Orissa High Court
Kamrun Bibi vs State Of Odisha And Others .... Opp. ... on 22 February, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 4024 OF 2023
Kamrun Bibi .... Petitioner
Mr. S.K. Pattnaik, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 22.02.2023
1. 1. This matter is taken up through hybrid mode.
2. This writ petition has been filed with a prayer to set aside the order dated 17th September, 2022 (Annexure-5) passed by the Collector-cum-District Magistrate, Cuttack, whereby a prayer to refund of e-Stamp duty, has been rejected.
3. Mr. Pattnaik, learned counsel submits that the Petitioner approached the Opposite Party Nos.5 and 6 for purchase of property in Plot No.870 to an extent of Ac.0.0264 decimals under Khata No.674 situated at Cuttack Sahar, Unit-16, Kathagada Sahi under Cuttack Tahasil in the district of Cuttack (for short 'the case land'). The Opposite Party Nos.5 and 6 are the legal heirs of the recorded tenant in respect of the case land. On negotiation, total consideration amount for the said transaction was fixed at Rs.6,50,000/-. The Petitioner was requested by the Opposite Party Nos.5 and 6 to prepare the proposed sale deed for its execution and registration. Accordingly, the Petitioner purchased e-Stamp amount to the tune of Rs.67,550/-vide Certificate No.IN-OD02628471630663T Page 1 of 5 // 2 // dated 8th October, 2021 and issued in her favour by the Stock Holding Corporation of India Limited-Opposite Party No.4. Although the Opposite Party No.5 signed the document, but the Opposite Party No.6 did not turn up to sign and execute the sale deed to be presented for registration. Thus, the sale deed could not be presented for registration. Accordingly, the Petitioner filed an application for refund of e-Stamp duty on 28th April, 2022, which was rejected. Hence, this writ petition has been filed.
4. Mr. Mishra, learned Additional Standing Counsel submits that Annexure-5 is a certified copy of the note sheet. No detailed order of the Collector-cum-District Magistrate has been filed in this writ petition to test its veracity. He, however, submits that in view of the observation of this Court in W.P.(C) No.27353 of 2022, disposed of on 2nd January, 2023 (Kallolini Jena -v- Principal Secretary to Government, Revenue and Disaster Management Department and others), the case of the Petitioner may be considered. It is his submission that the view taken in the case of Committee-GFIL -v- Libra Buildtech Private Limited and others, reported in (2015) 16 SCC 31, has already been followed in the case of Mr. Rajeev Nohwar -v- Chief Controlling Revenue Authority Maharashtra State, Pune and others, reported in 2021 SCC OnLine SC 863, wherein the Hon'ble Supreme Court held at paragraph-32 as under:
"32. 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 Page 2 of 5 // 3 // with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds : (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction- purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court."
He, therefore, submits that the case of the Petitioner may be reconsidered in the light of the observation made in the aforesaid case law.
A matter involving similar issue came up for consideration before this Court in Kallolini Jena (supra), wherein this Court discussing the guidelines in Suo Motu Writ Petition (C) No.3 of 2020 (Re: Cognizance for Extension of limitation), Committee-GFIL (supra) directed as under:
"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.
Page 3 of 5// 4 //
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."
In Committee-GFIL (supra), it is held as under:
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.
xx xx xx
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, 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."Page 4 of 5
// 5 //
5. Taking into consideration the submissions made by learned counsel for the parties and in view of the observation of this Court in the cases of Committee-GFIL (supra), Cognizance for Extension of limitation (supra) and Kallolini Jena (supra) this Court holds that the case of the Petitioner should be reconsidered.
6. Accordingly, this writ petition is disposed of with a direction to the Collector-cum-District Magistrate, Cuttack- Opposite Party No.2 to consider the case of the Petitioner afresh keeping in mind the aforesaid case laws as expeditiously as possible preferably within a period of one month from the date of production of certified copy of this order and communicate the result thereof to the Petitioner forthwith.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge bks Page 5 of 5