Niraj Ajitkumar Jain vs State Of Gujarat on 13 March, 2020

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Gujarat High Court

Niraj Ajitkumar Jain vs State Of Gujarat on 13 March, 2020

Bench: Biren Vaishnav

        C/SCA/6516/2020                                  ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 6516 of 2020

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                          NIRAJ AJITKUMAR JAIN
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR. NISARG N JAIN(8807) for the Petitioner(s) No. 1,2,3
for the Respondent(s) No. 2,3
MR. ISHAN JOSHI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

                             Date : 13/03/2020

                              ORAL ORDER

1 In this petition under Article 226 of the Constitution of India, the petitioner has challenged the notices of the respondent dated 09.01.2020, 01.02.2020 and 17.02.2020.

Apparently, from the last notice dated 17.02.2020, it appears that the hearing is scheduled on 27.03.2020.

2 The case of the petitioner is that the notices are without jurisdiction, inasmuch as, in exercise of powers under Section 32A of the Gujarat Stamps Act, 1958, the notices had been issued after a lapse of 21 years and 9 months. The date of the Sale Deed No. 1841 of 1998 is 16.04.1998.

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3 Mr.Nisarg Jain, learned counsel for the petitioners, would rely on a decision of this Court rendered in Special Civil Application No. 20293 of 2006, by which, this Court categorically in a challenge to the order passed under Section 53A of the Act held that it is not open for the authorities to exercise powers beyond a period of six years. Relevant paras 7 and 8 of the said decision read as under:

"7. Before considering the submissions made by learned Advocates appearing on behalf of the respective parties, certain dates are required to be mentioned which are as under :

(I) Supplementary Mortgage Deed is dated 3.4.1992.

(ii) Certificate u/s. 32 of the Act was issued by the Collector of Stamp on 1.4.1992.

(iii)Show Cause Notice u/s. 53A(1) of the Act is dated 24.12.1998. Section 53A(1) of the Act reads as under :

"Section 53A: Revision of Collector's decision under Sections 32, 32A, 39 and 41:

[1] Notwithstanding anything contained in subsection (3) of Section 32, subsection(3) of section 32A, subsection(2) of section 39 and subsection(2) of section 41, when through mistake or otherwise any instrument is charged with less duty than leviable thereon, or is held not chargeable with duty, by the Collector, the Chief Controlling Revenue Authority may, within a period of six years from the date of certificate of the Collector under Sections 32, 32A, 39 or 41, as the case may be, required the concerned party to produce before him the instrument and, after giving a reasonable opportunity of being heard to the party, examine such instrument whether any duty is chargeable or any duty is less levied thereon and pass an order for recovery of the deficit duty, if any, from the concerned party. An endorsement shall be made on the instrument after payment of such deficit duty. [2] On failure to produce the original instrument by the party, the Chief Controlling Revenue Authority shall proceed under this Page 2 of 6 Downloaded on : Sat Mar 14 03:53:12 IST 2020 C/SCA/6516/2020 ORDER Section on the basis of the true copy or an abstract of the instrument filed with the Collector and such true copy or abstract shall be deemed to be the original instrument for the purposes of this section."

On bare reading of the aforesaid provision it is clear that the Chief Controlling Revenue Authority may within a period of six years from the date of certificate of the Collector u/s. 32, 32A and 41 of the Act, as the case may be, required the concerned party to produce before him the instrument and after giving reasonable opportunity of being heard, examine such instrument and then determine the chargeable stamp duty if it is found that there is any deficit, endorsement shall be made on the instrument after payment is made.

8. Section clearly stipulates that Chief Controlling Authority can exercise of its power u/s. Sub-section (1) of section 53A of the Act within a period of six years. The provision is therefore clear that such power can be exercised by the Chief Controlling Authority within a period of six years from the date on which the certificate is issued by the Collector u/s. 32, 32A, 39 or 41 of the Act. As noted hereinabove, the deed in question in the instant case is dated 3.4.1992. Whereas the certificate u/s. 32 of the Act was given by the Collector of Stamp on 1.4.1992 and therefore the period of six years would end on 30.3.1998. Whereas admittedly the show cause notice is dated 24.12.1998. These facts clearly establish that the Chief Controlling Revenue Authority, the respondent herein, has exercised powers u/s. 53A(1) of the Act after six years."

4 Reliance is also placed on a decision of the Division Bench of this Court rendered in Letters Patent Appeal No. 1275 of 2006, wherein, considering the period of limitation under Section 32A of the Act, the Division Bench held as under:

"6. From the above provisions, we may notice that Sub-section(4) of Section 32A pertains to the Collector's suo motu powers to demand payment of deficient stamp Page 3 of 6 Downloaded on : Sat Mar 14 03:53:12 IST 2020 C/SCA/6516/2020 ORDER duty and penalty thereon on an instrument for which he has reason to believe that the consideration does not approximate to the market value of the property or as the case may be the market value of such property has not been truly and fully set forth in the instrument. The Statute however, has prescribed the period of six years for exercise of such powers. In comparison, Subsection (1) of Section 32A, empowers the Collector inter-alia to proceed under Sub-section(2) and Sub-section(3) I.e.

to levy deficient stamp duty and penalty thereon on a reference made to him by any person referred to in Section 33.

Significantly no period of limitation is prescribed under this sub-section for exercise of such powers. Learned AGP would therefore, be justified in contending that period of limitation prescribed in Sub-section(4) of Section 32-A therefore, would not ipso facto apply in the Collector exercising power on reference under Sub- section(1) of Section 32A as held by the Apex Court in case of State of Punjab and others v. Mahajan Sabha, Gurdaspur and others(supra).

7. As pointed out by learned advocate Shri Mehul Suresh Shah, however, larger Bench of this Court in case of Shailesh Jadavji Varia v. Sub-Registrar, Vadodara & ors. (supra), held that Registering Officer under Sub- section(1) of Section 32-A can exercise powers beyond two years (which was the period of limitation prescribed earlier under Sub-section(4) Section32A which is now being substituted by six years) on facts justifying delay. It was observed in paragraph 46 of the judgement as follows :

"46. From the aforesaid decisions, there is no doubt in our minds that the power under sub-sec.(1) of Section 32-A of the Act can be exercised within reasonable period and no outer limit can be fixed for exercise of such power. The decision in Patel Raghav Natha(supra), in our considered opinion, cannot be read as laying down universal rule applicable to all statutes, at all times and under all circumstances without reference to the scheme of the Act, underlying object to grant revisional power and consequences which may ensure therefrom that revisional powers must be exercised within a particular period. Their Lordships also, were conscious and mindful of all such situation which is Page 4 of 6 Downloaded on : Sat Mar 14 03:53:12 IST 2020 C/SCA/6516/2020 ORDER reflected from the observations to the effect that "the length of reasonable time must be determined by the facts of the case and the nature of the order which is being revised."

It was further held in paragraph-94 that :

"Question No.1 First part of Question No.1 is replied in the affirmative, namely, the Registering Officer under sub-sec.(1)of Sec. 32A can exercise powers beyond two years on facts justifying delay."

8. In the present case, admittedly, the document in question was registered before the Sub-Registrar on 3.8.94. As per the stand of the State itself, reference was made for reexamination of the stamp duty affixed thereon on 8.1.1999.

From the record, it also emerges that the authorities issued show cause notice to the petitioner in this regard for the first time on 12.10.2005. Thus more than 10 years after the registration of the document, its valuation was sought to be questioned. At any rate, the Stamp Authorities were alive to the possibility of deficient stamp being affixed thereon from January 1999. More than five years were spent in issuing even the first show cause notice. No explanation whatsoever has been placed on record to ignore such inordinate delay.

Only on this short ground of gross inordinate and unexplained delay in initiation of the proceedings, we find that the decision of the Learned Single Judge calls for no interference."

5 Prima facie, on perusal of the averments made in the petition, it appears that Suo Motu powers are sought to be exercised beyond a period of six years. The respondent-

Collector, while hearing the petitioners on 27.03.2020 or any other subsequent date, shall take into consideration the decisions of this Court as quoted hereinabove and take a Page 5 of 6 Downloaded on : Sat Mar 14 03:53:12 IST 2020 C/SCA/6516/2020 ORDER decision including the propriety of exercise of powers under Section 32A.

This shall not preclude the Collector from taking a decision on merits. The petition is disposed of, accordingly.

Direct service is permitted.

(BIREN VAISHNAV, J) Bimal Page 6 of 6 Downloaded on : Sat Mar 14 03:53:12 IST 2020

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