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Madhya Pradesh High Court · body

2013 DIGILAW 1520 (MP)

ICICI Bank v. State of M. P.

2013-12-04

K.K.LAHOTI, SUBHASH KAKADE

body2013
Judgment: Krishn Kumar Lahoti, J. 1. The petitioner has challenged the vires of subsection (1) of Section 73 of the Indian Stamp Act, as amended in the State of Madhya Pradesh. As controversy in both the matters are identical, both the cases are decided by the common order. Facts are reproduced from W.P. No. 1060/2012 for the convenience. The petitioner, in this petition, has sought for following reliefs:- "(i) To call for the entire relevant records from the possession of the respondents pertaining to passing of impugned orders, for its kind perusal by this Hon'ble Court. (ii) To issue a writ in the nature of certiorari/mandamus or any other appropriate writ, order or direction under Article 226of the Constitution of India quashing or setting aside the Impugned Notices issued by the respondents No. 3 to 8 (Annexure P-1); (iii) To issue a Writ in the nature of prohibition against Respondents prohibiting them from implementing or taking any steps in furtherance of the Notices issued by the respondents No. 3 to 8 (Annexure P-1); (iv) To issue a Writ in the nature of certiorari/mandamus or any other appropriate writ, order or direction under Article226 of the Constitution of India quashing or setting aside the impugned letter dated 30-12-2011 issued by the respondents No. 2 (Annexure P-3). (v) To issue a Writ in the nature of certiorari/mandamus or any other appropriate writ, order or direction under Article 226of the Constitution of India quashing or setting aside the Impugned letter dated 26-12-2011 issued by the respondents No. 7 (Annexure P-4). (vi) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction under Article 226 of the Constitution of India declaring Section 73 of the Indian Stamp Act as applicable in the State of M.P. as void being in violation of Article 14, 19(1)(a) and 21 of the Constitution of India. (vii) Any other writ or direction which this Hon'ble Court may deem necessary in the interest of justice may also be granted. (viii) Cost of this petition may also be awarded." 2. The case of petitioner is that the State of Madhya Pradesh has amended sub-section (1) of Section 73 of the Indian Stamp Act (hereinafter referred to as 'the Act'), as applicable in the State of Madhya Pradesh. (viii) Cost of this petition may also be awarded." 2. The case of petitioner is that the State of Madhya Pradesh has amended sub-section (1) of Section 73 of the Indian Stamp Act (hereinafter referred to as 'the Act'), as applicable in the State of Madhya Pradesh. The aforesaid provision empowers the Collector or any person authorised in writing by the Collector to enter upon any premises and to inspect for such purpose the registers, books, records, papers, documents and proceedings and to take such notes and extracts as he may deem necessary, without fee or charge and if necessary to seize them and impound the same under proper acknowledgment. 3. The challenge has been made by the petitioner because of issuance of notice Annexure P-1 dated 02.12.2011 by the Collector of Stamps and District Registrar, by which the District Registrar, Seoni, Shri Balkrishn More had directed to inspect the petitioner Bank under the chairmanship by an inspecting team. The inspecting team was constituted of Shri Maksood Khan, Assistant Grade-2 and Shri G.L. Deshbhratar, Registration Clerk. As many as 10 Banks of Seoni namely (1) Central Bank, Branch Seoni; (2) State Bank of India, Branch Kachahri Chowk, Seoni; (3) Canara Bank, Branch Seoni; (4) Punjab National Bank, Branch Seoni; (5) Life Insurance Corporation of India, Seoni; (6) I.C.I.C.I. Bank Seoni; (7) H.D.F.C. Bank, Seoni; (8) AXIS Bank, Seoni; (9) Bank of India, Branch Seoni; and (10) Bank of Maharashtra, Branch Seoni, as scheduled in the letter were directed to be inspected. This letter was issued mainly on the ground that the Inspector General of Registration, Madhya Pradesh, Bhopal had intimated to the District Registrar that certain Banks though have got executed documents namely sale agreement letter, development and construction agreement but had not paid the stamp duty, as was required under Schedule 1-'A', Clause "5" of the Indian Stamp Act. Therefore, the I.G. Registration, Madhya Pradesh had directed the District Registrar to inspect the Banks and all the loan cases between 01.01.2010 to November, 2011 were directed to be inspected and the documents which could be found insufficiently stamped, their copies be obtained from the Bank and case be registered between 20.12.2011 and 25.12.2011 and information be sent to the I.G. before 26.12.2011. 4. The letter was issued by the District Registrar invoking powers under Section 73 of the Act as amended in the State of Madhya Pradesh. 4. The letter was issued by the District Registrar invoking powers under Section 73 of the Act as amended in the State of Madhya Pradesh. This letter was protested by the petitioner by filing a written objection dated 09.12.2011, Annexure P-2, but it appears that the objection was not sustained, hence the present petition has been filed for the aforesaid reliefs. 5. The aforesaid notice and the provisions as contained in Section 73(1) of the Act have been challenged on the ground that; (a) The Indian Stamp Act, as applicable in the State of Madhya Pradesh is a fiscal statute. There is no provision in the Indian Stamp Act, which empowers the respondents to carry out the inspection of the petitioner Bank. (b) That in absence of express power on the authority to take any action, such power could not have been exercised and the notices are void ab initio. (c) That the provisions as contained in Section 73 of the Act are unconstitutional as it confers an unrestricted, unfettered, unguided, unreasonably excessive and arbitrary power on the Collector to authorise any officer to enter into any premise, including private premises, carry out inspection, take notes and, if necessary, seize and impound documents. This provision is contrary to Article 21 of the Constitution of India as it violates the right to privacy which is guaranteed under Article 21 of the Constitution of India. (d) That the respondents have not framed any rules prescribing the grade of officers who can enter into the premises of the Bank and inspect the Bank under section 73 of the Act. (e) That Section 73 of the Act as applicable in the State of Madhya Pradesh enables the Collector to authorise any officer whatsoever to inspect, to take notes or extracts from the papers, seize and impound documents in the public or private office, suffers from vice of excessive delegation. (f) That Section 73 empowers the persons to impound documents who are not otherwise empowered to impound documents under section 33 of the Act, as applicable in the State of Madhya Pradesh. (g) That the provision is unreasonable, arbitrary and contrary to the mandate under Article 14 of the Constitution of India. (f) That Section 73 empowers the persons to impound documents who are not otherwise empowered to impound documents under section 33 of the Act, as applicable in the State of Madhya Pradesh. (g) That the provision is unreasonable, arbitrary and contrary to the mandate under Article 14 of the Constitution of India. (h) That Section 73 provides subjective satisfaction on the part of the Collector of Stamp that when he reasonably beliefs that circumstances specified therein exists only then he can issue an order authorising an officer to carry out such inspection. The blanket order cannot be issued. 6. The State has filed the, return in which the petition is opposed inter alia. It is submitted by the respondents that the provisions as contained in Section 73(1) of the Indian Stamp Act which is under challenge are constitutional. 7. The petitioner placed reliance to a judgment of the Apex Court in the case of District Registrar and Collector, Hyderabad and another vs. Canara Bank and others ((2005) 1 SUPREME COURT Cases 496) and submitted that the similar provisions as contained in the Andhra Pradesh Act have been declared ultra vires by the Apex Court, so in the light of the judgment of the Apex Court, the provisions as contained in Section 73(1) of the Madhya Pradesh Act, which empowers the Collector of Stamp to issue authorization, be also declared as ultra vires. The provision as contained in section 73(1)of the Madhya Pradesh Act are pari materia, so on the same analogy, the provisions as contained in Madhya Pradesh Act may be declared ultra vires. 8. To appreciate the aforesaid, it would be appropriate if the provisions as contained in Section 73(1) of the Madhya Pradesh Act and provisions as contained in the Andhra Pradesh Act are reproduced. 8. To appreciate the aforesaid, it would be appropriate if the provisions as contained in Section 73(1) of the Madhya Pradesh Act and provisions as contained in the Andhra Pradesh Act are reproduced. Section 73(1) of the Madhya Pradesh Act "73.(1) Every public officer or any authority or body incorporated by or under any law for the time being in force having in his custody any registers, books, records, papers, documents or proceedings, the inspection where of may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised in writing by the collector to enter upon any premises and to inspect for such purpose the registers, books, records, papers, documents and proceedings and to take such note and extracts as he may deem necessary without fee or charge and if necessary seize them and impound the same under Section 33: Provided that such seizure of any registers, books, records, papers, documents or other proceedings in the custody of public officer or person shall not be made if an attested photocopy or attested true copy of the same is given to the person so authorized." Section 73(1) of the Andhra Pradesh Act "73.(1) Every public officer or any Person having in his custody any registers, books, records, papers, documents or proceedings, the inspection where of may tend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised in writing by the collector to enter upon any premises and to inspect for such purpose the registers, books, records, papers, documents and proceedings and to take such notes and extracts as he may deem necessary without fee or charge and if necessary seize them and impound the same under proper acknowledgment. Provided that such seizure of any registers, books, records, papers, documents or other proceedings in the custody of any bank be made only after a notice of thirty days to make good the deficit stamp duty is given. Provided that such seizure of any registers, books, records, papers, documents or other proceedings in the custody of any bank be made only after a notice of thirty days to make good the deficit stamp duty is given. Explanation-For the purpose of this proviso 'Bank' means a banking company as defined in section 5 of the Banking Regulation Act, 1949 and includes the State Bank of India constituted by the State Bank of India Act, 1955 a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act 1959." There is no doubt that on comparison both the provisions are pari materia. 9. The Apex Court in the case of Canara Bank (supra) considered the factual position, thus: "7. There were 25 writ petitions filed in the High Court. Out of these, 11 were by different banks. A few writ petitions were filed by institutions, corporate or incorporate bodies and a few were filed by sugar companies. The grievances arose because the documents executed between private parties and received and retained in the custody of the bank in ordinary course of their loan advancing transactions were inspected and then the banks were served with a request to remit the amount of deficit duty on the documents inspected and to recover the same from the parties concerned. The grievance of the sugar companies is that in the course of their business they were entering into agreements with the sugarcane growers selling sugarcane to the sugar companies in compliance with the provisions of A.P. Sugarcane Control Order, 1965 in the proforma prescribed by Control Order. Several agreements entered into in the prescribed proforma were treated as unstamped (though they were not liable to be stamped, in the submission of sugar companies) and therefore were sought to be impounded. The grievance of private persons is that the documents in their possession are sought to be inspected, impounded and levied with duty though they were not tendered in evidence nor produced before any public office". 10. The Apex Court in para. The grievance of private persons is that the documents in their possession are sought to be inspected, impounded and levied with duty though they were not tendered in evidence nor produced before any public office". 10. The Apex Court in para. 8 of the judgment considered the judgment of the High Court in which the High Court had held thus: "in holding the impugned Section 73 of the Act ultra vires the Constitution and other provisions of the Indian Stamp Act, the High Court has arrived at four findings: firstly, that the amended Section 73 is inconsistent with the other provisions of the Act; secondly, that the provision is violative of the principles of natural justice; thirdly, the provision is arbitrary and unreasonable and hence violative of Article 14 of the Constitution; and fourthly, there are no guidelines provided for the exercise of power by the authorized persons under the amended Section 73 which is either arbitrary and unreasonable or vitiated on account of excessive delegation of statutory powers". 11. So far as the power to impound a document and to recover the duty with or without penalty thereon has been directed to be construed strictly and can be sustained only when falling within the four corners and letter of the law. 12. The Apex Court in para. 15 considered the position with reference to Section 62 of the Act holding that "though an instrument not duly stamped may attract criminal prosecution under Section 62 of the Act but Parliament and the Legislature have both treated it to be a minor offence punishable with fine only and not cognizable. That such an offence is liable to be condoned by payment of duty and penalty on the document and no prosecution can be launched except in the case of a criminal intention to evade the Stamp Law or in case of a fraud and that too after giving the person liable to be proceeded against, an opportunity of being heard". 13. The Apex Court in para. 16 of the judgment examined the scope of Section 73 of the A.P. Act No. 17 of 1986 thus:- "A bare reading of Section 73as substituted by A.P. Act No. 17 of 1986 indicates the infirmities with which the provision suffers. 13. The Apex Court in para. 16 of the judgment examined the scope of Section 73 of the A.P. Act No. 17 of 1986 thus:- "A bare reading of Section 73as substituted by A.P. Act No. 17 of 1986 indicates the infirmities with which the provision suffers. The provision empowers any person authorized in writing by the Collector to have access to documents in private custody or custody of a public officer without regard to the fact whether the documents are sought to be used before any authority competent to receive evidence and without regard to the fact whether such document would ever be voluntarily produced or brought before a public officer during the performance of any of his specified functions in his capacity as such. The power is capable of being exercised by such persons at all reasonable times and it is not preceded by any requirement of the reasons being recorded by the Collector or the person authorized for his belief necessitating search. The person authorized has been vested with authority to impound the document. It is only in case of documents in custody of any bank that an exception has been carved out for giving a 30 days previous notice to the bank to make good the deficit stamp duty before seizing and impounding the document. Not only is there no valid reason -- none pointed out either in the pleadings nor at the hearing -- for drawing the distinction between a bank and other public office or any person having custody of document. Even in the case of a bank, the power to adjudicate upon the need for impounding the document has been vested in the person authorized. The provision does not lay down any guidelines for determining the person who can be authorized by the Collector to exercise the powers conferred by Section 73". 14. The Apex Court considered the right of privacy and power of the State to 'search and seizure' in para. 18 and held thus: "The right to privacy and the power of the State to 'search and seize' have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed. History takes us back to Semayne's case decided in 1603 where it was laid down that 'Every man's house is his castle'. 18 and held thus: "The right to privacy and the power of the State to 'search and seize' have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed. History takes us back to Semayne's case decided in 1603 where it was laid down that 'Every man's house is his castle'. One of the most forceful expressions of the above maxim was that of William Pitt in the British Parliament in 1763. He said: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dare not cross the threshold of the ruined tenement". 15. The intrusion into privacy has been explained by the Apex Court in para. 34, thus: "Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders and (3) judicial orders. The legislative intrusions must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court can go into the proportionality of the intrusion vis-a-vis the purpose sought to be achieved. (2) So far as administrative or executive action is concerned, it has again to be reasonable having regard to the facts and circumstances of the case. (3) As to Judicial warrants, the Court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for the protection of the particular state interest. In addition, as stated earlier, common law recognized rare exceptions such as where warrant less searches could be conducted but these must be in good faith, intended to preserve evidence or intended to prevent sudden danger to person or property". 16. The Apex Court in para. 35 further held thus: "The earliest case in India to deal with 'privacy' and 'search and seizure' was M.P. Sharma v. Satish Chandra in the context of Art. 19(1)(f) and Art. 20(3) of the Constitution. 16. The Apex Court in para. 35 further held thus: "The earliest case in India to deal with 'privacy' and 'search and seizure' was M.P. Sharma v. Satish Chandra in the context of Art. 19(1)(f) and Art. 20(3) of the Constitution. The contention that search and seizure violated Art. 19(1)(f) was rejected, the Court holding that a mere search by itself did not affect any right to property, and though seizure affected it, such effect was only temporary and was a reasonable restriction on the right. The question whether search warrants for the seizure of documents from the accused were unconstitutional was not gone into. The Court, after referring to the American authorities, observed that in the US, because of the language in the Fourth Amendment, there was a distinction between legal and illegal searches and seizures and that such a distinction need not be imported into our Constitution. The Court opined that a search warrant was addressed to an officer and not to the accused and did not violate Art. 20(3). In the present discussion the case is of limited help. In fact, the law as to privacy was developed in latter cases by spelling it out from the right to freedom of speech and expression in Art 19(1)(a) and the right to 'life' in Art. 21". 17. The Apex Court has also taken note of the earlier judgments in Gobind vs. State of M.P. (1975) 2 SCC 148 ; R. Rajgopal vs. State of T.N. (1994) 6 SCC 632 ; People's Union for Civil Liberties vs. Union of India, (1997) 1 SCC 301 ; 'X' v. Hospital 'Z', (1998) 8 SCC 296 ; People's Union for Civil Liberties vs. Union of India, (2003) 4 SCC 399; and Sharda vs. Dharmpal, (2003) 4 SCC 493 . 18. The scope of Section 73 was considered by the Apex Court in para. 43 of the judgment and it was held that: "43. It will be seen that under sec. 73, the Collector could inspect the 'registers, books, records, papers, documents or proceedings' in the public office. Obviously, this meant that the inspection must relate to 'public documents' in the custody of the public officer or to public record of private documents available in his office. The inspection could be carried out only by a person authorized -- in writing -- by the Collector. Obviously, this meant that the inspection must relate to 'public documents' in the custody of the public officer or to public record of private documents available in his office. The inspection could be carried out only by a person authorized -- in writing -- by the Collector. The purpose of inspection has to be specific and has to be based upon a belief that (i) such inspection may tend to secure any (stamp) duty, or (ii) it may tend to prove any fraud or omission in relation to any duty or (iii) it may tend to lead to the discovery of any fraud or omission in relation to any duty. 44. The above provisions have remained in sec. 73 even after the A.P. Amendment of 1986. The validity of the unamended provisions of sec. 73 of the Stamp Act, 1899 is not in issue before us. It is a preconstitutional law. It is obvious that in its operation after the commencement of the Constitution, even the unamended sec. 73 must conform to the provisions of Part III of our Constitution." 19. In respect of inspection of the public record in a Bank, the Apex Court considered the elements of confidentiality between the bank and customer in relation to the letter's banking transactions. Considering aforesaid, the Apex Court in para. 45 and 46 held thus: "45. When public record in the Sub-Registrar's Office or a Bank or for that matter any other public office is inspected for the purposes referred to in the impugned sec. 73, the public officer may indeed have no objection to such inspection. But, as in the case before us, in the context of a Bank which either holds the private documents of its customers or copies of such private documents, the question arises whether disclosure of the contents of the documents by the Bank would amount to a breach of confidentiality and would, therefore, be violative of privacy rights of its customers? 46. It cannot be denied that there is an element of confidentiality between a Bank and its customers in relation to the latter's banking transactions. Can the State have unrestricted access to inspect and seize or make roving inquiries into all Bank records, without any reliable information before it prior to such inspection? Further, can the Collector authorize 'any person' whatsoever to make the inspection, and permit him to take notes or extracts? Can the State have unrestricted access to inspect and seize or make roving inquiries into all Bank records, without any reliable information before it prior to such inspection? Further, can the Collector authorize 'any person' whatsoever to make the inspection, and permit him to take notes or extracts? These questions arise even in relation to the sec. 73 and have to be decided in the context of privacy rights of customers." 20. The Apex Court considered the judgment of United States vs. Miller, 425 US 435 (1976) as referred in para. 48 thus: "The majority in Miller laid down that a customer who has conveyed his affairs to another had thereby lost his privacy rights. (i) Prof. Tribe states in his treatise (see p. 1391) that this theory reveals 'alarming tendencies' because the Court has gone back to the old theory that privacy is in relation to property while it has laid down that the right is one attached to the person rather than to property. If the right is to be held to be not attached to the person, then 'we would not shield our account balances, income figures and personal telephone and address books from the public eye, but might instead go about with the information written on our 'foreheads or our bumper stickers'. He observes that the majority in Miller confused 'privacy' with 'secrecy' and that "even their notion of secrecy is a strange one, for a secret remains a secret even when shared with those whom one selects for one's confidence". Our cheques are not merely negotiable instruments but yet the world can learn a vast amount about us by knowing how and with whom we have spent our money. Same is the position when we use the telephone or post a letter. To say that one assumes great risks by opening a bank account appeared to be a wrong conclusion. Prof. Tribe asks a very pertinent question (p. 1392): "Yet one can hardly be said to have assumed a risk of surveillance in a context where, as a practical matter, one had no choice. Only the most committed-and perhaps civilly committable -- hermit can live without a telephone, without a bank account, without mail. To say that one must take a bitter pill with the sweet when one licks a stamp is to exact a high constitutional price indeed for living in contemporary society". Only the most committed-and perhaps civilly committable -- hermit can live without a telephone, without a bank account, without mail. To say that one must take a bitter pill with the sweet when one licks a stamp is to exact a high constitutional price indeed for living in contemporary society". He concludes (p. 1400): "In our information-dense technological era, when living inevitably entails leaving not just informational footprints but parts of one's self in myriad directories, files, records and computers, to hold that the Fourteenth Amendment did not reserve to individuals some power to say when and how and by whom that information and those confidences were to be used, would be to denigrate the central role that informational autonomy must play in any developed concept of the self." 21. The Apex Court thereafter considered the merits of the case in para. 53, 54 and 55 thus:- "53. Once we have accepted in Gobind and in later cases that the right to privacy deals with 'persons and not places', the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-a-vis the person, even if they are no longer at the customer's house and have been voluntarily sent to a Bank. If that be the correct view of the law, we cannot accept the line of Miller in which the Court proceeded on the basis that the right to privacy is referable to the right of 'property' theory. Once that is so, then unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the Bank tend, to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality. 54. Secondly, the impugned provision in sec. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality. 54. Secondly, the impugned provision in sec. 73 enabling the Collector to authorize 'any person' whatsoever to inspect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and more importantly, the section allows the facts relating to the customer's privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customer's rights. This part of the Section 73 permitting delegation to 'any person' suffers from the above serious defects and for that reason is, in our view, unenforceable. The State must clearly define the officers by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the State. 55. The A.P. amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. custody other than that of a public officer. It is clear that this provision empowers invasion of the home of the person in whose possession the documents 'tending' to or leading to the various facts stated in sec. 73are in existence and sec. 73 being one without any safeguards as to probable or reasonable cause or reasonable basis or materials violates the right to privacy both of the house and of the person. We have already referred to R. Rajagopal's case wherein the learned judges have held that the right to personal liberty also means life free from encroachments unsustainable in law and such right flowing from Article 21 of the Constitution." 22. A seven-Judge Bench of the Apex Court in Smt. Maneka Gandhi vs. Union of India, 1978 (1) SCC 248 reiterated the law of personal liberty and held thus:- "56. The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19 (emphasis supplied). The expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and give additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21. 57. The constitutional validity of the power conferred by law came to be decided from yet another angle in the case of Air India Vs. Nergesh Meerza wherein it was held that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14. 23. The Apex Court considering the aforesaid reasons had agreed with the view taken by the High Court that Section 73 of the Indian Stamp Act, as amended in its application to the State of Andhra Pradesh by the Andhra Pradesh Act No. 17 of 1986 is ultra vires to the Constitution. The Apex Court held thus:- "A bare reading of Section 73 as substituted by A.P. Act No. 17 of 1986 indicates the infirmities with which the provision suffers. The Apex Court held thus:- "A bare reading of Section 73 as substituted by A.P. Act No. 17 of 1986 indicates the infirmities with which the provision suffers. The provision empowers "any person" authorized in writing by the Collector to have access to documents in private custody or custody of a public officer without regard to the fact whether the documents are sought to be used before any authority competent to receive evidence or whether such document would ever be voluntarily produced or brought before a public officer during the performance of any of his specified functions in his capacity as such (contrary to the scheme of the rest of the Stamp Act, 1899 even as applicable to the State of Andhra Pradesh). The power is capable of being exercised by such persons at all reasonable times and it is not preceded by any requirement of reasons being recorded by the Collector or the person authorized, for his belief necessitating search. The provision suffers from the vice of excessive delegation as there are no guidelines in the Act as to the persons who may be authorised. The State must clearly define the officers by designation or state that the power can be delegated to officers not only below a particular rank in the official hierarchy, as may be designated by the State. The person authorized has been vested with authority to impound the document. It is only in case of documents in custody of any bank that an exception has been carved out for giving a 30 days previous notice to the bank to make good the deficit stamp duty before seizing and impounding the document. Not only is there no valid reason--none pointed out either in the pleadings or at the hearing -- for drawing the distinction between a bank and other public office or any person having custody of document, even in the case of a bank, the power to adjudicate upon the need for impounding the document has been vested in the person authorized. 24. The provisions in the Madhya Pradesh are identical and there is nothing to distinguish the judgment of the Apex Court. 25. 24. The provisions in the Madhya Pradesh are identical and there is nothing to distinguish the judgment of the Apex Court. 25. Though Shri R.D. Jain, learned Advocate General tried to distinguish the provision as is applicable in the Madhya Pradesh Act and in Andhra Pradesh Act on the ground that in the Andhra Pradesh Act, certain excessive powers were delegated as it authorised to the Collector to enter upon any premises and seizure, impounding were provided while such provisions are not here. But from the perusal of entire provisions as contained in sub-section (1) of Section 73, it is apparent that except the word 'under acknowledgment' the entire provision is identical. 26. In view of the aforesaid judgment by the Apex Court, there is no iota of doubt that provision of section 73(1) of the Stamp Act, as is applicable in the State of Madhya Pradesh, is ultra vires, accordingly we declare so. 27. In view of the aforesaid, the provision, as contained in Section 73(1) of the Indian Stamp Act, as applicable in the State of M.P., is declared ultra vires and the notices issued by the respondents for inspection of the petitioner Bank and for registration of the cases are hereby quashed. Accordingly, both the petitions are allowed.