Gujarat High Court
Sureshbhai Laljibhai Budheliya vs State Of Gujarat & 2 on 1 September, 2014
Author: R.P.Dholaria
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/938/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 938 of 2014
In SPECIAL CIVIL APPLICATION NO. 9216 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SURESHBHAI LALJIBHAI BUDHELIYA....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SAMIR AFZAL KHAN, ADVOCATE for the Appellant(s) No. 1
MR VISHAL PATEL AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 01/09/2014
Page 1 of 5
C/LPA/938/2014 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) Heard learned counsel Mr. Samir Afzal Khan for the appellant. Admit. Learned Assistant Government Pleader Mr. Vishal Patel waives service of notice of admission on the respondents. At the request of learned advocates for the parties, the matter is taken up for final hearing.
2. Being aggrieved by the common judgment and order dated 16 th July 2014 passed in Special Civil Applications No. 9207 to 9227 of 2014, the present appellant, being the petitioner of Special Civil Application No. 9216 of 2014, has preferred this Letters Patent Appeal. The main contention of the appellant is that the authorities under the Gujarat Stamp Act, 1958 found out the alleged deficit stamp duty, which was not paid while executing their respective sale deeds. Consequently, he was served with a notice for payment of deficit stamp duty.
3. Being aggrieved by the aforesaid notice, the appellant has preferred a reference application before the Chief Controlling Revenue Authority. Since 25% of deficit stamp duty was not paid, the said application was dismissed. Against the aforesaid order, previously Special Civil Applications No. 4482 to 4510 of 2009 were filed, of which Special Civil Application No. 4501 of 2009 was preferred by the Page 2 of 5 C/LPA/938/2014 JUDGMENT appellant. In the Special Civil Applications, the learned Single Judge directed the appellate authority to decide the application on merits after affording a reasonable opportunity of hearing to the petitioner.
4. Thereafter, the appellant approached the Chief Controlling Revenue Authority by submitting written submissions. The Chief Controlling Revenue Authority passed an order on 30 th October 2009 as also in April 2014 rejecting the application without entering into the merits of the case as the appellant has not deposited any deficit stamp duty required to be deposited under section 53 of the Gujarat Stamp Act, 1958 to the extent of 25 per cent.
5. Being aggrieved by the aforesaid order, the aforesaid Special Civil Application was filed, wherein the learned Single Judge after hearing the respective parties was pleased to dismiss the same vide order dated 16 th July 2014. Precisely this is the order under challenge before us.
6. Having heard learned advocates for the parties, and on going through the entire record and proceedings, we are convinced that as there appears to be no provisions for absolute waiver of deposit of 25 per cent of the deficit stamp duty as demanded by the Chief Controlling Revenue Authority to entertain the aforesaid reference application, and Page 3 of 5 C/LPA/938/2014 JUDGMENT consequently, he has therefore without entering into the merits of the case, straightway dismissed the aforesaid application presented before him.
7. It is explicitly clear from the impugned order passed by the learned Single Judge that the present appellant is ready and willing to deposit the entire 25 per cent of the deficit stamp duty before the Chief Controlling Revenue Authority.
8. Learned Assistant Government Pleader Mr. Vishal Patel urged on behalf of the respondents that since the dispute is only with regard to deposit of 25 per cent of deficit stamp duty for hearing the application, and the appellant is ready and willing to pay 25 per cent of the deficit stamp duty, he need not file any counter affidavit, and the Court may remand the matter back.
9. Learned advocate Mr. Samir Afzal Khan has also stated before us that the appellant is ready and willing to deposit 25 per cent of the deficit stamp duty leviable upon the instrument. In this view of the matter, as the reference application is already preferred before the Chief Controlling Revenue Authority, which came to be dismissed thrice, the interest of justice would be served if the aforesaid reference application along with any representations may be considered on merit by the Chief Page 4 of 5 C/LPA/938/2014 JUDGMENT Controlling Revenue Authority on the condition to deposit 25 per cent of the deficit stamp duty by the appellant within a period of one month from today.
10. In the result, this appeal succeeds and is allowed. The impugned judgment and order of the learned Single Judge dated 16 th July 2014 as well as the orders passed by the Chief Controlling Revenue Authority in the matter are quashed and set aside. The Chief Controlling Revenue Authority shall decide the reference application after affording reasonable opportunity of hearing to the appellant including adducing any evidence, if he so wishes. Any observation made by us in this judgment and order shall not be binding on the Chief Controlling Revenue Authority and the authority shall decide the matter on its own merits. Direct service is permitted.
(V.M.SAHAI, J.) (R.P.DHOLARIA,J.) sndevu Page 5 of 5