Orissa High Court
Kallolini Jena vs The Principal Secretary To Government ... on 2 January, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 27353 of 2022
Kallolini Jena .... Petitioner
Mr. Gopal Prasad Jena, Advocate
-versus-
The Principal Secretary to Government .... Opp. Parties
Revenue & Disaster Management
Department and others
Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 02.01.2023 1. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this writ petition prays for a direction to set aside the order dated 19th November, 2022 (Annexure-5) passed by Collector, Dhenkanal in rejecting an application filed by her for refund of e-stamp duty amounting Rs.22,843/-.
3. Mr. Jena, learned counsel for the Petitioner submits that the Petitioner had purchased e-stamp worth Rs.22,843/- vide Certificate No.IN-OD01793242152537T on 10th March, 2021 for execution of a lease deed in favour of National Insurance Company Limited. Due to resurgence of COVID-19 and imposition of lock down, the deed could not be presented for registration. There were also certain other documents wanting, which could not be obtained due to lockdown. As the lease deed could not be registered the Petitioner filed applications on 22nd July, 2021 under Annexure-2 series for refund of the e- stamp duty. The said application was rejected by the Deputy Page 1 of 4 // 2 // Collector, Revenue, Dhenkanal and communicated to the Petitioner vide Memo No.207 dated 29th January, 2022 (Annexure-4). The Petitioner being aggrieved moved this Court in W.P.(C) No.7937 of 2022, which was disposed of on 25th July, 2022, as withdrawn with a liberty to file a fresh petition with better particulars. Accordingly, the Petitioner has filed this writ petition.
3.1 Mr. Jena, learned counsel for the Petitioner further submits that the case of the Petitioner is to be considered under Section 54 of the Indian Stamp Act, 1899 (for short, 'the Act') and not under Section 49-d(5) of the said Act, but the Collector, Dhenkanal relying upon the said provision, rejected her application with an observation that the application for refund of e-stamp duty was filed after lapse of two months from the date of purchase.
4. Mr. Mishra, learned ASC submits that admittedly the application for refund of e-stamp duty was made after lapse of two months. Hence, the same could not have been taken into consideration in view of Section 50 of the Act, which provides that such an application should have been filed within the aforesaid period. However, on a query of the Court, Mr. Mishra, learned ASC fairly concedes that the Collector, Dhenkanal has not taken into consideration the guidelines in Suo motu Writ Petition (C) No.3 of 2020 (In Re: Cognizance for Extension of limitation with Miscellaneous Application No.29 of 2022), wherein at para- 5(III) (IV), it is observed as under:-
Page 2 of 4// 3 // III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitationremaining, all persons shall have a limitation peri od of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings".
He also submits that while considering the application for refund of e-stamp duty, the Collector, Dhenkanal should have taken into consideration the ratio decided in the case of Committee-GFIL Vs. Libra Buildtech Private Limited and others, reported in (2015) 16 SCC 31 is relevant for discussion, which is reproduced hereunder:-
"30. Even apart from what we have held above, when we examine the case of the applicants in the light of Sections 49 and 50 of the Act, we find that the case of the applicants can be brought under Section 49 (d)(2) read with Section 50(3) of the Act to enable the State to entertain the application made by the applicants seeking refund of stamp duty amount. The interpretation, which advance the cause of justice and is based on the principle of equity, should be preferred. We hereby do so.
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32. In our considered opinion, even if we find that applications for claiming refund of stamp duty amount were rightly dismissed by the SDM on the ground of limitation prescribed under Section 50 of the Act yet keeping in view the settled principle of law that the expiry of period of limitation prescribed under any law may bar the remedy but not the right, the applicants are still held entitled to claim the refund of stamp duty amount on the basis of the grounds mentioned above. In other words, Page 3 of 4 // 4 // notwithstanding dismissal of the applications on the ground of limitation, we are of the view that the applicants are entitled to claim the refund of stamp duty amount from the State in the light of the grounds mentioned above."
5. In view of the rival contentions raised by learned counsel for the parties, this Court is of the considered opinion that Collector, Dhenkanal should consider the application for refund of the e-stamp duty afresh keeping in mind the ratio stated supra giving opportunity of hearing to the Petitioner.
6. It also appears that Annexure-5 is a note sheet and not an order passed by the Collector on the application made by the Petitioner dated 22nd July, 2021. The Collector, Dhenkanal only approved the note placed before him with regard to entitlement of the Petitioner to get refund of e-stamp duty. Hence, the impugned order under Annexure-5 is not sustainable and is accordingly set aside and the matter is remitted back to the Collector, Dhenkanal to consider the same afresh giving opportunity of hearing to the Petitioner and keeping in mind the ratio stated supra. The Collector, Dhenkanal shall act upon production of certified copy of this order.
7. With the observation and direction, as aforesaid, the writ petition is disposed of.
8. As requested, a copy of this order shall be made over to Mr. Mishra, learned ASC for communication and compliance.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4