Find a Lawyer

Constitutional Petition No. D‑1509 of 1980, decided on 23rd November 1981.

(a) Stamp Act (II of 1899‑.

-----S. 33 (3)‑Applicability of S. 33 (3)‑Subsection (3) of S. 33 of Act‑Can be pressed into service when doubt exists as to nature of a particular office.

(b) Stamp Act (1I of 1899)‑

--- S. 33‑Words and phrases‑‑"Public Office and public officer"‑Meaning of Terms 'Public office and public officer' may have different mean ings according to enactment in which given‑Generally however in order to make an

office public office, pay must be given out of national and not out of local fund and office must be public in strict sense of term -Public officer must be said to be one discharging duties in which public directly interested‑Person paid out fund provided by public, held, clearly a person holding such office. ‑ [Words and phrases].

R. T. H. Janjua v. N. S. P. P L D 1974 S C 146 ref.

(c) Stamp Act (II of 1899)‑

S. 33 ‑Public Office‑‑Petitioner a private limited company registered under Companies Act‑Held, has no semblance of a public department or a public office in sense used in subsection (3) of S. 33 of Act- Inclusion of same as public office under S. 33, held, ultra vires powers of Government and action taken in pursuance thereof without lawful authority.

Shahenshah Hussain for Petitioner.

Muhammad Ibrahim Memon Addl. A: G. for Respondents.

Date of hearing : 23rd November, 1981

JUDGEMENT

AJMAL MIAN, J.‑This petition is directed against the issuance of 'a Notification dated 26‑12‑1979 by the Government of Sind 1. e. respondent No. 1.

The brief facts leading to the filing of the above petition are that the petitioner is a private limited company owing a building, namely, Hotel Metropole Ltd. and inter alia is running a hotel in a portion thereof. It seems that the Secretary to the Government of Sind Revenue Department issued a Notification dated 26‑12‑1979 in pursuance of the provisions of subsection (3) of section 33 of the Stamp Act, 1899 (hereinafter referred to as the Act) for declaring all Councils, all Statutory bodies set up with the Federal or Provincial Revenue, all Co‑operative Secieties, all companies registered under the Companies Act and all commercial or industrial concerns as public offices and all persons incharge thereof as incharge of the public offices. It further seems that in pursuance of the above notification, respondent No. 3 authorised one Muhammad Ismail Memon, the Inspector of Stamp, Karachi Circle, to inspect the offices all the organizations named in the notification. 1t has been averred by the petitioner that the above inspector stamp visited its office and asked the petitioner to be ready with all the documents required to be stamped like tenancy agreements etc. The petitioner aggrieved by the above notification and the action has filed the present petition.

2. (a) In support of the above petition Mr. Shahenshah Hussain, learned counsel for the petitioner has made the following submissions.

(i) That a notification under section 33 of the Stamp Act can only be issued for the purpose of above section and only in a case where there is a doubt as to whether and office if a public office or not.

(ii) That in any case under section 33(3) of the Act a notification is to be issued in respect of a particular office and not a general notification of the nature in issue.

On the other hand it has been urged by Mr. Sattar Shaikh the learned Additional Advocate‑General that under subsection (3) of section 33 of the Act the Government has the power to declare any office as a public office and any person as the incharge of such office.

(b) In order to appreciate the above contention it may be advantageous to reproduce hereinbelow section 33 of the Act, which reads as follows;

"Section 33. Examination and impounding of instruments.‑(1) Every person having by law or consent of parties authority to receive evidence and every person incharge of a public office, except, an officer of police, before when 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 same.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and descrip tion required by the law in force in Pakistan when such instrument was executed or first executed

Provided that ‑ '

(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 ;

(b) in the case of Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.

(3) For the purpose of this section, in cases of doubt,‑

(a) the collecting Government may determine what offices shall be deemed to be public offices ; and

(b) the collecting Government may determine who shall be deemed to be persons incharge of public offices.

It may be noticed that under subsection (1) of the above section every person incharge of a public office (except an officer Police) before whom any instrument chargeable with the stamp duty is produced or comes before him in performance of his function and he is of the view that the instrument is not properly stamped, shall impound the same, whereas subsection (2) provides that for the purpose of determining, as to whether such an instrument is properly stamped, reference to the stamp duty payable on the date of the execution of such document shall be made. Furthermore, subsection (3) of section 33 provides that for the purpose of the section in case of doubt the collecting Government may determine what offices shall be deemed to be public offices and who shall be deemed to be person incharge of public office.

(c) It is evident that in order to press into service subsection (3) of sec tion 33 of the Act, it is necessary that there should exist doubt as to the; nature of a particular office. In other word, it presupposes the existence of an office which may have semblance of a public office i. e. public depart ment. The words public office appearing in section 33 of the Act has not been defined and, therefore, we will have to refer to its ordinary meaning. In this connection it may be pertinent to refer to para. 1319 from the Hals bury's Laws of England third edition, volume 30, which reads as follows;

"1319. Meaning of public officer.‑Different meanings have been given to the terms "public office" and "public officer", according to the statutes in which they occur; thus it has been said that to make are office a public one, the pay must come out of national and not out of legal funds and the office must be public in the strict sense of that term (h)‑on the other hand the office of a director of a private company has been held to be a public office. In general, a public officer may be said to be one who discharges any duty in the discharge of which the public are interested ; a person is more clearly such an officer if he is paid out of a fund provided by the public."

It may be noticed that the term public office or public officer may have different meaning according to the enactment in which they are given. However, generally in order to make an office public one, the pay must be given out of national and not out of local funds and the office must be public in the strict sense of the term. A Public Officer must be said to be one who discharges duties, in which the public are interested and if a person is paid out of fund provided by the public, he is clearly a person holding such office.

(d) Reference may also be made to the case of R. T. H. .Janjua v. N. S. P. PLD1974SC146, in which the Supreme Court while considering the question about issuance of a writ of mandamus in respect of a public office has made the following observations;

"The determining factor for the relevant purpose is the origin or nature of office and the duties attached to it. In the case of Saifullah Shah it was observed by this Court;

'...Corporation for private gain differs in no essential that affects the public character of the grant, from corporations created for purely public purposes. Their corporate powers spring alike from the same source, their organization is directed by the same hand, their regulations and restraints are controlled by the same authority; and they are answerable alike to the same sovereign.'

The essence of the matter however is whether the aggrieved incumbent could be regarded as holder of a "public office" which is described by Ferris in his back "Extraordinary Legal Remedies", at page 166, as;

'A public office is the right, authority and duty created and conferred by law by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed law. it implies a delegation of a portion of the sovereign power. It is a trust conferred by the public authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties'."

In Saifullah Shall's case, the office of the Commercial Manager of a Bank was not considered to be a public or statutory office, that is to say "an office which is by law prescribed in regard to its existence, its tenure or duties".

Though the Supreme Court in the above case was not dealing with the question of a public office in the sense of a public department, but was considering the question that in order to justify the issuance of a writ of mandamus what type of office can considered to be a public office. It may be observed that in order to constitute a public office one of the pre‑requisite condition is that the public should be directly interested in the performance of the duties by such an officer. On the basis of the above analogy, it ca be said that in order to constitute an office as a public office (i.e. a public department), the public must be interested in the function entrusted to it.

3. (a) In the instant case the petitioner is a private limited company, registered under the Companies Act. In our view it has no semblance of public department or a public office in the sence used in subsection (3) o section 33 of the Act. Respondent No. 1 by its notification as pointed out hereinabove, purported to include all councils, all statutory bodes, set u with the Federal or Provincial revenue, all co‑operative societies all companies registered under the Companies Act and all commercial or industrial concerns as public offices. 1t may be advantageous to reproduce hereinbelow aforesaid notification which reads as under;

GOVERNMENT OF SIND REVENUE DEPARTMENT

Hyderabad dated the 26th December, 1979.

NOTIFICATION

No. 39‑70‑79 Bud. II.‑In pursuance of the provisions of subsection (3) of section 33 of the Stamp Act, 1899, the Government of Sind are pleased to declare that for the purpose of the said section a11‑Govern ment offices, all councils, all statutory bodies set up with the Federal or Provincial revenues, all co‑operative societies, all companies registered under the Companies' Act, and all commercial or industrial concerns shall be deemed to be public offices and all persons incharge thereof as incharge of the public offices.

(Sd.)

Secretary to Government of Sind Revenue Department."

(b) Since with no stretch of imagination an office of a private Ltd., Co. can be said to be a public office (i. e. the public department) the inclusion of the same as public office under section 33 of the Act seems to be ultra vires of the power of respondent No. 1.

We, therefore, allow this petition and declare that the notification to the extent of purporting to include offices of private limited companies as public offices and the action taken in pursuance thereof is without lawful authority.

M. Y. H. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.

🔍 Find a Lawyer