' Mst. Sakina Bibi, petitioner, herein, purchased non-judicial stamps worth Rs,8,636 for the purposes of executing a sale-deed which was scribed on these stamps on 6th of August, 1962. The sale deed was presented to the Sub-Registrar for registration on 3rd of December, 1962, but could not be registered for certain reasons, which are not relevant for the present controversy. It appears that the Sub-Registrar, on examination of the documents, was of the view that a thumb impression on the sale-deed was not genuine. He, therefore, referred the matter to the Senior Superintendent of Police on 27th of November, 1963, for registration of a criminal case. On investigation, however, the police found that no case was made out. According to the petitioner, it was only on 23rd of February, 1965, that the stamp papers were returned to him.
2. The petitioner applied for refund of these stamps on 25th of February, 1965, by lodging six claims bearing Nos.803-S/65 to 808-S/65. The Collector called a report from the Stamp Inspector, Lahore Division, Lahore, who reported that as the stamps did not remain in possession of the applicant, the same could be refunded under Rule 12 of the Punjab Stamp (Non-Judicial Refund, Renewal & Disposal) Rules, 1954. The matter was referred to the Commissioner, who, in turn, forwarded it to the Board of Revenue, for approval of the Government for refund of stamp duty. The Board of Revenue, in turn, consulted the Finance Department which obtained the advice of the Law Department, according to which the refund was not permissible. Consequently, on 11th of January, 1972, the claim for refund was rejected by the Collector. This refusal has been assailed by the petitioner by filing this Constitutional petition.
3. The learned counsel for the petitioner has relied upon Rules 12 and 32 to contend that the respondent acted without any lawful authority in rejecting the claim for refund.
4. The provisions for the refund of non-judicial stamp are to be found in section 45, of the Stamp Act and the Punjab Stamp (Non-Judicial Refund, Renewal & Disposal) Rules, 1954, which have been framed by the Governor of Punjab in exercise of the powers conferred upon him by section 75 of the Stamp Act, 1899.
5. According to section 49 of the Stamp Act, on happening of the eventualities mentioned therein, the Collector, may, if an application has been made within the period prescribed in section 50, direct the refund of the duty. Section 50, prescribes the limitation of two months in cases falling under clause (d)(5) of section 49, while in other cases, prescribed period is six months. In the present case, the case of the petitioner fell under clause (d) (5) of section 49, and, therefore, ordinarily, the refund of stamp could be allowed within the period of sixty days from the date of the execution of the documents which was 6th of August, 1962. Therefore, the application for refund, which was submitted on 25th of February, 1965, was not within time.
6. However, a discretion is vested in the functionaries under Rule 12 to direct the refund of stamp duty in cases of special hardship within two years from the date on which the stamp was purchased. Rule 32 provides for further extension of time beyond the period of two years, in case of unusual nature with the sanction of the Government through the Commissioner of the Division and the Board of Revenue. It was under this provision that the Collector had referred the matter to the Government, which, however, declined to allow the refund under advice from the Law Department.
7. In the report and parawise comments submitted by the respondents, it has been admitted that the document was executed on 6th of August, 1962, and was presented before the Sub-Registrar for registration on 3rd of December, 1962. However, the document could not be registered and on 27th of November, 1963 when the matter was referred to the police under the orders of the Sub- Registrar. The stamps remained in possession of the police till 23rd February, 1965, when on investigation, it was found that there was no case to be registered and the documents were returned to the petitioner. After two days, i.e,, 25th of February, 1965, the application for refund was made. It is to be seen that all the statutory functionaries, namely, the Collector, the Commissioner and the Board of Revenue as also the Finance Department had recommended the case of the petitioner for refund. It was, however, on account of the advice given by the Law Department that no refund could be made, that the claim of the petitioner was rejected. Under Rule 32, the decision to refund or not to refund has to be taken by the Finance Department of the Government of the Punjab. In the present case, however, no independent decision was taken by the Finance Department, which, instead acted on the advice of the Law Department, which does not figure anywhere in the rules.
8. Be that as it may, the reasons for which the Law Department opined that it was not possible to refund the stamp duty are not forthcoming on the record. It appears that the provisions of Rule 32 were not noticed which provide the refund of duty even beyond the period of two years. The question as to whether the case of the petitioner fell within the purview of Rule 32 should have been decided by the Finance Department not merely on the basis of the advice of the Law Department but after noticing the relevant facts, especially the assertion of the petitioner that he could not apply earlier for the refund, as the stamps had been handed over to the police by the Sub- Registrar and were received back on 23rd of February, 1965, only two days before the application for refund was filed. It, thus, appears that the matter has not been decided by the respondents in accordance with law.
As a result of what has been stated above, the impugned order of the Collector dated 13th of January, 1972, conveying the refusal to the petitioner is declared to without lawful authority and of no legal effect and the case is remanded for decision afresh in accordance with law.