Case: Mr. Rajeev Nohwar Vs. Chief Controlling Revenue Authority Maharashtra State, Pune and Others

4. On 24 April 2014, the appellant booked a residential flat, being Unit No 2001 admeasuring 1660 sq ft in Tower No 24 of a construction project called Lodha Belmondo in Pune for a consideration of Rs 1,68,88,095. The appellant initially paid an amount of Rs 33,91,795 by July 2014 representing 19.9% of the agreed sale consideration, following which a confirmatory email was issued. This was followed by a letter of allotment dated 15 July 2014. On 14 August 2014, the appellant paid an amount of Rs 1,58,28,221 out of the agreed consideration. In order to facilitate the execution of a conveyance, the appellant purchased an e-SBTR stamp paper through a government challan bearing MTR GRN No MH0023603832014155 for a total amount of Rs 8,44,500 from the IDBI bank, Aundh, Pune for the execution of the agreement to sell.5. Disputes arose between the appellant and the developer which led to the appellant instituting a consumer complaint before the National Consumer Disputes Redressal Commission(NCDRC). During the pendency of the complaint, an interim order dated 25 September 2014 restrained the developer from creating third party interests in the flat. Eventually by an order dated 6 May 2016, the complaint was allowed. The appellant was given the option to either execute the agreement with the developer, in which event the developer would pay compensation in the amount of Rs 10 lakhs, or in the alternative, if the appellant was not willing to execute an agreement, the developer was directed to refund the entire consideration together with interest at the rate of 12% per annum from the date of receipt of each installment until the date of refund along with compensation of Rs. 10,00,000. The appellant exercised the option of seeking a refund of consideration together with interest.6. The developer issued a cheque on 11 July 2016 for the refund of the consideration in terms of the order of the NCDRC. The appellant thereupon applied on 16 July 2016 for refund of the stamp duty of Rs 8,44,500 to the Collector of Stamps. By a communication dated 5 August 2016, the Collector of Stamps forwarded the file to the Deputy Inspector General of Registration with a recommendation that the refund should be denied on the ground that the appellant had not applied for refund within six months. By an order dated 27 September 2016, the Deputy Inspector General of Registration rejected the application for refund of stamp duty on the ground that the application for refund was not made within six months as mandated by Section 48(3) of the Maharashtra Stamp Act 1958. The appellant filed an appeal before the Chief Controlling Revenue Authority under Section 53(1 A) of the Maharashtra Stamp Act 1958. The appeal was dismissed on 2 April 2018 on the same ground. The appellant moved the High Court of Judicature at Bombay in a writ petition under Article 226 of the Constitution challenging the orders dated 27 September 2016 and 2 April 2018 and for seeking an order directing the refund of the stamp duty paid.7. The High Court by its judgment dated 22 November 2018 dismissed the petition, affirming the view of the revenue authorities that the application for refund was barred by limitation, not having been preferred within a period of six months from the date of the purchase of the e-stamp. The High Court rejected the argument that the six month limitation period under Section 48(3) would not be applicable since the appellants case falls under Section 52A of the Act. It was observed that Sections 47, 48, 52 and 52A of the Act will have to be interpreted harmoniously, and an application under Section 52A will also have to be made within six months from the date of purchase of the stamps. The matter has accordingly travelled to this Court. Notice was issued on 18 January 2019.

Reasoning: The submission does not accord with a plain reading of the provision. The expression any other means must be readin the context of the words which immediately precede it, namely, error in writing. The expression by any other means would indicate that the legislature intended to refer to defacement of a stamp paper in any manner analogous to an error in writing the instrument on the stamp paper. Any other means refers to any other modality by which the stamp paper is rendered unfit for the purpose for which it was purchased. Moreover, the prefatory words in Section 47 state that the collector must be satisfied that the stamp is spoiled. Clauses (a) to (c) lay down the cases that are covered within the ambit of the expression spoiled stamps. The emphasis of Section 47 is not on the purpose but on unfit stamps. Therefore, a case where the stamp has not been utilized at all because it is not needed subsequent to the purchase will not fall within the purview of Section 47. Only those cases where the stamp is unfit for the purpose by an error in writing or any other means would be covered by the provision. It is not the case of the appellant that the stamp paper has been spoiled or obliterated or rendered unfit for the purpose for which it was required. In the present case, it is common ground that the stamp paper is not spoiled but the purpose for which the stamp was purchased has become redundant in view of the judgment of the NCDRC. Therefore, there would be no occasion to apply the provisions of clause (a) of Section 47.15. Clause (c) of Section 47 begins with the expression stamp used for an instrument executed by any party thereto and is followed by eight sub clauses. In other words, clause (c) of Section 47 applies only where a stamp paper has been used for an instrument which has been executed by one of the parties to the instrument. That is why, for instance sub clause (2) refers to the instrument being subsequently found unfit either by reason of an error or mistake for the purpose for which it was originally intended. Sub clause (4) adverts to a situation where the instrument has not been executed by a material party and by his inability or refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended. Clause (c) of Section 47 has no application to the facts of the present case since it is common ground that the stamp was not used for an instrument already executed by any party thereto.18. The revenue authorities rejected the application filed by the appellant on the ground that the application was not filed within six months from the date of the purchase of the stamp paper, treating the case to fall within the residuary provision in Section 48 of the Act. This view has been accepted by the Single Judge of the Bombay High Court. What this view misses is that Section 48 in its entirety applies only to those cases where the application for relief is governed by Section 47. If the application for refund is not with reference to the provisions of Section 47, the period of limitation in Section 48 clearly has no application. Since the application of the appellant does not fall within the purview of any of the clauses in Section 47, the 6 month limitation period prescribed in Section 48 would not be applicable to the application for allowance filed by the appellant.19. Having observed that the application of the appellant for allowance is not covered by the Section 47, it is imperative to determine if it falls within the purview of any other provisions of the Act. Section 49 provides that allowance can be made without any limit of time for stamp papers that are used as printed forms of instruments by any banker or company, if the forms are not required by the banks or the companies. Thus, the application of the appellant is not covered by section 49. Section 50 states that allowance for misused stamps can be made. The provision brings within the purview of the term misused stamps, the stamps of greater value than required or stamps of description other than that prescribed by any rules or stamps that are useless since the instrument is written in contravention of the provisions or where a stamp has been used when the instrument is not charged with stamp duty. Section 50 only covers those cases where inadvertent mistakes are made in the stamp paper. Therefore, the case of the appellant is not covered by Section 50 since there is no mistake in the e-stamp, be it with regard to the value or description. Section 51 lays down the procedure for seeking allowance for cases that fall under Section 47, 49 and 50 and is thus of no application to the appellants claim.21. It could be argued that the use of the words, for which he has no immediate use in Section 52 would only covers cases where the purpose for the purchase of the stamp is still valid but the execution of the purpose if delayed and not immediate. Such an interpretation, however, is erroneous in view of the holistic reading of the provision. The use of the phrase immediate must be read in the context of the limitation period prescribed by the provision. Since a six month limitation period has been imposed in Section 52 for the cases that fall within its purview, the use of the phrase no immediate use should be interpreted to mean either the permanent abandonment of the purpose or a delay (of more than six months from the purchase of the stamp) in the execution of the purpose.22. However, Section 52 would only apply to those cases where the applicant had knowledge that the stamp purchased was not be required for use within six months from the date of purchase. The provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp would not be required for use within six months from the purchase of the stamp. In the instant case, the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it. He was in a bona fide contest over his rights with the builder. Therefore, the case of the appellant would not fall under Section 52 of the Act as well.26. The provisions of Section 52A as noticed above have overriding force and effect, inter alia, on the provisions of Sections 47, 50, 51 and 52. It is pertinent to note that the non obstante clause does not apply to Sections 48 and 49 of the Act. While Section 48 is a limitation clause applicable to cases that are covered by Section 47, Section 49 applies to a Corporation where no limitation period has been prescribed. Section 52A can be applied to the appellants case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions.28. Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision.29. In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period.30. In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court.31. We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.(AR Anthulay v. RS Nayak, (1988) 2 SCC 602 ; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 ; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 .) Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution.