Prajapati Kantaben Keshabhai vs State Of Gujarat

1. Draft amendment dated 5.12.2018 is granted. Petitioner to carry out the amendment forthwith.

2. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has prayed that the order dated 18.11.2017 passed by respondent no.1 under Section 53(1) of the Gujarat Stamp Act be quashed and set aside.

3. Heard learned advocate for the petitioner and learned Assistant Government Pleader Mr.Yagnik for the respondents.

C/SCA/18267/2018 ORDER

4. It is submitted by learned advocate for the petitioner that the petitioner had prepared one sale deed dated 19.12.2016 by which the property bearing survey no.192 admeasuring H.1- 11-96 Are-Sq.mtr. situated at village Kotda is decided to be sold for consideration of Rs.11,98,000/-. For the said purpose, the petitioner purchased the stamp of Rs.58,800/- and prepared the sale deed. The petitioner also made a signature on the said sale deed. However, thereafter, the sale registration has been cancelled. The petitioner, therefore, submitted an application to respondent no.2 to return the stamp duty of Rs.58,800/- paid by the petitioner. However, his request was rejected by the respondent no.2. Against the said order, the petitioner preferred appeal under Section 53(1) of the Gujarat Stamp Act. The respondent no.1, by order dated 10.5.2018, rejected the appeal. The petitioner has, therefore, preferred this petition.

5. It is contended that there was no fault on the part of the petitioner in signing the document of sale deed. It is submitted that the proposed purchasers, on 19.12.2016, filed an affidavit on stamp paper of Rs.20/- and thereafter they did not sign the sale deed and therefore request was made to the respondent Page 2 of 6 C/SCA/18267/2018 ORDER authorities for return of the stamp duty paid by the petitioner. However, respondent authorities have wrongly rejected the claim of the petitioner while relying on the provisions contained in Section 47 of the Gujarat Stamp Act. It is, therefore, urged that the relief prayed for in this petition be granted.

6. On the other hand, learned Assistant Government Pleader has referred the provisions contained in Section 47 of the Stamp Act and contended that when the petitioner has signed the document in question i.e. the sale deed, the stamp duty paid by the petitioner cannot be returned. Thus, no error is committed by the respondent authorities. He, therefore, urged that this petition be dismissed.

7. At the outset, the provisions contained in Section 47 of the Gujarat Stamp Act is required to be referred to which provides that:

"47. 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 inquiry to be made, the Collector may, on application made within the period prescribed in section 48, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely:-

(a) the stamp on any paper inadvertently and undersignedly spoiled, obliterated or by Page 3 of 6 C/SCA/18267/2018 ORDER error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person;

(b) the stamp on any document which is written wholly or in part, but which is not signed or executed by any party thereto.

(c) the stamp used for an instrument executed by any party thereto which (1) has been afterwards found to be absolutely void in law from the beginning; (2) has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended; (3) by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed;

(4) for want of the execution thereof by some material party, and his inability or refusal to sign the same, is in fact incomplete and insufficient for the purpose for which it was intended;

(5) by reason of the refusal of any person to act under the same, or it to advance any money intended to be there by secured, or by the refusal or non-acceptance of any office thereby granted totally fails of the intended purpose;

(6) becomes useless in consequence of the transaction intended to be thereby effected by some other instrument between the same parties and bearing a stamp of not less value;

(7) is deficient in value and the transaction intended to be thereby effected had been effected by some other instrument between the same parties and bearing a stamp of not less value;

(8) is inadvertently and undersignedly spoiled and in lieu whereof another Page 4 of 6 C/SCA/18267/2018 ORDER instrument made between the same parties and for the same purpose is executed and duly stamped;

Provided that, in the case of an executed instrument, no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled.

Explanation-The certificate of the Collector under section 32 that the full duty with which an instrument is chargeable has been paid is an impressed stamp within the meaning of this section."

8. From the aforesaid provision, it is clear that if the application is filed within the stipulated time limit by the concerned applicant for return of the stamp duty paid by him, the Collector, after making necessary inquiry, empowered to pass appropriate order. Sub-section

(b) specifically provides that the Collector can pass such order when the document is not signed or executed by any party of the said document.

9. Keeping in view the aforesaid provision, if the undisputed facts stated herein above are considered, it is not in dispute that the petitioner has made his signature on each page of sale deed and therefore while passing the impugned orders, the respondent authorities have, relying upon the aforesaid provision contained in Section 47(b) of the Stamp Act, denied the refund as prayed for by the petitioner. This Court has Page 5 of 6 C/SCA/18267/2018 ORDER gone through the impugned order passed by the respondent authorities and this Court is of the view that no error is committed by the respondent authorities while rejecting the request of the petitioner. Thus, this petition is devoid of any merits. Accordingly, the same is dismissed.

(VIPUL M. PANCHOLI, J) SRILATHA Page 6 of 6