# Dr. Poornima Advani & Anr v. Government of NCT & Anr

- **Citation:** 2025 INSC 262
- **Court:** Supreme Court of India
- **Decided:** 2025-02-18
- **Case number:** Civil Appeal No. 2643 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-poornima-advani-anr-v-government-of-nct-anr-38269
- **Pages:** 28

## Headnote

Whether in the facts and circumstances of the case, the Appellants
would be entitled to claim interest on delayed stamp duty refund,
in the absence of a provision in the statute to that effect.
Headnotes†
Constitution of India, 1950 - Article 226 - Refund of Stamp
Duty - Interest to be paid along with the principal:
Held: The Appellants approached the High Court under Article
226 of the Constitution following their request for refund of the
stamp duty as the e-stamp paper purchased by the Appellants
was misplaced - The Single Judge of the High Court passed an
order directing the Respondents to refund Rs. 28,10,000/- being the
principal amount of the stamp duty - The Writ Petition was partly
allowed as only the principal amount was ordered to be refunded
whereas the interest on the same was declined - The Appellants
herein being dissatisfied with non-grant of interest on the sum
of Rs. 28,10,000/- preferred Letters Patent Appeal - The appeal
Court dismissed the Letters Patent Appeal - The Civil Appeal allowed
and the Respondents directed to pay an amount of Rs. 4,35,968/-
(Rs. Four Lakh Thirty Five Thousand Nine Hundred Sixty Eight
Only) towards interest within a period of two months from the date
of the order without fail. [Paras 6, 7, 10, 31]
Payment of Interest - Person deprived of money entitled to
be compensated for deprivation:
Held: The subject General Mandamus is a salutary advancement
of the law, calculated to insulate and protect a citizen from unfair
treatment by the State - Referring to Authorised Officer Karnataka
Bank v. M/s R.M.S. Granites Pvt. Ltd. & Ors. in Civil Appeal No.
12294 of 2024, held that when a person is deprived of the use of
his money to which he is legitimately entitled, he has a right to be
[2025] 2 S.C.R.
1179
Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
compensated for the deprivation which may be called interest or
compensation - Interest is paid for the deprivation of the use of
money in general terms which has returned or compensation for
the use or retention by a person of a sum of money belonging to
other - Referring to Secretary, Irrigation Department, Government
of Orissa v. G.C. Roy, (1992) 1 SCC 508, it was noted that a
person deprived of use of money to which he is legitimately entitled
has a right to be compensated for the deprivation, call it by any
name - Reference being made to Riches v. Westminister Bank
Ltd., 1947 (1) ALL ER 469 wherein it has been held that interest
is a payment, which becomes due because the creditor has not
had his money at the due date - It may be recorded either as
representing the profit he might have made if he had had the use
of the money, or, conversely, the loss he suffered because he had
not that use. [Paras 15, 17, 20, 21]
Doctrine of restitution - Interest necessary corollary of doctrine
of restitution - Discussed:
Held: If doctrine of restitution is attracted, interest should follow -
Restitution in its etymological sense means restoring to a party on the
modification, variation or reversal of a decree or order what has been
lost to him in execution of decree or order of the Court or in direct
consequence of a decree or order - The term "restitution" is used
in three senses, firstly, return or restoration of some specific thing to
its rightful owner or status, secondly, the compensation for benefits
derived from wrong done to another and, thirdly, compensation or
reparation for the loss caused to another - Principles of restitution
discussed in O.N.G.C. Ltd. v. Commissioner of Customs Mumbai,
JT 2007 (10) SC 76 referred. [Paras 25, 27]
Principle of compensation - When the collection is illegal, the
amount so collected to be refunded with interest - Discussed:
Held: Reference being made to Union of India through Director of
Income Tax v. Tata Chemicals Ltd., (2014) 6 SCC 335, wherein it
was held that when the collection is illegal, the Revenue is obliged
to refund such amount with interest as money so deposited was
retained and enjoyed b

## Text

_Characters 0–39,975 of 57,158. This is a partial read: ask again with offset=39975 for what follows._

[2025] 2 S.C.R. 1178 : 2025 INSC 262
Dr. Poornima Advani & Anr.
v.
Government of NCT & Anr.
(Civil Appeal No. 2643 of 2025)
18 February 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Whether in the facts and circumstances of the case, the Appellants
would be entitled to claim interest on delayed stamp duty refund,
in the absence of a provision in the statute to that effect.
Headnotes†
Constitution of India, 1950 - Article 226 - Refund of Stamp
Duty - Interest to be paid along with the principal:
Held: The Appellants approached the High Court under Article
226 of the Constitution following their request for refund of the
stamp duty as the e-stamp paper purchased by the Appellants
was misplaced - The Single Judge of the High Court passed an
order directing the Respondents to refund Rs. 28,10,000/- being the
principal amount of the stamp duty - The Writ Petition was partly
allowed as only the principal amount was ordered to be refunded
whereas the interest on the same was declined - The Appellants
herein being dissatisfied with non-grant of interest on the sum
of Rs. 28,10,000/- preferred Letters Patent Appeal - The appeal
Court dismissed the Letters Patent Appeal - The Civil Appeal allowed
and the Respondents directed to pay an amount of Rs. 4,35,968/-
(Rs. Four Lakh Thirty Five Thousand Nine Hundred Sixty Eight
Only) towards interest within a period of two months from the date
of the order without fail. [Paras 6, 7, 10, 31]
Payment of Interest - Person deprived of money entitled to
be compensated for deprivation:
Held: The subject General Mandamus is a salutary advancement
of the law, calculated to insulate and protect a citizen from unfair
treatment by the State - Referring to Authorised Officer Karnataka
Bank v. M/s R.M.S. Granites Pvt. Ltd. & Ors. in Civil Appeal No.
12294 of 2024, held that when a person is deprived of the use of
his money to which he is legitimately entitled, he has a right to be
[2025] 2 S.C.R.
1179
Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
compensated for the deprivation which may be called interest or
compensation - Interest is paid for the deprivation of the use of
money in general terms which has returned or compensation for
the use or retention by a person of a sum of money belonging to
other - Referring to Secretary, Irrigation Department, Government
of Orissa v. G.C. Roy, (1992) 1 SCC 508, it was noted that a
person deprived of use of money to which he is legitimately entitled
has a right to be compensated for the deprivation, call it by any
name - Reference being made to Riches v. Westminister Bank
Ltd., 1947 (1) ALL ER 469 wherein it has been held that interest
is a payment, which becomes due because the creditor has not
had his money at the due date - It may be recorded either as
representing the profit he might have made if he had had the use
of the money, or, conversely, the loss he suffered because he had
not that use. [Paras 15, 17, 20, 21]
Doctrine of restitution - Interest necessary corollary of doctrine
of restitution - Discussed:
Held: If doctrine of restitution is attracted, interest should follow -
Restitution in its etymological sense means restoring to a party on the
modification, variation or reversal of a decree or order what has been
lost to him in execution of decree or order of the Court or in direct
consequence of a decree or order - The term "restitution" is used
in three senses, firstly, return or restoration of some specific thing to
its rightful owner or status, secondly, the compensation for benefits
derived from wrong done to another and, thirdly, compensation or
reparation for the loss caused to another - Principles of restitution
discussed in O.N.G.C. Ltd. v. Commissioner of Customs Mumbai,
JT 2007 (10) SC 76 referred. [Paras 25, 27]
Principle of compensation - When the collection is illegal, the
amount so collected to be refunded with interest - Discussed:
Held: Reference being made to Union of India through Director of
Income Tax v. Tata Chemicals Ltd., (2014) 6 SCC 335, wherein it
was held that when the collection is illegal, the Revenue is obliged
to refund such amount with interest as money so deposited was
retained and enjoyed by it - No discrimination can be shown between
the assessee and Revenue in paying interest on the refund of tax -
Money received and retained without right, carries with it the right to
interest - Obligation to refund money received and retained without
right implies and carries with in the right to interest. [Para 29]
1180
[2025] 2 S.C.R.
Supreme Court Reports
List of Acts
Constitution of India.
List of Keywords
Interest; Refund of interest; Compensation.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2643 of 2025
From the Judgment and Order dated 27.09.2019 of the High Court
of Delhi at New Delhi in LPA No. 288 of 2019
Appearances for Parties
Advs. for the Appellants:
Abhishek Puri, Sahil Grewal, Ms. Surbhi Gupta, Mrs. Reeta Dewan
Puri, P. N. Puri.
Adv. for the Respondents:
Ms. Jyoti Mendiratta.
Judgment / Order of the Supreme Court
Order
1.
IA No. 4291/2024 for substitution is allowed. Cause title be amended
accordingly.
2.
Leave granted.
3.
This appeal arises from the judgment and order passed by the High
Court of Delhi dated 27th September, 2019 in Letters Patent Appeal
No. 288 of 2019 by which the appeal filed by the appellants herein
against the judgment and order passed by the learned Single Judge
of the High Court partly allowing the Writ Petition No. 9014 of 2017
filed by the appellants herein came to be dismissed.
4.
The facts giving rise to this appeal may be summarized as under:-
The appellants herein were desirous of purchasing an immovable
property in New Delhi. For that purpose, they purchased the e-stamp
paper dated 06.07.2016 valued at Rs.28,10,000/- (Rupees Twenty
Eight Lakh Ten Thousand Only). The money for that purpose was
paid from the joint bank account of the appellants being husband and
[2025] 2 S.C.R.
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
wife respectively. The e-stamp paper which came to be purchased
was dated 06.07.2016.
5.
We borrow the other relevant facts from the judgment and order
passed by the learned Single Judge dated 20th August, 2018 more
particularly, from paragraph 4.3 therein:-
"4.3 Pertinently, the e-stamp paper dated 06.07.2016
purchased by the petitioners, sets down the following details:
(i) Particulars of the property, which was proposed to be
purchased;(ii) the names of the parties, who intended
to execute the sale deed;(iii) the consideration to be
paid for consummating the sale transaction; and (iv)
the value of e-stamp paper.
4.4 According to the petitioners, though initially, the intention
was to execute the sale deed concerning subject property
in July,2016, since, there was some delay in closing the
loan transaction via which the transaction was to be funded,
the execution of the sale deed was delayed.
4.5 This delay proved to be fatal, inasmuch as, on 4.8.2016,
the petitioners were told by the broker, who had the custody
of the e-stamp paper, that the e-stamp paper dated 6.7.2016
had been misplaced.
4.6 The petitioners realizing the enormity of the loss, filed a
complaint with the Crime Branch, Delhi Police, on that very
day i.e. 4.8.2016. As a follow up action, on 06.08.2016, the
petitioners got public notices issued in two newspapers,
namely, Asian Age (English edition) and Rashtriya Sahara
(Hindi edition).
4.7 Since, the petitioners were desirous of taking the sale
transaction in respect of subject property forward, they
were left with no choice but to purchase a fresh e-stamp
paper, which they did, on 6.8.2016.
4.8 This stamp paper bore the No.IN-DL80452882772240.
The money for this was also paid out from the joint account
of the petitioners, maintained with the State Bank of India.
4.9 Consequent thereto, on 8.8.2016, the petitioners and
the vendor i.e., M/s. Scud Finlease Limited executed a
sale deed.
1182
[2025] 2 S.C.R.
Supreme Court Reports
5. On 11.8.2016, the petitioners filed an application with the
Sub-Divisional Magistrate, Collector of Stamps, for refund
of stamp duty amounting to Rs.28,10,000/- on account of
loss of the e-stamp paper dated 6.7.2016.
5.1 The prayer made in the application was that the
amount be refunded to the petitioners after deducting the
usual cancellation charges, if any. The application was
accompanied by an affidavit of petitioner No.2 that the
e-stamp paper dated 6.7.2016 has been lost and was not
traceable despite best efforts.
5.2 Furthermore, an indemnity bond was also executed
by petitioner No.2, whereby he undertook to indemnify the
respondents, if the stand taken by him that the e-stamp
paper dated 6.7.2016 had been lost, proved to be incorrect
and, as a result thereof, any loss/damage, etc. was suffered
by them.
5.3 Since no action was taken on the petitioners' application
dated 11.8.2016, the petitioners addressed a letter dated
8.9.2016 to respondent No.2. In this letter, apart from
anything else what was sought to be highlighted by the
petitioners were two aspects: first, given the fact that every
transaction is made in electronic form, it could be verified
almost instantaneously; and second, the misplaced or lost
e-stamp paper dated 6.7.2016 could not be used for any
other purpose except that, which stood specified in the
e-stamp paper. It was emphasized that given that fact that
via a fresh e-stamp paper dated 6.8.2016, transaction qua
the stamp paper dated 6.7.2016 had been consummated,
the lost e-stamp paper had lost its legal efficacy and thus,
could not be misused by anyone else.
5.4 As is evidence that both these assertions were made
by the petitioners to allay the apprehensions of respondent
No.2.
5.5 However, the petitioners' plea for refund of stamp
duty did not cut much ice with the respondents and,
consequently, vide order dated 21.10.2018, the Collector
of Stamps (HQ) rejected the petitioners' application dated
11.8.2016 maintained for refund of stamp duty.
[2025] 2 S.C.R.
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
6. Aggrieved by the impugned order dated 21.10.2016,
the petitioners have preferred by the instant writ petition."
6.
The learned Single Judge adjudicated the writ petition and ultimately
thought fit to partly allow the same. The learned Single Judge issued
a writ of mandamus to the respondents herein to refund a sum
of Rs. 28,10,000/- within a period of two weeks from the date of
pronouncement of the judgment.
7.
It appears that the petition was partly allowed as only the principal
amount was ordered to be refunded whereas the interest on the same
was declined. We take notice of few relevant observations made
by the learned Single Judge while ordering refund of the principal
amount referred to above:-
"19. Therefore, the question before me is: should the Court,
in such circumstances, fold its hands and deny a person,
who has lost the stamp paper, relief only because the
draftsman has omitted the use of such expression explicitly
in the Statute. As noticed above, it is not unknown to law
that when Courts have encountered such creases in the
Statute they have proceeded to iron them out without
destroying the fabric which forms the core of the Statute.
The expression obliterate appearing in Section 49(a) of
the Act should, in my opinion, include cases where the
Stamp paper is lost by an applicant seeking refund of
stamp duty. This would be a reasonable 'and practical'
interpretation of Section 49(a) of the Act, as any other
interpretation could lead to a situation where it may fall
foul of Article 14 of the Constitution.
20. There is another way of looking at the matter, which
is, the scheme of Chapter V of the Act. If the scheme,
as discussed above, is kept in mind, respondents ought
to refund stamp duty even in cases where an applicant
claims refund of stamp duty on account of loss of e-stamp
paper; subject to an enquiry establishing factum of loss
and adequate safeguards being put in. To my mind, if
the contrary view was sustained, it would result in the
State retaining money without the authority of law, as
admittedly, the taxing event had not occurred in the facts
and circumstances of this case.
1184
[2025] 2 S.C.R.
Supreme Court Reports
21. In the instant case, the petitioners have provided a
photocopy of e-stamp paper dated 6.7.2016, which at the
moment, is the best secondary evidence available with it,
which, shows that the e-stamp paper was not engrossed.
21.1 Given the foregoing discussion, clearly, the amount
retained by the respondents cannot be in the nature of
tax as the taxing event has not occurred in the instant
case. It cannot be also in the nature of fee as there was
no quid pro quo.
21.2 In any event, the stand of the respondents is that the
stamp duty is in the nature of tax. If that be the position,
could the respondents retain money in anticipation of the
taxing event occurring? Article 265 of the Constitution
provides that no tax shall be levied or collected except
by authority of law. Therefore, emphasis is not only on no
tax being levied without the authority of law, but is also on
collection of tax without authority of law.
22. Therefore, in my view, the continued retention of
amount paid towards anticipated stamp duty in the hands
of the respondents is illegal. The apprehension expressed
by the respondents that there was a possibility of the lost
e-stamp paper being mis-utilized seems to be tenuous for
the following reasons:
(i)
First, the particulars of the transaction, parties and
the consideration have already been incorporated in
the lost e-stamp paper.
(ii)
Second, with the technological innovation in place, the
said information would be available and anyone trying
to use the lost e-stamp paper can easily be found out.
In any event, the fact the lost e-stamp paper dated
06.07.2016 adverts to the same property qua which
sale transaction stands effected via the new stamp
paper dated 06.08.2016, the possibility of misuse of
the old e-stamp paper dated 06.07.2016, to my mind,
does not arise.
(iii) The lost e-stamp paper dated 06.07.2016 having
been locked and cancelled, there is, to my mind,
given the technology in place, no possibility of the
[2025] 2 S.C.R.
1185
Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
lost e-stamp paper being mis-utilized. The Collector of
Stamps invariably checks the website of Stock Holding
Corporation Ltd. to ascertain whether or not the stamp
paper is genuine. The order dated 11.03.2015, passed
by the Divisional Commissioner, clearly casts such an
obligation on the Collector of Stamps.
(iv) Lastly, in any case, the petitioners have furnished an
indemnity bond, and therefore, loss or damages, if any,
suffered by the respondents can always be recovered.
23. Before I proceed further, I need to touch upon the
argument raised by Mr. Ramesh Singh that the view held
by a Single Judge of this Court in Piyush Aggarwal's
case requires reconsideration. This was a case where the
petitioners had sought refund of stamp duty on account
of the fact that before the instrument on which the stamp
duty was leviable, was executed, by virtue of a notification
issued by the State, the stamp duty and transfer duty on
conveyance had been substantially reduced. Since, the
petitioners had paid excess stamp duty and transfer duty,
they sought refund of the same.
23.1 The facts, as gleaned from the judgment, would show
that the conveyance i.e. the instrument, in that case, was
executed on 30.06.2003, whereas the notification, reducing
the stamp duty and transfer duty, was issued on 19.05.2003.
23.2 The Court was, thus, called upon to adjudicate two
aspects: First, as to when, did the chargeable event occur?
Second, whether in the given circumstances, the petitioners
claim for refund of excess stamp duty and transfer duty
was sustainable?
23.3 Insofar as the first aspect was concerned, the Court
ruled that the chargeable event, for levy of stamp duty,
would occur on the date of execution of the instrument and
not on the date of adjudication or the date of presentation,
which, in that case were events which occurred prior to
the date of the notification, whereby the stamp duty and
transfer duty charges were reduced by the State.
23.4 Insofar as the second issue was concerned, the Court
held that Section 52 which allows, inter alia, for refund
1186
[2025] 2 S.C.R.
Supreme Court Reports
of stamp duty in cases where a person, inadvertently,
uses on an instrument chargeable with duty, a stamp
of a description other than that prescribed for such an
instrument - was available to the petitioners for refund
of stamp duty. According to the Court, if the date of
execution of the instrument is taken as the date which
would determine as to what would be the admissible
stamp duty that had to be levied on the instrument (i.e. the
conveyance) then, the petitioner's case would fall within
the ambit of the provisions of Section 52 of the Act, as
excess duty had been, inadvertently, paid by the petitioners
since the notification reducing the rate of stamp duty and
transfer duly stood published prior to the execution of the
instrument in that case.
23.5 This apart, the Court observed that even if it is
assumed that Section 52 of the Act was not applicable,
the petitioners would be entitled to refund of stamp duty
as the State could not retain the stamp duty in view of the
provision of Article 265 of the Constitution. The relevant
observations made by the Court are as follow:
"....11. Even as regards applicability of Section
52 of the Act, the matter can be looked at in
another perspective. The "chargeable event"
being the date of execution of the document and
if on that date higher than the admissible stamp
duty is levied or collected, it would fall within the
ambit of excess payment being "inadvertently"
collected on the said date from the petitioner.
Thus, it could even be urged that Section 52
of the Act was applicable. Further as noticed
earlier dehors the applicability of Section 52 of
the Act, stamp duty collected without authority of
law cannot be retained in terms of Article 265 of
the Constitution of India in the absence of any
statutory provision requiring refund application
to be submitted within a specified period or
prohibiting the refund unless made within the
specified period. In the instant case, it may be
noted, that application for refund had been made
[2025] 2 S.C.R.
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
within the stipulated period of six months under
Section 52 of the Act....."
(Emphasis is mine)
23.6 Having regard to the facts which obtained in Piyush
Aggarwal's case and enunciation of law by the Court,
I am not persuaded to hold that the judgment requires
reconsideration, as was contended by Mr. Ramesh Singh.
To my mind, the ambit and scope of Article 265 of the
Constitution is not restricted only to cases where the
Court finds that the levy imposed by the State is illegal or
unconstitutional. As adverted to above, Article 265 of the
Constitution, not only imposes a bar on imposition of tax
without the authority of law, it also imposes a prohibition
on collection of tax without the authority of law.
23.7 In my opinion, the other contention of Mr. Ramesh
Singh that the Court in Piyush Aggarwal's case failed
to notice the legal regime of the Act, is also not correct
in view of the fact that the Court did notice the relevant
provisions, which were necessary for adjudication of the
matter at hand.
23.8 The other submission of Mr. Ramesh Singh, that the
Act is a complete code by itself and that refund could only
be ordered in respect of instances provided in the Act,
has been answered by me hereinabove. The rationale
employed by me is that the scheme of Chapter V of Act
which adverts to allowances and refunds is required to
be interpreted in a manner that the Statute does not fall
foul of the Constitution.
23.9 Therefore, in that sense, the other argument of Mr.
Ramesh Singh that the Collector of Stamps is a creature
of the Statute and can, therefore, only operate within its
periphery, has to be answered, in my opinion, in the same
vein. While one cannot quibble with the proposition that
the statutory authority has to necessarily act within the
ambit of the statute which forms the basis of its nativity,
the extent and amplitude of its power will, however, be
governed by the provision of the Constitution. There being
1188
[2025] 2 S.C.R.
Supreme Court Reports
no prohibition in the Act for grant of refund for lost stamp
paper, surely the Collector of Stamps cannot collect or
retain what lawfully does not belong to the State.
24. Interestingly, our neighbouring country i.e. Pakistan,
which has a somewhat similar Statute, dealing with the
levy collection and refund of stamp duty, is beset with
difficulties which are akin those faced by applicant(s), in
our country, seeking refund of stamp duty on account of
loss of stamp paper. This aspect, I came across upon a
judgment dated 23.02.2016, delivered by the Lahore High
Court, in Writ Petition No.27935 of 2012, titled: Aziz Ullah
Khan Vs. Government of the Punjab etc., being brought
to my notice.
24.1 The Court in that case was faced with a question as
to whether refund of stamp duty ought to be ordered in
a case where the petitioners had misplaced i.e. lost the
stamp papers.
24.2 The Additional Advocate General resisted the writ
petition, broadly, on the ground that there was no provision
for grant of refund of stamp paper, in cases where it was
lost and that if such a relief was granted, it would result
in loss to the national exchequer.
24.3 I must confess that, though, in that case, the Court
noticed the existence of Rule 5 of the Punjab Non Judicial
Stamp Refund, Renewal and Disposal Rules, 1954 which
provided for refund of stamp duty in case of its loss, albeit,
in specified circumstances i.e., where stamp paper was
stolen or lost in transit by Government officials. The Court,
after noting that there was a discrimination, inasmuch
as, Rule 5 permitted write off where stamp papers were
lost by public functionaries, whereas, a similar facility
was not given to private person, went on to deal with the
other arguments, that is, whether it could order refund
in exercise of its constitutional powers in the absence of
specific provision for refund, the possibility of loss to the
national exchequer, as also misuse of stamp paper, in the
following manner:
[2025] 2 S.C.R.
1189
Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
".....It is very strange to note that the public
functionaries, in the event of loss of Stamp
Papers in transit, have been bestowed with a
remedy to seek write off whereas the private
persons have not been provided with such
facility. This fact alone renders it crystal clear
that a discriminatory treatment is being given
by the public functionaries to their own brethren
in the event of loss of stamp papers whereas
the request of a member of society is not being
entertained merely for the reason that the
original are not available. Such approach, being
in conflict with the clear cut mandate given under
Article 25 of the Constitution of Islamic Republic
of Pakistan, 1973, cannot be encouraged rather
deserves to be discouraged.
10. Learned Additional Advocate General has adopted the
plea that when the statute has not allowed any refund in
case of loss of Stamp Papers the same cannot be permitted
by this Court in exercise of Constitutional jurisdiction vested
under Article 199 of the Constitution of Islamic Republic
of Pakistan, 1973. In this respect I am of the view that
according to the golden principle of interpretation of a
statute, a beneficial approach should be followed. As
far as the case in hand is concerned, when a via media
has been provided in the event of loss of Stamp Papers
during transit by the public functionaries, how the petitioner
can be deprived of such facility. It is not the case of the
respondents that the case of the petitioner is not covered
under Rule 32 of the Rules, 1954. The apex Court of the
country, in H.R.C. No.40927-S of 2012 Application by
Abdul Rehman Farooq Pirzada (PLD 2013 SC 829) while
highlighting the principles of interpretation of statutes by
the superior Courts has inter-alia held as under:-
"The interpretation cannot be narrow and
pedantic but the Courts' efforts should be to
construe the same broadly, so that it may be able
to meet the requirements of an ever changing
society. The general words cannot be construed
1190
[2025] 2 S.C.R.
Supreme Court Reports
in isolation but the same are to be construed in
the context in which they are employed. In other
words, their colour and contents are derived
from the context."
Further, a Full Bench of this Court in the case of Rub
Nawaz Dhadwana Advocate etc. v. Rana Muhammad
Akram Advocate etc. (W.P. No.16793 of 2014) while
dealing with the powers of the superior Courts to abridge
the distance between the legislator and the public-at-large
has inter-alia observed as under:
"The judge must reflect these fundamental
values in the interpretation of legislation. The
judge should not narrow interpretation to the
exclusive search for subjective legislative intent.
He must also consider the "intention" of the legal
system, for the statute is always wiser than the
legislature. By doing so the judge gives the
statute a dynamic meaning and thus bridges
the gap between law and society."
If refusal on the part of the respondents to issue refund
in favour of the petitioner is adjudged on the touchstone
of aforequoted cases, I am of the humble opinion that the
same is not tenable for the reason that when the legislator
has framed rules for refund of spoiled/unused/lost Stamp
Papers, how the respondents can interpret said rules
according to their own whims just to damage the case of
the claimants.
xxx
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In this scenario, the objection raised by the learned Additional
Advocate General that the refund is not permissible without
production of original Stamp Papers is of no worth at all.
The bonafide of the petitioner is apparent from the fact that
after loss of original Misplaced Stamp Papers he not only
reported matter to the Police with promptitude but also got
published proclamation in daily "Smaj" and having done so
he, with a view to avoid further delay towards execution
of sale deed, got issued fresh Stamp Papers to complete
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
the sale transaction. A copy of the sale deed provided by
the above named deed writer shows that the Misplaced
Stamp Papers were used for the said purpose but due to
their loss during journey sale deed could not be registered.
The logic behind issuance of refund against the spoiled,
destroyed or unused Stamp Papers is to accommodate
a person who has not used those Stamp Papers for the
purpose for which the same were issued. In the case in
hand after admission by the respondents that neither the
Misplaced Stamp Papers were used for any other purpose
nor anybody else has claimed refund in that regard, the
request of the petitioner cannot be turned down merely on
the ground that he could not produce the original Misplaced
Stamp Papers before the competent authority. If the original
Stamp Papers were available with the petitioner there was
no necessity for him to incur another sum of more than
one million rupees for the same purpose.
12. Learned Additional Advocate General has forcefully
argued that worth of the Stamp Papers is equal to those
of currency notes and no refund against the currency notes
is permissible in case where the original are not produced.
To the extent of worth of Stamp Papers equal to currency
notes, I agree with the learned law officer, however, to
the extent of criteria explained by him regarding refund of
currency notes I have contrary view for the reason that in
case of currency notes its custodian is always considered
its lawful owner and it cannot be proved as to which
specific currency note was in possession of a particular
person whereas in the case of Stamp Papers entitlement
of a person can be certified firstly from the National
Exchequer where price of the Stamp Papers has been
deposited, secondly from the register of Stamp Vendor
and thirdly from the authorities before whom the same
was presented. Insofar as the case in hand is concerned,
all the authorities have admitted that the Misplaced Stamp
Papers were issued to the petitioner after payment of
consideration and those were never utilized for any other
purpose. In this view of the matter, the objection posed
by the learned Law Officer is hereby spurned.
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13. Now taking up plea of learned Additional Advocate
General that in case refund is allowed in absence of original
Stamp Papers not only scrupulous persons would be able
to use them for any other purpose but they would also
succeed to get refund while causing colossal loss to the
National Exchequer. In this regard, I am of the view that
strict criteria can be laid to avoid such apprehension but in
no way same can be made a ground to deprive a person
from refund of the amount whose claim has been admitted
by the relevant forums. In case the respondents have the
apprehension that the Misplaced Stamp Papers were or
would be used for any other purpose they can proceed
against the culprit under the relevant law in addition to
getting registered a criminal case against the petitioner.
14. Admittedly, the Misplaced Stamp Papers were used for
preparation of sale deed as is evident from the recitals of
copy of sale deed (Annexure-C of this petition), thus, the
possibility of using the Misplaced Stamp Papers for any
other purpose is totally ruled out. Moreover, execution of
sale deed by the petitioner on subsequently purchased
Stamp Papers also eliminates said apprehension as the
land once sold cannot be resold on the strength of Stamp
Papers got issued in that regard.
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16. The learned Additional Advocate General has mainly
opposed prayer of the petitioner on the premise that there
is no provision either in the Act, 1899 or in the Rules, 1954,
regarding a private person, in case of loss of original Stamp
Papers. In this regard, I am of the view that in view of
principle ubi jus ibi remedium (where there is a right there is
a remedy) nobody can be left remediless. The said principle
has also been elucidated by the apex Court of the country
in the case of Sarfraz Saleem v. Federation of Pakistan
and others (2014 PLC C.S. 884) in the following words:-
"In these circumstances, lack of exercise of
jurisdiction by the High Court in the present
case seems to be contrary to the well accepted
principle "ubi jus ibi remedium" (where there
is a right there is a remedy) and the spirit of
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
Articles 4 and 10-A of the Constitution, meant to
safeguard the rights of every individual/person
to be dealt with in accordance with law"
The afore-quoted portion of the judgment of apex Court of
the country renders it more than clear that nobody can be
left remediless. Moreover, while dealing with the matters of
masses they cannot be penalized due to stagnant attitude of
the legislator about new Issues. Insofar as case in hand is
concerned, request of the petitioner deserves sympathetic
consideration for the reason that after completion of codal
formalities his request has been turned down mainly on
the ground that original Stamp Papers have not been
produced. At the cost of repetition it is observed that when
the legislator itself has held that Collector can refer matter
of refund against unused stamp papers even without
producing the original one the stubbornness on the part of
competent authority in this regard is not understandable.
Public functionaries are supposed to eliminate difficulties
of public-at-large but when they themselves try to impede
their way to have their legitimate right the entire threadbare
of our society would be devastated.
17. Now taking up plea of learned Additional Advocate
General that if refund is allowed even in cases where
the original Stamp Papers are not produced the National
Exchequer would suffer badly, I am of the view that the
respondents are not going to pay anything either from their
own pockets or from the National Exchequer either they
have to repay the amount twice deposited by the petitioner.
Had the petitioner claimed anything in addition to that he
deposited at the time of issuance of Stamp Papers then the
said contention would have some substance. Considering
from another angle in the cases where spoiled or unused
Stamp Papers are returned by the persons concerned they
are issued refund without taking into consideration that the
said amount is being repaid from the National Exchequer.
This fact alone amounts to discrimination on the part of
competent authority......"
(Emphasis is mine)
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25. As would be noticed, the Aziz Ullah Khan's case,
on facts, was pari materia with the facts obtaining in the
instant case. In that case, the stamp paper was lost, which
was required for consummation of the sale transaction
concerning the subject immovable property. The petitioner,
as in the instant case, had bought a new stamp paper and
had gone on to consummate the sale transaction qua the
very same property.
26. I may also indicate that insofar as other cases cited
by Mr. Ramesh Singh are concerned, they are, in fact, not
applicable to the facts and circumstances arising in the
instant case. One cannot but state that the proposition of
law as enunciated in Mafatlal Industries Ltd. & Ors. vs.
Union of India & Ors.; State of Maharashtra & Ors. vs.
Swanstone Multiplex Cinema Pvt. Ltd. and Cooch-Behar
Contractors' Association and Ors. vs. State of West Bengal
& Ors. still hold the field.
26.1 However, dealing with the last case first i.e. CoochBehar Contractors' Association case, that was a case
where the appellants before the Supreme Court sought
exclusion of certain components, which had been included
in the expression "contractual transfer price", which in turn,
determined the tax that an assessee had to pay under
works contract. In this context, the Court was called upon
to interpret, inter alia, the provisions of Section 6D of the
Bengal Finance (Sales Tax) Act, 1941 as amended by
West Bengal Act 4 of 1984. The Court ruled that nothing
could be excluded from contractual transfer price over
and above that was indicated in Clauses (a) to (e) of subsection 2 of Section 6D of the aforementioned Act. It is in
this context that the Court observed that Section 6D was a
self contained provision. In my view, there is nothing in the
judgment, which would help the cause of the respondents.
26.2 Likewise, the judgment of the Supreme Court rendered
in State of Maharashtra & Ors. case, does not support the
respondent's case. This was a case where the respondent
company, which was the owner of multiplex cinema theatre
had collected entertainment tax at rate of 45% during the
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
period when it was either not liable to pay such tax or was
required to pay tax at a concessional rate i.e., 25%. The
State attempted to reclaim the benefit, which had accrued
to the respondent company as they had recovered excess
entertainment tax from the cinema goers. Consequently,
demand notices were issued by the State in that behalf.
The demand notices issued were challenged. The High
Court allowed the writ petition. The Supreme Court reversed
the decision of the High Court.
26.3 While doing so, the Supreme Court made an interesting
distinction between the doctrine of unjust enrichment as
opposed to doctrine of retention. While drawing a distinction
between the two concepts, the Supreme Court noticed
several judgments, including the judgment rendered by the
Court in Mafatlal Industries Ltd. case. Pertinently, the Court,
while allowing the appeal of the State, directed the State to
remit undue benefit obtained by the respondent company
to a voluntary or charitable organization, since, the State
during that period, could not have levied or collected the
tax from the respondent company. This aspect of the
matter is reflected in Paragraphs 32, 33, 36 & 37. For the
sake of convenience, the same are extracted hereafter:
"...32. In a given case, this Court in exercise of its
jurisdiction under Article 142 of the Constitution
of India may also issue other directions, as has
been done in Indian Banks' Assn. v. Devkala
Consultancy Service [(2004) 11 SCC 1] in a
similar situation where it was difficult for the
Court to direct refund of a huge amount to a
large number of depositors from whom the bank
had illegally collected, this Court directed that the
amount be spent for the benefit of the disabled
in terms of the provisions of the Persons with
Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995. This
Court may take recourse to such a procedure
as the State also having granted exemption was
not entitled to collect the duty. In other words,
it having granted an exemption, was not legally
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entitled thereto. We think that it would be a
better course, as stricto sensu, Article 296 of
the Constitution is not applicable.
33. We are passing this order keeping in view
the peculiar situation as in either event it was
cinema-goers who had lost a huge amount. It
would be travesty of justice if the owners of the
cinema theatre become eligible to appropriate
such a huge amount for their own benefit. To
the aforementioned extent, doctrine of unjust
enrichment may be held to be applicable. A
person who unjustly enriches himself cannot
be permitted to retain the same for its benefit
except enrichment. Where it becomes entitled
thereto the doctrine of unjust enrichment can be
invoked irrespective of any statutory provisions.
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36. It may be true that hereat we are not
concerned with refund of tax but then for
enforcement of legal principles, this Court may
direct a party to divest itself of the money or
benefits, which in justice, equity and good
conscience belongs to someone else. It must
be directed to restitute that part of the benefit
to which it was not entitled to.
37. We, therefore, direct that the State shall
realise the amount to the extent the respondent
had unjustly enriched itself and pay the same
to a voluntary or a charitable organisation,
which according to it is a reputed civil society
organisation and had been rendering good
services to any section of the disadvantaged
people and in particular women and children.
We would request the Hon'ble the Chief Minister
of the State to take up the responsibility in this
behalf so that full, proper and effective utilisation
of the amount in question is ensured..."
(Emphasis is mine)
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Dr. Poornima Advani & Anr. v. Government of NCT & Anr.
26.4 Insofar as Mafatlal Industries Ltd. case is concerned,
the Supreme Court was considering the scope, ambit and
extent to which doctrine of unjust enrichment would apply,
the Court laid down various propositions of law, which I
need not advert to as none of them, in my opinion, would
help the cause of the respondent.
26.5 I may, however, indicate that the Court, inter alia, ruled
that where the provisions of a statute provided for refund,
the refund, if any, would be granted in accordance with
the statute. The Court was, amongst others, considering
the provisions of Section 11B of Central Excises Act and
Section 27 of the Customs Act.
26.6 Likewise, Sri Maganti Suryanarayana case cited
for the proposition, that there is no inherent jurisdiction
vested in the Collector of Stamps to grant refund as he is
a creature of the statute or the judgment rendered in Govt.
of A.P. & Ors. vs. P.