Gujarat High Court
Krushnabhagwan Rajaram . Sharma vs State Of Gujarat & 2 on 18 February, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1989/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1989 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KRUSHNABHAGWAN RAJARAM . SHARMA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHAKTI S JADEJA, ADVOCATE for the Petitioner(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 18/02/2016
ORAL JUDGMENT
As per the case of the petitioner, in the years 2011 and 2012, he purchased and franked stamp papers for total value of Rs.3,12,400/- for the purpose of executing documents in respect of certain plots. The said stamp papers were not used. They were rendered spoiled because the intended documents could not be executed as no clear title was obtained from the Bank.
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It is the case of the petitioner that as the
transactions did not materialize, the petitioner
received back the unused stamps somewhere in August 2014. On 21.08.2014, the petitioner applied to the Deputy Collector for claiming allowance for the said spoiled stamps and therefore to get refund of the amount of stamp papers.
2. By order dated 14.11.2014, the respondent-Deputy Collector refused the prayer for granting allowance and the consequential refund of the amount on the ground that the petitioner had not presented the stamps within a period of six months as contemplated under Section 48 of the Bombay Stamp Act, 1958 (now, Gujarat Stamp Act, 1958). It is because of this order rejecting the request for allowance and refund in respect of the spoiled stamps that the petitioner felt aggrieved and filed the preset petition.
3. For appreciating the submissions of learned advocate Mr. S. P. Majmudar for the petitioner to assail the impugned order as erroneous in law, it would be necessary to consider the relevant provisions under the Act, Chapter V of the Act read with allowance for stamp in certain cases. Section 47 states that the application is to be made within a period prescribed under Section 48 and allowance towards unused stamp may be considered by the Collector in respect of cases enumerated therein.
4. Section 47 is usefully extracted herein below, "47. Allowance for stamps in certain cases Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Feb 28 03:56:03 IST 2016 C/SCA/1989/2016 JUDGMENT 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 undersignedly 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;
(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 to be absolutely void in law from the beginning;
(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 it 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;
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(8) is inadvertently and undersignedly 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, no legal proceeding has been 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.
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." 4.1 Section 48 provides for the period within which the application for relief under Section 47 can be made. The provision reads reads as under,
"48. The application for relief under section 47 shall be made within the following period, that is to say, -
(a) in the cases mentioned in sub-clause (5) of clause
(c), within six months from the date of execution of the instruments;
(b) in the case of an instrument substituted by another and not presented for cancellation, within six months from the date of execution of the substituting instrument;
(c) in all other cases, within six months from the date of purchase of impressed stamps."
4.2 The impressed stamp as defined under Section 2(k) of the Act includes (i) labels affixed and impressed by the proper officer; (ii) stamps embossed or engraved on stamped paper; (iii) impression by franking machine and (iv) receipted chalan or the certificates issued under e-stamping system or any other system as may be prescribed by rules.
5. In order that a party may get benefit for the allowance in respect of the spoiled stamps, the Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Feb 28 03:56:03 IST 2016 C/SCA/1989/2016 JUDGMENT aforesaid two provisions under Section 47 and Section 48 interacts and operates conjointly. Reading together, they bring out that for the purpose of availing relief of allowance under Section 47, an application has to be made within a period of six months as contemplated in respect of different cases as per sub-clauses (a) to (c). Sub clause (a) of Section 48 says that such application, when it is in respect of cases mentioned in sub-clause (5) of clause
(c) of Section 47, shall have to be made within six months from the date of execution of the instrument. A bare reading of said sub-clause (5) of clause (c) of Section 47 indicates that the said provision does not apply in the case of the petitioner. It refers to a situation where the document or instrument for which the stamp was used, had already been executed, but ultimately failed for the intended purpose for want of compliance of any condition or discharge of the obligation by any of the parties to the transaction in the document. As per sub-clause (b) of Section 48, the period of six months contemplated for the relief under Section 47 is in respect of an instrument substituted by another and not presented for cancellation. This is also not the case here.
5.1 It is sub-clause(c) of Section 48 which applies. In such case, the period for relief under Section 47 for the purpose of Section 47 shall be six months from the date of purchase of impressed stamp. Therefore, the application is required to be made for relief under Section 47 within a period of six months from the date of purchase of the stamps, then only the Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Feb 28 03:56:03 IST 2016 C/SCA/1989/2016 JUDGMENT benefit of allowance for the spoiled stamps could be considered by the authority.
5.2 On the admitted facts of the present case, that the petitioner had purchased the stamps in the years 2011 and 2012 which were spoiled and for seeking allowance for the said spoiled stamps, the petitioner did not apply within six months from the date of purchase. Out of the total amount of stamps as aforesaid, stamps of Rs.99,200/- were purchased and franked on 12.12.2011, whereas the stamps for amount of Rs.2,13,200/- were purchased and subjected to franking on 13.02.2012 and 14.02.2012 respectively. For whatsoever reason, not relevant for the present purpose, the transaction for which the stamps were purchased, did not materialize. Undisputedly, application under Section 47 for availing allowance for spoiled stamps was presented on 22.09.2014 which was admittedly beyond the period of six months from the date of purchase of the impressed stamp.
5.3 The Deputy Collector acted eminently just, proper and legal in rejecting the application of the petitioner. The impugned order only reflects that the requirement of the provisions of Section 48 was not complied with in case of the petitioner.
6. Learned advocate for the petitioner harped on the aspect that the petitioner got back the spoiled stamp papers only in the month of August, 2014. According to him immediately thereafter in September, 2014, the petitioner made an application under Section 47 Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Feb 28 03:56:03 IST 2016 C/SCA/1989/2016 JUDGMENT seeking refund for the spoiled stamps. His submission was that since the unused spoiled stamp papers were received by the petitioner in August, 2014 only, the cause of action for the petitioner to get relief under Section 47 could be said to have been arisen only at that point of time, namely when the stamps were received back. This submission is indeed not well conceived.
6.1 When the statutory provision prescribes a particular time-limit for doing or completing certain act or action, the concept of cause of action is irrelevant for the purpose of overcoming or seeking a justification for an act or action done beyond such period. In the present case, the application under Section 47 for allowance in respect of stamps in the cases mentioned is required to be made in terms of Section 48 which specifies a period of six months for making such application. Once the said period left and the petitioner failed to produce the spoiled stamps and did not present the same within six months period from the point of time indicated, he lost his entitlement to get any allowance for the spoiled stamps. Undisputedly, the six months period allowed for getting allowance for the spoiled stamps commenced from the date of purchase of the impressed stamps in view of Section 48(c). Admittedly the application of the petitioner was after expiry of six months reckoned from the date of purchase. It is not open to the petitioner to extend the period by submitting that cause of action for him arose only when he received the spoiled stamps, therefore from that date the Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Feb 28 03:56:03 IST 2016 C/SCA/1989/2016 JUDGMENT period should commence.
6.2 Putting differently, when the statute prescribes period of six months from the date of purchase of the impressed stamps, it is the date of purchase which the Legislature can be said to have equated with the cause of action. The cause of action is made to coincide with the said date, namely the date of purchase. The date of purchase is the point of accrual of cause of action. It is a point of cause of action envisaged in the statute itself. From the date of purchase of the stamps, the cause of action would start running and it would exhaust and expire to come to an end when the six months period gets over. Therefore the submission in respect of cause of action and the accrual thereof by the petitioner was meritless. His application beyond six months period, was rightly not accepted for allowance and refund for the spoiled stamps.
6.3 One more submission was made by learned advocate for the petitioner to assail the impugned order that the same was passed without giving any opportunity of hearing to the petitioner. This ground on the aspect of natural justice also did not have legs to stand. The principles of natural justice are not the rules of formality observance. When on admitted facts, the spoiled stamps were not presented within six months from the date of purchase which brought into play the limitation provided under Section 48 of the Act, rendering the request for allowance for such stamps to be unacceptable in law, it was a forgone conclusion. The petitioner cannot plead about breach of principles Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Feb 28 03:56:03 IST 2016 C/SCA/1989/2016 JUDGMENT of natural justice when a statutory provision prescribing limitation period of six months was not observed by the petitioner in presenting the spoiled stamps. Giving of opportunity to the petitioner would not have made any difference when the admitted facts applied to the statutory provision. The theory of empty formality would apply. Non-observance of principles of natural justice does not become a ground to come to rescue when such observance would have been a useless and futile exercise.
7. In view of above, the petition deserves to be dismissed and is summarily dismissed.
(N.V.ANJARIA, J.) chandrashekhar Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Feb 28 03:56:03 IST 2016