MR. RAJEEV NOHWAR versus CHIEF CONTROLLING REVENUE AUTHORITY MAHARASHTRA STATE, PUNE AND OTHERS
[2021] 10 S.C.R. 623, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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MR. RAJEEV NOHWAR
v.
CHIEF CONTROLLING REVENUE AUTHORITY
MAHARASHTRA STATE, PUNE AND OTHERS
(Civil Appeal No. 5970 of 2021)
SEPTEMBER 24, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
B. V. NAGARATHNA, JJ.]
Maharashtra Stamp Act, 1958 – ss. 47, 48, 49, 50, 52, 52A,
53(1A) – Stamp Duty – Refund of – The appellant booked a
residential flat – He purchased e-SBTR stamp paper for amount of
Rs.8,44,500/- – Dispute arose with the builder – Appellant filed
consumer complaint before the National Consumer Disputes
Redressal Commission (NCDRC) – Complaint was allowed – The
developer refunded the entire consideration – Appellant claimed
refund of stamp duty – The said claim was rejected by the Deputy
Inspector of Registration on the ground that the application for
refund was not made within six months as mandated by s.48(3) of
1958 Act – The High Court affirmed the view of the Revenue
Authorities that the application for refund was barred by limitation
– On appeal, held: Revenue Authorities rejected the application on
the ground that the application was not filed within six months,
treating the case to fall within the residuary provision in s.48 of the
Act – What this view missed is, if the application for refund is not
with reference to the provisions of s.47, the period of limitation in
s.48 clearly has no application – Since the application of the
appellant does not fall within the purview of s.47, the six month
limitation period prescribed in s.48 would not be
applicable – The
application filed by the appellant does not fall within the ambit of
ss.47, 52 and 52A – Appellant’s application for refund was titled
with reference to the provisions of s.47 – 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 – In the instant case, the stamp paper was
purchased bona fide, and the conduct of the appellant was not
unreasonable nor was there any intentional or wanton delay – As a
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general rule of law, the right to refund is a statutory creation – A
refund can be sought in terms envisaged by statute – The case of
the appellant is not specifically barred by any substantive provision
– In the case of an eventuality such as the instant case where the
facts of the case are not covered by the statute, the Supreme Court
u/Art.142 will have the power to condone delay – 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 – As a consequence, the appellant
is entitled to a refund of stamp duty which was paid at the time of
purchase of the e-stamp paper, conditional on the appellant returning
the e-stamp paper to the collector of stamps.
Allowing the appeal, the Court
HELD: 1. Section 48 of the Maharashtra Stamp Act, 1958
begins with the statement that the application for relief under
Section 47 shall be made within the periods which are indicated
in clauses (1), (2) and (3). In other words, the periods of limitation
which are prescribed in clauses (1), (2) and (3) are in respect of
those cases which are governed by Section 47. 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. [Paras 17 and 18][634-E-H; 635-A-B]
2. 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
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provision, cannot oust the citizen of an entitlement to refund
which otherwise follows in terms of a statutory provision.
[Para 28][640-B-C]
3. 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.
[Para 29][640-C-F]
4. 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. 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.
This Court is 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
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
MAHARASHTRA STATE, PUNE
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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.
[Para 31][641-C-F]
5. As a consequence, it is directed that the appellant would
be entitled to a refund of the stamp duty which was paid at the
time of the purchase of the e-stamp paper, conditional on the
appellant returning the e-stamp paper to the Collector of Stamps,
Mumbai. The refund shall be processed within a period of one
month of the delivery of the e-stamp paper to the Collector.
[Para 32][641-G; 642-A]
Committee-GFIL vs Libra Buildtech Private Limited and
Others (2015) 16 SCC 31: [2015] 11 SCR 420; AR
Anthulay v. RS Nayak, (1988) 2 SCC 602: [1988] 1
Suppl. SCR 1; Union Carbide Corporation v. Union of
India, (1991) 4 SCC 584: [1991] 1 Suppl. SCR 251;
Supreme Court Bar Association v. Union of India, (1998)
4 SCC 409: [1998] 2 SCR 795 – referred to.
Case Law Reference
[2015] 11 SCR 420
referred to
Para 10
[1988] 1 Suppl. SCR 1
referred to
Para 31
[1991] 1 Suppl. SCR 251
referred to
Para 31
[1998] 2 SCR 795
referred to
Para 31
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5970 of
2021.
From the Judgment and Order dated 22.11.2018 of the High Court
of Judicature at Bombay in Writ Petition No. 10088 of 2018
Varun Singh, Gaurav Nair, Ms. Pranati
Bhatnagar, Advs. for the
Appellant.
Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Advs.
for the Respondents.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. A citizen’s claim for the refund of stamp duty has found a
winding path to this court. The appellant booked a residential apartment.
There arose a dispute with the builder. It led to a consumer complaint.
The litigation consumed time. The appellant was permitted to opt for a
refund of the price. The claim for refund of stamp duty has been rejected
by the revenue arm of the state on the ground that more than six months
have elapsed. The Bombay High Court, agreeing with the decision found
the claim to be stale. A simple claim for refund leads us to the complexities
of a revenue sourcing law.
3. This appeal arises from a judgment dated 22 November 2018
of a Single Judge of the High Court of Judicature at Bombay. The Deputy
Inspector General of Registration and Deputy Controller of Stamps, Pune
rejected an application for refund of stamp duty filed by the appellant.
The order of the authority was challenged in the exercise of the jurisdiction
of the High Court under Article 226 of the Constitution. The petition has
been dismissed.
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 Commission1. During the pendency of
the complaint, an interim order dated 25 September 2014 restrained the
1 “NCDRC”
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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(1A) 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
appellant’s 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
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matter has accordingly travelled to this Court. Notice was issued on 18
January 2019.
8. Mr Varun Singh, counsel appearing on behalf of the appellant
submits that in order to appreciate the circumstances in which the
application for refund was filed, it is necessary to bear in mind the
following events:
(i)
The e-stamp paper was purchased on 16 August 2014;
(ii)
Following the dispute with the developer, the appellant moved
the NCDRC which initially granted an interim stay on the
creation of third party rights on 25 September 2014 and
eventually allowed the complaint on 6 May 2016; and
(iii)
The application for refund was moved on 16 July 2016.
9. In this backdrop, counsel for the appellant submitted that for
the following five reasons, the application for refund was instituted within
a reasonable period and cannot be held to be barred either on laches or
limitation:
(i)
The dispute in relation to the agreement with the developer
was pending adjudication before the NCDRC;
(ii)
The appellant had paid the stamp duty and purchased the
e-stamp paper bona fide in order to facilitate the completion
of the transaction pertaining to the residential flat;
(iii)
In order to demonstrate the readiness and willingness of
the appellant before the NCDRC, it was necessary for the
appellant to continue to retain the e-stamp paper pending
the disposal of the proceedings;
(iv)
The e-stamp paper, as a matter of fact, would have been
used if the adjudication by the NCDRC had
resulted in a
resolution of the dispute by removing some of the offending
provisions insisted by the developer; and
(v)
Following the order of the NCDRC, the appellant exercised
the option to seek a refund in terms of a judicial order of
the competent forum.
10. In this backdrop, counsel has relied on the provisions of Sections
47, 48 and 52A of the Maharashtra Stamp Act 1958. It has been submitted
that the provisions of Section 48(3) which prescribe a period of six months
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
MAHARASHTRA STATE, PUNE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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from the date of purchase of stamp for filing an application for refund,
would have no application where the case is not covered by the provisions
of Section 47. In such a situation, it was urged that Section 52A would
enure to the benefit of the appellant. In this context, counsel for the
appellant relied on a judgment of a two-Judge Bench of this Court in
Committee-GFIL vs Libra Buildtech Private Limited and Others. 2
11. Opposing the submissions of the appellant, Mr Rahul Chitnis,
Chief Standing Counsel for the State of Maharashtra has urged that:
(i)
The application filed by the appellant was specifically under
the provisions of Section 47 of the Maharashtra Stamp Act
1958;
(ii)
Once the appellant has conceded that the application was
filed with reference to Section 47, the period of limitation
prescribed in Section 48 would squarely stand attracted;
(iii)
As a matter of fact, the application for refund of stamp
duty would be relatable to the provisions of Section 47(a)
of the Act; and
(iv)
In these circumstances, the appellate authority was justified
in coming to the conclusion that the application for refund
was barred by limitation.
The rival submissions fall for our analysis.
12. Chapter 5 of the Maharashtra Stamp Act 1958 is titled
“allowances for stamps in certain cases”. Section 47 which deals with
“allowance for spoiled stamps” provides as follows:
“47. Allowance for spoiled stamps.- Subject to such rules
as
may be made by the State Government as to the evidence to be
required, or the inquiry to be made, the Collector may on
application, made within the period prescribed in section 48, and if
he is satisfied as to the facts, make allowance for impressed
stamps spoiled in the cases hereinafter mentioned, namely:
(a)
the stamp on any paper inadvertently and
undesignedly spoiled, obliterated or by error in writing
or any other means rendered unfit for the purpose
intended before any instrument written thereon is
executed by any person;
2 (2015) 16 SCC 31
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(b)
the stamp on any document which is written out wholly or
in part, but which is not signed or executed by any party
thereto;
(c)
the stamp used for an instrument executed by any party
thereto which-
(1) has been afterwards found by the party to be absolutely
void in law from the beginning;
(1A) has been afterwards found by the Court, to be absolutely
void from the beginning under section 31 of the Specific Relief
Act, 1963;
(2) has been afterwards found unfit by reason of any error or
mistake therein, for the purpose originally intended;
(3) by reason of the death of any person by whom it is necessary
that it should be executed, without having executed the same,
or of the refusal of any such person to execute the same, cannot
be completed so as to effect the intended transaction in the
form proposed;
(4) for want of the execution thereof by some material party,
and his inability or refusal to sign the same, is in fact incomplete
and insufficient for the purpose for which it was intended;
(5) by reason of the refusal of any person to act under the
same, or to advance any money intended to be thereby secured,
or by the refusal or non-acceptance of any office thereby
granted, totally fails of the intended purpose;
(6) becomes useless in consequence of the transaction intended
to be thereby effected by some other instrument between the
same parties and bearing a stamp of not less value;
(7) is deficient in value and the transaction intended to be thereby
effected had been effected by some other instrument between
the same parties and bearing a stamp of not less value;
(8) is inadvertently and undesignedly spoiled, and in lieu whereof
another instrument made between the same parties and for
the same purpose is executed and duly stamped:
Provided that, in the case of an executed instrument, except
that falling under sub-clause (lA), no legal proceeding has been
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
MAHARASHTRA STATE, PUNE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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commenced in which the instrument could or would have been
given or offered in evidence and that the instrument is given
up to be cancelled, or has been already given up to the Court
to be cancelled.
Explanation.- The certificate of the Collector under section 32
that the full duty with which an instrument is chargeable has been
paid is an impressed stamp within the meaning of this section.”
(emphasis supplied)
13. Section 47 is subject to the rules which are made by the State
government in regard to the evidence to be required or enquiry to be
made. The provision stipulates that the Collector may make allowance,
on an application seeking an allowance, for impressed stamps spoiled in
the cases which are set out in clauses (a) to (c). The opening words of
Section 47 also indicate that the application under Section 47 has to be
made within the period which is prescribed by Section 48. The prefatory
words of Section 47 advert to “impressed stamps spoiled in the cases”
which are contained in clauses (a) to (c). Clause (a) deals with a situation
where the stamp on any paper is inadvertently or undesignedly spoiled,
obliterated or rendered unfit for the purpose intended either by an error
in writing or by any other means before the instrument written on it is
executed by any person. The object of clause (a) is to ensure that an
allowance is made for impressed stamps which are spoiled inadvertently
or unintentionally or
where the stamp paper is rendered unfit for the
purpose for which it was intended. That is why the expressions which
have been used in clause (a) are spoiled, obliterated, or rendered unfit
for the purpose.
14. Section 47 covers three classes of cases within it: (i) spoiled;
(ii) obliterated; and (iii) unfit for the purpose by an error in writing or
‘any other means’. It is contended by the State that the case of the
appellant would fall within the purview of the third category since it was
rendered unfit for the purpose, i.e., the purpose of purchase of the
property. This submission thus places reliance on the expression ‘purpose’
used in the provision. The submission does not accord with a plain reading
of the provision. The expression “any other means” must be read in 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
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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.
16. Now it is in this backdrop that it becomes necessary to advert
to Section 48 of the Act. Section 48 provides as follows:
“48. Application for relief under section 47 when to be made. -
The application for relief under section 47 shall be made within
the following period, that is to say.-
(1) in the cases mentioned in clause (c) (5), within six months of
the date of the instruments:
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
MAHARASHTRA STATE, PUNE [DR. DHANANJAYA Y CHANDRACHUD, J.]
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Provided that where an Agreement to sell immovable property,
on which stamp duty is paid under Article 25 of the Schedule I, is
presented for registration under the provisions of the Registration
Act, 1908 and if the seller refuses to deliver possession of the
immovable property which is the subject matter of such agreement
the application may be made within two years of the date of the
instrument [or where such agreement is cancelled by a registered
cancellation deed on the grounds of, dispute regarding the premises
concerned, inadequate finance, financial dispute in terms of agreed
consideration, or afterwards found to be illegal construction or
suppression of any other material fact, the application may be
made within two years from the date of such registered cancellation
deed;
(2) in the case when for unavoidable circumstances any instrument
for which another instrument has been substituted cannot be given
up to be cancelled, the application may be made within six months
after the date of execution of the substituted instrument.
(3) in any other case, within six months from the date of purchase
of stamp.”
17. Section 48 begins with the statement that the application for
relief under Section 47 shall be made within the periods which are
indicated in clauses (1), (2) and (3). In other words, the periods of limitation
which are prescribed in clauses (1), (2) and (3) are in respect of those
cases which are governed
by Section 47. Clause (1) stipulates that for
cases governed by clause (c)(5), the period within which the application
has to be filed will be six months of the date of the instrument. Clause
(2) specifies that in case where for unavoidable circumstances, any
instrument for which another instrument has been substituted cannot be
given up to be cancelled, in such an event, the application may be made
within six months after the date of execution of the substituting instrument.
Clause (3) which is a residuary provision provides for a limitation of six
months from the date of the purchase of stamp.
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
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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 appellant’s claim.
20. Now it is important to refer to Section 52 of the Act which
provides as follows:
“52. Allowance for stamps not required for use: When any
person is possessed of a stamp or stamps which have not
been, spoiled or rendered unfit or useless for the purpose
intended, but for which he has no immediate use, the Collector
shall repay to such person the value of such stamp or stamps in
money, deducting [thereform such amount as may be prescribed
by rules made in this behalf by the State Government] upon such
person delivering up the same to be cancelled, and proving to the
Collector’s satisfaction,—
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
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(a) that such stamp or stamps were purchased by such person
with a bona fide intention to use them ; and
(b) that he has paid the full price thereof ; and
(c) that they were so purchased within the period of 1[six
months] next preceding the date on which they were so
delivered :
Provided that, where the person is a licensed vendor of stamp,
the Collector may, if he thinks fit, make the repayment of the sum
actually paid by the vendor without any such deduction as
aforesaid.”
(emphasis supplied)
Section 52 deals with provision of allowance in case of stamps
that are not required for use. There are two kinds of stamps that are not
required for use. The first is where the stamp is spoiled, as covered by
Section 47 of the Act. The second is where the stamp is not spoiled but
the stamp is not needed since the purchaser has no use of it. Section 52
specifically excludes the first of category since it is already covered by
Section 47. The provision only applies to the class in the second category.
Thus, Section 52 covers stamps that are not spoiled but which are of no
use to the applicant by the occurrence of any subsequent event that
renders the purpose of purchase of stamp void or nugatory. For the
application of Section 52A, the applicant must have purchased the stamp
on the payment of full price, with a bona fide intention to use it. However,
within six months from the purchase of the stamp, the purpose of the
purchase
has not been fulfilled. Such a situation can arise in multiple
circumstances. For example, a person may have obtained a stamp paper
for purchasing a building. However, before the agreement of sale could
be executed, the building turns to shambles after an earthquake hits the
area. In such a case, the stamp paper has no use. This may also cover a
case where the seller has taken back his consent to sell the property
after the purchase of the stamp paper. In such cases, the stamp purchased
will not have any use since the purpose for which it was purchased
could not materialize.
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.
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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.
23. It has been contended by the counsel for the appellant that the
case of the appellant falls within the purview of Section 52A of the Act.
Now, it becomes necessary to advert to the provisions of Section 52A
which provides as follows:
“52A. Allowance for duty.- (1) Notwithstanding anything
contained in sections 47, 50, 51 and 52, when payment of duty
is
made by stamps or in cash as provided for under sub-section (3)
of section 10 or section 10A or section 108, and when the amount
of duty paid exceeds rupees one lakh, the concerned Collector
shall not make allowance for the stamps, or the cash amount paid
under the Challans, which are spoilt or misused or not required
for use, but shall, after making necessary enquiries, forward the
application with his remarks thereon to,-
(a) the Additional Controller of stamps for the cases handled
by the Collectors working in the Mumbai City District and
Mumbai Suburban District; and
(b) the concerned Deputy Inspector General of Registration
and Deputy Controller of Stamps of the division for the cases
handled by the Collectors other than those mentioned in clause
(a).
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
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(2) The Additional Controller of Stamps or, the concerned Deputy
Inspector General of Registration and Deputy Controller of Stamps
of the division, as the case, may, be, on receiving such application
consider the same and decide whether such allowance shall be
given or not, and accordingly shall, grant the same, if the amount
of allowance does not exceed rupees ten lakh, and if, it exceeds
rupees ten lakh, shall submit such application, with his remarks
thereon to the Chief Controlling Revenue Authority for decision.
(3) The Chief Controlling Revenue Authority on receiving such
application shall decide on merit whether such allowance shall be
given or not, and pass such order thereon as he thinks just and
proper, which shall be final and shall not be questioned in any
court or before any authority.”
24. Section 52A is prefaced with a non obstante clause which
operates notwithstanding anything contained in Sections 47, 50, 51 and
52. Section 52A stipulates that when the amount of stamp duty paid
exceeds Rs 5 lakhs, the concerned Collector shall not make an allowance
for the stamps or the cash amount paid under the challans but shall after
making necessary enquiries forward the application with his remarks to
the Additional Collector of Stamps (for cases handled by the Collectors
working in the Mumbai City District and Mumbai Sub-Urban Districts)
and the concerned Deputy Inspector General of Registration and Deputy
Controlling of Stamps for cases in other regions.
25. In view of Section 52A(2) of the Act, the Additional Collector
of Stamps or the DIG as the case may be, on assessing the application
has to decide whether allowance should be given or not and shall grant
it if the amount of allowance does not exceed Rs 20 lakhs. If the amount
exceeds Rs 20 lakhs, the application has to be submitted to the Chief
Controlling Revenue Authority. The Chief Controlling Revenue Authority
on receiving the application is required to decide on merits whether or
not the allowance should be given. The provisions of Section 52A were
substituted with effect from 1 May 2006 by Maharashtra Act 12 of
2006. By an Amendment, the amount of Rs 5 lakhs which has been
specified in sub-Section (1) was enhanced from Rs 1 lakh by Maharashtra
Act 20 of 2015 with effect from 24 April 2015. Likewise in sub-Section
(2), the amount of Rs 20 lakhs stands enhanced from the earlier amount
of Rs 10 lakhs by the same amending provision.
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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 appellant’s 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. We
will now consider the validity of such an interpretation.
27. If Section 52A was enacted with the intent to override the
limitation prescribed by Sections 50, 51 and 52 then Section 48 ought to
have also been included specifically since Section 48 is the limitation
provision applicable to Section 47. Section 48 is not incorporated in the
non-obstante provision of section 52 A. This is hence intrinsic material
to indicate that the purpose of the non-obstante clause in Section 52A
was to override the jurisdiction of the adjudicating authority (i.e the
Collector) under Sections 47, 50, 51 and 52 to decide the claims for
allowances. Section 52A specifically divests the power of the Collector
to decide the claims of allowance falling within those
provisions and
vests the power to other authorities if the payment of stamp duty exceeds
Rupees five lakhs. In those cases, though the application is to be made
to the Collector, he will have no adjudicatory capacity. The Collector
must forward the application to the concerned authority as mentioned in
Section 52A along with remarks and such authority would have the power
to decide the claim. The interpretation that Section 52A only overrides
the authority of the Collector in adjudicating the case is evident since the
provision does not override Section 49 where the adjudicating officer is
the Chief Controlling Revenue Authority. In such a case, Section 52A
cannot be considered as a residual clause by applying it to classes of
cases that do not fall within the purview of any other provisions. A contrary
interpretation would create an artificial class based on economic capacity,
as cases where the stamp duty paid exceeds Rupees five lakhs will
alone be adjudicated without application of any limitation period as a
residual case, while cases falling within the same class but where stamp
duty paid is less than Rupees five lakhs cannot take recourse to the
provision. It is an established principle of interpretation that an
interpretation that furthers the constitutionality of a provision will have
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
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to be undertaken. An interpretation which leads to an invidious
discrimination must be eschewed. Thus, the intendment of Section 52A
was neither to cover the applications that are not brought under any of
the preceding substantive clauses nor to override the limitation clauses.
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
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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.3 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.
32. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the learned Single Judge of the Bombay
High Court dated 22 November 2018. As a consequence, we direct that
the appellant would be entitled to a refund of the stamp duty which was
paid at the time of the purchase of the e-stamp paper, conditional on the
3 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.
MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITY
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appellant returning the e-stamp paper to the Collector of Stamps, Mumbai.
The refund shall be processed within a period of one month of the delivery
of the e-stamp paper to the Collector. The appellant would be entitled to
interest at the rate of 6% per annum from 16 July 2016 until the date of
refund. In the circumstances of the case, there shall be no order as to
costs.
33. Pending applications, if any, stand disposed of.
Ankit Gyan
Appeal allowed.