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Revision Side No. 66 of 1958‑59, decided on 12th May 1959, District Sialkot.

for five years‑Treated as a lease for that period.

S. 40 (1) (b)‑Collector empowered to deal with case of deficiency of stamp.

P L D 1950 Pb. (Rev.) 501 ref.

S. M. Ali Zaidi for Petitioner.

Mst. Hamida filed a suit in the Court of the Assistant Collector, Ist Grade, Sialkot, for the ejectment of the tenants, including the petitioner. The petitioner produced a document which was held to be a lease. The document was not stamped. The Assistant Collector impounded the document and directed that the stamp duty of Rs. 30 with a penalty of Rs. 300 should be paid. He forwarded the document to the Collector who held that the correct stamp duty was Rs. 43 and not Rs. 30, but that no change in the penalty already imposed was called for.

It was contended at the time of arguments that the document was not a lease. The document speaks of a Theka (lease) in favour of the petitioner for five years in consideration of Rs. 1,500 and during these 5 years the petitioner was to continue cultivating the land. Thus, the Collector has rightly held the document to be a lease.

It was urged that because the document was not admitted in evidence no penalty could be charged. Section 38 (1) of the Stamp Act lays down that when the person impounding an instrument has the authority to receive evidence and admits such instrument in evidence upon payment of a penalty or of the duty, he shall send an authenticated copy of the instrument etc. to the Collector. Section 38 (2) of the Stamp Act lays down that in other cases the person impounding the instrument shall send it in original to the Collector. That is what was done in the present case and the Collector dealt with it under section 40 (1) (b) which runs as follows :‑

(b) "If he is of opinion, that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit (an mount not exceeding) ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees "

The semi‑colon after the words "together with a penalty of five rupees" is somewhat misleading and might lead to the conclusion that the Collector shall require payment of an amount not exceed ing 10 times of the proper duty or of the deficient duty, inclusion of the proper duty or the deficient duty. But that is not so. The section empowers the Collector to require payment of the proper duty or deficient duty and a penalty equal to 10 times the proper duty or deficient duty in addition. P L D 1950 Ph. (Rev.) 501, indirectly supports this view. The United Provinces Government substituted a comma for the semi‑colon. It would thus appear that the Collector imposed a penalty which he was competent to do.

The only other point urged at the time of argument was that the penalty imposed was heavy. Considering circumstances of the case, I find that the penalty is by no means excessive. The result is that the petition is rejected in limine.

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