mr. J.M. Kalia, Advs. for the petitioner.
Mr. Rajeev K. Virmani, Sr. Adv. (Amicus Curiae).
The Judgment of the Court was delivered by
RAJIV SAHAI ENDLAW, J.:— The Chief Controlling Revenue Authority
(CCRA), Government of National Capital Territory of Delhi (GNCTD) has
made this Reference under Section 57 of the Stamp Act, 1899 seeking
a decision on the following issue:
“Whether the notification no. 13 of 25-12-1937 extending benefit
of remission in stamp duty in case of subsidiary companies as
applicable in the then province of Delhi has any continuous validity
and applicability in view of notification no. GSR 894 dated 30-09-
1958 by which the central government extended the Indian Stamp
(Punjab Amendment) Act, 1958 replacing the previous and then
prevalent stamp law in union territory of Delhi w.e.f. 01-10-1958.”
2. In accordance with Section 57(2) of the Act providing for decision
of such Reference by not less than three Judges of the High Court, the
Reference was listed before this Bench.
3. The case stated in the Reference Petition is as under:
(i) The Delhi Laws Act, 1912 proclaiming certain parts, formerly
included within the province of Punjab, to be known as province of
Delhi, vide Section 7 thereof empowered extension of enactments
in force in other provinces with modifications and restrictions, to
Delhi.
(ii) Vide Notification dated 16th January, 1937, issued in exercise of
powers under clause (a) of Section 9 of the Stamp Act remission
was granted in respect of the stamp duty chargable under Articles
23 (Conveyance) and 62 (Transfer) of Schedule-I of the Stamp
Act on the instruments evidencing transfer of property between
companies limited by shares, if 90% of the issued share capital of
the transferee company was in the beneficial ownership of the
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transferor company or where transfer took place between a parent

company holding 90% and a subsidiary company or where the
transfer was between two 90% subsidiary companies.
th
(iii) Vide Notification dated 25 December, 1937, also issued in
exercise of powers under Section 9(a) of the Stamp Act, remission
was granted in respect of duty chargeable in the province of Delhi
on instruments evidencing transfer of properties between
companies limited by shares where, 90% of the issued share
capital of the transferee company was in the beneficial ownership
of the transferor company or where transfer took place between a
parent company holding 90% and a subsidiary company or where
the transfer was between two 90% subsidiary companies.
th
(iv) On 16 April, 1950 Union Territories (Laws) Act, 1950 came into
force with the object to empower Central Government to extend to
the Part-C States any enactment in force in any Part-A State or
any other Part-C State; when the Constitution came into force,
Delhi was a Part-C State.
th st
(v) By Constitution 7 Amendment of 1 October, 1956, Part-C
States were replaced by the Union Territories, thereby constituting
the province of Delhi as a Union Territory.
(vi) In exercise of powers conferred by Section 2 of the Union
Territories (Laws) Act, 1950, vide notification dated 30th
September, 1958 the Stamp (Punjab Amendment) Act was
st
extended to Delhi w.e.f. 1 October, 1958, repealing the previous
stamp law in force in Delhi and substituting the same by the
Stamp (Punjab Amendment) Act, 1958 as then in force in Punjab
except Schedule-1A of the Punjab State inasmuch as separate
Schedule-1A was created for the Union Territory of Delhi.
(vii) With the repeal of the previous stamp law applicable in the
st
Union Territory of Delhi before 1 October, 1958, all notifications
issued thereunder also stood repealed by implication; there was
thus no occasion w.e.f. 1st October, 1958 to continue to extend
remission of stamp duty to the instrument of transfer between the
principal and subsidiary companies holding 90% or above stake in
th
terms of Notification dated 25 December, 1937.
(viii) A single Judge of this Court, in Delhi Towers Limited v. GNCT of
Delhi, (2009) 165 DLT 418 held that in accordance with Article
th
372 of the Constitution of India, Notification dated 16 January,
1937 would be a law in force as on the date of the Constitution
coming into force and it had not been superseded by said law; it
was further held that the Notification dated 25th December 1937
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was applicable and binding; consequently it was held that subject

th
to the conditions in Notification dated 25 December, 1937 being
satisfied, the stamp duty chargeable on the approved scheme of
amalgamation would stand remitted in terms thereof.
(ix) The Govt. of NCT of Delhi, vide Notification dated 1st June, 2011,
th
withdrew the Notification dated 16 January, 1937.
4. The petitioner CCRA, in compliance of Section 57(1) of the Act
requiring it to along with the Reference forward its own opinion, has
opined:
(i) the Notification dated 25th December, 1937 remitting the stamp
duty stood repealed on extension to Delhi of the Stamp (Punjab
Amendment) Act, 1958;
st
(ii) thus, w.e.f. 1 October, 1958, stamp duty in Delhi is chargeable
in accordance with Schedule-1A as applicable to Delhi and
exemptions contained therein only;
(iii) the Stamp (Punjab Amendment) Act, 1958 had no provision of
th
exemption in the nature of Notification dated 25 December,
1937, as was earlier applicable in the Union Territory of Delhi;
(iv) the existing Article 23 of Schedule-1A, which deals with
‘conveyance’, is applicable to transfer of properties inter se
companies, by amalgamation/merger;
(v) the dicta of the Single Judge of this Court in Delhi Towers
Limited supra is per incuriam inasmuch as the attention of the
Court was not drawn to the legal status of Delhi and the
Notification dated 30th September, 1958 extending the Stamp
st
(Punjab Amendment) Act to Delhi with effect from 1 October,
1958; and,
(vi) that all exemptions under a fiscal statue have to be construed
strictly, against the assessee and in favour of the revenue.
5. It is further pleaded in the Reference Petition that there is a doubt
as to the amount of stamp duty chargeable/payable respecting the
scheme of amalgamation/merger of the nature of Section 391/392 of
the Companies Act, 1956 between two companies in which at least
90% of the issued share capital of the transferee company is in the
beneficial ownership of the transferor company or the transfer is from a
parent company who is the beneficial owner of not less than 90% of the
issued share capital of the subsidiary company to the subsidiary
company or is between two 90% subsidiary companies.
6. Chapter VI titled ‘Reference and Revision’ of the Stamp Act, in
Sections 56 to 59 thereof provides as under:—
“56. Control of, and statement of case to, Chief Controlling
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Revenue-Authority. — (1) The power exercisable by a Collector

under Chapter IV and Chapter V [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 doubts 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 asses and charge the
duty (if any) in conformity with such decision.
57. Statement of case by Chief Controlling Revenue-
Authority to High Court. — (1) The Chief Controlling Revenue-
Authority may state any case referred to it under section 56, sub-
section (2), or otherwise coming to its notice, and refer such case,
with its own opinion thereon, —
(a) if it arises in a State to the High Court for that State;
(b) if it arises in the Union territory of Delhi, to the High Court of
Delhi;
(c) if it arises in the Union territory of Arunachal Pradesh or
Mizoram, to the Gauhati High Court (the High Court of Assam,
Nagaland, Meghalaya, Manipur and Tripura;)
(d) if it arises in the Union territory of the Andaman and Nicobar
Islands, to the High Court at Calcutta;
(e) if it arises in the Union territory of the [Lakshadweep], to the
High Court of Kerala;
(ee) if it arises in the Union territory of Chandigarh, to the High
Court of Punjab and Haryana;
(f) if it arises in the Union territory of Dadra and Nagar Haveli, to
the High Court of Bombay.
(2) Every such case shall be decided by not less than three
Judges of the High Court to which it is referred, and in case of
difference the opinion of the majority shall prevail.
58. Power of High Court to call for further particulars as to
case stated. — If the High Court is not satisfied that the statements
contained in the case are sufficient to enable it to determine the
questions raised thereby, the Court may refer the case back to the
Revenue-Authority by which it was stated, to make such additions
thereto or alterations therein as the Court may direct in that behalf.
59. Procedure in disposing of case stated. — (1) The High
Court upon the hearing of any such case, shall decide the questions
raised thereby, and shall deliver its judgment thereon containing the
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grounds on which such decision is founded.

(2) The Court shall send to the Revenue-Authority by which the
case was stated, a copy of such judgment under the seal of the
Court and the signature of the Registrar; and the Revenue-Authority
shall, on receiving such copy, dispose of the case conformably to
such judgment.”
7. As would immediately be evident from the narrative aforesaid of
the Reference Petition, reference is sought unilaterally, without there
being any instrument chargeable to stamp duty and without there
being any person liable for such stamp duty or to remission thereof
under Notification dated 25th December, 1937 as admittedly being
granted with respect to instruments of transfer between companies as
described above and which remission, in the opinion of CCRA is not
st
available/applicable since 1 October, 1958, inspite of dicta of this
Court in Delhi Towers Limited supra and on which the petitioner CCRA
in this Reference is seeking a judgment from this Court. Axiomatically,
there was/is none to oppose the opinion expressed by the petitioner
CCRA in the Reference Petition. We thus requested Mr. Rajeev Kumar
Virmani, Senior Advocate to assist this Court as Amicus Curiae and to
which he graciously agreed.
8. Being of the prima facie opinion:
(i) that the Reference by CCRA under Section 57 could arise either
out of a Reference under Section 56 by the Collector of Stamps to
the CCRA itself as to the amount of duty with which any
instrument is chargeable or otherwise coming to the notice of the
CCRA; and
(ii) that a Reference under Section 56 could be made only if the
Collector entertains doubts as to the duty chargeable on an
instrument while acting, either (a) under Section 31 i.e. when any
instrument is brought to the to the Collector and the person
bringing it applied to have the opinion of the Collector as to the
duty with which it is chargeable; or (b) under Section 40, on
impounding of insufficiently stamped document when tendered in
evidence; or, (c) under Section 41, on production of a document
not duly stamped, and finding the Reference to this Court having
not arisen out of a Reference arising under Section 56;
(iii) no ‘case’ was otherwise stated in the Reference Petition to have
come to the notice of the CCRA; and, that without the said
conditions being satisfied, the Reference was not maintainable,
arguments were heard from the counsel for the petitioner CCRA
and the learned Amicus Curiae on maintainability of the Reference
and to some extent also on merits.
9. The learned Amicus Curiae placed the position with respect to
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maintainability of the Reference as under:—

(a) Section 57 of the Act, invoking which Reference has been made,
presupposes that there should be a ‘case’ i.e. set of facts and/or
affected party before the CCRA for the CCRA to make the
Reference. Attention in this regard is drawn to Somaiya Organics
(India) Ltd. v. Board of Revenue (1986) 1 SCC 351, The Madras
Refineries Ltd. v. The Chief Controlling Revenue Authority (1977)
2 SCC 308, AIR 1965 SC 1092; Dayal Singh v. Collector of
Stamps, ILR (1972) 1 Del 593; Chief Controlling Revenue
Authority v. Satyawati Sood, ILR (1972) 2 Del 17 and In Re : The
Indian Stamp Act, ILR (1926) 1 Bom 640, all on References under
Section 57 and in all of which judgment was rendered in the
context of a specific document/instrument subject of Reference
Petition.
(b) The existence of a ‘case’ before the CCRA is essential, though it
need not necessarily be a pending case. Reference is maintainable
even after the proceedings before the Revenue Authorities are
over. Reliance in this context is placed on Chief Controlling
Revenue Authority v. Maharashtra Sugar Mills Ltd., 1950 SCC
541 : AIR 1950 SC 218, Union of India v. S. Sarup Singh, 1967
SCC OnLine Del 28 and Banarsi Das Ahluwalia v. Chief Controlling
Revenue Authority, AIR 1968 SC 497.
(c) The object of the duty/power to refer under Section 57 is that
nobody should be left remediless; reliance is again placed on
Banarsi Das Ahluwalia supra.
(d) The issue in the present Reference has already been adjudicated
by this Court in Delhi Towers Limited supra; it is further informed
by CCRA itself that a similar question is pending before this Court
in W.P.(C) no. 7509/2015 titled PDS Multinational Fashions Ltd. v.
Collector of Stamps. The apprehension with which this Reference
is sought is, that Delhi Towers Limited supra would come in the
way of petitioner CCRA in the pending petition also;
(e) CCRA contends Delhi Towers Limited supra to be per incuriam. If
the judgment is per incuriam and the Bench in PDS Multinational
Fashions Ltd. is satisfied in this respect, it can refer the matter to
a Larger bench - the question whether Delhi Towers Limited is per
incuriam or not cannot be subject matter of Reference. Reliance in
this regard is placed on State of Bihar v. Kalika Kuer (2003) 5
SCC 448.
10. Else, on merits of the Reference, the learned Amicus Curiae
stated:
(f) Stamp (Punjab Amendment) Act, 1958 does not repeal or
th
revoke the Notification of 25 December, 1937.
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(g) The Notification of 25th December, 1937 is not repugnant to

Schedule-IA added by the Indian Stamp (Punjab Amendment) Act,
1958.
(h) Section 24 of the General Clauses Act, 1897 will have no
application since no enactment has been repealed and re-enacted in
the present case. The question of Notification of 25th December,
1937 being inconsistent with any re-enacted provision would not
arise.
(i) Exemptions contained in Schedule IA are distinct from the
reduction and remission contemplated by Section 9 of the Stamp Act
and the argument that since Schedule-IA contains exemptions as
stated in Section 3, remission in the Notification of 25th December,
1937 would cease to apply, being repugnant, is misconceived.
(j) The aforesaid exemptions exempt certain species of
instruments from chargeability to any stamp duty and are part of the
parent legislation.
(k) On the other hand remissions vide Notification of 25th
December, 1937 are in exercise of powers under Section 9 of the
Stamp Act and would apply to those instruments that would be
chargeable to stamp duty in the normal course at the rates
prescribed in Scheduled I/IA.
(l) Such remission is granted by a subordinate legislation.
(m) There can be no remission in respect of instruments that are
exempt from duty.
(n) The legislature in its wisdom chose to grant exemption to
certain classes of instruments while conferring the power to grant
remission in respect of certain instruments that are otherwise
chargeable.
(o) Section 9 and Section 3 of the Stamp Act do not control each
other. Section 3 is subject to the provisions of the Act which include
Section 9, under which Notification of 25th December, 1937 was
issued.
(p) Section 9 confers an independent power of
reduction/remission of duty and which power is independent of the
levy prescribed by Section 3.
(q) Section 9 is not entry specific and it is not at all necessary to
issue a Notification referable to a particular Article in either Schedule
-I or Schedule-IA.
(r) The non-obstante clause in proviso to Section 3 of Stamp Act
has overriding effect only qua clauses (a), (b) and (c) and Schedule-
I set out in Section 3 of the Act. Section 9 is not affected by
insertion of the proviso in Section 3 of the Act.
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(s) 1958 Amendment Act only substitutes the pre-existing

Schedule-IA with the new Schedule-IA, without affecting any other
provisions of the Act or notifications issued thereunder; thus the
th
Notification of 25 December, 1937 is not at all affected by the 1958
Amendment and continues to apply.
th
(t) Notification of 25 December, 1937 is not entry specific and
deals with different classes of instruments; inapplicability of
Schedule-I in Delhi by virtue of 1958 Amendment does not affect
the applicability of the Notification of 25th December, 1937 to various
instruments in Schedule-IA (brought about by the 1958
Amendment).
(u) The remission granted under Section 9 would not be taken
away by any change in the tariff in Schedule-IA or substitution of
one Schedule-IA with another so long as there is an instrument of
the class covered by the Notification of 25th December, 1937.
th
(v) By virtue of Article 372 of the Constitution, Notification of 25
December, 1937 continues to apply even after coming into force of
the Constitution of India.
th
(w) Govt. of NCT of Delhi has not revoked the Notification of 25
December, 1937.
11. Per contra, the counsel for the petitioner CCRA, on the aspect of
maintainability of the Reference has argued:
(i) That Section 57 of the Act is not adjudicatory but advisory; there
is thus no requirement, that before any Reference is made
thereunder, there should be case pending.
(ii) Reliance is placed on:
(a) The Maharashtra Sugar Mills Ltd. supra holding that Section
57 is not only for the benefit of the CCRA but enures also the
benefit of the party affected by the assessment and can be
demanded to be used, also by such a party and Section 57 is
further coupled with a duty cast on CCRA, 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, it is incumbent to make a Reference.
(b) Banarasi Dass Ahluwalia supra holding that an application for
reference under Section 57 is competent, whether case is
pending or not; that waiting for a case would cause loss to the
public.
12. The counsel for the petitioner CCRA, on merits contended,
(i) That the 1937 Notification was in the context of Schedule-I of
the Stamp Act and cannot apply once Schedule-I was substituted by
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Schedule-IA; that there is no automatic application of notification

unless the State Government does so expressly.
(ii) Reliance is placed on:
(A) AREVA T and D Lightning Arresters Pvt. Ltd. v. Additional
Secretary Departmental of Revenue and Disaster Management
Government of Puducherry, (2009) 5 Mad LJ 622 relating to
Puducherry, also a Union Territory and holding that there is no
automatic application of any notification of Central Government
and that unless the State Government notifies by a Rule or an
order any decision to reduce or commit, the question of
application of notification does not arise.
nd
(B) Judgment dated 2 February, 2012 of the High Court of
Calcutta in CP No. 627/2011 titled Emami Biotech Limited v.
State but which only notices the contentions and does not
decide anything.
th
(C) Judgment dated 25 April, 2014 of the Division Bench of the
High Court of Punjab & Haryana in CWP No. 15164/2011 (O&M)
titled Minder v. State of Haryana holding that the 1937
Notification would not be valid as the basic substratum of the
notification had undergone sea change with the enactment of
1956 Act.
(D) Qudrat Ullah v. Municipal Board, Bareilly (1974) 1 SCC 202 :
AIR 1974 SC 396, in the context of U.P. (Temporary) Control of
Rent and Eviction Act holding that the general principle is that
an enactment which is repealed is to be treated as if it had
never existed, except as to transactions past and closed.
13. Having heard the learned Amicus Curiae and the counsel for the
petitioner CCRA fully on the aspect of maintainability of the Reference
and being of the view the Reference is not maintainable, we halted
further hearing the counsel for the petitioner CCRA on merits as it was
felt that it is not incumbent upon us to, inspite of holding the Reference
to be not maintainable, also adjudicate on merits, as the same would
be detrimental in the larger interest.
14. We hold the Reference to be not maintainable for the following
reasons:—
A. In our view the language of the statute is plain and unambiguous
and on a literal interpretation of the language of the statute itself,
the Reference which the petitioner CCRA is empowered to make to
this Court has to be of “a case” i.e. an instrument/document
chargeable to stamp duty and in the absence of “a case”, the
power under Section 57 cannot be invoked in vacuum/abstract.
B. Section 57(1) empowers the CCRA to “state any case” referred to
it under Section 56(2) “or otherwise coming to its notice” and
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“refer such case”.

C. It is not the contention that the Collector of Stamps, under
Section 56(2), can make a Reference to CCRA ‘without any case’.
Such Reference by the Collector can be only while acting under
Sections 31, 40 & 41 of the Act and all of which are in the context
of an instrument or document, either adjudication of proper stamp
duty payable whereon is sought from the Collector or which is
impounded or which is accidently left unstamped. Thus when
Section 57(1) empowers the CCRA to “state any case referred to it
under Section 56(2)”, the case is in the context of an instrument
or document.
D. While interpreting the words “or otherwise coming to its notice”
the word “case’ cannot be given any different meaning and has to
necessarily mean adjudication of stamp duty qua an instrument or
document which may have come to the notice of the CCRA
otherwise than on a Reference by the Collector while acting under
Sections 31, 40 or 41 of the Act.
E. The words “or otherwise coming to its notice” cannot be read as
empowering the CCRA to, without any specific
document/instrument coming to its notice and without any need
for determination/adjudication of stamp duty with respect thereto
by the High Court, make a Reference under Section 57 merely
because CCRA sitting in its armchair is of the opinion that
remission being granted to a certain category/class of documents
is being wrongly granted and that a judgment of the High Court
upholding the said remission is not correct, as is the position in
this Reference Petition.
F. The position is placed beyond any pale of controversy by Section
59(2) of the Act which requires this Court to, after deciding the
question raised in the Reference made by the CCRA, forward its
judgment to the CCRA and mandates the CCRA to, on receipt of
such copy “dispose of the case conformably to such judgment”. If
it were to be held that Reference by CCRA to this Court under
Section 57 is permissible even in the absence of any instrument
or document and in vacuum/abstract, merely on CCRA without
any case before it seeking a legal opinion from this Court, there
would be no question of the CCRA, on receiving the judgment of
this Court disposing of the Reference, disposing of any case
conformably to the judgment of this Court.
G. The judgments relied upon by the counsel for the petitioner CCRA
to justify the maintainability of this Reference, even without any
instrument or document chargeable to stamp duty being for
adjudication before it also are not found to be holding or
supporting so. Rather, citing of the said judgments is a classic
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example of a stray word or sentence in a judgment in the context

of the controversy for adjudication therein not constituting a
precedent.
H. In Maharashtra Sugar Mills Ltd. supra, the Registrar of Documents
being of the view that a document presented for registration was
not sufficiently stamped, sent it to the Collector of Stamps. The
Collector of Stamps was also of the view that the document was
insufficiently stamped. The party to the document liable for stamp
duty controverted. However the Collector of Stamps held the
document to be insufficiently stamped and directed payment of
deficient stamp duty and penalty. The party to the document
liable for stamp duty filed a suit against the other party to the
document, for declaration that the document did not fall in the
class as held by the Collector but was of a different class and in
the alternative for rectification of the document to truly reflect its
intent. The suit was decided, directing rectification of the
document. The outcome of the suit was reported to the Collector
of Stamps and Reference under Section 57 of the Stamps Act
demanded to the High Court. On the said request being not
acceded to, the party to the document on whom demand for
deficient stamp duty and penalty had been made, filed a writ
petition seeking mandamus to the CCRA to make Reference under
Section 57. The said writ petition was allowed and mandamus
issued. The CCRA approached the Supreme Court. It was in this
context that the Supreme Court held that the power vested in the
CCRA under Section 57 is an obligation and for the benefit not
only of the CCRA but also of the other party, liable to pay the
assessed stamp duty and who is materially interested, also
meaning that a Reference cannot be unilateral by the CCRA and
there necessarily has to be a ‘other party’. It was yet further held
by the Supreme Court that a decision on a Reference is not
necessarily based only on the reading of the entries in the
Schedule to the Stamp Act but may also depend upon the true
construction of the document, again meaning that a Reference in
vacuum, without there being any case, is not maintainable.
Noticing the scheme of the Stamp Act, it was further observed
that Chapter VI containing Section 57 is about the liability of an
instrument to duty and the adjudication thereof, again indicating
that there can be no Reference in vacuum without stamp duty
with respect to any instrument or document to be
determined/adjudicated. It would thus be seen that this
judgment, rather than supporting the maintainability of the
Reference is to the contrary.
I. In Banarsi Das Ahluwalia supra, the contention of the CCRA which
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had been accepted by the High Court was, that since the
Reference under Section 56 of the Act to the CCRA already stood
disposed of and there was ‘no pending case’, the demand of the
person liable to stamp duty on the instrument subject matter
thereof on the CCRA to make a Reference under Section 57 of the
Act to the High Court was not sustainable. It was then the
contention of the CCRA, that for CCRA to make a Reference under
Section 57, there has to be ‘a pending case’ before the CCRA. The
said contention was rejected by the Supreme Court and it was
held that the remedy available to a citizen under Section 57
cannot be negated merely because the CCRA has decided the
Reference made to it or even if in pursuance thereto the deficient
stamp duty and penalty has been paid/recovered. It was held that
the Reference could be made thereafter also and if decided in
favour of the person liable to stamp duty, the excess stamp duty
and penalty paid could always be refunded. Reference in this
regard was made to Section 59(2) supra requiring disposal of the
case in conformity with the judgment on the Reference. It would
thus be seen, that not only the said judgment also cannot be read
as supporting a Reference in vacuum, as CCRA has sought in this
case but the argument of CCRA itself then was contrary to what is
contended before this Court. Merely because it was held in the
context of the said judgment that there need not be a pending
case, cannot be construed as meaning that even in the absence of
a disposed of case or any specific document or instrument,
Reference is maintainable.
J. If it were to be held that Reference under Section 57 can be
sought in abstract, with the opinion of the CCRA alone being
placed before this Court, the person liable for stamp duty on the
class of instruments with respect to which Reference is sought, if
adversely affected by the judgment make of this Court on such
Reference, would have no opportunity to its submissions, neither
before the Collector of Stamps nor before the CCRA nor before a
Bench of this Court of three or less Judges and in each case a
larger Bench will have to be constituted for considering the
challenge, thereby adversely affecting the rights of the persons
liable for the stamp duty on such instruments.
K. The view which we have taken, we find also taken by the
Reference Court in Usuf Dadabhai v. Chand Mahomed, AIR 1926
Bom 51 (FB). It was held (i) that there must be a case which is to
be disposed of by the Revenue Authority on receipt of the High
Court judgment and if a reference in abstract were to be
entertained there would be no case for the Revenue-Authority for
disposal on receipt of the judgment of the Court; (ii) that Section
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57 (1) permits reference in relation to “any case” whether referred

to the CCRA under Section 56 or otherwise coming to its notice
and thus there necessarily has to be a “case pending” and when
there is no pending case there can be no reference; (iii) that no
substantial question of law can be decided in abstract; and, (iv)
that an obligation of the CCRA to make a reference under Section
57 is enforceable obligation and which action implies existence of
a case.
L. We also find the aforesaid to have been held by the Reference
Court in In Re : Marine Insurance Policies to be the consistent
view of all the High Courts in India.
M. Thereafter also, the same view was taken by the Reference Court
in Chief Controlling Revenue Authority v. Madras Industrial
Investment Corporation, 79 LW 380, where it was held that it is
not permissible to the CCRA under the guise of its powers under
Section 57, to obtain the determination by this Court of a
hypothetical question; a purely abstract proposition of law or a
hypothesis in law however likely it may be that a case
corresponding to that hypothesis may later arise in practice,
cannot be referred to the High Court for resolution of a conflict of
cases or for decisions under Section 57; it is essential that there
should be in existence an actual case, which has to be decided in
the light of the opinion furnished by the Court with regard to an
actual document, and not merely to some contemplated
document.
N. Mention may also be made of the State of Bihar v. Rai Bahadur
Hurdut Roy Moti Lall Jute Mills, AIR 1960 SC 378 and Dr. N.C.
Singhal v. Union of India (1980) 3 SCC 29 holding that if the
statutory provisions impugned are not attracted, there is no
occasion to decide on the vires thereof inasmuch as any decision
on the said question would in such a case be purely academic.
15. Having found the Reference not maintainable, if we still proceed
to adjudicate the Reference on merits, the same will defeat at least one
of the reasons given by us above for holding the Reference to be not
maintainable.
16. Resultantly the Reference is disposed of as not maintainable and
is returned. Needless to state that this will not come in the way of
CCRA seeking a fresh Reference in an appropriate case coming before it
including with respect to a document or instrument of a class with
respect to which Reference in abstract was sought by way of this
Reference.
17. We express our gratitude to Mr. Rajeev K. Virmani, Sr. Advocate
for the erudite assistance rendered, at the cost of his other professional
engagements.
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18. No costs.
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