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Judgment
Nainar Sundram, J.—The prayer in the Writ petition is for the issue of a Writ of Certiorarified Mandamus, calling for the records of the first respondent, dated 22nd May, 1976 and made in I. No. 68/B1/75 and the records of the second respondent relating to order dated 4th July, 1979 and made in B.P. Rt. No. 3272/(L) and quash the same and direct the 2nd respondent to refer the Petitioner''s case to this Court under S. 57 of the Indian Stamp Act (II of 1899) hereinafter referred to as the Act. The petitioner has obtained a deed of release from one Ayyasami on 10th September, 1975 and this has given rise to the present proceedings. The first respondent, by the order first cited in the prayer in the writ petition, opined that the deed in question is a deed of conveyance and not a deed of release and called upon the petitioner to pay the deficit stamp duty. The Petitioner preferred a petition to the second respondent for reference of the matter to this Court under S. 57(1)(a) of the Act. The second respondent dealt with matter in his revisional powers and concurred with the opinion expressed by the first respondent on the question of construction of the document as well as the stamp duty payable, by the order second cited in the prayer in the writ petition. This has formed the provocation for the petitioner to come to this Court with the above prayer.
Mr. N. Varadarajan, learned counsel for the petitioner, submits that the questions involved with regard to the construction of the document are intricate and vitally affect the interest of the petitioner and the second respondent is duty bound to make the reference to this Court, as coveted by the petitioner.
It is true that S. 57(1) of the Stamp Act contemplates that the authority concerned may refer a case to this Court. But, the word ''may'' cannot be construed as merely permissive. Even as early as in 1950, in C.C. Revenue Authority v. M.S. Mills AIR 1950 S.C. 218, it has been laid down as follows:-
The power to make a reference under S. 57 is not only for the benefit of the Chief Controlling Revenue Authority but enures also for the benefit of the party affected by the assessment and can be demanded to be used also by such a party. 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.
The question that has arisen in the present case is with reference to the construction of the terms of a document to find out as to whether it would amount to a deed of conveyance or a deed of release. It cannot be stated that the questions involved are plain in nature and do not admit any ambiguity from the legal angle, depending upon the factual constructions to be put on the recitals in the document. In my view, the second respondent failed in his duty when he declined to accede to the request of the petitioner for a reference of the matter to this Court under S. 57(1)(a) of the Act. A copy of the document has been furnished and on going through it I find that though I shall not express any opinion thereon, the matter is not so plain in nature and incapable of any argument thereon, and it will be appropriate if the matter is referred to this Court under S. 57(1)(a) of the Act.
The pronouncement of the Supreme Court, referred to above, has been uniformly followed by this Court. The principle is that when the matter involves questions of law, depending upon the construction to be put on the deed and two or more constructions are not to be completely ruled out and when the rights of the party are vitally affected, the authority concerned shall not shirk the duty cast upon him and decline to refer the matter to this Court under S. 57 of the Act. If there is a failure on the part of the authority in the discharge of this duty, this Court can definitely come to the rescue of the party aggrieved and issue the appropriate writ, directing the authority to make the reference. The mere fact that the authority concerned has dealt with the matter in a revision need not stand in the way of this Court exercising the power since the very order can be quashed as having come to be passed in dereliction of the duty cast upon the authority concerned and the matter can go back for the purpose of the authority to make requisite reference. Under this contingency, the writ of certiorarified mandamus as prayed for could issue and accordingly, this writ petition is allowed. I make no order as to costs. The second respondent is directed to make the reference, as contemplated under S. 57(1)(a) of the Act, within a period of one month from the date of receipt of the copy of this order.