Gujarat High Court
Varshaben Jiteshbhai Patel vs Chief Controlling Revenue Authority & 3 on 4 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/15542/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15542 of 2016
=============================================
VARSHABEN JITESHBHAI PATEL....Petitioner(s)
Versus
CHIEF CONTROLLING REVENUE AUTHORITY & 3....Respondent(s)
=============================================
Appearance:
MR SANDEEP N BHATT, ADVOCATE for the Petitioner(s) No. 1
MS SONAL S BHATT, ADVOCATE for the Petitioner(s) No. 1
MR. VENUGOPAL PATEL AGP for the Respondent(s) No. 1 3
NOTICE SERVED BY DS for the Respondent(s) No. 4
=============================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 04/04/2017
ORAL ORDER
[1] Heard learned advocate Mr. Sandeep Bhatt for the petitioner and learned AGP Mr. Venugopal Patel for the respondents.
[2] Considering the issues involved in this petition and with consent of the learned counsel appearing for the parties, the matter is taken up for final disposal.
[3] By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for following main relief : 6(B) Be pleased to allow this petition by issuing a writ of mandamus or writ of certiorari or any other appropriate writ, order or direction in the nature Page 1 of 9 HC-NIC Page 1 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER of mandamus by quashing and setting aside impugned final order dated 21/03/2014 by respondent no. 2 (AnnexureB) and the impugned order in appeal on 30/04/2016 (AnnexureF) passed by respondent no.1 and impugned notice dated 23/05/2016 by respondent no.4 (AnnexureG) and also to pass appropriate order or direction against any coercive action in view of the final order of respondent no.2 in the interest of justice.
[4] The following facts emerge from the record of this petition: That the petitioner purchased residential premises i.e. house admeasuring 147.90 Sq. Mts. Situated in city survey Ward No. 16, being City Survey No. 2764 to 2768 within the limits of Rajkot Corporation. The original owner of the said property executed a sale deed in favour of the present petitioner on 15.07.2005, which shows that the land admeasuring 157.90 Sq. Mts. along with the super structure came to be sold for a sale consideration of Rs. 3,50,000/ and the sale deed came to be registered under No. 4999 registered on 15.07.2005 before the SubRegistrar, Rajkot3, Rajkot.
[5] It is an admitted position that the respondent authorities in exercise of powers conferred under Sections 32(A) of the Gujarat Stamp Act, 1958 ('hereinafter referred to as 'the Act' for sake of Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER brevity)read with Rule 4(2) of the Rules issued show cause notice on 19th July, 2013. By the said notice the petitioner was asked to show cause as to why the petitioner should not be saddled with an additional stamp duty of Rs. 1,61,844/ plus Rs.250/as penalty, which aggregate to Rs. 1,62,094/ By the said notice, the petitioner was asked to remain present before Deputy Collector, Stamp Duty Evaluation, Rajkot on 12th August, 2013. The said notice was received by the petitioner and thereafter another notice dated 04.01.2014 was issued to the petitioner asking the petitioner to remain personally present for hearing on 16.01.2014. The said notice culminated into the impugned order dated 21.03.2014, whereby the Deputy Collector confirmed the demand raised in the said notice. The petitioner being aggrieved by the said order filed an application/appeal as provided under Section 53 of the Act, which culminated into the impugned order dated 30.04.2016. It appears from the record that thereafter based upon the impugned orders, notice of recovery/demand was issued on 23rd of May, 2016. Both the orders as well as notice dated 23.05.2016 are impugned in this petition. Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER [6] Learned advocate Mr. Bhatt appearing for the petitioner has taken this Court through the factual matrix. Mr. Bhatt relying upon the provisions of Section 32(A) of the Act, submitted that issuance of notice dated 19.07.2013 is beyond the time limit as prescribed in the Act and is therefore without jurisdiction and all further proceedings and the impugned orders as well as notice of demand are illegal and the same deserve to be quashed and set aside. Mr. Bhatt, learned advocate relying upon the decision of this Court passed in Special Civil Application No. 4434 of 2003 in case of Kumarpal Kundanmal Banfa Vs. State of Gujarat decided on 11.08.2003 and in Special Civil Application No. 10731 of 2012 in case of Manilal Pitambardas Chaavda Vs. State of Gujarat decided on 16.11.2016, contended that the exercise of powers by the Authority under Section 32(A) is admittedly beyond the period of 6 years and therefore, the very initiation of the proceedings is without jurisdiction and bad in law. Mr. Bhatt also contended that even the documents which were demanded by the petitioner were not supplied, and therefore, the proceedings are in breach of the Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER principle of natural justice and no adequate and proper opportunity was given to the petitioner before passing the impugned orders. Mr. Bhatt submitted that only on this ground, the petition deserves to be allowed. Mr. Bhatt has also relied upon the additional affidavit filed by the respondent authorities, which is in relation to the documents in question which came to be registered on 15.07.2005. Mr. Bhatt therefore submitted that the petition deserves to be considered and allowed as prayed for. [7] Per contra learned AGP Mr. Venugopal Patel has vehemently supported the impugned orders and has relied upon the affidavitinreply filed by the respondents.
[8] Before considering the submissions made by learned counsel appearing for the parties, it would be appropriate to refer the provisions of Section 32(A) of the Act which reads as under: "(1) Every instrument of conveyance, exchange, gift certificate of sale, partition, partnership, settlement, power of attorney to sell immovable property when given for consideration or transfer of lease by way of assignment, presented for registration under the provisions of the Registration Act, 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 performance of his functions, has reason to believe that the consideration set forth therein does not approximate to the Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER 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 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 district 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. (2) on receipt of the instrument under subsection(3) of (section3) or instrument or true copy of instrument under subsection (1) of this section, the Collector of the district shall, after giving the parties concerned a reasonable opportunity of being heard, and in accordance with the rules made by the State Government in this behalf, determine the true market value of the property which is the subject matter of the instrument and the proper duty payable thereon.
(3) Upon such determination, the Collector of the district shall required the party liable to pay the duty, to make payment of such amount as is required to make up the difference between the amount of duty determined under this sub section and the amount of duty already paid by him and shall also required such party to pay a penalty of two hundred and fifty rupees or the amount of the proper duty or of the deficient portion thereof whichever is less and on such payment, return the instrument to the officer referred in subsection (5) of section 31 or, as the case may be, subsection(1) of this section. (4) The Collector of the District may, suo motu or on receipt of information from any source, within six years from the date of registration of any instrument referred to in subsection(1) (not being the instrument upon which an endorsement has been made under Section 32 or the instrument in respect of which the proper duty has been determined by him under subsection (3) or an instrument executed before the date of the commencement of the Bombay Stamp (Gujarat Amendment Act, 1982) call for an examine the instrument for the purpose of satisfying himself as to the correctness of the consideration or of the market value of the property which is the subject matter of such instrument and the duty payable thereon; and if on such examination, he has reason to believe that the consideration does not approximate to the market value of such property or, as the case may be, market value of such property has not been truly and fully set forth in the instrument, he shall proceed as provided in sub section (2) and (3).
[9] A bare reading of the provisions of Section 32A (4) of the Act, makes it clear that the powers under Subsection 4 of the Section 32A of the Act can be exercised by the Collector of the District, suo motu or on receipt of the information from any source Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER within 6 years. As such the Act came to be amended and 2 years came to be substituted by 6 years, which has come into force by way of Gujarat Act No. 13 of 1994. Admitted facts which can be culled out from record of the petition which is even averred and contended by the respondent authorities in the affidavitinreply are as under:
(i) That the sale deed in question was registered on 15.07.2005.
(ii) That the first notice as provided under Section 32A of the Act read with Rule 4(2) of the Rules pertaining to determination of market value of the immovable property was issued on 19.07.2013.
[10] Hence, notice is admittedly issued after 7 years, 11 months and 26 days, much beyond the time limit prescribed under Subsection 4 of Section 32A of the Act. Therefore, in opinion of this Court, the issuance of notice under Rule 4 of the Rules was beyond the statutory limit and hence, the same is without jurisdiction. The Act is crystal clear and such time cannot be extended as the legislature in its wisdom has provided maximum time limit in exercise of Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER suo motu powers as 6 years and therefore the contention raised in the affidavit to the effect that no reply was filed, would not justify the action taken by the respondentauthorities beyond the prescribed time limit that is almost after 8 years. It deserves to be noted that in para 3(g) of the petition, specific contention is raised by the petitioner which is not controverted by the respondentauthorities in its affidavit and the respondentauthorities in para 6 of their affidavit have stated that the sale deed was registered on 15.07.2005 and annexed the notice dated 19.07.2013 issued under Rule 4 of the Rules.
[11] In light of such a stand taken by the respondentauthorities, the fact that the proceedings under Section 32A of the Act were initiated after almost 8 years, is not even otherwise converted by the respondentsauthorities.
[12] Considering the ratio laid down by this Court in the case of Kumarpal Kundanmal Bafna Vs. State of Gujarat passed in Special Civil Application No. 4434 of 2003 and in case of Manilal Pitambardas Chaavda Vs. State of Gujarat passed in Special Civil Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue Aug 15 17:07:16 IST 2017 C/SCA/15542/2016 ORDER Application No. 10731 of 2012 the very initiation of the proceeding under Section 32A(4) of the Act after the statutory period of 6 years, is bad in law and illegal and the authority had no jurisdiction to initiate such proceedings after a period of 6 years.
[13] In light of the aforesaid facts, the petition deserves to be allowed and is hereby allowed as prayed for. The initiation of the proceedings under Section 32A(4) of the Act is held to be without jurisdiction as having been taken beyond period of 6 years. The impugned orders dated 21.03.2014 and 30.04.2016 as well as the demand notice dated 23.05.2016 are hereby quashed and set aside. However, in the facts and circumstances of this case, there shall be no order as to costs. Direct service is permitted.
(R.M.CHHAYA, J.) manoj Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Aug 15 17:07:16 IST 2017