Gujarat High Court
Radheshyam Developers vs State Of Gujarat on 8 October, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/15125/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15125 of 2017
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RADHESHYAM DEVELOPERS
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MS SANGEETA PAHWA FOR THAKKAR AND PAHWA
ADVOCATES(1357) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 08/10/2020
ORAL ORDER
Heard learned advocate Ms. Sangeeta Pahwa for Thakkar and Pahwa Advocate3s for the petitioner and learned Assistant Government Pleader Mr. Soaham Joshi for the respondent State through video conference.
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs.
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting-
aside the impugned order dated 19.09.2015 passed by the collector of stamps, Anand in Page 1 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Case No.7918 of 2015 at Annexure-A as well as order dated 18.04.2013 passed by the Deputy Collector Stamp Duty Valuation Department dated 18.04.2013, Anand, being illegal, null and void in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to stay the further implementation, operation and execution of impugned order dated 19.09.2015 passed by the collector of stamps, Anand in Case No.7918 of 2015 and the recovery proceedings there under pending the admission, hearing and final disposal of this petition.
(C) YOUR LORDSHIPS may be pleased to grant any other and further relief(s) as may be deemed just and proper in the interest of justice and fitness of things;"
2. The brief facts of the case are as under:-
2.1. The petitioner had purchased leas hold rights of the land bearing survey nos.1077/1 and 2, 1078,1062/2 and 10 situated at Vitthal Udhyog Nagar, GIDC, Anand in public auction held by the official liquidator appointed by this Court in Company Petition No.177 of 2007 vide order Page 2 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER dated 03.12.2007 at a highest bid of Rs.7,30,00,000/- as per order dated 03.12.2007.
2.2. The possession of the property was handed over by the official liquidator on 20.05.2010 to the petitioner. However, on account of procedural delay by the official liquidator, the sale-deed was not executed despite repeated requests by the petitioner and finally it was executed on 29.07.2015 by the official liquidator after inordinate delay.
2.3. The petitioner paid the stamp duty of Rs.35,77,000/- on the auction purchase price fixed by this Court in liquidation proceedings vide order dated 03.07.2007 in O.L. report No.177 of 2007.
2.4. It is the case of the petitioner that the petitioner presented the deed of assignment of lease hold right along with an application dated 04.07.2011 requesting the Deputy Collector (Stamp Duty) to Page 3 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER determine the proper stamp duty in view of the peculiar facts and circumstances.
2.5. It is the case of the petitioner that on the aforesaid application made by the petitioner, the Deputy Collector (Stamp Duty) Anand, vide communication dated 15.12.2011 informed the petitioner that though the petitioner had purchased the property in public auction in Company Petition No.1057 of 2000 which was finalized by this Court vide order dated 03.12.2007 in the O.L. report No.177 of 2007, the market value of the property purchased by the petitioner is Rs.24,05,04,000/- and the stamp duty payable @ 4.90% would be Rs.1,17,84,696/-.
2.6. It is the case of the petitioner that the above valuation made by the competent authority was challenged by the petitioner by filling petition being Special Civil Application No.2973 of 2012.
However, the said petition was Page 4 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER disposed upon the statement made by learned Assistant Government Pleader that the communication dated 15.12.2011 impugned in the petition is merely an opinion and the final order is not passed by the authority for determining the stamp duty payable by the petitioner.
2.7. It is the case of the petitioner that the petitioner thereafter made another detailed representation dated 31.01.2013 to the authority inter-alia setting out all facts and circumstances in which the property was purchased in public auction and other details so as to enable the competent authority to determine proper valuation for payment of stamp duty.
2.8. It is the case of the petitioner that the Deputy Collector vide communication dated 18.04.2013 informed the petitioner that as per the provisions of Bombay Stamp Act,1958(for short 'the Stamp Act') the market value is to be determined on the jantri rate as on date of Page 5 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER execution of document and therefore the stamp duty payable by the petitioner would be Rs.1,17,84,796/- as the market value of the subject property would be Rs.24,05,04,000/- on the date of execution of the documents as on 29.07.2015 and not as on date of purchase i.e. 03.12.2007.
2.9. It is the case of the petitioner that the above valuation was challenged in Special Civil Application No.15686 of 2013 and this Court disposed of the said petition to avail the alternative remedy of appeal u/s 53 of the Stamp Act by the petitioner.
2.10. It is the case of the petitioner that thereafter, the notice for recovery u/s.152 of Bombay Land Revenue Code was issued and vide order dated 13.06.2016 the authority directed to create charge over the property in question.
2.11. The petitioner therefore, being aggrieved by impugned orders Page 6 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER dated 19.9.2015 passed by respondent no.3 as well as order dated 28.2.2013 passed by respondent no.4 has preferred the present petition.
3. Learned advocate Ms. Sangeeta Pahwa submitted that the petitioner has purchased the property in question in public auction by paying highest price of Rs.7,30,00,000/- which is double than the Jantri price prevailing as on date of the auction on 3rd December 2007 before this Court in liquidation proceedings in Company Proceedings No.75 of 2000.
4. It was submitted that this Court by order dated 3rd December 2007 passed in Official Liquidators Report No.177 of 2007 confirmed the sale in favour of the petitioner for consideration of Rs.7,30,00,000/-. It was therefore, submitted that when the petitioners approached the respondent authorities in 2015 for registration of the sale deed, the stamp duty was paid according to the sale consideration of Rs.7,30,00,000/-. However, the respondent authorities by order dated 19th September 2015 has considered the Jantri value prevailing on the date of Page 7 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER execution of the sale deed in the year 2015 as per the Jantri rates declared in the year 2011 and passed an order directing the petitioner to pay the deficit stamp duty of Rs.82,45,920/- and penalty of Rs.5,00,000/- under Section 39(1)(b) of the Stamp Act.
5. Learned advocate Ms. Pahwa submitted that the execution of sale deed was beyond the control of the petitioner as the petitioner was relying upon the Official Liquidator for the purpose of the same. It was also pointed-out that the entire transaction of payment of sale consideration as well as handing over the possession of the property in question was completed in the year 2010 and sale deed could not be executed despite repeated requests made by the petitioner to the Official Liquidator till 2015.
6. Ms. Pahwa therefore, would submit that the impugned order passed by the respondent authority directing the petitioner to pay the deficit stamp duty is not tenable in law. In support of her submission, Ms. Pahwa relied upon the decision of the Supreme Court in case of V. N. Devadoss Vs. Chief Revenue Control Officer-cum-
Page 8 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDERInspector and others reported in (2009) 7 SCC 438.
7. Relying upon the decision of the Supreme Court, it was submitted that the Supreme Court in the facts of that case held that the market value is a changing concept and there is no question of any under valuation in the facts of the case as the petitioner has purchased the property in question in auction held by this Court in liquidation proceedings. She relied upon the following paragraphs of the said decision:
"16. Market value is a changing concept. The explanation to sub- Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which Page 9 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator.
17. Sale has been defined under Section 54 of the Transfer of Property Act, 1882 (in short the 'TP Act'). Although the Act has not included the definition of sale, Section 2(10) of the Act defines conveyance as including a conveyance on sale, every instrument and every decree or final order of any Civil Court by which property whether immovable or moveable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be.
18. On the facts of the case it cannot be said that Section 47-A has any application because there is no scope for entertaining a doubt that there was any under valuation. That being so, the High Court's order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as Page 10 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER there is no basis for even entertaining a belief that the market value of the property which is the subject matter of conveyance has not been truly set forth with a view to fraudulently evade payment of proper stamp duty."
8. Further reliance was placed upon the decision of this Court (Coram: Hon'ble Mr.Justice Vipul M. Pancholi) rendered on 12th December 2018 in case of Jayant Shantilal Sanghvi Vs. State of Gujarat in Special Civil Application no.12015 of 2016 to point-out that as the petitioner has purchased the property in auction held by this Court, it cannot be said that the petitioner has purchased the property in question at a lesser value than the market value and therefore, considering the provision of Section 32A of the Stamp Act, the stamp duty can be levied on the sale consideration paid by the petitioner as per the order passed by this Court confirming the sale in favour of the petitioner in liquidation proceedings in O.L.R. No.177 of 2007.
9. Ms. Pahwa relied upon the decision of the Division Bench of this Court reported in 2013 (2) GLR 1435 in case of Bileshwar Page 11 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Industrial Estate Developers Pvt. Ltd. v. State of Gujarat and others to submit that the market value of the property is to be considered on the date of the auction sale.
10. On the other hand, learned Assistant Government Pleader Mr.Soaham Joshi relying upon the averments made in the affidavit- in-reply filed on behalf of the respondent no.4, submitted that the respondent authority was justified in levy of the deficit stamp duty considering the market value of the property on the date of execution of the sale deed in the year 2015 in view of the definition of the market value as per Section 2(na) of the Stamp Act, the value in relation to the property which is subject matter of an instrument means the price which such property would have fetched, if sold in the open market on the date of execution of such instrument and therefore, when the instrument of sale deed is presented for execution in the year 2015, the market value prevailing on that day is required to be considered for the purpose of levy of stamp duty. It was therefore, submitted by Mr. Joshi that the market value considered on the basis of the Page 12 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Jantri rate prevailing in the year 2011 would be applicable to the instrument submitted by the petitioner for registration in the year 2015. It was therefore, pointed-out that the market value as stated in the instrument on the basis of the sale consideration paid by the petitioner pursuant to the order of this Court in liquidation proceedings cannot be considered as market value for the purpose of levy of stamp duty.
11. Mr. Joshi further relied upon the provision of Section 31 of the Stamp Act which provides for adjudication as to proper stamps and submitted that as contemplated under Section 31 of the Stamp Act, an instrument executed or not if it is brought to the collector for the purpose of opinion, the collector shall determine the stamp duty to be levied on the instrument to be executed. He therefore, invited the attention of the Court to the notice dated 18th April 2013 issued by the Deputy Collector to the petitioner calling upon the petitioner to show cause as to why deficit stamp duty as per the Jantri Rate prevailing in the year 2011 should not be levied as the petitioner did not register Page 13 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER the documents between 2007 and 2011.
12. Mr. Joshi relied upon the decision of this Court in case of Kutch Construction Industries and Rehabilitation Federation and others Vs. State of Gujarat and others in Special Civil Application no.6647 of 2008 rendered by this Court (Coram: Hon'ble Mr.Justice Anant S. Dave) dated 13th June 2011 to submit that this Court while considering the applicability of the Jantri value has held as under :-
"15. In view of the above, contentions of learned counsel for the petitioners about usage of ASR as sole and exclusive criteria to determine by market value of the property has no merit and ASR works as a guide or a table which gives an idea to registering officer about proximate market value of the property and nothing beyond that. That aid and assistance of computer by itself cannot be said to be a replacement of application of mind by mechanised process and registering authority has to deal with large number of instruments from different areas of town and city computerised process of comparing the market value of the property shown in the document with any available Page 14 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER standard of market value of the property in a concerned area so as to have an idea about approximate market value of the property cannot be said to be abdication of function by registering authority contrary to Rule or any provisions of the Act. No such administrative or executive communication or instruction is brought to the notice of this Court mandating registering officer to follow ASR exclusively and, therefore, in absence of any material and record this Court would not like to draw any conclusion on the basis of submissions made by learned counsel for the petitioners and, therefore, this contention also fails.
In view of the above
submissions of learned
Advocate General on Executive powers of State Government under Article 162 of Constitution of India do not require any discussion. ASR 2008 is not ultravires to Articles 14, 19 or 21 of the Constitution of India or Act or Rules.
16.That, so far as binding decision and principle laid down about applicability of such binding decision, I am of the opinion that decision of the two Full Bench and a Larger Bench with regard to interpretation of Sections Page 15 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER 31, 32A , 32 and Rules 3, 4, 7 and 8 of the Rules are binding to this Court, since the issues raised in this petition were also the subject matter of the cases decided by this Court in the above decisions and, therefore, various paragraphs of the aforementioned Benches have been produced extensively in this judgment. Government of Uttar Pradesh and Ors. v. Raja Mohammad Amir Ahmad Khan [AIR 1961 SC 787] is about Section 33 of the Act and explains the stages of exercise of power by the authority for impounding document. So far as decision relied on by learned counsel for the petitioners of Division Bench of the High Court of Orissa is concerned, the said decision was rendered by Division Bench of the said Court in the backdrop of specific executive inspections issued to the Registering Officer and Collector to solely and exclusively rely on the basic statement of valuation and keeping in mind provisions of Section 47A of the Stamp Act of the State. It was held by Division Bench that such exclusive reliance would vitiate procedure of determining market value by the authority and, therefore, it was held to be illegal. In the facts of this case, what Page 16 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER is discussed herein above and held by two decisions of Full Bench and Larger Bench of this Court about legality and validity of ASR and its effective and proper functioning since last 10 years, law laid down by the Division Bench of Orrisa High Court has no applicability and contentions based on the said decision is rejected.
17. With regard to wide and effective publication of draft Jantri andlack of opportunity to the objectors in the facts of this case, it is factually incorrect and draft Jantri was infact published in daily newspapers having sufficient circulation in the District of Kutch namely 'Divya Bhaskar' and 'Sandesh' two daily vernacular newspapers of the State and in addition to above it was also displayed at various offices of the authority in the District along with website, where 75% of the population of the State has access to the computer with connectivity in as many as 13,000 village panchayat out of 18,000 village panchayat in the State. The above aspect would go to show that proper and wide publicity is given to draft Jantri so as to invite objections and 30 days were given to lodge objections and Page 17 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER as noticed earlier objections raised in 2464 cases were in cyclostyle formate and inspite of the above fact the authority had considered the same and, therefore, the contentions raised on lack of wide publicity and opportunity not given to the petitioners is also misconceived and the above exercise of preparation of ASR is a part of effective implementation of fiscal enactment like Bombay Stamp Act which do not envisage any further elaborate exercise of inviting objections of prescribing stamp duties for various instruments. The procedure as above followed by the authority reveal fair and transparent process of decision making viz.
Preparation and publication of ASR 2008. The above exercise is administrative exercise and within the competence of the State authority cannot be said to be in any manner unreasonable, arbitrary, discriminatory or contrary to law or inconsistent or incompatible and violative of Articles 14, 19 and 21 of the Constitution of India, Act or Rules."
13. Mr. Joshi further relied upon the Full Bench Decision of this Court in Stamp Reference No.1 of 2010 in case of Chitvan Page 18 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Co.Op. Housing Soc. Vs. Chief Revenue Control Authority rendered on 2nd August 2011 to submit that the stamp duty is required to be levied on the date of execution of the instrument and consideration stated in the instrument cannot be the basis for levy of the stamp duty. He relied upon the following observations of the Full Bench in the said stamp reference.
"10.Having thus heard learned counsel for the parties, we find that the purchaser was given sufficient opportunity to produce necessary evidence to show that the Jantri rates did not reflect the correct value of the property on the date of the sale. The purchaser was also given the opportunity to produce evidence to show if there were any special circumstances or peculiar facts which would diminish the value of the property compared to the current rates prevailing in the area. The Deputy Collector had also indicated that if the purchaser did not produce any such evidence, he would proceed to finalise the valuation on the basis of Jantri rates. The purchaser produced no evidence before the Deputy Collector. The Deputy Collector thereupon proceeded to finalise the assessment of valuation of property on the basis of Page 19 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER prevailing Jantri rates.
11.We may recall that initially upon presentation of document before the Sub-Registrar, he was not satisfied that the document was adequately stamped. He therefore, gave an opportunity to the purchaser to affix deficient stamp duty on the basis of valuation of the property as per the Jantri rates. When the purchaser did not pay such duty, the Sub-Registrar referred the question of valuation to the Deputy Collector in terms of Section 32A of the Act. The Deputy Collector put the purchaser to notice that he proposed to accept the Jantri rates for the purpose of valuation of the property in absence of any contrary evidence. He permitted the purchaser to produce such rebuttal evidence as may be available with him. In particular, he called upon the purchaser to produce documents relating to the property such as, order passed by the Collector converting the land into non agricultural use, building plans if there was any construction carried out, evidence with respect to any charge or encumbrances if there was any over the property which would reduce the price or any other relevant material which would have the effect of diminishing the value of the property. Admittedly, the purchaser produced no evidence, whereupon, the Deputy Collector proceeded to finalise the Page 20 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER valuation on the basis of prevailing Jantri rates.
12.In further appeal to the Chief Controlling Revenue Authority, initially the purchaser approached belatedly. His appeal was therefore, not entertained on merits. Upon remand from the High Court however, the Chief Controlling Authority gave an opportunity of hearing to the purchaser. Contentions were dealt with and a speaking order was passed.
13.We see absolutely no reason to interfere. The authorities below adopted the prevailing Jantri rates for the purpose of valuation of the property after giving opportunity to the purchaser to produce rebuttal evidence. As already noted, before the Deputy Collector no such evidence was produced. Even before the Chief Controlling Revenue Authority, except for stating that the agreement to sale reflected the correct sale consideration, no further evidence was produced. The contention that the Deputy Collector proceeded to adopt Jantri rates for valuation without notice is also not tenable. As noted, the purchaser was informed that the tentative calculation of deficient stamp is on the basis of Jantri rates. He had also given opportunity to produce any evidence to discard such valuation. Contention that in the Page 21 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER vicinity, other documents were registered at the rate of Rs.400/per sq. mtr. also cannot be accepted. Firstly, the Chief Controlling Revenue Authority has recorded that such documents are also under revision under Section 53A of the Act. Section 53A of the Act empowers the Chief Controlling Revenue Authority to suomotu examine an order of the Collector with respect to stamp duty and to pass order of recovery of deficient stamp duty if he finds that any instrument carries less duty than leviable. Besides we may also notice that these documents were executed in the year 1997, 2001 and 2002 meaning several years before the present purchaser's documents were executed. It was not seriously contended before us that the Jantri rates adopted were for the year 2005 and not of year 2008. Facts in all References are similar. We have not separately noted these facts here.
14.In case of Gorva Vibhag Cooperative Housing Societies Association & anr.(supra), Full Bench traced the background leading to fixation of Jantri rates and observed as under :
"14. In the affidavit-in- reply, it has been pointed out that the amendment in the Bombay Stamp Act is made after due deliberation and after taking into consideration various observations made Page 22 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER by different Committees.
It is stated that
Santhanam Committee
constituted by the
Government of India for prevention of corruption had inter alia made the following observations and recommendations:
"32 To buy and sell properties at pries much greater that those recorded in the conveyance deeds has become a common method of cheating the Central Government of Income Tax and other Taxes and the State Government of the stamp duty and a convenient method of transferring black money.
If in some manner, the Central and the State Governments, or some special Corporations set up for the purpose can be empowered to step in and acquire such properties at the stated value, or even at a small premium when it is considered that the properties have been deliberately undervalued, it will strike a blow against black money."
xxx
16. It is further stated thereafter the Gujarat Taxation Inquiry Commission was constituted by the State Page 23 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Government in the 1978 to review all State taxes under the Chairmanship of Dr.R.J.Chelliah. That Commission submitted its report in the year 1980.
The Commission suggested for levy of stamp duty on the basis of market value of the property involved in the instrument of conveyance and at the same time Statewise valuation organisation be set up for making a continuous valuation of nonagricultural properties particularly in urban areas. The valuation department would work out 'minimum values' for properties of different kinds in different localities in all the cities and towns.
These 'minimum values'
would in effect be
conservatively estimated
market values and would become the norms that would be given to registering officers. The Commission further expressed its view that insofar as the minimum values are carefully estimated, most of the parties who come for registering transactions involving properties would prefer to pay duty on the basis of the norms rather than to challenge them and resort to Page 24 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER appeal. The Commission also recommended reduction of stamp duty.
17. The State Government thereafter constituted Stamp Duty Review Committee in 1981 to examine and to report to the Government in regard to the major recommendations of the commission pertaining to stamp duties. On the basis of the recommendation,the State Government created a Valuation Organisation Department in 1982 headed by the Superintending Engineer at State level and three Division Officers at Ahmedabad, Vadodara and Rajkot headed by the Executive Engineer, assisted by the Deputy Executive Engineer, Assistant Engineer drawn from the Building & Communication Department.
18. In the affidavit-in-
reply, it is further
pointed out that the
Valuation Organisation
Committee has started
working in the month of
October 1982. For the
valuation of real
properties it has
resorted to established prevailing methods, that is, Page 25 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
(i) Comparative method;
(ii) Valuation based on cost known as land and building method;
(iii) Belting method;
and
(iv) Abstractive method also known as residual theory or rental method or income capitalisation method.
For our purpose,
further details which
are given in the
affidavit-in-reply how the valuation Organisation Department determines the value of the property in different zones are not required to be narrated here."
We may also notice that in para.31 of the said decision, the Bench recorded the detailed procedure to be followed as per the provisions of the Act and the Rules made thereunder in case of dispute relating to stamp duty. In the present case entire procedure has been followed.
14. Mr. Joshi, relying upon the aforesaid decision, as well as the averments made in the affidavit-in-reply submitted that the impugned order passed by the respondent Page 26 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER authority is just and proper and no interference is required to be made while exercising the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
15. Having considered the rival submissions and having gone through the materials on record, it is not in dispute that the petitioner purchased the property in question for Rs.7,30,00,000/- pursuant to the order passed by this Court on 3rd December 2007 in liquidation proceedings in O.L.R. No.177 of 2007. It is also not in dispute that the petitioner has paid the stamp duty of Rs.35,77,000/- as per the sale consideration of Rs.7,30,00,000/-. The only question which arises for consideration before this Court is that whether the stamp duty is leviable as per the auction price mentioned in the instrument of sale deed or the market value as prevailing on the date of execution of such sale deed in the year 2015.
16. The issue raised in this petition is no more res integra in view of the decision of this Court in case of Jayant Shantilal Sanghvi (Supra) Page 27 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER wherein it is held as under:-
"7. This Court has heard the submissions canvassed by learned advocates appearing for the parties and perused the material produced on record. This Court has also considered the relevant provisions of the Act and the Rules and also gone through the decisions upon which the reliance is placed by the learned advocates. From the material produced on record, it would emerge that the petitioners purchased the properties in question in an open auction conducted by the BIFR through its operating agency ICICI Bank. The petitioners were the highest bidders. The sale was approved by the BIFR and thereafter sale deed was executed on 04.05.2006 which was registered as registration No.3590 in book 1 with the concerned Sub-Registrar. It is not in dispute that the original sale deed was returned to the petitioners by the concerned Sub- Registrar after its registration and the original sale deed is in custody and possession of the petitioners. In fact the respondent No.2 has not denied the said aspect in the affidavit-in- reply filed in the present petition. It would further emerge that pursuant to the audit objection raised by the office of the Accountant General, the concerned Sub-Registrar referred the matter to the Deputy Collector and therefore the Deputy Collector Page 28 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
- respondent No.2 herein issued a show cause notice in January 2011 to the petitioners wherein petitioners were asked to explain why deficit stamp duty of Rs.1,85,04,510/- with penalty may not be recovered from the petitioners. It is further revealed that petitioners submitted reply to the said show cause notice on 28.01.2011. Thereafter, the impugned order dated 04.02.2015 has been passed by the respondent No.2 by which the petitioners are held liable to pay deficit stamp duty of Rs.1,85,04,510/- plus penalty of Rs.18,50,450/-, total Rs.2,03,54,960/-.
8. In the aforesaid factual matrix of the case, the provisions contained in Section 39 of the Act are required to be considered. Section 39 of the Act provides as under:
"39. Collector's power to stamp instruments impounded.-
(1) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under sub-section (2) section 37, not being an instrument chargeable with a duty of twenty naye paise, or less, he shall adopt the following procedure :-
(a) if he is of the opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify Page 29 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees.
Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.
(2) every certificate under clause (a), of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under sub-section (2) of section 37 the Collector shall, when he has dealt with it as provided by this section, return it to the Page 30 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER impounding officer."
9. Thus, in the aforesaid Section 39 of the Act, there is a reference of Section 33 as well as Section 37 of the Act. Therefore, at this stage, this Court would like to refer and reproduce the provisions of Sections 33 and 37 of the Act, which read as under:
"33. Examination and impounding of instruments.-
(1)[Subject to the provisions of Section 32-A, every person] having bylaw or consent of parties authority to receive evidence, and every person in charge of a public office except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions shall if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law for the time being in force in the State when such instrument was executed or first executed : Provided that, - (a) nothing herein contained shall be deemed to Page 31 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898); (b) in the case of a Judge of High Court, the duty of examining and impounding any instrument under this Section may be delegated to such officer as the Court may appoint in this behalf."
37. Instruments impounded how to be dealt with.- (1) When the person impounding as instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in Page 32 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER original to the Collector."
10. If the aforesaid provisions are read together, it can be said that under Section 39 of the Act any instrument which has been impounded by the Collector under Section 33 or has received any instrument under Section 37(2) of the Act and if he is of the opinion that such instrument is not duly stamped, he shall require the payment of proper duty together with penalty and in case of document received under Section 37(2) of the Act, return the same to the impounding officer after its examination is completed. Thus, it is clear that powers under Section 39 of the Act can be exercised with respect to such instruments which are either impounded by the Collector himself or by any other authority referred in the aforesaid provisions. Admittedly, in the present case, as observed hereinabove, document/sale deed in question was never impounded. Thus, the respondent No.2 - Deputy Collector had no authority to follow the procedure under Section 39 of the Act and demand deficit stamp duty and penalty from the petitioners. Thus, exercise of powers by the respondent No.2 under Section 39 of the Act was without jurisdiction in the facts of the present case. Thus, when the respondent No.2 has selected wrong provision to initiate any proceedings, such act cannot be considered as legal and within powers and jurisdiction of the Page 33 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER respondent No.2.
11. At this stage, it is also required to be noted that the respondent No.2 issued a show cause notice in January 2011 to the petitioners on the basis of the audit objection raised by the Audit Officer. Pursuant to the said notice, petitioners have submitted their reply on 28.01.2011 and specifically stated that the document in question has been returned to the petitioners by the concerned Sub-Registrar after the same was registered. It was specifically stated that the evidence with regard to the market value of the property fixed is not provided to the petitioners and therefore the said show cause notice is not acceptable to the petitioners. Powers under Section 39 of the Act cannot be exercised and therefore it was requested to withdraw the said notice issued under Section 39 of the Act. It is required to be noted that in spite of the aforesaid specific reply, while passing the impugned order, the respondent No.2 has not at all referred the said reply nor the contents of the said reply are considered. It is further required to be noted that reasonable opportunity of hearing was also not provided to the petitioners and it is only stated in the impugned order that petitioners have not remained present on the date of hearing. Thus, the impugned order has been passed by the respondent No.2 without considering the reply give by the Page 34 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER petitioners to the show cause notice and without affording reasonable opportunity of hearing to the petitioners. The impugned order is passed only on the basis of the objections raised by the office of Accountnt General. Further, no reasons are assigned by the respondent No.2 while passing the impugned order.
12. From the record, it further transpires that the respondent No.2 has not even followed the procedure prescribed under Rule 4 of the Rules for determination of the correct market value of the property in question. Rule 4 of the Rules provides as under:
"[4.(1) On receipt of the instrument under sub-section (3) of section 31 or sub-
section (1) of Section 32-A, the Collector of the District, where he thinks fit to do so, may for the purpose of his inquiry:-
(a) call for any information or record having bearing, on the question before him from any public office, officer or authority under the Central Government, State Government or any local authority;
(b) examine and record statements from any member of the public, officer or the authority under the Central Government or State Government or any local authority, and Page 35 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
(c) inspect or empower any officer under him to inspect the property after due notice to the parties concerned.
(2) After examining the said information, records and evidence, if any, before him the Collector of the District shall issue a notice showing the basis on which true market value of property and proper duty payable thereon has been provisionally determined by him to every person to whom according to the provisions of section 30 is liable to pay stamp duty in respect of such instrument requiring such person to submit within 15 days from the date of the service of the notice upon such person, his representation in writing along with all the evidence in support of such representation.
(3) The Collector of the District shall after considering the representation, if any, received by him under sub-rule (2) pass an order determining the true market value and the proper duty payable on the instrument.]"
13. It is not in dispute that the procedure prescribed in the aforesaid Rule has not been followed and no opportunity of hearing was given to the petitioners before fixing the Page 36 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER market value of the properties in question. Only on the basis of the report given by the Audit Officer, the respondent No.2 has fixed the market value of the properties in question. Even the documents for determining the market value of the properties in question were not supplied to the petitioners. Thus, the respondent No.2 has violated the principles of natural justice while determining the market value of the properties in question.
14. In the aforesaid facts and circumstances of the present case, the contention raised by the learned Assistant Government Pleader with regard to the alternative remedy of filing an appeal is required to be considered.
15. Learned Assistant Government Pleader has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Hameed Kunju (supra), wherein the Hon'ble Supreme Court has held in para 24 as under:
"24 In the first instance itself, the High Court, in our view, should have dismissed the writ petition in limine on the ground that since all the 4 orders impugned in the writ petition were amenable to their challenge before the appellate authority, the writ petition was not the proper remedy without first filing the appeal and get the same Page 37 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER decided by the appellate Court on its merit in accordance with law. In other words, the High Court should have declined to entertain the writ petition under Article 227 on the ground of availability of an alternative remedy of appeal to the respondent. Indeed the respondent had actually filed appeal in the first round of litigation against the orders of the Trial Court.
16. Learned Assistant Government Pleader Ms. Pathak has also placed reliance upon the decision of the Hon'ble Supreme Court in the case of Punjab National Bank (supra), wherein the Hon'ble Supreme Court has observed in para 5 as under:
"5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short "the Act"). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whetehr the order passed by the Tribunal was correct or not has to be decided before an appropriate forum."Page 38 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
17. This Court cannot dispute the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid cases. However, it is required to be noted that in the case of Hameed Kunju (supra), the Hon'ble Supreme Court has observed in para 23 that, "in our considered view, there was no case made out on facts or/and in law by the respondent for entertaining his writ petition and interfere with the orders impugned therein."
Thus, in the facts and circumstances of the said case the Hon'ble Supreme Court observed that High Court has committed an error while exercising jurisdiction under Article 227 of the Constitution of India when the alternative remedy is available. Even the decision rendered by the Hon'ble Supreme Court in the case of Punjab National Bank (supra) would not be applicable to the facts of the present case.
17.1. As discussed hereinabove, though the petitioners tried to file an appeal before the Appellate Authority, the same was not registered as 25% of the amount fixed by the Deputy Collector was not deposited. Even the Appellate Authority has refused to consider the preliminary objection with regard to the jurisdiction of the Deputy Collector. Thus, alternative remedy in the facts of the present case, cannot be considered as an Page 39 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER efficacious remedy.
18. Learned counsel for the petitioners has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Committee of Management & Anr. (supra), wherein the Hon'ble Supreme Court has held in para 23 as under:
"23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdictions although there exists an alternative remedy.
In this context, it is appropriate to refer to the observations made by this Court in Whirlpool Corpn. v. Registrar of Trade Marks: (SCC p.10, para 15) "15.....But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged." (See also Guruvayoor Devaswom Managing Committee v. C.K.Rajan.)"Page 40 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
19. The Division Bench of this Court in Amarsinhji Stationery Industries Limited (supra), observed in paragraphs 4, 7, 11 and 12 as under:
"4. The appellants resisted the said proceedings. However, the Deputy Collector passed an order dated 23.1.1995 and demanded additional stamp duty of Rs.
7,71,400/. He further observed that on the said additional stamp duty, ten times penalty could be imposed. However, considering long passage of time, he demanded penalty of half that much i.e. Rs.42,23,000/. He also demanded additional registration fee of Rs. 31,175/. In aggregate, he demanded additional sum of Rs. 50,26, 625/from the appellants. Said order was challenged by the appellants before this Court in Special Civil Application No. 1172/1995 which was initially admitted and interim protection was granted in favour of the appellants. Learned Single Judge however, by his impugned order dated 25.6.2008 dismissed the petition on the sole ground that the order passed by the Deputy Collector challenged by the appellants in the main Special Civil Application was appealable and thus the appellants had alternative statutory remedy available.Page 41 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
It is against the said order that the appellants have approached this Court by filing Letters Patent Appeal.
xxx xxx xxx
7. The main question however, is whether the Deputy Collector could have levied the additional stamp duty and consequential penalty from the appellants?
xxx xxx xxx
11. Reading the above provisions in conjunction, it can be seen that under Section 39 of the Bombay Stamp Act, any instrument which has been impounded by the Collector under Section 33 himself or has received any instrument under Subsection(2) of Section 37 and if he is of the opinion that such instrument is not duly stamped, he shall require the payment of proper duty together with penalty and in case of document received under Subsection(2) of Section 37, return the same to the impounding officer after its examination is completed. Thus powers under Section 39 can be exercised with respect to such instruments which are either impounded by the Collector himself or any other authority referred to Page 42 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER in Section 33(1) and which has been after impounding sent by such authority as provided under Subsection(2) of Section 37. Admittedly, in the present case, document in question was never impounded. This has been the case of the appellants from the beginning and it has not been seriously disputed by the respondents. However, to put the matter beyond any possib le controversy, we had specifically inquired with the learned AGP whether at any point of time either the Collector or any other competent authority had impounded the document in question. After taking instructions in this regard, it was stated before us that the document was never impounded.
12. Under the situation, the Collector or as in the present case his delegatee had no authority to follow the procedure under Section 39 of the Act and demand additional stamp duty and other charges including the penalty."
20. The learned Single Judge of this Court in the order dated 23.02.2010 passed in Special Civil Application No.18319 of 2007 and allied matters, has observed in para 5 as under:
"5. As a result of hearing and Page 43 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER perusal of the record, it is found that Section 39(1) (b) of the Act refers to the Collector's power to stamp instruments, which are impounded, the pre-requisite to exercise the power under Section 39 of the Act being impounding of the instrument by the Collector under Section 33 of the Act, or the Collector receiving any instrument sent to him under Section 37(2) of the Act. There is no indication in the notice as to how, if at all, this pre-requisite and for exercise of jurisdiction under Section 39 of the Act is complied with. The impugned notices which have been issued are based upon the comments of the Auditor General. The comments of the Auditor General are not supplied to the petitioner. It is also found that impugned notices have been issued after a period of more than five years from the date of registration of the instrument, It is also clear that order of impounding of document by the competent officer was forwarded to the Deputy Collector. It is also found that Deputy Collector, has no powers to re-open the matter by calling upon the petitioners to show cause as to why additional stamp duties should not be levied when once the instrument has been duly stamped under the relevant provisions of the Page 44 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Act."
21. Similarly, the learned Single Judge of this Court in the order dated 27.10.2005 passed in Special Civil Application No.17916 of 2003, has observed in para 8 as under:
"8. I am of the opinion that in view of the aforesaid position when the property was purchased in an auction and the respondent Corporation, which is a Government Corporation, has fixed the upset price of the property and accepted the highest bid as the consideration of the property, the respondent authority ought not to have proceeded as if the property has been purchased at a lesser value. The Government Corporation has disposed of the property in public auction more than the price fixed by the respondent Corporation. I am of the view that such a price cannot be disputed by the respondent authorities. Therefore, the impugned orders are required to be quashed and set aside."
22. Keeping in view the aforesaid decisions rendered by the Hon'ble Supreme Court and Division Bench as well as learned Single Judge of this Court, if the facts of the present case, as discussed hereinabove are considered, it can be said that this Court can exercise powers under Articles 226 and 227 of the Constitution of India though alternative remedy is available under certain Page 45 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER circumstances viz. when the order passed by the authority is without jurisdiction or in violation of principles of natural justice. In the facts of the present case as discussed hereinabove, the respondent No.2 was not having power to proceed under Section 39 of the Act when the instrument in question has not been impounded. Thus, the order passed by the respondent No.2 is without jurisdiction. Further, reasonable opportunity of being heard is not provided to the petitioners and while passing the order even reply given to the show cause notice is not considered. Further, while determining the market value of the properties in question, procedure prescribed under Rule 4 of the Rules has not been followed and no opportunity of hearing was given to the petitioners before determining the market value of the properties in question. Thus, in the facts of the present case, this Court is inclined to exercise the powers under Articles 226 and 227 of the Constitution of India and therefore petitioners are not relegated to the Appellate Authority.
23. In the present case, when the petitioners have purchased the properties in auction held before BIFR conducted through operating agency ICICI Bank and the sale was approved by the BIFR, it cannot be said that petitioners purchased the property in question at a lesser value than the market Page 46 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER value. Thus, such price cannot be disputed by the respondent authorities. At this stage, this Court would like to refer Section 32A(1) of the Act, which reads as under:
"[32A. Determination of market value of property which is the subject matter of conveyance, etc.-[(1) Every instrument of conveyance, exchange, gift, certificate of sale, partition, partnership, settlement, power of attorney to sell immovable property when given for consideration, deed of settlement or transfer of lease by way of assignment, presented for registration under provisions of the Registration Act, 1908 (XVI of 1908) shall be accompanied by a true copy thereof; [and the Statement in such form as may be prescribed by Rules] and if an officer registering such instrument under the aforesaid Act or any person referred to in Section 33 before whom such instrument is produced or comes in the performance of his functions, has reason to believe that the consideration set forth therein does not a proximate to the market value of the property which is the subject matter of such instrument or as the case may be the market value of the property which is the subject matter of such Page 47 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER instrument, has not been truly set forth therein, he [ shall before] registering the instrument or, as the case may be, performing his functions in respect of such instrument, refer the instrument or true copy thereof to the Collector of such Districts in which either the whole or any part of the property is situated for determining the true market value of such property and the proper duty payable on the instrument under this section.] [Provided that for the purpose of this Sub-section, the consideration set forth in an instrument executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation, shall be deemed to be the true market value of the property which is the subject matter of such instrument.]
24. Thus, from the proviso contained in the aforesaid Section, it is clear that the consideration set forth in an instrument executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Page 48 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER Corporation, shall be deemed to be the true market value of the property which is the subject matter of such instrument. Thus, when the petitioners have purchased the properties in question in an open auction held before BIFR and when the petitioners were the highest bidders and the sale was approved by the BIFR in favour of the petitioners in pursuant to which sale deed was executed, the consideration set forth in the instrument in question is required to be considered as the true market value of the properties in question."
17. This Court on 22nd January 2019 while admitting the matter has passed the following order:-
1. In this petition, petitioner has challenged the order dated 19.9.2015 passed by the respondent No.4, while exercising the powers under Section 33 and 32A of the Gujarat Stamp Act, 1958 (hereinafter referred to as 'the Act').
2. Learned advocate Mrs.Pahwa appearing for the petitioner, at the outset, submitted that the petitioner is not pressing the relief for quashing and setting aside the order dated 18.4.2013 passed by the Deputy Collector and therefore, the only relief which is required to be examined Page 49 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER in this present petition is with regard to the order dated 19.9.2015 passed by the respondent No.4.
3. Learned advocate for the petitioner has submitted that the petitioner has purchased the property in question in auction held before this Court. The market value fixed during the course of auction proceedings for the subject land is Rs.7,30,00,000/. The auction process was held in the year 2007, however, when the sale deed was registered in the year 2015, the respondent authority passed an impugned order and observed that the market value as on date of the registration of the sale deed i.e. for the year 2015 is required to be considered and accordingly, the respondent authority has considered the market value of the property in question on the basis of the jantry value of year 2011, as Rs.24,12,84,000/and accordingly, the petitioner is asked to pay deficit stamp duty.
4. Learned advocate Mrs. Pahwa for the petitioner mainly contended that the respondent No.4 has no jurisdiction to exercise the powers under Section 32A of the Gujarat Stamp Act. It is submitted that the authority can exercise the powers under said provision only if he has reason to believe that the consideration set forth in Page 50 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER the document does not approximate to the market value of the property which is a subject matter of such instrument. It is further contended that as per proviso contained in Section 32A of the Gujarat Stamp Act that the consideration set forth in an instrument executed by the State Government, the Central Government or the authorities mentioned in the said proviso shall be deemed to be the true market value of the property which is the subject matter of such instrument.
5. Mrs. Pahwa, learned advocate for the petitioner has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of V.N. Devadoss Versus Chief Revenue Control OfficercumInspector and others reported in (2009)7 SCC 438 and the order dated 12.12.2018 passed by this Court in Special Civil Application No.12015 of 2016.
6. Learned advocate for the petitioner therefore urged that the present petition requires consideration and this Court may grant interim relief till final disposal of the petition.
7. On the other hand, learned Assistant Government Pleader Ms. Shruti Pathak has opposed this petition and raised the preliminary objections that against the order passed by the Page 51 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER respondent No. 4 in exercise of powers under Section 32A of the Stamp Act, the petitioner is having alternative remedy to file an Appeal under Section 53 of the Stamp Act before the Competent Authority. It is therefore, urged that the petition may not be entertained.
8. Ms. Pathak, learned Assistant Government Pleader has further submitted that there is a delay of approximately two years in filing the present petition and therefore, this Court may not entertain this petition.
9. On merits, learned Assistant Government Pleader submits that as per the definition contained in Section 2(na) of the Stamp Act, definition of market value is given and as per the said definition, market value in relation to any property which is a subject matter of an instrument, means the price which such property would have fetched if sold in open market on the date of such execution of instrument. It is contended that the instrument was executed in the year 2015 and therefore, the respondent authority has rightly considered the market value as per the jantry value for the year 2011 and therefore, this Court may not entertained this petition.
10. Having considered the submissions canvassed by the learned advocates appearing for Page 52 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER the parties, this Court is of the view that the matter requires consideration as there is nothing on record to suggest that the respondent No.4 has exercised the powers under Section 32A of the Stamp Act, on the basis that he has reason to believe that the consideration stated in the instrument in question is not as per the market value. Further, proviso of Section 32A of the Gujarat Stamp Act, is also required to be examined by this Court in detailed as the petitioner has purchased the property in question in public auction held before this Court in the winding up proceedings. What is the meaning of "deemed to be the market value of the properties"
mentioned in the said proviso, is required to be examined in detail.
11. The respondents have not placed on record any material, from which, it can be said that respondent No.4 was having reason to believe that the consideration stated in the instrument in question is not as per the market value and, therefore, initiation of proceedings under Section 32A of the Act is primafacie without jurisdiction. The said issue is also required to be examined in detail and therefore, contention of the learned Assistant Government Pleader with regard to alternative remedy, is not accepted, at this stage.Page 53 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER
12. In view of the aforesaid discussion, petition requires consideration. Therefore, Rule returnable on 15th April, 2019. Ms. Pathak, waives service of notice of Rule for and on behalf of the respondents. In the meantime, interim-relief in terms of paragraph No.17B is granted.
18. At this juncture, it is also pertinent to note that Rule-8 of the Stamp Valuation Rules, 1984 also provides for consideration of the particulars mentioned in the instrument by the Collector while determining the market value. Rules 8 of the Act reads as under:
"8. Principles to be taken into consideration for determination of market value: The Collector of the District shall while determining the true market value of a property which is the subject matter of an instrument take into consideration primarily the captilalized value of the property i.e. the amount of money whose annual interest at the highest prevailing interest at any given time is its net annual income, and also the following factors, namely:--
(a) in the case of agricultural Page 54 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER land,--
xxxx
(b) in the case of non-
agricultural land,--
(i) the general value of non- agricultural land in the vicinity;
(ii) facilities such as road, railway station, bus route, shops, market and the like available in the vicinity of the land;
(iii) amenities like public offices, hospitals and educational institutions available in the vicinity of the land;
(iv) development activities including, Development of industries in the vicinity of the land;
(v) any factors mentioned in the instrument which is relevant for the purpose of determination of true market value;
(vi) any other factor which the Collector of the District thinks, to have a bearing on the valuation of the non-agricultural land;
(C) in the case of buildings,--
xxxxxx
(d) in the case of any other Page 55 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER property,--
(i) the nature and condition of the property;
(ii) purpose for which the property is being put to use;
(iii) any factors mentioned in the instrument which is relevant for the purpose of determination of true market value;
(iv) any other factor which the collector of the District thinks to have a bearing on the valuation of the property."
19. On bare perusal of the Rule-8(b)
(v) it is discernible that while determining the market value of the non-agriculture land, the Collector is required to take into consideration the details mentioned in the instrument also.
20. Considering the above facts and circumstances of the case, and in view of the settled legal position, the petition is allowed. The impugned orders dated 19th September 2015 passed by the Collector of Stamps, Anand as well as the order dated 18th April, Page 56 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021 C/SCA/15125/2017 ORDER 2013 passed by Deputy Collector Stamp Duty Valuation department, Anand is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) Amar Rathod Page 57 of 57 Downloaded on : Sat Feb 27 20:36:49 IST 2021