Manoj Misra,J. - (1.) This intra court appeal arises from a judgment and order of a Single Judge, dated 01.12.2020, in Writ-C No.17744 of 2020, allowing the writ petition of the first respondent. FACTS GIVING RISE TO THE APPEAL
(2.) A brief narration of the facts giving rise to this appeal would be apposite to have a clear understanding of the issues involved in this appeal. These facts are as below: 2(i) The first respondent, namely, the writ petitioner, being a company engaged in the business of developing and marketing of housing projects including plots etc., was allotted a parcel of land, measuring 198135.62 square meter, by the second respondent (the Greater Noida Industrial Development Authority - GNIDA), vide allotment letter dated 30.08.2010. Pursuant thereto, an instrument of lease, dated 15.11.2010, was executed and registered on 16.11.2010 where under plot of land, bearing No.GH-05 in Sector 16-B, Greater Noida, measuring 198135.62 square meter, was leased out to the first respondent for a period of 90 years by GNIDA at a premium of Rs.228,94,57,090 (Two Hundred Twenty Eight Crore Ninety Four Lac Fifty Seven Thousand Ninety only), with yearly rent @ 1% of the premium, for first 10 years, enhanceable by 50% after every 10 years. On the instrument of lease, stamp duty amounting to Rs.12,70,64,900/- (Twelve Crores Seventy Lakh Sixty Four Thousand Nine Hundred Only) was paid by the first respondent. Later, on 26.07.2011, GNIDA issued letter, followed by another letter dated 29.07.2011, requiring the first respondent to surrender possession of an area of 71833.62 square meter of the leased land on the ground that the acquisition of that portion of land, made in favour of GNIDA, was quashed by the High Court vide order dated 12.05.2011 which was upheld by the Apex Court vide order dated 06.07.2011. As a result, the first respondent had to surrender possession of 71833.62 square meter of land and, in witness whereof, a deed of correction, dated 07.02.2013, was executed whereunder the demised area (viz. 198135.62 square meter) was reduced by 71833.62 square meter to 126302 square meter. 2(ii) On reduction of the demised area, the first respondent, who had borne the stamp duty, made a representation to the Principal Secretary, Stamp and Revenue, State of U.P., Lucknow (for short the Principal Secretary) for refund of that amount of the stamp duty which related to the area that the first respondent had to surrender. This representation was made by invoking the provisions of Section 49(d) (1) (2) and (5) of the Indian Stamp Act, 1899 (for short the Stamp Act). 2(iii) When a decision on the said representation was not taken, Writ-C No.3183 of 2018 was filed by the first respondent seeking a direction upon the State authorities to decide the representation. This petition was disposed off, vide order dated 24.01.2018, requiring the Principal Secretary to examine the matter and take a decision in accordance with law within a specified period. But, before the first respondent could serve the order of this Court dated 24.01.2018 (supra), vide letter dated 08.02.2018 the first respondent was intimated that by order dated 14.08.2017 its claim for refund has already been rejected. 2(iv) Aggrieved with the order dated 14.08.2017, as communicated by letter dated 08.02.2018, the first respondent, placing reliance on a judgment of the Apex Court in the case of The Committee GFIL Vs. Libra Buildtech Private Limited and others, 2015 16 SCC 31, filed Writ-C No.16639 of 2018. On this petition, the writ court took the view that a fresh consideration was required in the light of the decision of the Apex Court in Libra Buildtech case (supra). Accordingly, vide order dated 28.05.2018, Writ-C No.16639 of 2018 was allowed and a direction was issued to the Joint Secretary, Government of U.P., Lucknow to decide the matter afresh. 2(v) Pursuant to the order of the writ court, dated 28.05.2018 (supra), a fresh representation was submitted by the first respondent before the Joint Secretary, Stamp & Registration, Anubhag-2, Government of U.P., Lucknow (for short Joint Secretary) on 09.08.2018. Upon receipt of which, the Joint Secretary (supra), by order dated 28.02.2019, after noticing that the area of land leased out to the first respondent got reduced on account of decision of the High Court, took the view that the first respondent is entitled to refund of the excess stamp duty paid by it. Accordingly, he directed refund of the stamp duty to the extent it was paid for lease of the land which the first respondent had to surrender consequent to loss of title of its lessor (GNIDA). This refund was, however, subject to deduction of 10% of the amount refundable. But before this order of the Joint Secretary could be implemented, on 28.05.2019 the Principal Secretary passed another order thereby holding that the principle of law laid down by the Apex Court in Libra Buildtech case (supra) would not be applicable to sustain a claim against the State and since the claim for refund was not within the purview of allowances admissible in respect of spoiled stamps, the State cannot be fastened with liability to refund the stamp duty though it was open for the first respondent to make a claim against GNIDA. 2(vi) Acting on the order dated 28.05.2019, the first respondent made a representation to GNIDA for refund. But before any decision could be taken thereon, the first respondent filed Writ-C No.17744 of 2020 before a Single Judge Bench of this Court. The learned Single Judge, vide impugned judgment and order dated 01.12.2020, allowed the writ petition, quashed the order dated 28.05.2019, imposed cost of Rs.25,000/- on the State, and directed the State to comply with its earlier order dated 28.02.2019. Aggrieved therewith, this intra-court appeal has been filed by the State.
(3.) We have heard Sri Sanjay Goswami, Additional Chief Standing Counsel, for the appellant; and Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Ravi Anand Agrawal, for the first respondent.;