Important Point
Statutory authority has no right to retain any amount paid by petitioners in excess of stamp duty that is legally and validly leviable upon instruments executed by them.

ABHILASHA KUMARI, J.

1. These petitions under Articles 226 and 227 of the Constitution of India have been preferred, inter alia, laying challenge to the orders dated 15-4-2013, passed by respondent No.1, the Chief Controlling Revenue Authority, whereby the applications of the petitioners made under Section 44 of the Gujarat Stamp Act, 1958 (“the Act” for short) for the refund of the excess amount of stamp duty paid by them, have been rejected.

2. Both the petitions arise out of identical issues of fact and law and have been heard together; therefore, they are being decided by a common judgment.

3. For the sake of convenience, the facts as obtaining in Special Civil Application No.17485 of 2013, may be noticed. They are as follows:

3.1 The petitioner executed a Deed of Allotment on 31.03.2011, with Nandoli Co-operative Housing Society, for property bearing sub-plot No.AX-04, admeasuring 540 sq. yards in Suramya-VII Scheme at village Nandoli, Taluka Kalol, District Gandhinagar, for a total consideration of Rs.13,50,000/-. The said instrument was executed on a non-judicial stamp of Rs.66,500/-. By a Circular dated 02.04.2011, the State Government instructed every Sub-Registrar of the State of Gujarat to commence the implementation of the Annual Statement of Rates-2011 (commonly known as “Jantri”), from 01.04.2011. Thus, the stamp duty would now be based upon the calculation of the market value of the immovable property based on the new Jantri-2011, with effect from 01.04.2011. The petitioner was called upon to pay the difference of stamp duty of Rs.51,732/-and made the payment of this amount. Thereafter, the petitioner presented the said Deed of Allotment for registration before respondent No.4 Sub- Registrar on 13.07.2011 and obtained a Certificate under Section 32 of the Act. It is the case of the petitioner that in the meanwhile, a petition came to be preferred in this Court, being Special Civil Application No.9311 of 2011, challenging the Circular dated 02/04.04.2011 of the State Government, on the basis of which the stamp duty had been levied in the cases of the petitioners. During the pendency of this petition, the State Government issued a clarification dated 09.08.2011, to the effect that the date of the execution of the document would be relevant for the computation of the market value of the property and not the date of presentation. On the basis of the above clarification and the statement made by the learned Assistant Government Pleader appearing in that case, the petition came to be disposed of.

3.2 It is the case of the petitioners herein that after coming to know of the decision of the State Government dated 09.08.2011, they made applications for refund of the excess amount of stamp duty under Section 44(2) of the Act, on 12.09.2011. These applications came to be rejected by respondent No.1, by passing the impugned orders, on the ground that it is the date of the presentation of the document that is relevant and not the date of its execution.

3.3 Aggrieved thereby, the petitioners have approached this Court by way of the present petitions.

4. Mr. Hriday Buch, learned advocate for the petitioners, has submitted that there is no dispute regarding the fact that the Deed of Allotment was executed on 31.03.2011. It was presented for registration on 13.07.2011 and was registered on 19.07.2011. However, as per the definition of “market value” contained in Section 2(na) of the Act, the market value is to be calculated taking into consideration the price which the property which is the subject matter of the instrument would have fetched, if sold in the open market on the date of the execution of the instrument. It is submitted that taking into consideration the definition of “market value” as per Section 2(na) of the Act, and as the Deed of Allotment was executed on 31.03.2011, the market value as obtaining on 31.03.2011 ought to have been taken into consideration for the calculation of the stamp duty and not the market