MR. RAJEEV NOHWAR versus CHIEF CONTROLLING REVENUE AUTHORITY MAHARASHTRA STATE, PUNE AND OTHERS on 24 September 2021

[2021] 10 S.C.R. 623

MR. RAJEEV NOHWAR

v.

CHIEF CONTROLLING REVENUE AUTHORITYMAHARASHTRA STATE, PUNE AND OTHERS

(Civil Appeal No. 5970 of 2021)

SEPTEMBER 24, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDB. V. NAGARATHNA, JJ.]

Maharashtra Stamp Act, 1958 – ss. 47, 48, 49, 50, 52, 52A,53(1A) – Stamp Duty – Refund of – The appellant booked aresidential flat – He purchased e-SBTR stamp paper for amount ofRs.8,44,500/- – Dispute arose with the builder – Appellant filedconsumer complaint before the National Consumer DisputesRedressal Commission (NCDRC) – Complaint was allowed – Thedeveloper refunded the entire consideration – Appellant claimedrefund of stamp duty – The said claim was rejected by the DeputyInspector of Registration on the ground that the application forrefund was not made within six months as mandated by s.48(3) of1958 Act – The High Court affirmed the view of the RevenueAuthorities that the application for refund was barred by limitation– On appeal, held: Revenue Authorities rejected the application onthe ground that the application was not filed within six months,treating the case to fall within the residuary provision in s.48 of theAct – What this view missed is, if the application for refund is notwith reference to the provisions of s.47, the period of limitation ins.48 clearly has no application – Since the application of theappellant does not fall within the purview of s.47, the six monthlimitation period prescribed in s.48 would not be applicable – Theapplication filed by the appellant does not fall within the ambit ofss.47, 52 and 52A – Appellant’s application for refund was titledwith reference to the provisions of s.47 – It is well settled that areference of a wrong statutory provision, cannot oust the citizen ofan entitlement to refund which otherwise follows in terms of astatutory provision – In the instant case, the stamp paper waspurchased bona fide, and the conduct of the appellant was notunreasonable nor was there any intentional or wanton delay – As a

A

B

CDEF

GH

Ageneral rule of law, the right to refund is a statutory creation – Arefund can be sought in terms envisaged by statute – The case ofthe appellant is not specifically barred by any substantive provision– In the case of an eventuality such as the instant case where thefacts of the case are not covered by the statute, the Supreme Courtu/Art.142 will have the power to condone delay – Since the delay inBfilling the application for refund in the instant case was due to theprolonged proceedings before the NCDRC, the application cannotbe rejected on the ground of delay – As a consequence, the appellantis entitled to a refund of stamp duty which was paid at the time ofpurchase of the e-stamp paper, conditional on the appellant returningCthe e-stamp paper to the collector of stamps.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1. Section 48 of the Maharashtra Stamp Act, 1958begins with the statement that the application for relief underSection 47 shall be made within the periods which are indicatedDin clauses (1), (2) and (3). In other words, the periods of limitationwhich are prescribed in clauses (1), (2) and (3) are in respect ofthose cases which are governed by Section 47. The revenueauthorities rejected the application filed by the appellant on theground that the application was not filed within six months fromEthe date of the purchase of the stamp paper, treating the case tofall within the residuary provision in Section 48 of the Act. Thisview has been accepted by the Single Judge of the Bombay HighCourt. What this view misses is that Section 48 in its entiretyapplies only to those cases where the application for relief isgoverned by Section 47. If the application for refund is not withFreference to the provisions of Section 47, the period of limitationin Section 48 clearly has no application. Since the application ofthe appellant does not fall within the purview of any of the clausesin Section 47, the 6 month limitation period prescribed in Section48 would not be applicable to the application for allowance filedGby the appellant. [Paras 17 and 18][634-E-H; 635-A-B]

2. The application filed by the appellant did not fall withinthe ambit of Sections 47, 52 and 52A. It is true that the applicationfor refund was titled with reference to the provisions of Section47. But, it is well settled that a reference of a wrong statutory H

MR. RAJEEV NOHWAR v. CHIEF CONTROLLING REVENUE AUTHORITYMAHARASHTRA STATE, PUNE

provision, cannot oust the citizen of an entitlement to refundwhich otherwise follows in terms of a statutory provision.[Para 28][640-B-C]

3. In the present case, the stamp paper was purchased bonafide in view of the agreement to sell which was to be executed bythe appellant with the developer. There was a dispute with thedeveloper which led to the institution of the proceedings beforethe NCDRC. There was nothing untoward in the conduct of theappellant and certainly no unreasonable delay on the part of theappellant in awaiting the outcome of the proceedings. TheNCDRC allowed the complaint giving the option to the appellantof either going ahead with the agreement along with an award ofcompensation or, in the alternative, to seek a refund with interest.The appellant having exercised the latter option applied withintwo months from the order of the NCDRC for the grant of refund.The conduct of the appellant, therefore, cannot be held to beunreasonable nor was there any intentional or wanton delay onthe 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 statutorycreation. A refund can be sought in terms envisaged by statute.As discussed above, the case of the appellant is not specificallybarred by any substantive provision. It is an established principlethat this Court while exercising its power under Article 142 ofConstitution must not ignore and override statutory provisionsbut must rather take note of the express statutory provisionsand exercise its discretion with caution. Therefore, if a statuteprescribes a limitation period, this Court must be slow to interferewith the delay under Article 142. However, in the case of aneventuality such as the instant case where the facts of the caseare not covered by the statute, this Court under Article 142 willhave the power to do complete justice by condoning the delay.This Court is of the view that since the delay in filling theapplication for refund in the instant case was due to the prolongedproceedings before the NCDRC, the application cannot berejected on the ground of delay. A litigant has no control over AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Ajudicial delays. A rejection of the application for refund wouldviolate equity, justice and fairness where the applicant is made tosuffer the brunt of judicial delay. Therefore, this is a fit case forthe exercise of the power under Article 142 of the Constitution.[Para 31][641-C-F]

B5. As a consequence, it is directed that the appellant wouldbe entitled to a refund of the stamp duty which was paid at thetime of the purchase of the e-stamp paper, conditional on theappellant returning the e-stamp paper to the Collector of Stamps,Mumbai. The refund shall be processed within a period of onemonth of the delivery of the e-stamp paper to the Collector.C[Para 32][641-G; 642-A]

Committee-GFIL vs Libra Buildtech Private Limited andOthers (2015) 16 SCC 31: [2015] 11 SCR 420; ARAnthulay v. RS Nayak, (1988) 2 SCC 602: [1988] 1Suppl. SCR 1; Union Carbide Corporation v. Union ofDIndia, (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.

FCIVIL APPELLATE JURISDICTION: Civil Appeal No.5970 of2021.

From the Judgment and Order dated 22.11.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 10088 of 2018

Varun Singh, Gaurav Nair, Ms. Pranati Bhatnagar, Advs. for theGAppellant.

Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Advs.for the Respondents.

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 awinding 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 arefund of the price. The claim for refund of stamp duty has been rejectedby the revenue arm of the state on the ground that more than six monthshave elapsed. The Bombay High Court, agreeing with the decision foundthe claim to be stale. A simple claim for refund leads us to the complexitiesof a revenue sourcing law.

3. This appeal arises from a judgment dated 22 November 2018of a Single Judge of the High Court of Judicature at Bombay. The DeputyInspector General of Registration and Deputy Controller of Stamps, Punerejected an application for refund of stamp duty filed by the appellant.The order of the authority was challenged in the exercise of the jurisdictionof the High Court under Article 226 of the Constitution. The petition hasbeen dismissed.

4. On 24 April 2014, the appellant booked a residential flat, beingUnit No 2001 admeasuring 1660 sq ft in Tower No 24 of a constructionproject called Lodha Belmondo in Pune for a consideration of Rs1,68,88,095. The appellant initially paid an amount of Rs 33,91,795 byJuly 2014 representing 19.9% of the agreed sale consideration, followingwhich a confirmatory email was issued. This was followed by a letter ofallotment dated 15 July 2014. On 14 August 2014, the appellant paid anamount of Rs 1,58,28,221 out of the agreed consideration. In order tofacilitate the execution of a conveyance, the appellant purchased an e-SBTR stamp paper through a government challan bearing MTR GRNNo MH0023603832014155 for a total amount of Rs 8,44,500 from theIDBI bank, Aundh, Pune for the execution of the agreement to sell.

5. Disputes arose between the appellant and the developer whichled to the appellant instituting a consumer complaint before the NationalConsumer Disputes Redressal Commission[1]. During the pendency ofthe complaint, an interim order dated 25 September 2014 restrained the 1 “NCDRC”

A

BC

D

EF

G

H

Adeveloper from creating third party interests in the flat. Eventually by anorder dated 6 May 2016, the complaint was allowed. The appellant wasgiven the option to either execute the agreement with the developer, inwhich event the developer would pay compensation in the amount of Rs10 lakhs, or in the alternative, if the appellant was not willing to executean agreement, the developer was directed to refund the entireBconsideration together with interest at the rate of 12% per annum fromthe date of receipt of each installment until the date of refund along withcompensation of Rs.10,00,000. The appellant exercised the option ofseeking a refund of consideration together with interest.

6. The developer issued a cheque on 11 July 2016 for the refundCof the consideration in terms of the order of the NCDRC. The appellantthereupon applied on 16 July 2016 for refund of the stamp duty of Rs8,44,500 to the Collector of Stamps. By a communication dated 5 August2016, the Collector of Stamps forwarded the file to the Deputy InspectorGeneral of Registration with a recommendation that the refund shouldDbe denied on the ground that the appellant had not applied for refundwithin six months. By an order dated 27 September 2016, the DeputyInspector General of Registration rejected the application for refund ofstamp duty on the ground that the application for refund was not madewithin six months as mandated by Section 48(3) of the MaharashtraStamp Act 1958. The appellant filed an appeal before the Chief ControllingERevenue Authority under Section 53(1A) of the Maharashtra StampAct 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 writpetition under Article 226 of the Constitution challenging the orders dated27 September 2016 and 2 April 2018 and for seeking an order directingFthe refund of the stamp duty paid.

7. The High Court by its judgment dated 22 November 2018dismissed the petition, affirming the view of the revenue authorities thatthe application for refund was barred by limitation, not having beenpreferred within a period of six months from the date of the purchase ofGthe e-stamp. The High Court rejected the argument that the six monthlimitation period under Section 48(3) would not be applicable since theappellant’s case falls under Section 52A of the Act. It was observed thatSections 47, 48, 52 and 52A of the Act will have to be interpretedharmoniously, and an application under Section 52A will also have to bemade within six months from the date of purchase of the stamps. TheH

629A

matter has accordingly travelled to this Court. Notice was issued on 18January 2019.

8. Mr Varun Singh, counsel appearing on behalf of the appellantsubmits that in order to appreciate the circumstances in which theapplication for refund was filed, it is necessary to bear in mind thefollowing events:

B

(i) The e-stamp paper was purchased on 16 August 2014;

(ii) Following the dispute with the developer, the appellant movedthe NCDRC which initially granted an interim stay on thecreation of third party rights on 25 September 2014 andCeventually 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 forthe following five reasons, the application for refund was instituted withina reasonable period and cannot be held to be barred either on laches orlimitation:

D

(i) The dispute in relation to the agreement with the developerwas pending adjudication before the NCDRC;

(ii) The appellant had paid the stamp duty and purchased thee-stamp paper bona fide in order to facilitate the completionEof the transaction pertaining to the residential flat;

(iii) In order to demonstrate the readiness and willingness ofthe appellant before the NCDRC, it was necessary for theappellant to continue to retain the e-stamp paper pendingthe disposal of the proceedings; F

(iv) The e-stamp paper, as a matter of fact, would have beenused if the adjudication by the NCDRC had resulted in aresolution of the dispute by removing some of the offendingprovisions insisted by the developer; and G

(v) Following the order of the NCDRC, the appellant exercisedthe option to seek a refund in terms of a judicial order ofthe competent forum.

10. In this backdrop, counsel has relied on the provisions of Sections47, 48 and 52A of the Maharashtra Stamp Act 1958. It has been submittedthat the provisions of Section 48(3) which prescribe a period of six months H

Afrom the date of purchase of stamp for filing an application for refund,would have no application where the case is not covered by the provisionsof Section 47. In such a situation, it was urged that Section 52A wouldenure to the benefit of the appellant. In this context, counsel for theappellant relied on a judgment of a two-Judge Bench of this Court inCommittee-GFIL vs Libra Buildtech Private Limited and Others. [2]B11. 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 underthe provisions of Section 47 of the Maharashtra Stamp Act1958; C

(ii) Once the appellant has conceded that the application wasfiled with reference to Section 47, the period of limitationprescribed in Section 48 would squarely stand attracted;

(iii) As a matter of fact, the application for refund of stampDduty would be relatable to the provisions of Section 47(a)of the Act; and

(iv) In these circumstances, the appellate authority was justifiedin coming to the conclusion that the application for refundwas barred by limitation.

EThe 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 asFmay be made by the State Government as to the evidence to berequired, or the inquiry to be made, the Collector may onapplication, made within the period prescribed in section 48, and ifhe is satisfied as to the facts, make allowance for impressedstamps spoiled in the cases hereinafter mentioned, namely:

G(a)the stamp on any paper inadvertently andundesignedly spoiled, obliterated or by error in writingor any other means rendered unfit for the purposeintended before any instrument written thereon isexecuted by any person; H2 (2015) 16 SCC 31

(b) the stamp on any document which is written out wholly orin part, but which is not signed or executed by any partythereto;

(c) the stamp used for an instrument executed by any partythereto which-

(1) has been afterwards found by the party to be absolutelyvoid in law from the beginning; (1A) has been afterwards found by the Court, to be absolutelyvoid from the beginning under section 31 of the Specific ReliefAct, 1963;

(2) has been afterwards found unfit by reason of any error ormistake therein, for the purpose originally intended;

(3) by reason of the death of any person by whom it is necessarythat it should be executed, without having executed the same,or of the refusal of any such person to execute the same, cannotbe completed so as to effect the intended transaction in theform proposed;

(4) for want of the execution thereof by some material party,and his inability or refusal to sign the same, is in fact incompleteand insufficient for the purpose for which it was intended;

(5) by reason of the refusal of any person to act under thesame, or to advance any money intended to be thereby secured,or by the refusal or non-acceptance of any office therebygranted, totally fails of the intended purpose;

(6) becomes useless in consequence of the transaction intendedto be thereby effected by some other instrument between thesame parties and bearing a stamp of not less value;

(7) is deficient in value and the transaction intended to be therebyeffected had been effected by some other instrument betweenthe same parties and bearing a stamp of not less value;

(8) is inadvertently and undesignedly spoiled, and in lieu whereofanother instrument made between the same parties and forthe same purpose is executed and duly stamped:

Provided that, in the case of an executed instrument, exceptthat falling under sub-clause (lA), no legal proceeding has been A

B

C

D

E

F

G

H

Acommenced in which the instrument could or would have beengiven or offered in evidence and that the instrument is givenup to be cancelled, or has been already given up to the Courtto be cancelled.

Explanation.- The certificate of the Collector under section 32Bthat the full duty with which an instrument is chargeable has beenpaid 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 Stategovernment in regard to the evidence to be required or enquiry to beCmade. The provision stipulates that the Collector may make allowance,on an application seeking an allowance, for impressed stamps spoiled inthe cases which are set out in clauses (a) to (c). The opening words ofSection 47 also indicate that the application under Section 47 has to bemade within the period which is prescribed by Section 48. The prefatoryDwords of Section 47 advert to “impressed stamps spoiled in the cases”which are contained in clauses (a) to (c). Clause (a) deals with a situationwhere the stamp on any paper is inadvertently or undesignedly spoiled,obliterated or rendered unfit for the purpose intended either by an errorin writing or by any other means before the instrument written on it isexecuted by any person. The object of clause (a) is to ensure that anEallowance is made for impressed stamps which are spoiled inadvertentlyor unintentionally or where the stamp paper is rendered unfit for thepurpose for which it was intended. That is why the expressions whichhave been used in clause (a) are spoiled, obliterated, or rendered unfitfor the purpose.F

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 theappellant would fall within the purview of the third category since it wasrendered unfit for the purpose, i.e., the purpose of purchase of theGproperty. This submission thus places reliance on the expression ‘purpose’used in the provision. The submission does not accord with a plain readingof the provision. The expression “any other means” must be read in thecontext of the words which immediately precede it, namely, “error inwriting”. The expression “by any other means” would indicate that thelegislature intended to refer to defacement of a stamp paper in any mannerHanalogous to an error in writing the instrument on the stamp paper. “Any other means” refers to any other modality by which the stamp paper isrendered unfit for the purpose for which it was purchased. Moreover,the prefatory words in Section 47 state that the collector must be satisfiedthat the stamp is ‘spoiled’. Clauses (a) to (c) lay down the cases that arecovered within the ambit of the expression ‘spoiled stamps’. Theemphasis 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 itis not needed subsequent to the purchase will not fall within the purviewof Section 47. Only those cases where the stamp is unfit for the purposeby an error in writing or any other means would be covered by theprovision. It is not the case of the appellant that the stamp paper hasbeen spoiled or obliterated or rendered unfit for the purpose for which itwas required. In the present case, it is common ground that the stamppaper is not spoiled but the purpose for which the stamp was purchasedhas become redundant in view of the judgment of the NCDRC. Therefore,there would be no occasion to apply the provisions of clause (a) of Section47.

15. Clause (c) of Section 47 begins with the expression “stampused for an instrument executed by any party thereto” and is followedby eight sub clauses. In other words, clause (c) of Section 47 appliesonly where a stamp paper has been used for an instrument which hasbeen executed by one of the parties to the instrument. That is why, forinstance sub clause (2) refers to the instrument being subsequently foundunfit either by reason of an error or mistake for the purpose for which itwas originally intended. Sub clause (4) adverts to a situation where theinstrument has not been executed by a material party and by his inabilityor refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended. Clause (c) of Section 47 hasno application to the facts of the present case since it is common groundthat the stamp was not used for an instrument already executed by anyparty thereto.

16. Now it is in this backdrop that it becomes necessary to advertto 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 withinthe following period, that is to say.-

(1) in the cases mentioned in clause (c) (5), within six months ofthe date of the instruments:

ABC

D

E

F

G

H

AProvided that where an Agreement to sell immovable property,on which stamp duty is paid under Article 25 of the Schedule I, ispresented for registration under the provisions of the RegistrationAct, 1908 and if the seller refuses to deliver possession of theimmovable property which is the subject matter of such agreementthe application may be made within two years of the date of theBinstrument [or where such agreement is cancelled by a registeredcancellation deed on the grounds of, dispute regarding the premisesconcerned, inadequate finance, financial dispute in terms of agreedconsideration, or afterwards found to be illegal construction orsuppression of any other material fact, the application may beCmade within two years from the date of such registered cancellationdeed; A

(2) in the case when for unavoidable circumstances any instrumentfor which another instrument has been substituted cannot be givenup to be cancelled, the application may be made within six monthsDafter the date of execution of the substituted instrument.

(3) in any other case, within six months from the date of purchaseof stamp.”

17. Section 48 begins with the statement that the application forrelief under Section 47 shall be made within the periods which areEindicated in clauses (1), (2) and (3). In other words, the periods of limitationwhich are prescribed in clauses (1), (2) and (3) are in respect of thosecases which are governed by Section 47. Clause (1) stipulates that forcases governed by clause (c)(5), the period within which the applicationhas to be filed will be six months of the date of the instrument. ClauseF(2) specifies that in case where for unavoidable circumstances, anyinstrument for which another instrument has been substituted cannot begiven up to be cancelled, in such an event, the application may be madewithin six months after the date of execution of the substituting instrument.Clause (3) which is a residuary provision provides for a limitation of sixmonths from the date of the purchase of stamp.G

18. The revenue authorities rejected the application filed by theappellant on the ground that the application was not filed within six monthsfrom the date of the purchase of the stamp paper, treating the case tofall within the residuary provision in Section 48 of the Act. This view hasbeen accepted by the Single Judge of the Bombay High Court. WhatHthis 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 theapplication for refund is not with reference to the provisions of Section47, the period of limitation in Section 48 clearly has no application. Sincethe application of the appellant does not fall within the purview of any ofthe clauses in Section 47, the 6 month limitation period prescribed inSection 48 would not be applicable to the application for allowance filedby the appellant.

19. Having observed that the application of the appellant forallowance is not covered by the Section 47, it is imperative to determineif it falls within the purview of any other provisions of the Act. Section49 provides that allowance can be made without any limit of time forstamp papers that are used as printed forms of instruments by any bankeror 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. Section50 states that allowance for misused stamps can be made. The provisionbrings within the purview of the term ‘misused stamps’, the stamps ofgreater value than required or stamps of description other than thatprescribed by any rules or stamps that are useless since the instrumentis written in contravention of the provisions or where a stamp has beenused when the instrument is not charged with stamp duty. Section 50only covers those cases where inadvertent mistakes are made in thestamp paper. Therefore, the case of the appellant is not covered bySection 50 since there is no mistake in the e-stamp, be it with regard tothe value or description. Section 51 lays down the procedure for seekingallowance for cases that fall under Section 47, 49 and 50 and is thus ofno application to the appellant’s claim.

20. Now it is important to refer to Section 52 of the Act whichprovides as follows:

“52. Allowance for stamps not required for use: When anyperson is possessed of a stamp or stamps which have notbeen, spoiled or rendered unfit or useless for the purposeintended, but for which he has no immediate use, the Collectorshall repay to such person the value of such stamp or stamps inmoney, deducting [thereform such amount as may be prescribedby rules made in this behalf by the State Government] upon suchperson delivering up the same to be cancelled, and proving to theCollector’s satisfaction,—

AB

CD

E

FG

H

636SUPREME COURT REPORTS

A(a) that such stamp or stamps were purchased by such personwith 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[sixmonths] next preceding the date on which they were soBdelivered :

Provided that, where the person is a licensed vendor of stamp,the Collector may, if he thinks fit, make the repayment of the sumactually paid by the vendor without any such deduction asaforesaid.”

(emphasis supplied)

C

Section 52 deals with provision of allowance in case of stampsthat are not required for use. There are two kinds of stamps that are notrequired for use. The first is where the stamp is spoiled, as covered bySection 47 of the Act. The second is where the stamp is not spoiled butDthe stamp is not needed since the purchaser has no use of it. Section 52specifically excludes the first of category since it is already covered bySection 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 nouse to the applicant by the occurrence of any subsequent event thatrenders the purpose of purchase of stamp void or nugatory. For theEapplication of Section 52A, the applicant must have purchased the stampon 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 thepurchase has not been fulfilled. Such a situation can arise in multiplecircumstances. For example, a person may have obtained a stamp paperFfor purchasing a building. However, before the agreement of sale couldbe executed, the building turns to shambles after an earthquake hits thearea. In such a case, the stamp paper has no use. This may also cover acase where the seller has taken back his consent to sell the propertyafter the purchase of the stamp paper. In such cases, the stamp purchasedwill not have any use since the purpose for which it was purchasedGcould not materialize.

21. It could be argued that the use of the words, “for which hehas no immediate use” in Section 52 would only covers cases where thepurpose for the purchase of the stamp is still valid but the execution ofthe purpose if delayed and not ‘immediate’. Such an interpretation,Hhowever, is erroneous in view of the holistic reading of the provision.

The use of the phrase ‘immediate’ must be read in the context of thelimitation period prescribed by the provision. Since a six month limitationperiod has been imposed in Section 52 for the cases that fall within itspurview, the use of the phrase ‘no immediate use’ should be interpretedto mean either the permanent abandonment of the purpose or a delay(of more than six months from the purchase of the stamp) in the executionof the purpose.

22. However, Section 52 would only apply to those cases wherethe applicant had knowledge that the stamp purchased was not berequired for use within six months from the date of purchase. The provisioncannot be arbitrarily applied to cases where the purchaser of the stamphad no knowledge that the stamp would not be required for use withinsix months from the purchase of the stamp. In the instant case, theappellant had no knowledge of the fact that the stamp was not neededwithin six months from the purchase of it. He was in a bona fide contestover his rights with the builder. Therefore, the case of the appellantwould not fall under Section 52 of the Act as well.

23. It has been contended by the counsel for the appellant that thecase of the appellant falls within the purview of Section 52A of the Act.Now, it becomes necessary to advert to the provisions of Section 52Awhich provides as follows:

“52A. Allowance for duty.- (1) Notwithstanding anythingcontained in sections 47, 50, 51 and 52, when payment of duty ismade by stamps or in cash as provided for under sub-section (3)of section 10 or section 10A or section 108, and when the amountof duty paid exceeds rupees one lakh, the concerned Collectorshall not make allowance for the stamps, or the cash amount paidunder the Challans, which are spoilt or misused or not requiredfor use, but shall, after making necessary enquiries, forward theapplication with his remarks thereon to,- (a) the Additional Controller of stamps for the cases handledby the Collectors working in the Mumbai City District andMumbai Suburban District; and (b) the concerned Deputy Inspector General of Registrationand Deputy Controller of Stamps of the division for the caseshandled by the Collectors other than those mentioned in clause(a).

A

B

C

D

E

F

G

H

A(2) The Additional Controller of Stamps or, the concerned DeputyInspector General of Registration and Deputy Controller of Stampsof the division, as the case, may, be, on receiving such applicationconsider the same and decide whether such allowance shall begiven or not, and accordingly shall, grant the same, if the amountof allowance does not exceed rupees ten lakh, and if, it exceedsBrupees ten lakh, shall submit such application, with his remarksthereon to the Chief Controlling Revenue Authority for decision.

A

(3) The Chief Controlling Revenue Authority on receiving suchapplication shall decide on merit whether such allowance shall begiven or not, and pass such order thereon as he thinks just andCproper, which shall be final and shall not be questioned in anycourt or before any authority.”

24. Section 52A is prefaced with a non obstante clause whichoperates notwithstanding anything contained in Sections 47, 50, 51 and52. Section 52A stipulates that when the amount of stamp duty paidDexceeds Rs 5 lakhs, the concerned Collector shall not make an allowancefor the stamps or the cash amount paid under the challans but shall aftermaking necessary enquiries forward the application with his remarks tothe Additional Collector of Stamps (for cases handled by the Collectorsworking in the Mumbai City District and Mumbai Sub-Urban Districts)Eand the concerned Deputy Inspector General of Registration and DeputyControlling of Stamps for cases in other regions.

25. In view of Section 52A(2) of the Act, the Additional Collectorof Stamps or the DIG as the case may be, on assessing the applicationhas to decide whether allowance should be given or not and shall grantFit if the amount of allowance does not exceed Rs 20 lakhs. If the amountexceeds Rs 20 lakhs, the application has to be submitted to the ChiefControlling Revenue Authority. The Chief Controlling Revenue Authorityon receiving the application is required to decide on merits whether ornot the allowance should be given. The provisions of Section 52A weresubstituted with effect from 1 May 2006 by Maharashtra Act 12 ofG2006. By an Amendment, the amount of Rs 5 lakhs which has beenspecified in sub-Section (1) was enhanced from Rs 1 lakh by MaharashtraAct 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 amountof Rs 10 lakhs by the same amending provision.H

26 .The provisions of Section 52A as noticed above have overridingforce and effect, inter alia, on the provisions of Sections 47, 50, 51 and52. It is pertinent to note that the non obstante clause does not apply toSections 48 and 49 of the Act. While Section 48 is a limitation clauseapplicable to cases that are covered by Section 47, Section 49 applies toa Corporation where no limitation period has been prescribed. Section52A can be applied to the appellant’s case only if the provision isinterpreted to override the limitation period laid down in the precedingprovisions and if it is regarded as a residual substantive provision thatwould cover all cases that are not covered by any of the provisions. Wewill now consider the validity of such an interpretation.

27. If Section 52A was enacted with the intent to override thelimitation prescribed by Sections 50, 51 and 52 then Section 48 ought tohave also been included specifically since Section 48 is the limitationprovision applicable to Section 47. Section 48 is not incorporated in thenon-obstante provision of section 52 A. This is hence intrinsic materialto indicate that the purpose of the non-obstante clause in Section 52Awas to override the jurisdiction of the adjudicating authority (i.e theCollector) under Sections 47, 50, 51 and 52 to decide the claims forallowances. Section 52A specifically divests the power of the Collectorto decide the claims of allowance falling within those provisions andvests the power to other authorities if the payment of stamp duty exceedsRupees five lakhs. In those cases, though the application is to be madeto the Collector, he will have no adjudicatory capacity. The Collectormust forward the application to the concerned authority as mentioned inSection 52A along with remarks and such authority would have the powerto decide the claim. The interpretation that Section 52A only overridesthe authority of the Collector in adjudicating the case is evident since theprovision does not override Section 49 where the adjudicating officer isthe Chief Controlling Revenue Authority. In such a case, Section 52Acannot be considered as a residual clause by applying it to classes ofcases that do not fall within the purview of any other provisions. A contraryinterpretation would create an artificial class based on economic capacity,as cases where the stamp duty paid exceeds Rupees five lakhs willalone be adjudicated without application of any limitation period as aresidual case, while cases falling within the same class but where stampduty paid is less than Rupees five lakhs cannot take recourse to theprovision. It is an established principle of interpretation that aninterpretation that furthers the constitutionality of a provision will have A

B

C

D

E

F

G

H

Ato be undertaken. An interpretation which leads to an invidiousdiscrimination must be eschewed. Thus, the intendment of Section 52Awas neither to cover the applications that are not brought under any ofthe preceding substantive clauses nor to override the limitation clauses.

28. Evidently, and for the reasons that we have indicated above,Bthe application filed by the appellant did not fall within the ambit of Sections47, 52 and 52A. It is true that the application for refund was titled withreference to the provisions of Section 47. But, it is well settled that areference of a wrong statutory provision, cannot oust the citizen of anentitlement to refund which otherwise follows in terms of a statutoryprovision.C

29. In the present case, the stamp paper was purchased bonafide in view of the agreement to sell which was to be executed by theappellant with the developer. There was a dispute with the developerwhich led to the institution of the proceedings before the NCDRC. Therewas nothing untoward in the conduct of the appellant and certainly noDunreasonable delay on the part of the appellant in awaiting the outcomeof the proceedings. The NCDRC allowed the complaint giving the optionto the appellant of either going ahead with the agreement along with anaward of compensation or, in the alternative, to seek a refund with interest.The appellant having exercised the latter option applied within two monthsEfrom the order of the NCDRC for the grant of refund. The conduct ofthe appellant, therefore, cannot be held to be unreasonable nor was thereany intentional or wanton delay on the part of the appellant in applyingfor a refund of stamp duty. Such an application must be filed within areasonable period.F30. In Committee-GFIL (supra), a two-judge Bench of this Courtwas dealing with the issue of limitation prescribed in the Indian StampAct 1899. In this case, an auction sale of immovable properties was heldby a committee constituted by this Court. Successful bidders depositedwith the committee, the entire sale consideration along with the stampduty. However, the transaction failed due to reasons beyond the controlGof the parties. The Court cancelled the transaction and directed thecommittee to refund the sale consideration with interest and permittedthe purchasers to approach the State Government for refund of the stampduty. The applications of the auction-purchasers seeking refund of stampduty was rejected on the ground that the applications were time-barred.HAn 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 forreasons beyond the control of the auction-purchasers. No act of theCourt should prejudice a person; (ii) in view of the principle of restitutionembodied in Section 65 of the Contract Act, any advantage received bya person under a void contract or a contract that becomes void is boundto be restored; and (iii) in light of equity and justice, the six monthslimitation period prescribed in Section 50 of the Indian Stamp Act 1899must be read to mean six months from the date of the order of thisCourt.

31. We are conscious of the fact that as a general rule of law, theright to refund is a statutory creation. A refund can be sought in termsenvisaged by statute. As discussed above, the case of the appellant isnot specifically barred by any substantive provision. It is an establishedprinciple that this Court while exercising its power under Article 142 ofConstitution must not ignore and override statutory provisions but mustrather take note of the express statutory provisions and exercise itsdiscretion with caution.[3] Therefore, if a statute prescribes a limitationperiod, this Court must be slow to interfere with the delay under Article142. However, in the case of an eventuality such as the instant casewhere the facts of the case are not covered by the statute, this Courtunder Article 142 will have the power to do complete justice by condoningthe delay. We are of the view that since the delay in filling the applicationfor refund in the instant case was due to the prolonged proceedingsbefore the NCDRC, the application cannot be rejected on the ground ofdelay. A litigant has no control over judicial delays. A rejection of theapplication for refund would violate equity, justice and fairness wherethe applicant is made to suffer the brunt of judicial delay. Therefore, thisis a fit case for the exercise of the power under Article 142 of theConstitution.

32. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the learned Single Judge of the BombayHigh Court dated 22 November 2018. As a consequence, we direct thatthe appellant would be entitled to a refund of the stamp duty which waspaid 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. Unionof India, (1991) 4 SCC 584; Supreme Court Bar Association v. Union of India, (1998)4 SCC 409.

AB

C

D

E

F

G

H

Aappellant returning the e-stamp paper to the Collector of Stamps, Mumbai.The refund shall be processed within a period of one month of the deliveryof the e-stamp paper to the Collector. The appellant would be entitled tointerest at the rate of 6% per annum from 16 July 2016 until the date ofrefund. In the circumstances of the case, there shall be no order as tocosts.B

33. Pending applications, if any, stand disposed of.

Ankit Gyan

Appeal allowed.

C

D

E

F

G

H