The central legal point established in the judgment is the entitlement to a refund of excess stamp duty paid voluntarily, supported by the provisions of the Indian Contract Act and the Indian Stamps Act.

Sharad Kumar Sharma, J.

The brief facts leading to the filing of the writ petition are that in pursuance to the auction proceedings, which was conducted by the Official Liquidator, the petitioner was auction purchaser of the property, by virtue of the sale deed executed in his favour on 3rd October, 2008. The sale consideration which has exchanged hands, as a consequence of the sale deed dated 3rd October, 2008, was 5,26,00,000/-. Whereas, as per the market value settled by Collector, sale consideration would have been Rs.3,14,94,000/-, meaning thereby, Rs.2,11,46,000/- excess sale consideration paid by petitioner more than the market rate. Thus, the petitioner was entitled for rebate of 5% on the excess amount of Rs.2,11,46,000/-, which as per the petitioner, was settled to be Rs.9,91,570/- In accordance with the stamp duty which was paid, it is the case of the petitioner that he has remitted a sum of Rs. 47,34,000/- as a stamp duty. Out of which, he contends that he has remitted an amount of Rs. 41,34,000/- as cash and the remaining amount of Rs.6,00,000/- by virtue of stamp papers.

2. However, the Collector, Stamp by invoking Section 33 read with Section 38 of the Indian Stamps Act, by virtue of its order dated 15th October, 2008, has impounded the sale deed and referred the matter.

3. On conclusion of the reference, it was held out that the document executed on 3rd October, 2008, will amount to be a sale deed and will fall to be within Article 23 and it would not be treated as to be a sale certificate so as to bring it within Article 18 of the Stamp Act. Merely because of the fact that the Official Liquidator has auctioned the property in favour of the petitioner, it will not be treated as to be sale certificate.

4. Accordingly, it was held that the petitioner would be liable to pay the stamp duty as payable against the sale deed @ 9% and not @ 13.5 % which was being levied on the sale certificate at the relevant time.

5. The Collector, Stamps on conclusion of the proceedings, confirmed the report about the deficiency of the stamp against which a revision was preferred by the petitioner before the ACRC. And accordingly, the revision was decided by the order dated 22nd February, 2009 in favour of the petitioner. While, passing the order, the ACRC has made an observation that the petitioner would be entitled for a rebate in pursuance Government Order No. 74/XXVII(9)/Stamp/2008 dated 25th April, 2008, and hence a rebate was required to be refunded to the petitioner on the sale consideration which was in excess to the market rate as settled by the Collector under the Stamp Act.

6. When the rebate of 5% was not paid to the petitioner, he approached the Collector, Stamp who vide his impugned order dated 28th February, 2009, declined to grant the benefit of rebate to the petitioner on the ground that the stamp duty which was paid by the petitioner in excess to the market value, i.e. for the sum of consideration of Rs.2,11,46,000/-, was paid by him voluntarily. The denial has been only on the ground that the petitioner has voluntarily remitted the stamp duty on the entire sale consideration based on the face value of the sale deed and since it was a voluntary payment, it could not be refunded under the Government Order dated 25th April, 2008, which provided the benefit of rebate in stamp duty against consideration in excess to the market value.

7. Learned counsel for the State submits that the petitioner would not be entitled for any benefit of refund/rebate under the Government Order dated 25th April, 2008 because the amount which has been remitted by him against the sale deed 3rd October, 2001, was a voluntary act, and thus, the State is not responsible in any manner whatsoever, thus, he opposed the cause agitated by the petitioner.

8. In response to it, the learned counsel for the petitioner submits that the petitioner would be entitled for the refund because in view of the provisions contained under Section 72 of the Contrac