Shujaat Ali Khan, J: - Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought direction to the respondents for refund of Rs.10,40,000/- (rupees ten lac and forty thousand only).
2. Succinctly, the facts, as encapsulated in this petition, are that the petitioner, being owner of agricultural land measuring 39 Kanals and 121/2 Marlas, situated within the revenue estate of Mauza Kotli Sahian, Tehsil Wazirabad, District Gujranwala, entered into an agreement to sell with Muhammad Asim Butt and Robina Asim Butt against a consideration of Rs.5,20,00,000/-. To complete the sale transaction, the petitioner deposited Rs.10,40,000/- in the State Bank of Pakistan, Gujranwala Branch, Gujranwala, through Challan No.628 dated 27.06.2011 for issuance of Stamp Papers. The Treasurer, Saddar Gujranwala issued requisite Stamp Papers to the petitioner against Sr. No.33298 dated 27.06.2011 (hereinafter to be referred as the Misplaced Stamp Papers). On 28.06.2011, the petitioner got prepared sale deed in favour of above named vendees from Mr. Faisal Majeed, Stamp Vendor/Deed Writer. On 29.06.2011, when the petitioner, along-with above named Stamp Vendor, were on their way to Wazirabad to present the sale deed before the Sub-Registrar concerned for registration, the original sale deed was lost. As the petitioner was not able to lay hands on the lost original sale deed, he lodged complaint in Police Station, Model Town, Gujranwala, vide Diary No.24 dated 29.06.2011. In addition thereto, he also got published a proclamation in newspaper "Daily Smaj" dated 30.06.2011 regarding the missing of his original sale deed. When all efforts of the petitioner went abortive, the aforementioned Stamp Vendor submitted an application before District Accounts Officer (respondent No.7) on 05.07.2011 regarding verification of issuance of Stamp Papers worth Rs.10,40,000/- in favour of the petitioner whereupon, requisite verification certificate was issued in favour of the petitioner. The petitioner with a view to complete the sale deed before the cut off date, got issued fresh Stamp Papers against Sr. No.1454 dated 18.07.2011 of the same denomination whereupon he executed sale deed which was registered in favour of the above named vendees. After completion of sale deed, the petitioner submitted an application before the Collector Gujranwala (respondent No.6) on 20.07.2011 for refund of amount deposited by him for issuance of Misplaced Stamp Papers who referred the matter to the Commissioner, Gujranwala Division, Gujranwala (respondent No.4), but the same was not finalized. Moreover, the case of the petitioner was also forwarded to the Chief Inspector of Stamps, Board of Revenue, Lahore (respondent No.3) but without any concrete result. After having failed to get refund of the amount claimed by him, the petitioner has filed the instant petition.
3. The legal formulations, advanced by learned counsel for the petitioner, can be summed up in the words that when the petitioner did not use the Misplaced Stamp Papers, he is entitled for refund of amount of Rs.10,40,000/-; that the deposit of aforesaid amount and issuance of Misplaced Stamp Papers in lieu thereof has been admitted by all the relevant Authorities thus he cannot be deprived of the refund of said amount; that admittedly after loss of Misplaced Stamp Papers, the petitioner got issued another set of Stamp Papers of the same denomination after deposit of said amount afresh thus the Misplaced Stamp Papers could not be used by the petitioner for any other purpose; that bona fide of the petitioner is apparent from the fact that after coming to know about the loss of Misplaced Stamp Papers, he not only reported the matter to the Police with promptitude but also got published a proclamation in "Daily Smaj" just to apprise the public-at-large about the loss of the Misplaced Stamp Papers; that though all the authorities are admitting the claim of the petitioner but they are not willing to refund the amount against Misplaced Stamp Papers and that in case the amount claimed by the petitioner is not refunded, he would suffer colossal loss.
4. Learned Additional Advocate General, while controverting the contentions urged by learned counsel for the petitioner, submits that to claim refund against un-used or spoiled Stamp Papers, the person concerned is bound to present the same in original in any shape; that to ensure safe custody of the Stamp Papers, they are kept in double lock as currency notes; that the refund of Stamp Papers is issued on the analogy of the spoiled currency notes which do not remain useful for any reason and in case of loss, the State Bank does not issue fresh notes until and unless the original are produced before it; that there is no provision regarding refund against the lost Stamp papers seemingly for the reason that the parties on the one hand succeed to get refund from the Government and on the other use them for any other purpose; that when the petitioner himself opted to purchase new Stamp Papers to complete sale deed in favour of the vendees, he could not claim refund against the Misplaced Stamp Papers and that in case respondents start to issue refund on the basis of copy of Challan Forms, there would be a flood gate of such claims by unscrupulous persons which would not only be embarrassing for them but would also result into considerable loss to the national exchequer.
5. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that under Rule 5 of the Punjab Non Judicial Stamp Refund, Renewal and Disposal Rules, 1954 (the Rules 1954), the petitioner is entitled for refund, especially when the District Collector has held that the petitioner's case is covered under Rule 32 of the Rules 1954; that had the petitioner been able to lay hands on the Misplaced Stamp Papers, there was no necessity for paying another amount of Rs.10,40,000/- for the second time for the same purpose and that a learned Division Bench of this court in the case of Zila Council, Sargodha vs. Haji Irshad Ahmad (1994 CLC 79) has held that in case a court fee is lost, the person concerned cannot be burdened twice.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case law cited at the bar.
7. It is admitted position that the Misplaced Stamp Papers were issued in favour of the petitioner for execution of a sale deed in favour of aforementioned vendees after deposit of requisite charges in the relevant head. Moreover, there is no denying the fact that though sale deed was prepared on the Misplaced Stamp Papers, however, the same could not be completed due to loss of written sale deed in transit. So, the question which boils down for determination by this Court is as to whether the petitioner can claim refund thereof without producing the original Misplaced Stamp Papers or not. In the Stamp Act, 1899 (the Act, 1899) there is no specific provision to deal with a situation where the original Stamp Papers have been lost, however, Rule 5 of the Rules 1954 deals with such situation which for convenience of reference is reproduced herein below: "5. When the stamps are totally destroyed by fire or otherwise or are stolen or lost in transit, the instructions contained in the Punjab Stamp Losses and Defalcation Rules (reproduced as Chapter 8, Part III of the Punjab Stamp Manual, 1934), shall be observed." (emphasis provided) A look over the afore-quoted rule shows that a criteria has been provided to cope with a situation where the Stamp Papers are lost in transit. In this backdrop, the plea raised by the learned Additional Advocate General that no allowance for lost Stamp Papers is permissible is of little value.
8. Since in the afore-quoted Rule a reference has been made to the instructions contained in Part III Chapter 8 of Punjab Stamp Losses and Defalcation Rules, 1934, in my humble opinion a perusal thereof is conducive, therefore, the operative portion thereof is reproduced herein below for ready reference:-
(3) There are three classes of cases of loss connected with stamps (i) Loss in transit (a) between the Central Stamp Store, Nasik Road, and local depots in the Punjab, and (b) between a local depot and a branch depot;
(ii) Losses of stamps forming part of the stock in a local or branch depot; or (iii) Losses when stamps are abstracted from files or otherwise illegally acquired and fraudulently reused If, therefore, non-postal stamps are lost, the orders of the Financial Commissioner or of the Local Government are necessary for writing off the loss from the registers of the local or branch depot as may be." A cursory glance over the afore-quoted instructions shows that a remedy of write off against totally destroyed or stolen Stamp Papers has been provided where the same happens during transit from one place to another.
9. Now the question is as to whether the said instruction can be made applicable to the cases where Stamp Papers are lost from the custody of a private person. In my humble opinion, to determine the said question a reference to Rule 32 of the Rules 1954, is pivotal which for convenience of reference is reproduced herein below: "32. If the claim for refund or renewal is of an unusual nature or the limitation of two years laid down by Rule 12 has been exceeded in a case of hardship, and the Collector considers that the sanction of Government should be accorded, he shall address the Assistant Secretary to the Board of Revenue through the Commissioner of the division, and also forward to that office the stamps (if any) tendered by the applicant.
The Board of Revenue, if necessary, shall refer the matter to the Finance Department and the orders of Government shall be communicated to the Commissioner of the division and the Collector of the district concerned over the signature of the Secretary to Government, Punjab, for the subject of "Stamps" and to the Accountant-General, Punjab, over the signature of an officer of the Finance Department. The Assistant Secretary to the Board of Revenue shall then personally destroy the stamps on receipt of the order of Government.
If the Board of Revenue or the Provincial Government decides that the refund or renewal is not admissible the original stamps shall be destroyed by the Assistant Secretary to the Board of Revenue and the orders of rejection communicated to the Commissioner and the Collector concerned.
On receipt of order from the Government or the Board of Revenue as the case may be, the Collector shall inform the applicant of the decision and in case the refund or renewal has been sanctioned he shall cause to be prepared the necessary voucher in Form S.R. 2 or S.R. 4, as the case may be, and deliver the same to the applicant or his duly authorized agent, who shall acknowledge its receipt in column 18 of the register." (emphasis provided).
A perusal of the documents attached by the petitioner with this petition shows that the District Coordination Officer/District Collector, Gujranwala, addressed letter dated 23.08.2011 to Commissioner Gujranwala Division, Gujranwala (respondent No.4) with the proposal that the case of the petitioner is fully covered under rule 32 ibid. Furthermore, the Assistant Commissioner (Revenue), Gujranwala Division, Gujranwala forwarded the matter to respondent No.3 for guidance.
Though there is nothing on record that what happened to the request forwarded by the Assistant Commissioner, however, according to the view taken by respondent No.3 in the report and parawise comments, filed in the instant petition, in absence of original Stamp Papers, refund cannot be allowed to the petitioner. 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 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 afore-quoted 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.
11. Apparently, the plea raised by the learned Additional Advocate General that in absence of original Stamp Papers, in whatever shape, refund is not permissible seems to be very genuine, however, while considering the same by putting it in juxtaposition to the afore-quoted Rule it comes to limelight that the Collector, while referring the matter to the Board of Revenue through the Commissioner of the Division is not bound to forward the original Stamp Papers in every case rather in cases of sheer hardship the matter can be processed even without production of original Stamp Paper. This fact also leaves no ambiguity that the Collector can forward the claim of a person even without production of original Stamp Papers. 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 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.
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.
15. This Court in the case of Zila Council, Sargodha (Supra) while dealing with the question regarding burdening a person to pay any fee in the National Exchequer twice has inter-alia observed as under: "4. If the appellant had deposited the requisite amount for purchasing the court fee in the Government Treasury and court fee stamp was in fact delivered to him, which is proved to have been lost he could not be burdened with further liability to purchase fresh court fee stamp unless it was established by the respondents that the said court fee stamp had been utilized for any other purpose or case.
5...... If the appellant proves deposit of requisite amount of court fee in the Government Treasury and that the same was not subsequently withdrawn, but the court fee stamp was issued and lost, the plaint shall be deemed to be duly stamped unless the respondents prove that it was utilized for some other case. If the appellant fails to prove the aforementioned facts, only then it shall be called upon to make up the deficiency in the court fee within the time to be fixed by the Court.
There will be no order as to costs."
If we consider the instant case on the touchstone of afore-quoted case law the answer in definite is that the petitioner is entitled for refund of the Misplaced Stamp Papers.
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 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.
18. As a necessary corollary to the discussion made in the fore-going paragraphs, I have no hesitation to hold that in cases where Collector certifies that case of a particular person is covered under rule 32 of the Rules, 1954, the persons concerned are entitled for issuance of refund irrespective of the fact as to whether the original Stamp Papers have been produced or not especially when despite reporting the matter to the Police the lost Stamp Papers are not traceable.
Consequently, instant petition is allowed and the respondents are directed to issue refund in favour of the petitioner forthwith. There shall be no order as to costs.
19. Before parting with this judgment, it is observed that to ensure that the petitioner or anybody else does not use the Misplaced Stamp Papers, the respondents would be at liberty to have an undertaking from the petitioner to the effect that in case it is established in future that the Misplaced Stamp Papers were used by him or somebody else or refund was claimed by somebody else against them, he would make the loss good.