Bombay High Court

M/S. Mallu And Talda Developers, ... vs The Inspector General Of ... on 22 November, 2016

Bench: Prasanna B. Varale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 4113 OF 2015

M/s Mallu and Talda Developers,
through its partner, Pravin Balkrishnaji
Maloo, aged about 47 years, R/o Camp,

Amravati, Taluka and District Amravati. ... PETITIONER

VERSUS

1. The Inspector General of Registration

and Controller of Stamps, New
Administrative Building, Ground
Floor, Opposite Councilor Hall,

Pune - 1.

2. The Deputy Inspector General of
Registration and Deputy Controller
of Stamps, Pune, having its office

at Mangilal Plot, Camp, Amravati,
District Amravati.

3. Sub Registrar/Stamp Collector
Office, Camp Premises,
Amravati. ... RESPONDENTS

....
Shri S.M. Vaishnav, Advocate for the petitioner.
Shri K.L. Dharmadhikari, Assistant Government Pleader for the
respondents.
....

CORAM : PRASANNA.B.VARALE, J.

DATED : 22ND NOVEMBER, 2016.

ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties. Shri K.L. Dharmadhikari, learned Assistant Government Pleader

waives notice on behalf of the respondents.

2. By way of present petition, the petitioner challenges the order

dated 09.03.2015 passed by the respondent No.1 thereby rejecting the

application seeking refund of amount to the tune of Rs.17,09,350/-.

3. Shri Vaishnav, the learned Counsel for the petitioner submits

that the petitioner/firm is engaged in the sale and purchase of the property

and developing the same under the name and style as "M/s Mallu And

Talda Developers". The petitioner/firm intended to purchase the landed

property having area of 3H 24R situated at field Survey No.25/2 Mouje-

Mhasla, Pragane-Nandgaon Peth, Taluka and District Amravati from one

Chandrakumar Madhusudanji Jajodiya and Anita Chandrakumar Jajodiya

for valuable consideration of Rs.2,00,00,000/- (rupees two crores only). As

per the prevailing rate of the property and as per the rate fixed by the

government under the ready reckoner, the stamp of Rs.17,09,350/- was

purchased from Stock Holding Corporation of India by way of E-stamp.

The certificates issued to that effect are placed on record at Annexures-B

and C. It is submitted by the learned Counsel for the petitioner that

subsequent to purchase of the stamp, the Vendee refused to execute the

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contract of sale. As such, the sale remained incomplete and the stamp

purchased for the purpose of sale was not utilized and the petitioner was

unable to exhaust the stamp for any other purpose.

4. The petitioner submitted an application before the Joint

Registrar and the Collector of Stamps, Amravati seeking refund of the

amount to the tune of Rs.17,09,350/-. Along with an application, an

affidavit of a person purchasing the stamp was also filed. The Joint District

Registrar-1 and the Stamp Collector, Amravati submitted the report to

respondent No.2 in favour of the petitioner giving an opinion that there is

no objection for refund to the petitioner. Shri Vaishnav, the learned

Counsel for the petitioner submits that on submitting an application

before the authority concerned, certain objections were raised and the

petitioner removed those objections. The report was submitted by the

Joint District Registrar-1 and the Collector of Stamps, Amravati to the

respondent No.1 in respect of removal of objections by the petitioner and

the Joint District Registrar and the Collector of Stamps, Amravati

submitted that as the power of refund vests with the respondent No.1, the

matter is forwarded for the decision of the competent authority. Shri

Vaishnav, the learned Counsel for the petitioner submits that the

respondent No.1 only on the ground that the application was not filed

through the person who purchased the stamp and the application was

beyond the period under the provisions of Section 48(3) of the Stamps Act,

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1958, rejected the application. The learned Counsel then submits that the

application was rejected by the authority without grant of an opportunity

of hearing. He also submits that the respondent No.1 also erred in

observing that the power of attorney Shri Suraj Talda was not entitled for

refund as the power of attorney in the name of Shri Suraj Talda is a

restricted power of attorney and limited only for purchase of the property.

5. Shri Vaishnav, the learned Counsel places on record the copy

of the power of attorney. The same is taken on record and marked as "X"

for identification. He submits that the power of attorney in clear words

states that the petitioner/firm by appointing Shri Suraj Talda as power of

attorney is entrusted to take all steps including purchase of property,

submitting the documents for registration etc. He further submits that the

document also refers all the allied acts of purchase of property and the

registration of the documents. As such, seeking refund of stamp amount

also an allied act for which the general power of attorney Shri Suraj Talda

was empowered to and it was entitled. Shri Vaishnav, the learned Counsel

for the petitioner submits that as the rejection of an application seeking

refund was a civil consequences, the authority ought to have granted an

opportunity of hearing to the petitioner. The learned Counsel places

heavy reliance on the judgment of the apex Court in the case of Rajesh

Kumar and others .v. Dy. CIT and others (reported in 2007(2) SCC, 181).

Shri Vaishnav, the learned Counsel further submits that the petitioner

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could have convinced the authority on the aspect of Rule 22A of the

Bombay Stamps Rules, 1939 to the effect that the petitioner may not seek

refund of the amount but could have requested the authority to take

recourse to Rule 22A (b) i.e. in lieu of the refund, the Collector may repay

to such person, the same value in money of such stamp or stamps or

printed forms on stamped papers, after deducting rupees ten for each

stamp or printed form on stamped paper or an amount equal to (ten per

cent) of the value of such stamp or such printed form, whichever is more, if

an opportunity of hearing could have been granted to the petitioner.

6. Shri Dharmadhikari, the learned Assistant Government Pleader

for the respondents vehemently opposes the petition and submits that the

respondent No.1 while rejecting the application, found certain

irregularities, such as, the application was initially submitted through one

Shri Suraj Talda and thereafter by striking of the name of Suraj Talda, the

application was submitted by the petitioner/firm through partner Shri

Pravin Balkrishnaji Maloo. The learned AGP further submits that the

respondent No.2, on receiving application from the petitioner, found that

there were certain lacunae and accordingly the objection was raised. Thus,

it was an attempt of the learned AGP to submits before this Court that the

order impugned in the instant petition needs no interference.

7. On perusal of the material placed on record and considering

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the provisions of the Stamps Act and the Rules, I find considerable merit in

the submission of the learned Counsel for the petitioner. The material

placed on record shows that the application was submitted by the

petitioner/firm through its partner Shri Pravin Maloo. The application

refers seeking refund of the amount and it also refers to the documents

annexed to the application including the affidavit. The copy of the general

power of attorney in the name of Shri Suraj Talda shows that Shri Talda

was appointed as general power of attorney and was entitled to take all

necessary steps in purchase of the property, registration of the documents

and the allied acts. The learned Counsel for the petitioner was also

justified in submitting that the authority ought to have granted an

opportunity of hearing to the petitioner. As reliance was placed on the

judgment of the Apex Court by the learned Counsel, it will be useful to

refer to the observations of the Apex Court in the case of Rajesh Kumar

and others .v. Deputy CIT and others (cited supra), as under :-

"26. Effect of civil consequences arising out of determination of lis under a statute is stated in State of Orissa v. Dr. Binapani Dei. It is an authority for the proposition when by

reason of an action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice are required to be followed. In such an event, although no express provision is laid down in this behalf, compliance with principles of natural justice would be implicit. In case of denial of principles of natural justice in a statute, the same may also

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be held ultra vires Article 14 of the Constitution."

8. Perusal of the documents placed on record also shows that the

Joint District Registrar-1 and the Collector of Stamps, Amravati forwarded

a report to the respondent No.1. The report submitted to the respondent

No.2 dated 26.08.2013 shows that the petitioner had complied with the

objections raised by the authority concerned and also placed on record the

necessary documents such as the success report received from the Stock

Holding Corporation in respect of purchase of stamp.

9. Considering all these aspects, I am of the opinion that the order

passed by the respondent No.1 impugned in the petition is unsustainable

on the ground of refusal to grant an opportunity of hearing thus

committing breach of the principle of natural justice.

10. In the result, the petition is partly allowed. The order passed by