State Of U.P. Through Principal ... vs M/S S.J.P. Infracon Limited And ...
2021 Latest Caselaw 6653 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
AFR
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 27 of 2021
 

 
Appellant :- State Of U.P. Through Principal Secretary
 
Respondent :- M/S S.J.P. Infracon Limited And Another
 
Counsel for Appellant :- Sanjay Goswami
 
Counsel for Respondent :- Shreya Gupta
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rajiv Joshi,J.

(Delivered by Hon'ble Manoj Misra, J.)

1. This intra court appeal arises from a judgment and order of a Single Judge, dated 01.12.2020, in Writ-C No.17744 of 2020, allowing the writ petition of the first respondent.

FACTS GIVING RISE TO THE APPEAL

2. A brief narration of the facts giving rise to this appeal would be apposite to have a clear understanding of the issues involved in this appeal. These facts are as below:

2(i) The first respondent, namely, the writ petitioner, being a company engaged in the business of developing and marketing of housing projects including plots etc., was allotted a parcel of land, measuring 198135.62 square meter, by the second respondent (the Greater Noida Industrial Development Authority - GNIDA), vide allotment letter dated 30.08.2010. Pursuant thereto, an instrument of lease, dated 15.11.2010, was executed and registered on 16.11.2010 where under plot of land, bearing No.GH-05 in Sector 16-B, Greater Noida, measuring 198135.62 square meter, was leased out to the first respondent for a period of 90 years by GNIDA at a premium of Rs.228,94,57,090 (Two Hundred Twenty Eight Crore Ninety Four Lac Fifty Seven Thousand Ninety only), with yearly rent @ 1% of the premium, for first 10 years, enhanceable by 50% after every 10 years. On the instrument of lease, stamp duty amounting to Rs.12,70,64,900/- (Twelve Crores Seventy Lakh Sixty Four Thousand Nine Hundred Only) was paid by the first respondent. Later, on 26.07.2011, GNIDA issued letter, followed by another letter dated 29.07.2011, requiring the first respondent to surrender possession of an area of 71833.62 square meter of the leased land on the ground that the acquisition of that portion of land, made in favour of GNIDA, was quashed by the High Court vide order dated 12.05.2011 which was upheld by the Apex Court vide order dated 06.07.2011. As a result, the first respondent had to surrender possession of 71833.62 square meter of land and, in witness whereof, a deed of correction, dated 07.02.2013, was executed whereunder the demised area (viz. 198135.62 square meter) was reduced by 71833.62 square meter to 126302 square meter.

2(ii) On reduction of the demised area, the first respondent, who had borne the stamp duty, made a representation to the Principal Secretary, Stamp and Revenue, State of U.P., Lucknow (for short the Principal Secretary) for refund of that amount of the stamp duty which related to the area that the first respondent had to surrender. This representation was made by invoking the provisions of Section 49(d) (1) (2) and (5) of the Indian Stamp Act, 1899 (for short the Stamp Act).

2(iii) When a decision on the said representation was not taken, Writ-C No.3183 of 2018 was filed by the first respondent seeking a direction upon the State authorities to decide the representation. This petition was disposed off, vide order dated 24.01.2018, requiring the Principal Secretary to examine the matter and take a decision in accordance with law within a specified period. But, before the first respondent could serve the order of this Court dated 24.01.2018 (supra), vide letter dated 08.02.2018 the first respondent was intimated that by order dated 14.08.2017 its claim for refund has already been rejected.

2(iv) Aggrieved with the order dated 14.08.2017, as communicated by letter dated 08.02.2018, the first respondent, placing reliance on a judgment of the Apex Court in the case of The Committee GFIL Vs. Libra Buildtech Private Limited and others, (2015) 16 SCC 31, filed Writ-C No.16639 of 2018. On this petition, the writ court took the view that a fresh consideration was required in the light of the decision of the Apex Court in Libra Buildtech case (supra). Accordingly, vide order dated 28.05.2018, Writ-C No.16639 of 2018 was allowed and a direction was issued to the Joint Secretary, Government of U.P., Lucknow to decide the matter afresh.

2(v) Pursuant to the order of the writ court, dated 28.05.2018 (supra), a fresh representation was submitted by the first respondent before the Joint Secretary, Stamp & Registration, Anubhag-2, Government of U.P., Lucknow (for short Joint Secretary) on 09.08.2018. Upon receipt of which, the Joint Secretary (supra), by order dated 28.02.2019, after noticing that the area of land leased out to the first respondent got reduced on account of decision of the High Court, took the view that the first respondent is entitled to refund of the excess stamp duty paid by it. Accordingly, he directed refund of the stamp duty to the extent it was paid for lease of the land which the first respondent had to surrender consequent to loss of title of its lessor (GNIDA). This refund was, however, subject to deduction of 10% of the amount refundable. But before this order of the Joint Secretary could be implemented, on 28.05.2019 the Principal Secretary passed another order thereby holding that the principle of law laid down by the Apex Court in Libra Buildtech case (supra) would not be applicable to sustain a claim against the State and since the claim for refund was not within the purview of allowances admissible in respect of spoiled stamps, the State cannot be fastened with liability to refund the stamp duty though it was open for the first respondent to make a claim against GNIDA.

2(vi) Acting on the order dated 28.05.2019, the first respondent made a representation to GNIDA for refund. But before any decision could be taken thereon, the first respondent filed Writ-C No.17744 of 2020 before a Single Judge Bench of this Court. The learned Single Judge, vide impugned judgment and order dated 01.12.2020, allowed the writ petition, quashed the order dated 28.05.2019, imposed cost of Rs.25,000/- on the State, and directed the State to comply with its earlier order dated 28.02.2019. Aggrieved therewith, this intra-court appeal has been filed by the State.

3. We have heard Sri Sanjay Goswami, Additional Chief Standing Counsel, for the appellant; and Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Ravi Anand Agrawal, for the first respondent.

4. Before we proceed to notice the submissions made before us by the learned counsel for the parties, it would be useful to notice the reasoning of the learned Single Judge in the impugned judgment. From a perusal of the impugned judgment it appears that before the learned Single Judge, on behalf of the State (appellant herein), it was argued: that allowance for spoiled stamps is admissible only if a case falls within the purview of the provisions of Chapter V of the Stamp Act; that the provisions of Chapter V, in particular Section 49 (d) (1) and (2) of the Stamp Act, on which the writ petitioner (the first respondent herein) based his claim, were not applicable on the facts of the case as the original lease deed was neither absolutely void from the beginning nor was unfit for the purpose originally intended, as it remained operable, albeit, for a reduced area of 126302 square meter; and that, even otherwise, the allowances are subject to the Stamp Rules where under it is required that the spoiled stamps be presented for endorsement, whereas, here, the impressed stamp of the instrument of lease was neither submitted nor could be submitted for endorsement, because the lease continued to operate, though for reduced area. The learned Single Judge took the view that once the acquisition proceeding to the extent of 71833.62 square meter of land leased out to the first respondent stood quashed under a judicial order, the instrument of lease to that extent was rendered void and, therefore, a case for refund of stamp duty to that extent was made out. The learned Single Judge also took the view that as the State Government, through its Joint Secretary, had already taken a decision to refund, vide order dated 28.02.2019, in compliance of the direction issued by this Court dated 28.05.2018, there was no scope for a review at the level of the Principal Secretary of the State. Otherwise also, it was the State that had collected the stamp duty hence no liberty could have been given to the writ petitioner to make a claim against GNIDA. Consequently, the learned Single Judge allowed the writ petition, quashed the order dated 28.05.2019 and issued a direction upon the State Government to implement its earlier order dated 28.02.2019 within a specified period.

SUBMISSIONS ON BEHALF OF THE APPELLANT (STATE OF UP)

5. Sri Sanjay Goswami, appearing on behalf of the State (appellant), submitted that the Stamp Act is a taxing statute. Being a taxing statute, equitable considerations are relegated to the background. What is to be considered is whether the stamp duty imposed on the instrument is valid. If so, whether, under the provisions of the Stamp Act, there could be a refund of stamp duty to the first respondent. According to him, by Section 3 of the Stamp Act stamp duty is chargeable on the instrument at the rate specified in the Schedule. In the State of Uttar Pradesh, vide section 3 (aa) of the Stamp Act, on an instrument of lease, stamp duty chargeable is as specified in Article 35 of Schedule 1-B. Article 35 (b) of Schedule I-B of the Stamp Act becomes applicable where the lease is granted for a fine or premium or for money advanced and where no rent is reserved; and Article 35 (c) of Schedule I-B becomes applicable where the lease is granted for a fine or premium or for money advanced in addition to rent reserved. On instruments contemplated under Article 35 (b) or Article 35 (c) of Schedule 1-B, the stamp duty is payable as on a deed of conveyance under Article 23 (a) of Schedule 1-B either on the premium set forth in the lease or on the market value of the subject of the lease. The original lease instrument dated 15.11.2010 between GNIDA and the first respondent specified the premium as Rs.228,94,57,090/- and stamp duty was paid accordingly. The rectification deed dated 07.02.2013 between GNIDA and the first respondent though reduces the area leased out from 198135.62 square meter to 126302 square meter but does not amend the premium set forth in the original lease instrument. Thus, no excess stamp duty has been paid. Otherwise also, there is no challenge by the writ petitioner (first respondent herein) as to the correctness of the stamp duty charged on the instrument of lease dated 15.11.2010 or the deed of rectification dated 07.02.2013. Under these circumstances, the claim for refund of excess stamp duty paid is misconceived. In so far as the claim for allowances in respect of alleged spoiled stamps is concerned, the same is not maintainable because the provisions relating to such allowances are not attracted. According to him, the provisions of Section 49 (d) (1) & (2) of the Stamp Act are not applicable as the instrument of lease is not completely void from the beginning nor it has been rendered unfit for the purpose originally intended as the demise made by it continues to operate albeit for a reduced area. He submitted that the Apex Court's judgment in Libra Buildtech case (supra) is not applicable on the facts of this case as that was a case where the instrument chargeable to stamp duty was executed under orders of the court and it was cancelled by order of the court. Thus, there the instrument was rendered unfit for the purpose originally intended. Whereas here the instrument of lease remains operable. He submitted that even if it is assumed that the Principal Secretary had no power to review, the earlier order passed by the Joint Secretary was ex facie illegal and, therefore, the writ court ought not to have issued a direction to enforce the order which had no sanctity in law. He, thus, prayed that the judgment and order of the learned Single Judge being not legally sustainable be set aside. In the alternative, it was urged by him that if the petitioner had suffered any loss on account of the conduct of GNIDA it could proceed against it, as per law, but claim for refund against the State is not sustainable.

6. In support of his submissions, Sri Goswami cited following authorities:

(i) (2009) 13 SCC 301 : S N Mathur Vs. Board of Revenue and others -- In this decision, the apex court with respect to the scheme of the Stamp Act observed as follows: (a) that the object of the Stamp Act is generation of revenue, it is therefore a fiscal enactment and has to be interpreted accordingly; (b) that stamp duty is levied with reference to the instrument and not in regard to the transaction, unless otherwise specifically provided in the Act; (c) that stamp duty is determined with reference to the substance of the transaction as embodied in the instrument and not with reference to the title, caption or nomenclature of the instrument; (d) that for classification of an instrument, that is to determine whether an instrument comes within a particular description in an article in the Schedule to the Act, the instrument should be read and construed as whole; (e) where an instrument falls under two or more descriptions in the Schedule to the Act, instrument shall be chargeable with only one duty, that is the highest of the duties applicable to different description. But where an instrument relates to several distinct matters, it shall be chargeable with the aggregate amount of duties to which separate instruments would be chargeable.

(ii) AIR 1959 Allahabad 583 (SB): Mohd. Mustafa Ali Khan Vs. Raj Rajeshwari Devi -- In this decision, a Special Bench of this Court, comprising three judges, inter alia, reiterated the legal principle that the stamp duty payable upon an instrument must be determined by referring to the terms of the instrument, and that the Court is not entitled to take into consideration evidence de hors the instrument itself.

(iii) AIR 1961 Supreme Court 1047, Commissioner of Sales Tax, U.P. Vs. Modi Sugar Mills Limited. -- In this case a Constitution Bench of the Apex Court, comprising five judges, inter alia, held that: in interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.

(iv) (2011) 7 SCC 493 : ITC LTD. Vs. State of U.P. and others. -- In this case, the Apex Court upon finding that NOIDA had charged less towards premium for lease, to save the demise, even after execution and registration of the lease instrument, gave opportunity to the allottee (lessee) to make good the deficiency within a specified period. In the alternative, it was directed that if the allottee was not interested in retaining the lease by making good the deficient amount, it was entitled to receive back the money already paid by it, including stamp duty paid on the instrument of lease, from NOIDA. This decision has been cited to demonstrate that the court had not fastened liability on the State, but on NOIDA, to refund the stamp duty.

SUBMISSIONS ON BEHALF OF THE FIRST RESPONDENT (WRIT PETITIONER)

7. Per contra, Sri Shashi Nandan, learned senior counsel appearing for the first respondent, submitted that the case of the first respondent for refund of the excess stamp duty charged is squarely covered by the provisions of Section 49 (d) (1) (2) & (5) of the Stamp Act, inasmuch as, (a) the stamped lease instrument to the extent of the excess area was void thereby entitling allowance under sub-clause (1) of clause (d) of section 49 of the Stamp Act; (b) the lease instrument was rendered unfit for the purpose originally intended as the acquisition of a portion of the demised land failed thereby entitling allowance under sub-clause (2) of clause (d) of section 49 of the Stamp Act; and (c) the lessor refused to act under the original lease instrument to the extent of the area demised therein, therefore sub-clause (5) of clause (d) of section 49 of the Stamp Act also applies. To explain the aforesaid contentions, he submitted that originally the intention of the instrument was to grant lease of land measuring 198135.62 square meter whereas the instrument remained operable for 126302 square meter only thus it failed to serve the purpose originally intended. Moreover, the premium charged for the originally demised area was rateably reduced by a separate letter, dated 17.04.2012, issued by GNIDA amending the payment plan to make it in consonance with the reduced area. He submitted that the total premium payable for the lease, originally, was Rs.228,94,57,090 but, later, on the reduced area of 126302 square meter, as per letter dated 17.04.2012, the premium payable was Rs. 145,94,19,610. Thus, the stamp duty charged on the original premium, as mentioned in the original lease instrument, was refundable to the extent the premium got reduced. Sri Shashi Nandan submitted that, no doubt, stamp duty, though, is chargeable on an instrument but the provisions of Section 49 (d) are to provide allowances for spoiled stamps so that there is no unjust enrichment, or retention of stamp duty paid, if, after the charging event, on account of certain events, the instrument is found void or unfit or could not be acted upon. The purpose of these allowances is to ensure that there is no unjust enrichment of the State at the cost of the hapless taxpayer and, therefore, keeping in mind the spirit of Article 265 of the Constitution of India, a wider interpretation is to be accorded to these beneficial provisions as held in the case of Libra Buildtech (Supra). The Joint Secretary therefore rightly directed refund of the amount whereas the Principal Secretary without jurisdiction passed a contrary order. Thus, under any circumstances, the order impugned in the writ petition was without jurisdiction and was rightly set aside by the learned Single Judge. He therefore prayed that the appeal be dismissed.

ISSUES THAT ARISE FOR OUR CONSIDERATION

8. Upon examination of the facts and the submissions made by the learned counsel for the parties, following issues arise for our consideration:

(i) Whether the writ petitioner (first respondent herein) paid stamp duty in excess than what was payable on the lease instrument dated 15.11.2010 as corrected by instrument dated 07.02.2013? If so, its effect?

(ii) Whether, on account of subsequent decision of the High Court annulling acquisition of land constituting part of the leased area, the writ petitioner was entitled to the allowances for spoiled stamps or refund of part of the stamp duty in view of the provisions of Section 49 (d) (1) or Section 49 (d) (2) or Section 49 (d) (5) of the Stamp Act?

(iii) Whether the writ petitioner is entitled to refund of any part of the stamp duty on equitable principles such as principle of restitution or doctrine of unjust enrichment?

(iv) Whether the order of the Principal Secretary dated 28.05.2019 is void? If so, its effect?

(v) Whether the order of Joint Secretary was contrary to law and, therefore, no direction ought to have been issued by the learned Single Judge for its enforcement?

(vi) Whether the writ petitioner, if not entitled to relief against the State Government, on the facts of the case, could seek refund of the excess stamp duty paid from GNIDA in writ jurisdiction?

ANALYSIS

9. Before we dwell on the issues framed by us, it would be apposite to examine the nature of the Stamp Act and the rules of interpretation that would apply to have a clear understanding of its provisions. With regard to the nature of the Stamp Act, there is no shadow of doubt that it is a fiscal / taxing statute framed under Entry 44 of List III (Concurrent List) of the Seventh Schedule of the Constitution of India {vide S.N. Mathur versus Board of Revenue & others, (supra)}. Stamp Duty is nothing but a form of tax, the object of which is to generate revenue. In Government of Andhra Pradesh & Others versus P. Laxmi Devi (Smt)., (2008) 4 SCC 720, the Apex Court in paragraph 19 of its judgment observed: "It is well settled that stamp duty is a tax, and hardship is not relevant in construing taxing statutes which are to be construed strictly. As often said, there is no equity in a tax vide CIT v. V.M R P Firm Muar , AIR 1965 SC 1216. If the words used in a taxing statute are clear, one cannot try to find out the intention and the object of the statute. Hence, the High Court fell in error in trying to go by the supposed object and intendment of the Stamp Act, and by seeking to find out the hardship which will be caused to a party by the impugned amendment of 1998."

10. When a statute levies a tax it does so by inserting a charging section by which liability is created or fixed and then proceeds to provide the machinery to make liability effective. It, therefore, provides the machinery for assessment of the liability already fixed by the charging section, and then provides the mode for the recovery and collection of tax, including penal provisions meant to deal with defaulters. The components which enter into the concept of a tax are: (1) the character of the imposition known by its nature which prescribes the taxable event attracting the levy; (2) a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax; (3) the rate at which the tax is imposed; ((4) the measure or value to which the rate will be applied for computing the tax liability (vide Govind Saran Ganga Saran V. CST, 1985 Supp SCC 205, para 6). In the context of the Stamp Act (vide charging Section 3), the taxable event is the execution of an instrument specified in the Schedules. Stamp duty is levied with reference to the instrument and not the transaction, unless otherwise specifically provided. The stamp duty is levied at the rate specified in the Schedules and the person who is liable to pay the stamp duty is specified in Section 29 of the Stamp Act.

11. As to how provisions of a taxing statute are to be construed, there is a plethora of authorities. To avoid burdening this judgment by referring to several of them, it would be apposite to refer to a recent Constitution Bench decision of the Apex Court. In Commissioner of Customs (Import), Mumbai versus Dilip Kumar & Co., (2018) 9 SCC 1, a Constitution Bench of the Apex Court in paragraph 29 of its judgment observed as under:

"... it is well settled that in a taxing statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation of a taxing statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. Furthermore, nothing has to be read into nor should anything be implied other than essential inferences while considering a taxation statute."

In paragraph 53 of the judgment, after taking a conspectus of the various authorities, the Apex Court held as under:

"...........we would be more than justified to conclude and also compelled to hold that every taxing statute including charging, computation and exemption clause (at the threshold stage) should be interpreted strictly. Further, in case of ambiguity in charging provisions, the benefit must necessarily go in favour of subject/ asessee, but the same is not true for an exemption notification wherein the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State."

In paragraphs 58, 59 and 60 of the judgment, the Apex Court by taking note of earlier decisions clarified the position by observing that if a subject falls within the exemption clause, after employing the strict rule of interpretation, Court may thereafter construe it liberally. The relevant observations are contained in paragraphs 59 and 60 of the judgment extracted below:

"59.....The question whether a subject falls in the notification or in the exemption clause, has to be strictly construed. When once the ambiguity or doubt is resolved by interpreting the applicability of the exemption clause strictly, the Court may construe the notification by giving full play bestowing wider and liberal construction. The ratio of Parle Exports case {CCE v. Parle Exports (P) Ltd.(1989) 1 SCC 345} deduced as follows:

(Wood Papers case {Union of India V. Wood Papers Ltd., (1990) 4 SCC 256, p. 262, para 6}

"6. ......Do not extend or widen the ambit at stage of applicability. But once that hurdle is crossed, construe it liberally"

60. We do not find any strong and compelling reasons to differ, taking a contra view, from this. We respectfully record our concurrence to this view which has been subsequently, elaborated by the Constitution Bench in Hari Chand case {CCE V. Hari Chand Sri Gopal, (2011) 1 SCC 236}."

12. From the law noticed above, the legal position that emerges is as follows: (i) Stamp Act is a taxing statute; (ii) in construing taxing statutes equity and hardship are not relevant, one has to strictly look at the words/ language used and there is no room for searching intendment or of drawing any presumption while construing the provisions of a taxing statute; (iii) in case of ambiguity in charging provisions, the benefit must necessarily go in favour of subject / assessee, but in case of ambiguity in an exemption provision, the benefit of ambiguity must be strictly interpreted in favour of the Revenue/ State. However, if, by a strict construction of the exemption clause, the ambiguity is resolved and the subject falls within the exemption clause then to give full play to the exemption clause a liberal construction may be made.

ISSUE No.(i)

13. Now we take up the issue whether the writ petitioner paid stamp duty in excess to what was payable on the lease instrument. Before we proceed to examine the relevant clauses of the instrument, it would be relevant to have a look at the charging provision. Section 3 of the Stamp Act is the charging section. In the State of Uttar Pradesh (for short U.P.), an instrument of lease is subject to stamp duty as provided in Article 35 of Schedule I-B of the Stamp Act. Clause (c) of Article 35 of Schedule I-B of the Stamp Act, as applicable in the State of Uttar Pradesh, is to be applied for determining the stamp duty payable on an instrument of lease where the lease is granted for a fine or premium or for money advanced in addition to rent reserved. The instrument of lease executed by GNIDA in favour of the writ petitioner (first respondent herein) is of that nature and, therefore, stamp duty payable thereon is to be determined as per the provisions set out in Article 35 (c) of Schedule I-B. Article 35(c) of Schedule I-B of the Stamp Act is extracted below:-

(c) Where the lease is granted for a fine or premium or for money advanced in addition to rent reserved -

(i) where the lease purports to be for a term not exceeding thirty years.

The same duty as a Conveyance [no. 23 clause (a)] for a consideration equal to the amount or value of such fine or premium or advance as set forth in the lease, in addition to the duty which would have been payable on such lease, if no fine or premium or advance had been paid or delivered.

Provided that in a case when an agreement to lease is stamped with the ad valorem stamp required for lease, and a lease in pursuance of such agreement is subsequently executed, the duty on such lease shall not exceed fifty rupees.

(ii) where the lease purports to be for term exceeding thirty years.

The same duty as a Conveyance No. 23 clause (a) for a consideration equal to market value of the property which is the subject of the lease.

For easy reference, the provisions of Article 23(a) of Schedule I-B is also extracted below:-

23. Conveyance [as defined by Section 2(10) not being a Transfer charged or exempted under No.62 -

(a) if relating to immovable property where the amount or value of the consideration of such conveyance as set forth therein or the market value of the immovable property which is the subject of such conveyance, whichever is greater does not exceed Rs. 500.

Sixty rupees.

Where it exceeds Rs. 500 but does not exceed Rs. 1,000.

One hundred and twenty-five rupees.

and for every Rs. 1,000 or part thereof in excess of Rs. 1,000.

One hundred and twenty-five rupees.

Provided that the duty payable shall be rounded off to the next multiple of ten rupees.

It may be observed that in the extracted provision it is possible that there might have been some statutory amendments with regard to the rate but that is not relevant for the controversy in issue.

14. The subject lease instrument dated 15.11.2010, which is on record as Annexure 2 to the writ petition, reflects that the lease was granted for a premium in addition to the rent reserved.

The relevant clause in the lease instrument in respect of the premium payable is extracted below:

"That total premium of 198135.62 square meter is Rs.228,94,57,090.00 (Rs. Two Hundred Twenty Eight Crore Ninety Four Lac Fifty Seven Thousand Ninety Only) out of which approx. Rs. 22,93,6,140.00 (Rupees Twenty Two Crore Ninety Three Lac Sixteen Thousand One Hundred Forty Only) which have been paid by the Lessee to the Lessor (the receipt whereof the Lessor doth hereby acknowledge). There shall be moratorium of 24 months from the date of allotment and only the interest @ 12% per annum compounded half yearly, accrued during the moratorium period, shall be payable in equal half yearly instalments. After expiry of moratorium period, the balance approx 90% premium i.e. Rs.206,01,40,950 (Rupees Two Hundred Six Crore One Lac Forty Thousand Nine Hundred Fifty Only) of the plot along with interest will be paid in 16 half yearly instalments in the following manner:-

....... (omitted as not relevant for the purposes of this case)

In case of default in depositing the instalments or any payment, interest @ 15% compounded half yearly shall be leviable for defaulted period on the defaulted amount.

All payment should be made through a demand draft / pay order drawn in favour of Greater Noida Industrial Development Authority and payable at any Scheduled Bank located in New Delhi/ Greater Noida. The Lessee should clearly indicate his name and details of plots applied for/ allotted on the reverse of the demand draft/ pay order.

Premium referred to in this document means total amount payable to the Lessor for the allotted plot.

All payments should be remitted by due date. In case the due date is a bank holiday then the lessee should ensure remittance on the previous working day.

The payment made by the lessee will first be adjusted towards the interest due, if any, and thereafter the balance will be adjusted towards the premium due and the lease rent payable.

In case of allotment of additional land, the payment of the premium of the additional land shall be made in lump sum within 30 days from the date of communication of the additional land.

The amount deposited by the lessee will first be adjusted against the interest and thereafter against allotment money, instalment and lease rent respectively. No request of the Lessee contrary to this will be entertained.

In addition to the premium payable, the rent and other charges payable as per lease instrument are extracted below:

"AND THE LESSEE DOTH HEREBY DECLARE AND COVENANTS WITH THE LESSOR IN THE MANNER FOLLOWING:

a) Yielding and paying therefore yearly in advance during the said term unto the Lessor yearly lease rent indicated below:-

(i) Lessee has paid Rs.2,28,94,571 as annual lease rent being 1% of the plot premium for the first 10 years of lease period.

(ii) The lease rent may be enhanced by 50% after every 10 years i.e. 1.5 times of the prevailing lease rent.

(iii) The lease rent shall be payable in advance every year. First such payment shall fall due on the date of execution of lease deed and thereafter, every year, on or before the last date of previous financial year.

(iv) Delay in payment of the advance lease rent will be subject to interest @ 15% per annum compounded half yearly on the defaulted amount for the defaulted period.

(v) The Lessee has to pay lease rent equivalent to 11 years @ 1% of the premium of the plot as "One Time Lease Rent" phase wise before getting permission to execute Tripartite Sub-Lease Deed in favour of their prospective buyers unless the Lessor decides to withdraw this facility. On payment of One Time Lease Rent, no further annual lease rent would be required to be paid for the balance lease period. This option may be exercised at any time during the lease period, provided the lessee has paid the earlier lease rent due and lease rent already due paid will not be considered in One Time Lease Rent option.

b) The Lessee shall be liable to pay all rates, taxes, charges and assessment leviable by whatever name called for every description in respect of the plot of land or building constructed thereon assessed or imposed from time to time by the Lessor or any Authority/ Government. In exceptional circumstances the time of deposit for the payment due may be extended by the Lessor. But in such case of extension of time an interest @ 15% p.a. compounded every half yearly shall be charged for the defaulted period. In case Lessee fails to pay the above charges it would be obligatory on the part of its members/ sub lessee to pay proportional charges for the allotted areas.

............................."

15. A plain reading of the extracted charging provision would reflect that the stamp duty is payable as per the value of the premium or advance set forth in the lease instrument. There is no dispute inter se parties that the stamp duty paid on the lease instrument is as per the value of the premium set forth in the lease instrument. Importantly, the correction deed, dated 7th February 2013, which has been brought on record as Annexure 5 to the writ petition, though reduces the area of land leased out, also does not make any indication with regard to reduction of the premium payable. Rather, at page 179 of the paper-book of the appeal, the correction deed, after making a declaration with regard to reduction in the area of land leased out, declares that "except as hereinafter varied/ modified the original lease deed dated 15.11.2010 which was duly registered in the office of Sub-Registrar Gautam Budh Nagar registered on 16.11.2010 Bahi No.1, Gild No.7558 Page No.77 to 110 on Sl No.23383 shall continue to have full force and effect. Plot number, location and boundaries are same. Consequently credibility of stamp duty is remains unaffected." Once this is the position, the submission of Sri Goswami that the stamp duty paid on the lease instrument read with the deed of correction was as per the provisions of the Stamp Act, and it was not over paid, appears correct, particularly, when, according to the charging provision, stamp duty is payable on value of premium set forth in the lease instrument. Under these circumstances, even if by a subsequent letter GNIDA had reduced the premium, as is the case of the first respondent, there would be no impact on the stamp duty leviable as that would be on the premium set forth in the lease instrument, which remained unchanged. It is thus held that the stamp duty paid by the writ petitioner was not in excess than what was payable on the lease instrument as per the charging section. That takes us to issue no.(ii) formulated above.

ISSUE No.(ii)

16. While addressing issue no. (ii), we have to determine whether in view of reduction of the demised area and the developments that took place after execution of the lease instrument, by virtue of the provisions of the Stamp Act contained in Section 49 (d) (1) (2) and (5), the first respondent is entitled to refund of the stamp duty which it had paid for lease of that portion of the land which it had to surrender. As we have already noticed that in a taxing statute equity has no place, the Court has to find out whether upon construction of the provisions of the Stamp Act a case for making allowance for impressed stamps spoiled in making the lease instrument of that excess area is made out or not.

17. The first respondent has based its claim on the provisions of Clause (d) (1), (2) and (5) of Section 49 of the Stamp Act. The relevant provisions are extracted below:

"49. 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 enquiry to be made, the Collector may, on application made within the period prescribed in section 50, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases herein after mentioned, namely: --

(a) ...............

(b) ..............

(c) ..............

(d) 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) ................

(4) ...............

(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: "

18. Before we proceed further to examine whether the relevant clauses extracted above would be applicable to make out a claim for refund in favour of the first respondent, we may observe that clauses (a) and (b) of Section 49 of the Stamp Act refer to cases of stamps being spoiled or rendered useless before execution, and clause (c) refers to bills of exchange and promissory notes. Hence, the provisions contained in clauses (a), (b) and (c) of Section 49 are not relevant to the controversy in issue and, therefore, they have not been extracted. Likewise, sub-clauses (3), (4), (6), (7) and (8) of clause (d) of Section 49 are not relevant to the facts of the case hence we have not extracted those provisions. But, briefly, we may mention that sub-clauses (3) and (4) of clause (d) of Section 49 refer to cases where execution of the instrument is not complete by reason of the death or incapacity of a necessary party or by refusal of such a person to execute or act under the instrument. Sub-clause (6) refers to a case of an instrument superseded by the execution of another between the same parties and bearing a stamp of not less value. Sub-clause (7) refers to a new instrument being executed because the first was under-stamped. Sub-clause (8) refers to a case where the stamp is spoiled after execution, and the parties execute another instrument in substitution which is duly stamped.

19. We shall now examine whether a case for allowance / refund has been made out under sub-clause (1) of clause (d) of Section 49 of the Stamp Act. On a plain reading of the provision it would appear that for applicability of sub-clause (1) of clause (d) of Section 49 following conditions must be satisfied: (a) that the impressed stamp must be used for executing an instrument; (b) that the instrument must be executed by any party thereto; and (c) that afterwards the instrument must have been found absolutely void in law from the very beginning. The key to applicability of sub-clause (1) of clause (d) of section 49 lies in the phrase "absolutely void in law from the beginning". In the instant case, the lease instrument is partly void, that is, to the extent of an area of 71833.62 square meter consequent to subsequent quashing of the land acquisition notification, and not absolutely void from the beginning.

20. Before the Madras High Court in the case of Chief Controlling Revenue Authority, Board of Revenue, Madras Vs. B.P. Eswaran and others, AIR 1970 Madras 349 (FB) a question arose before the Full Bench of the Court whether Section 49 (d) of the Stamp Act contemplates allowance where the composite instrument embodying rights and liability fails only in part and is good for the remaining part. The facts of that case were that a deed of conveyance of a property was executed while asserting that the title was with the vendor and if any right in respect of the property was found to inhere in a third party the vendor would make himself liable for the loss ensuing therefrom and such a loss the purchaser could recover entire from the other properties of the vendor. The deed of conveyance of the property was found absolutely void as the vendor had no title to the property covered by the document and, therefore, a claim was made for refund of the stamp duty by placing reliance on Section 49 (d) of the Stamp Act. The Full Bench held that notwithstanding the fact that the conveyance, which was of course the main purpose of the instrument, has failed, the instrument as a whole is not absolutely void from the beginning. The Full Bench observed that if it is a case of a mere conveyance without covenants for indemnity and the conveyance failed, case for allowance might have been made out. But where the instrument provided for liquidated damages or the mode of recovery or indicated the source from which the loss could be reimbursed, those stipulations notwithstanding the failure of the conveyance for want of title would still be valid and would be actionable. With that reasoning, the Full Bench concluded that the instrument in question as a whole was not absolutely void from the beginning. The Full Bench concluded thus: Section 49 (d) does not contemplate allowance for spoilation of stamps, where a composite instrument embodying rights and liabilities fails only in part and is good for the remaining part.

21. Having examined the conditions that must co-exist for applicability of sub-clause (1) of clause (d) of Section 49 of the Stamp Act and the Full Bench decision (supra) of the Madras High Court and upon finding that the subject lease instrument is not absolutely void in law from the beginning, we are of the considered view that the first respondent has not been able to make out a case for allowance/ refund under sub-clause (1) of clause (d) of Section 49 of the Stamp Act.

22. Similarly, sub-clause (5) of clause (d) of Section 49 of the Stamp Act would also not help the cause of the first respondent as the subject lease instrument failed in part, and not totally, of the intended purpose. For applicability of sub-clause (5) of clause (d) of Section 49, one of the essential conditions is that by reason of the refusal of any person to act under the instrument, the instrument totally fails of the intended purpose. In the instant case, even if we assume that GNIDA refused to act under the instrument in so far as the excess area of the land was concerned, the instrument did not fail in totality as the demise continued to operate in part. We thus hold that a case for allowance/ refund under sub-clause (5) of clause (d) of Section 49 of the Stamp Act is also not made out.

23. Now, we shall examine whether the claim of the first respondent (writ petitioner) for allowance /refund of the stamp duty paid by it for the surrendered area would be covered by the provisions of Section 49 (d) (2) of the Stamp Act. Before we proceed further on this issue, we must notice the decision of the Apex Court in Libra Buildtech (supra), on which the learned counsel for the first respondent has heavily relied to support his claim. In Libra Buildtech's case (supra), the facts were as follows: "A company was under liquidation. A committee was appointed under orders of the court to dispose off the properties of the company. Sale deeds were executed by that committee. But despite payment and execution of sale deeds, the committee could not handover the possession of the properties to the purchasers. Consequently, by order of the court, the sale was annulled. The sale consideration was directed to be refunded and liberty was given to the purchasers to seek refund of the stamp duty paid on those sale deeds. The SDM before whom application for refund of the stamp duty was made, rejected the application on ground that it was barred by limitation. On behalf of the purchasers (i.e. claimants before the Apex Court), three submissions were advanced: (a) when, admittedly, the purpose for which the applicants had deposited the money-sale consideration, as per the direction of the Court, had failed and the court, as a consequence whereof, directed refund of the sale consideration, a fortiori, the claimants were entitled to refund of the entire stamp duty from the State Exchequer; (b) a direction to refund the amount of stamp duty could always be issued against the State Government by taking recourse to powers contained in Sections 49 and 50 of the Stamp Act read with Section 65 of the Contract Act, 1872, more so, when an act of the court is to prejudice no man and there being no fault of the claimants in the entire transaction; and (c) the SDM was not justified in rejecting the claim for refund on the ground of limitation because the right to claim refund arose only when the court directed the Committee to refund the sale consideration due to failure on the part of the Committee to place the purchaser in possession of the properties sold.

24. On the above facts, the Apex Court, in paragraphs 24 to 32 of its judgment, observed as follows:-

"24. In our considered opinion, keeping in view the undisputed facts mentioned above, the applicants are also entitled to claim the refund of entire stamp duty amount of Rs.6.22 crores from the State Exchequer, which they spent for execution of sale deeds in their favour in relation to the properties in question. This we say for the following reasons.

25. In the first place, admittedly the transaction originally intended between the parties, i.e., sale of properties in question by GFIL-Committee to the applicants was not accomplished and failed due to reasons beyond the control of the parties. Secondly, this Court after taking into consideration all facts and circumstances also came to the conclusion that it was not possible for the parties to conclude the transactions originally intended and while cancelling the same directed the seller (GFIL-Committee) to refund the entire sale consideration to the applicants and simultaneously permitted the applicants to claim refund of stamp duty amount from the State Government by order dated 26.09.2012. Thirdly, as a result of the order of this Court, a right to claim refund of amount paid towards the stamp duty accrued to the applicants. Fourthly, this being a court monitored transaction, no party was in a position to take any steps in the matter without the permission of the Court. Fifthly, the applicants throughout performed their part of the contract and ensured that transaction in question is accomplished as was originally intended but for the reasons to which they were not responsible, the transaction could not be accomplished. Lastly, the applicants in law were entitled to claim restoration of all such benefits/advantages from the State once the transaction was cancelled by this Court on 26.09.2012 in the light of the principle contained in Section 65 of the Contract Act which enable the party to a contract to seek restoration of all such advantage from other party which they took from such contract when the contract is discovered to be void or becomes void. This was a case where contract in question became void as a result of its cancellation by order of this Court dated 26.09.2012 which entitled the applicants to seek restitution of the money paid to the State for purchase of stamp papers.

26. In our considered opinion, while deciding a case of this nature, we have to also bear in mind one maxim of equity, which is well settled namely "actus curiae neminem gravabit" meaning - An Act of the Court shall prejudice no man. In Broom's Legal Maxims 10th edition, 1939 at page 73 this maxim is explained saying that it is founded upon justice and good sense and afforded a safe and certain guide for the administration of law. This maxim is also explained in the same words in Jenk. Cent.118. This principle is fundamental to any system of justice and applies to our jurisprudence. (See: Busching Schmitz (P) Ltd. v. P.T. Menghani & Anr. and Raj Kumar Dey & Ors. vs. Tarapada Dey & Ors.

27. It is thus a settled principle of law based on principle of equity that a person cannot be penalized for no fault of his and the act of the court would cause no prejudice to any of his rights.

28. In our considered opinion, the aforesaid maxim would apply with full vigour in the facts of this case and if that is the position then applicants, in our opinion, are entitled to claim the refund of entire amount of stamp duty from the State Government which they spent in purchasing the stamp duty for execution of sale deed in relation to the properties in question. Indeed in the light of six reasons set out supra which, in our considered opinion, in clear terms attracts the principle contained in the aforesaid maxim, the State has no right to defend the order of SDM for retaining the amount of stamp duty paid by the applicants with them. The applicants' bona fide genuine claim of refund cannot be denied on such technical grounds.

29. This case reminds us of the observations made by M.C. Chagla, C.J. in Firm Kaluram Sitaram vs. The Dominion of India. The learned Chief Justice in his distinctive style of writing observed as under in para 19:

"19..... we have often had occasion to say that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person."

We are in respectful agreement with the aforementioned observations, as in our considered opinion these observations apply fully to the case in hand against the State because except the plea of limitation, the State has no case to defend their action.

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 advances the cause of justice and is based on the principle of equity, should be preferred. We hereby do so.

31. As mentioned above, it is not in dispute that this Court on 26.09.2012 cancelled the transaction in question, and hence by reason of the orders of this Court, the stamps used for an instrument executed by the applicants were found unfit thereby defeating the purpose originally intended. This occurred either due to some error or mistake therein. Since the execution of sale deeds and its implementation was subject to the orders of the court, the parties were required to apply the court for appropriate orders for every step. It is due to this reason, the right to claim the refund of the amount of stamp duty arose for the first time in applicants' favour on 26.09.2012. The applicants had accordingly filed their applications within 6 months from the date of this order, as provided in Section 50. In the light of these facts, the applications should have been entertained treating the same to have been filed under Section 49 (d)(2) read with Section 50 of the Act for grant of refund of stamp duty amount claimed therein by the applicants.

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."

25. Some of the legal principles deducible from the decision of the Apex Court, noticed above, are as follows:-

(a) where the instrument is rendered unfit for the purpose for which it was executed, the claimants can seek refund under Section 49 (d) (2) read with Section 50 (3) of the Stamp Act;

(b) where an instrument is executed under order of the court and by the order of the court the instrument is cancelled with liberty to seek refund of the stamp duty paid, benefit of refund is not to be denied on technical grounds of limitation more so because an act of the court is to prejudice none; and

(c) where a case for refund of stamp duty can be brought under Section 49(d)(2) read with Section 50(3), an interpretation which advances the cause of justice and is based on principle of equity, should be preferred.

26. The factual matrix of Libra Buildtech's case (supra) is a whole lot different from the present case. In Libra Buildtech's case (supra) the sale deed was executed under order of the court, by a court appointed Committee. After execution of the sale deed, the purchaser could not be placed in possession due to some mistake or error. There, under the order of the court, the sale deed was cancelled and a direction was issued for refund of the sale consideration to the purchaser with liberty to him to move an application for refund of the stamp duty paid. In that background, the Apex Court directed for refund of the stamp duty by making certain observations noticed above. In the instant case, firstly, the lease instrument was neither executed nor cancelled under the orders of the court. Thus, the principle that an act of court must harm no one would not apply here. Secondly, the purpose of the lease originally intended was not completely frustrated because the instrument continued to operate albeit for a lesser area. Importantly, the Apex Court in Libra Buildtech's case (supra) had no opportunity to comment as to whether the provisions of sub-clause (2) of clause (d) of Section 49 would apply even to a case where the instrument fails in part only.

27. To have a better understanding of the true import of sub-clause (2) of Clause (d) of Section 49 of the Stamp Act, it would be useful to read it conjointly with the opening part of Section 49 minus the other parts of the section. The same would read as under:

"Subject to such rules as may be made by the State Government, as to the evidence to be required, or the enquiry to be made, the Collector may, on application made within the period prescribed in section 50, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely:- (d) the stamp used for an instrument executed by any party thereto which-- (2) has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended:"

28. When we read the extracted provision as a whole, what is noticeable is that allowance available under sub-clause (2) of clause (d) of Section 49 of the Stamp Act is for impressed stamps spoiled to execute an instrument which has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended. At this stage, we may observe that though clause (d) uses the word stamp, which is singular, but, by virtue of Section 13 (2) of the General Clauses Act, 1897, singular shall include plural, and vice versa, therefore, the word stamp used in clause (d) would include stamps. Thus, once the allowance is for impressed stamps spoiled to execute an instrument, executed by any party thereto, which has been afterwards found unfit for the purpose originally intended, the allowance is for the stamps spoiled to execute that instrument. Whether an allowance would be admissible for any part of the stamps spoiled to execute an instrument which fails in part, that is whether allowance could be claimed for bad part only, is an issue which has not been specifically addressed by the provisions of Section 49 (d) of Stamp Act. Can in such circumstances under clause (d) of Section 49 allowance be claimed for the bad part only? The answer to it would have to be rendered upon construction of the provision with reference to the principles governing the rules of interpretation of a taxing statute inasmuch as it is well settled that Stamp Act is a taxing statute. The principles governing interpretation of a taxing statute have already been noticed by us above, and the same are recapitulated below: (i) in construing taxing statutes equity and hardship is not relevant, one has to strictly look at the words/ language used and there is no room for searching intendment or of drawing any presumption while construing the provisions of a taxing statute; (ii) in case of ambiguity in charging provision, the benefit must necessarily go in favour of subject / assessee but, in case of ambiguity in an exemption provision, the benefit of ambiguity must be strictly interpreted in favour of the Revenue/ State. However, if, by a strict construction of the exemption clause, the ambiguity is resolved and the subject falls within the exemption clause then to give full play to the exemption clause a liberal construction may be made. In the instant case, we have already found above, there is no excess payment of stamp duty on the instrument of lease. Here, after execution of the lease instrument, on account of failure of the demise in part, allowance has been sought. The provisions of the Stamp Act, at least those that have been placed before us, are silent for such an eventuality. In our view, in absence of clarity in the provisions of the Stamp Act with regard to admissibility of an allowance where the instrument fails in part, the claim for allowance would have to be rejected by keeping in mind the general legal principle that in case of ambiguity in an exemption provision, the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State. An allowance though, strictly, cannot be equated with an exemption but for interpretation of an allowance strict rule of interpretation would have to be applied at the threshold to find out whether the subject falls within its ambit or not because the initial burden is on the subject who seeks allowance to make out a case for allowance. For all the reasons recorded above, we respectfully agree with the view of the Full Bench of the Madras High Court in the case of Chief Controlling Revenue Authority, Board of Revenue, Madras Vs. B.P. Eswaran and others (supra) that Section 49 (d) does not contemplate allowance for spoilation of stamps, where a composite instrument embodying rights and liabilities fails only in part and is good for the remaining part. Otherwise also, on simple logic, an instrument executed by spoiling several impressed stamps cannot be dissected to sever out the bad part from the good, so as to enable use of the good. The decision of the Apex Court in Libra Buildtech's case (supra) does not come to the rescue of the first respondent because in that case the entire instrument was found unfit for the purpose originally intended and was thus cancelled. In the instant case, part of the lease instrument remained operative therefore the instrument did not fail the purpose originally intended. As a result of the discussion made above, we hold that the claim of the first respondent for allowance is neither sustainable under sub-clause (1) nor sub-clause (2) or sub-clause (5) of clause (d) of Section 49 of the Stamp Act. The view to the contrary taken by the learned Single Judge is set aside. Issue No. (ii) is decided accordingly.

ISSUE No.(iii)

29. In respect of the third issue formulated by us, suffice to say that in tax matters equity has a limited role. Doctrine of unjust enrichment is based on equitable principles and has statutory recognition in Sections 65 and 72 of the Contract Act. As tax is compulsory exaction of money by a sovereign with the sanction of law and is not payment for services rendered or to be rendered, a refund of the tax or the duty paid under a fiscal statute is not to be made unless and until the duty paid is found not payable. It may be recapitulated that the stamp duty is payable on the instrument; that, as per the charging provision, stamp duty is payable on the premium set forth in the lease instrument; that while deciding issue no.(i), it has already been found that stamp duty was paid not in excess of what was payable on the premium set forth in the instrument; and in the subsequent correction/ rectification deed there was no mention in respect of reduction of the premium. Under these circumstances, the stamp duty paid was as per the tenor of the instrument, hence, there was no unjust enrichment of the State because the stamp duty paid to it was as per the provisions of the Stamp Act. No doubt, the Stamp Act provides for allowances, but, as already held above, the case of the writ petitioner does not fall within the purview of those allowances. Thus, the argument that the writ petitioner was entitled to relief on equitable considerations has no legs to stand. Issue No.(iii) is decided accordingly.

ISSUE Nos.(iv) & ((v)

30. The issues (iv) & (v) formulated above are inter related therefore are being dealt with simultaneously. Issue no.(iv) is whether the order of the Principal Secretary dated 28.5.2019 is void. The argument of the learned counsel for the writ petitioner, which has been accepted by the learned Single Judge, is that once the Joint Secretary had already taken his decision vide order dated 28.02.2019 the Principal Secretary had no power to pass a fresh order as there exists no power of review. To have a clear understanding on this issue it would be useful to recapitulate the facts. In the instant case, the exercise for allowance started on an application moved by the writ petitioner before the Principal Secretary. When it did not culminate in an order, a writ petition was filed wherein direction was issued to decide the claim. Pursuant to which, when application was given, information was received by the writ petitioner that the matter was already decided and the claim had been rejected by the Principal Secretary. Challenging the rejection of the claim, a fresh writ petition was filed, which was allowed and the Joint Secretary was directed to pass a fresh order. Following this, the Joint Secretary passed the order dated 28.2.2019. On 28.05.2019, the Principal Secretary passed a contrary order. Interestingly, the order dated 28.5.2019 does not take note of the order of the Joint Secretary dated 28.2.2019. It seems to us that since, earlier, the direction of the Court was to the Principal Secretary he may have passed the order dated 28.05.2019 in good faith. But as in the meantime the Joint Secretary had already passed the order on 28.02.2019, pursuant to subsequent order of this Court, the order of the Principal Secretary was improper as was rightly held by the learned Single Judge. In case the Principal Secretary was alone competent to pass the order, the appropriate course for the State was to move a correction or clarification application seeking clarification/ correction in the order. However, nothing much turns on that because what is important is that a writ court must not ordinarily set aside an order the consequence of which would be to revive an illegal order or perpetuate illegality. As we have already found that the claim for allowance was not sustainable under the provisions of the Stamp Act (i.e. Section 49(d)), setting aside the order of the Principal Secretary, with direction to comply with the order of the Joint Secretary, would be to perpetuate illegality. More so, when it has been found by us that neither the provisions of the Stamp Act nor the judgment of the Apex Court in Libra Buildtech's case (supra) would be of help to sustain the claim of the writ petitioner. We thus hold that though the order of the Principal Secretary was in effect a review of the earlier order passed by the Joint Secretary and, therefore, was not proper, but, we simultaneously hold, the order of the Joint Secretary dated 28.02.2019 was not correct in law and, therefore, a direction to ensure its compliance would be an exercise to perpetuate illegality. Hence, no direction ought to have been issued for compliance of the order of the Joint Secretary. Issues (iv) and (v) are decided accordingly.

ISSUE No.(vi)

31. Whether in the facts of the case the petitioner is entitled to relief against GNIDA for refund of stamp duty paid for the surrendered area is a complex issue because the principle of restitution embodied in Section 65 of the Contract Act would not apply to it as GNIDA is not the authority which received any benefit under a void contract. Whether the petitioner is entitled to damages from GNIDA on that count would involve investigation into facts, particularly, to ascertain whether there was any misrepresentation on the part of GNIDA or suppression of material facts by them with regard to any pending litigation dealing with acquisition of land. All these complex facts are not before us to enable a decision on that count and, otherwise also, the claim of the writ petitioner is pending before GNIDA. Therefore, at this stage, it would be sufficient to observe that since stamp duty was not collected by GNIDA, a claim for refund of stamp duty as against it would not be sustainable. But whether GNIDA is liable for damages / loss, is a question left open for the first respondent to raise at the appropriate stage in an appropriate proceeding before the appropriate forum in accordance with the law. The judgment of the Apex Court in ITC Ltd. (supra) where option was given to make a claim for refund of stamp duty from Development Authority cannot be taken as a precedent laying down any binding principle of law. The Apex Court to do substantial justice between the parties has power under Article 142 of the Constitution of India, which is not available to us. The issue no.(vi) is decided accordingly.

32. For all the reasons recorded above, we are unable to agree with the view taken by the learned Single Judge. The appeal is consequently allowed. The impugned judgment and order of the learned Single Judge, dated 01.12.2020, is set aside. The writ petition of the first respondent, subject to above, is dismissed. There is no order as to costs.

Order Date :- 25.06.2021

AKShukla/-