Gujarat High Court
Rajeshbhai Ramjibhai Vaviya vs State Of Gujarat on 6 January, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/18824/2011 ORDER DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.18824 of 2011
================================================================
RAJESHBHAI RAMJIBHAI VAVIYA
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR UTPAL M PANCHAL(1075) for the Petitioner(s) No. 1
MS DHAIRITRI PANCHOLI, AGP for the Respondent(s) No. 1,2,3
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 06/01/2023
ORAL ORDER
1. Rule returnable forthwith. Ms. Dhairitri Pancholi, learned Assistant Government Pleader waives service of notice of Rule for and on behalf of the respondents.
2. With consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
3. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed to declare the action of the respondent authorities in Page 1 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 compelling the petitioner to pay stamp duty on the sale of the property in question as per new jantri rate instead of the amount fixed by the Joint Charity Commissioner, Surat as illegal. By way of an amendment, an additional prayer was made to set aside the order dated 16.06.2010 of the CCRA by which the appeal of the petitioner dated 11.09.2008 against the order of the Deputy Collector of 08.09.2008 was rejected.
4. The facts in brief would indicate that it is the case of the petitioner that a property belonging to public trust was advertised in the local daily newspaper for sale. Offers were invited by virtue of an advertisement. Annexed as Annexture `A' to the petition. The Joint Charity Commissioner by an order dated 27.02.2007 confirmed the sale in favour of the petitioner for consideration of Rs.19,50,000/-.
Page 2 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023
5. Mr. Utpal M. Panchal, learned counsel for the petitioner would submit that the property in question having been sold by virtue of the order of the Charity Commissioner would have the traits of a public auction and, therefore enhanced stamp duty assessed based on the jantri rates which came into effect post the sale on 08.04.2008 cannot be considered as a correct assessment of the stamp.
5.1. Mr. Panchal would rely on an order passed by this Court in context of the property in question on 09.05.2008 in Special Civil Application No.7160 of 2008 to submit that since there were some discrepancies in number of properties, so as to enable the petitioner to execute the sale deed, such correction was necessary and hence he approached this Court where the order was so passed. Accordingly, on 08.09.2008, the Deputy Collector (Stamps) based on the jantri value of the property in question of Rs.47,11,000/- directed to pay Page 3 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 stamp duty of Rs.2,30,800/- which the petitioner paid. On an appeal, the appellate authority confirmed the order of Deputy Collector which is a subject matter of challenge. A submission of the learned counsel therefore is that since the order of the Charity Commissioner was passed on 27.02.2007 and after corrections were made was pre-coming into force of the market rates, property being purchased in auction, no additional stamp duty could be levied.
6. In support of his submission, Mr. Panchal would rely on a decision of this Court in the case of Metro Hospital & Research Institute, Vadodara v. State of Gujarat reported in 2009(2) GLR, 1537. With regard to refund of excess amount and maintainability of a writ petition, seeking a writ of mandamus for refund, Mr. Panchal would rely on a decision in the case of Shamjibhai Ranchhodbhai Dabhi v. The Chief Controlling Revenue Authority reported in Page 4 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 2009(2) GLH, 191. Also decision of the Hon'ble Supreme Court in the case of U.P. Pollution Control Board v. Kanoria Industrial Limited reported in 2001(2) SCC, 549 was relied upon for the purposes of claim of refund of excess amount. For the question whether such stamp duty can be levied when a sale is by way of public auction, reliance was also placed on a decision dated 12.02.2016 of Special Civil Application No.7104 of 2012 of this Court in the case of Chanasma Commercial Cooperative Bank Ltd. v. State of Gujarat and also relied on a decision dated 21.08.2017 of SCA No.15975 of 2016 for the claim of refund.
7. Ms. Dhairitri Pancholi, learned Assistant Government Pleader for the respondents would invite the Court's attention to the order passed by this Court in Special Civil Application No.7160 of 2008. What was supported by her is that in paragraph No.5 of the order, a specific Page 5 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 observation was made regarding payment of consideration. Inviting the Court's attention to the reasonings assigned by the appellate order and to the affidavit-in-reply, she would submit that it was in fact not a public auction but the Charity Commissioner considered only two offers and based on the higher amount offered by the petitioner, the sale was finalized. The reliance was placed on a decision of this Court in the case of Bajaj Col Chem v. Deputy Superintendent of Stamp reported in 2011(1) GLH., 243. Paragraph No.6 of the decision was read.
8. Having considered the submissions made by the learned advocates for the respective parties, perusal of the order of the Charity Commissioner dated 27.02.2007 indicates that though it was an advertisement that resulted in the sale of the property in question, the Charity Commissioner has observed that the petitioner had initially offered Rs.10,00,000/-. Page 6 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 On an offer higher than the one made by the petitioner, amount of Rs.15,00,000/-, the petitioner revised his offer to an amount of Rs.19,50,000/-. This would evidently therefore indicate that merely because the property was sold pursuant to the proceedings before the Charity Commissioner, only two parties participated and by virtue of an inter se bidding, a higher offer made by the petitioner was accepted. That itself would not reflect the true value of the transaction. Additionally, what needs to be considered is the observation made by this Court when the petitioner approached the Court by filing Special Civil Application No.7160 of 2008. Reading the order indicates that even as on 09.05.2008 of SCA No.7160 of 2008, the petitioner made a statement that he was ready to abide by the transaction. Based on this contention, the Court in Paragraph No.5 observed thus.
"5. Even if the contention of the petitioner is considered, the Page 7 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 appropriate authority who can conveniently deal with such issue is the Charity Commissioner, who may if required after undertaking the local inspection, and the measurement of the property through the appropriate authority, will be in a position to ensure when the petitioner purchases the property, the equivalent area held by the trust is entrusted to the petitioner at the time, when the full consideration is paid."
9. Note needs to be taken of a part of the observation in paragraph No.5 reproduced hereinabove, which indicates that the property was to be entrusted to the petitioner when the full consideration was paid. Admittedly therefore, the date on which the market values of the property were to be decided, full consideration was not paid.
10. The defence of the petitioner's counsel that because of the correction of errors that were only rectified after this Court's order, would not absolve the petitioner of the fact that the sale deed was only executed post the Page 8 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 market values of the property being notified. It was in light of this that the Deputy Collector passed an order on 08.09.2008 and the appellate authority while confirming that order, in the opinion of this Court rightly held that the property could not have been said to have been purchased by way of public auction.
11. In the case of Bajaj Col Chem (Supra), this Court while considering same issue in paragraph No.6 held as under:
"6. This Court has passed an order dated 22.12.2009 in SCA No.11609 of 2009 where direction has been issued to respondent authorities to decide appeal on merits in accordance with law. Thereafter, appeal has been decided by Chief Controlling Revenue Authority against the decision of Dy. Collector taken in January, 2006. The Chief Controlling Revenue Authority has decided revision application while exercising power under Section 53(1) of Bombay Stamp Act. The 25% amount has been deposited by petitioner as per order passed by this Court on 20.3.2010 and thereafter, on 18.3.2010 Page 9 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 appeal / revision which was preferred has been examined after giving reasonable opportunity of hearing to petitioner on 15.6.2010. Same submission has been made by petitioner before Chief Controlling Revenue Authority that because of property has been purchased in public auction from GSFC, whatever price has been fixed in public auction that has to be considered as market price of the property and according to that, authority has no jurisdiction to determine higher market price of the same property. This submission has been considered by Chief Controlling Revenue Authority as per Page-12. The Chief Controlling Revenue Authority has come to conclusion that stamp duty under provisions of Bombay Stamp Act is required to be paid by petitioner not on the basis of price fixed by GSFC in public auction but, it required to be paid under the provisions of Bombay Stamp Act. A specific question was asked to petitioner by Chief Controlling Revenue Authority that in case if price in public auction is found to be less in comparison to market price of the land in question, then on what basis stamp duty is required to be paid by petitioner. Therefore, petitioner is not able to justify the stand taken in present petition that in public auction it may happen that price which can be fixed may not be tallied with market price of the property in question.Page 10 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023
C/SCA/18824/2011 ORDER DATED: 06/01/2023 Therefore, Chief Controlling Revenue Authority has come to conclusion that under provisions of Bombay Stamp Act, whatever the market price of the property in question is required to be considered on the basis of jantri which has been decided by State Government and on that basis, whatever the market price is fixed on that basis stamp duty is required to be paid by petitioner. Therefore, petitioner has failed before Chief Controlling Revenue Authority to establish the fact that whatever price has been fixed in public auction is being a market price according to jantri decided by State Government. Therefore, Chief Controlling Revenue Authority has compared both prices; one which is fixed in public auction and another which is fixed as per jantri decided by State Government. In facts of this case, this Court has not directed to accept price fixed in public auction is to be considered as market price. For that, there is no justification given by this Court in aforesaid petition as referred by this Court. Therefore, when matter has been scrutinized by Dy. Collector while exercising power under Section 33 of Bombay Stamp Act, then authority must have to determine independently a market price of the property in question for which sale deed has been arrived between parties and whether price fixed by GSFC in public auction is considered to be a market price in light of jantri fixed by Page 11 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 State Government or not. Therefore, Chief Controlling Revenue Authority come to conclusion that market price which has been fixed in public auction by GSFC cannot be considered to be market price in light of jantri which has been fixed by State Government. So contention raised by learned advocate Mr. Dodiya that there is no other relevant document on record which can be fixed market price of property in question higher than fixed in public auction. This contention cannot be accepted simply on the ground that there is a difference between two prices in respect to one property; one is fixed in public auction by GSFC and another is fixed by jantri decided by State Government. Therefore, Dy. Collector is entitled to consider jantri for determining market price of the land in question while exercising power under Bombay Stamp Act and comparing both prices of land in question decided in public auction is not being a market price as decided under jantri by State Government. Therefore, Chief Controlling Revenue Authority has examined this matter on the basis of facts that stamp duty which has been paid by petitioner of Rs.1,42,000/- is less and therefore, deficit stamp duty is required to be paid by petitioner while deciding market price on the basis of jantri which decided by State Government. Therefore, contentions raised by Page 12 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 learned advocate Mr. Dodia cannot be accepted because Dy. Collector / Chief Controlling Revenue Authority having positive and substantial evidence with him which suggests real market price of land, building and machinery of property which has been purchased by petitioner in public auction from GSFC. Therefore, circular dated 11.6.2004 relied upon by petitioner is not applicable to the facts of present case because in that circular as per amendment made by State Government, GSFC is not included. Therefore, market price which has been fixed on the basis of jantri while including price for machinery which are attached to the land and building, total amount comes to Rs.33,51,000/- and on that basis, 8.4% stamp duty is required to be paid by petitioner which has been rightly decided and issued has also been rightly examined by both authorities i.e. Dy. Collector as well as Chief Controlling Revenue Authority. Therefore, when respondent authorities having material to decide market price of land in question including machinery which are attached to the land and building on the basis of jantri decide by State Government, then it is not necessary for respondent authorities to accept price fixed in public auction being a market price of property in question. Therefore, decision of this Court as referred above and relied upon by petitioner is not applicable to Page 13 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023 C/SCA/18824/2011 ORDER DATED: 06/01/2023 facts of present case because in present case respondent authorities is having material and cogent evidence as valid base to determine market price on the basis of jantri and not to accept price fixed in public auction being a market price of property."
12. Obviously therefore, no fault can be found if the assessment of the stamp valuation authorities is at market rate when the question whether the property was at all purchased by a public auction could not be justified.
13. For all the aforesaid reasons, the petition deserves to be dismissed and accordingly, it is dismissed with no order as to costs. Interim Relief, if any, stands vacated forthwith. Rule is discharged.
(BIREN VAISHNAV, J) VATSAL Page 14 of 14 Downloaded on : Mon Jan 09 20:44:27 IST 2023