F. I. REBELLO, J.

( 1 ) RULE. Heard forthwith.

( 2 ) THE petitioner entered into an agreement with M/s Diamond Creek dated 19th July, 1980. By that agreement M/s Diamond Creek agreed to acquire, assign and transfer all the benefits of the Agreement dated 13th November, 1978 between M/s Unique Enterprises (India) and M/s Diamond Creek together with right to occupy, enjoy and possess the premises. The price was set out. The transaction was to be completed within 15 days of the Agreement. The petitioner lodged the agreement with the Collector for an endorsement whether the document was properly stamped. On 5th March, 2003 the petitioner received a demand notice by hand delivery informing that the agreement submitted was impounded under section 32 of the Bombay Stamp Act, 1958. The petitioner was called upon to pay a sum of Rs. 87,200/- as stamp duty and Rs. 1,74,000/- as penalty, thus aggregating to a sum of Rs. 2,61,600/ -. It is the case of the petitioner that she informed the respondents that the demand was illegal as the amendment by way of explanation to Article 24 of Schedule I to the Bombay stamp Act, 1958 came into force on 9th December, 1985 and the execution of the agreement was on 19th July, 1980. Though the petitioner was not bound to pay the amount, the petitioner however paid Rs. 2,61,600/- under protest under covering letter dated 11th March, 2003 which according to the petitioner was not acknowledged. The sum of Rs. 2,61,600/- was accepted and receipt issued. The petitioner thereafter by letter of 4th August, 2003 after drawing the attention of the respondents to the judgment of this Court called for refund of the amount with interest at 12% p. a. As the respondents failed to refund the said amount the present petition with the reliefs as prayed for.

( 3 ) ON behalf of the respondents Samir Madhav Kurtkoti, Additional superintendent of Stamps has filed an affidavit. It is set out that section 32a of the Bombay Stamp Act, 1958 was substituted with effect from 4th July, 1980 by section 10 of Maharashtra Act 27 of 1985. By virtue of section 32a as amended any instrument of conveyance or transfer of lease by way of assignment executed on or after 4th July, 1980 is included. It is pointed out that this was required to be introduced as there was a deliberate avoidance of payment of stamp duty on conveyance and the State revenue suffered seriously. It is set out that the petitioner paid Rs. 5/- only as stamp which was the duty in the year 1980, but did not produce it for registration and presented the said document for adjudication on 13th November, 2002 after nearly 22 years with a deliberate view to avoid payment of stamp duty. As she could not sell the property without payment of the stamp duty the petitioner presented the document for adjudication on 13th november, 2002. Adverting to the judgment of the learned Judge of this Court in padma Nair vs. The Deputy Collector, Valuation and Stamp Duty, and anr. , 1994 (1) Mh. L. J. 497 = AIR 1994 Bom. 160, it is set out that the judgment is not applicable as in that case the petitioner had lodged the same for registration on the date of execution i. e. on 16th October, 1984.

( 4 ) WE have heard learned Counsel for the parties and the contentions as urged therein. Two issues arise in this petition, (1) If a document was submitted under section 31 of the Bombay Stamp Act, 1958 for adjudication whether it was open to the respondent to impound the said document and demand the stamp duty and penalty in terms of the demand made on the petitioner and (2) whether the agreement to sell entered into in the year 1980 requires payment of Court Fees in terms of the amendment to the Bombay Stamp Act, 1958 which insofar as payment of stamp duty is concerned came into effect from 10th December, 1985.

( 5 ) WE may first deal with the issue of section 31 of the Bombay Stamp act. Section 31 provides that if a document as set out therein is brought to the collector by one of the partie