The main legal point established in the judgment is that the petitioner is entitled to a refund of the stamp duty amount under the Maharashtra Stamp Act, 1958, despite the initial document being unexecuted, as two substituted agreements were executed and stamp duty was paid for them.

JUDGMENT :

1. By the present Writ Petition, Petitioner has prayed for the following reliefs :-

“a) that this Hon’ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari under Article 226 of the Constitution of India, calling for the records pertaining to the Impugned Judgment dated 01st September, 2016 passed by the Respondent No.2 in Case No. 61/2012, inter alia, rejecting the Petitioner’s claim of refund of stamp duty of Rs.3,23,75,615/-, and after going into the validity and legality thereof to quash and set aside the same;

b) that this Honorable Court be pleased to issue writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India, directing the Respondents to refund to the Petitioner, stamp duty of Rs.3,23,75,615/- along with interest at the rate of 15% p.a. thereon from 27th April, 2011 till payment and/or realization.”

2. Petition takes exception to the order dated 01.09.2016 passed by Respondent No.2 – Chief Controlling Revenue Authority and Registrar General of Stamps, Maharashtra rejecting Petitioner's case for refund of stamp duty amount of Rs.3,23,75,615/-.

3. In anticipation of executing a Deed of Assignment for Development rights, Petitioner paid an amount of Rs.3,23,75,615/- to the Collector of stamps as an advance payment against stamp duty that would be liable to be paid for the said Deed of Assignment which was to be executed on 27.04.2011. Admittedly, the aforesaid amount was paid on the unexecuted Deed of Assignment as an advance. Further, admittedly the Deed of Assignment for development rights was not executed. Instead the Deed of Assignment was substituted with two separate documents viz; Development Agreement dated 02.05.2011 and Tripartite Deed of Cancellation of Development rights dated 10.09.2011. Once again admittedly Petitioner paid the appropriate ad-valorem stamp duty amount on the Development Agreement and the Tripartite Deed of Cancellation.

4. I have perused both the above documents. Development Agreement with the original owner in respect of the same property which was the subject matter of the unexecuted Deed of Assignment for Development rights was executed on 02.05.2011. The same is appended at page No.93 to 128 of the Writ Petition. The Tripartite Deed of Cancellation between the original owner of the same land/property and holder of Development rights with whom original Deed of Assignment was proposed to be executed is at Page No.139 to 153 of the Writ Petition. It is seen that appropriate stamp duty has also been paid on this document/transaction.

5. Considering the above transactions, Petitioner filed Application dated 14.03.2012 seeking refund of the amount of Rs.3,23,75,615/- which was paid in respect of the unexecuted Deed of Assignment for Development rights. The Application seeking refund was rejected by Respondent No.2 vide order dated 01.09.2016 on the ground that the refund Application was time barred as the same was made beyond the prescribed period of limitation as contemplated under Section 48(3) of the Maharashtra Stamp Act, 1958 (for short ‘the said Act’).

6. In the interregnum pursuant to the filing of the refund Application in 2012, by order dated 07.09.2012, Respondent No.2 rejected the Application without giving an opportunity of hearing to the Petitioner under the provisions of Section 48(3) of the said Act. Petitioner filed Writ Petition No.2566 of 2013 in this Court wherein vide order dated 08.03.2016, this Court set aside the order dated 07.09.2012 and directed the Competent Authority to give hearing to the Petitioner and pass a fresh speaking order.

7. After hearing the Petitioner, the impugned order dated 01.09.2016 is passed by the Respondent No.2 – Competent Authority. By the impugned order the Competent Authority has held that Applicant has failed to prove beyond doubt that any Development Agreement entered into by and between the same parties with