Gujarat High Court
Ravi Rajnikant Desai vs State Of Gujarat on 24 April, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1842
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/6860/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6860 of 2015
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 6860 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed to see the NO
judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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RAVI RAJNIKANT DESAI
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1
MS SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 24/04/2020
ORAL JUDGMENT
1. This petition under Article 226 and 227 of the Constitution of India is filed seeking direction to declare the payment of Page 1 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT deficit stamp duty by the respondent - Deputy Collector as arbitrary and illegal and has further sought quashing and setting aside of the order dated 03.01.2015 passed by the respondent Deputy Collector, Surat. This petition pertains to stamp duty in connection with Revenue Survey No.87 Paiki, Block No.145 admeasuring 14971 square meters situated at Village Dindoli, District Surat.
2. The petitioner is the owner of the aforementioned land which was conveyed to him by the original land owners in the year 2012, as old tenure agricultural land. The registered Sale Deed was executed for a sale consideration of Rs.5,76,38,957.00 on which the petitioner had paid a stamp duty of Rs.28,24,300.00 by considering the valuation of the agricultural land @ Rs.3,850/- per square meter. The mutation entry No.1793 was posted in favour of the petitioner on the basis of the Sale Deed.
3. It is submitted that the Sub Registrar at the relevant time, i.e. in the year 2012 had ascertained the market value as per the Form No.I and thereafter, the Sale Deed came to be registered and the Sub Registrar had handed over the Sale Deed to the purchaser, i.e. the petitioner.
4. It is submitted that subsequent to the Sale Deed, the petitioner had sought N.A. permission and such permission was granted in favour of the petitioner. Moreover, the competent authority had also granted the development permission on the basis of which the petitioner floated a Scheme of 21 low rise buildings.
5. It is submitted that despite such development having taken place, only on the basis of an objection received from the Page 2 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT Office of the Auditor General, the showcause notice came to be issued to the petitioner as to why the petitioner should not pay the deficit stamp duty of Rs.30,44,282.00 in connection with the said transaction which had taken place in the year 2012.
6. It is submitted that the Deputy Collector by applying the guidelines issued for revised Jantri Rate with effect from 01.04.2011 and on the ground that the land in question is capable of being utilized for NA purpose valued the land as a non-agricultural land @ of Rs.8,000.00 per square meter instead original assessment @ Rs.3,850.00 per square meter.
7. Learned Advocate for the petitioner submitted that the petitioner had purchased the land which was a agricultural land and which was a new tenure land. The first owner had paid a premium @ 40% of the market rate (Rs.4,79,07,200.00) for conversion of tenure. Therefore, the State received sufficient revenue at the stage of conversion of tenure and thereafter, at the time of sale deed in favour of the petitioner as a stamp duty of Rs.28,24,300.00 and lastly at the time of conversion for N.A. Permission. After this much of development, it was not open for the respondent authority to assess the land as an agricultural land and call upon the petitioner to pay the stamp duty as aforementioned.
8. It is submitted that the petitioner had filed an Appeal under Section 53 of the Gujart Stamp Act, 1958 (hereinafter referred to in short as 'the Act'). However the petitioner could not deposit the amount due to financial crunch and therefore, the appeal of the petitioner was not entertained simply on the ground of delay. It is submitted that in view of the decision of the Full Bench in the case of Jayminbhai Page 3 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT Navinbhai Doshi v. State of Gujarat reported in AIR 2014 Guj 220, the petitioner is unable to pursue the Appeal under Section 53 of the Act as the same is declared to be beyond the period of limitation.
9. Learned Advocate for the petitioner has relied upon the judgment of this Court in the case of Jayant Shantilal Sanghvi and Others v. State of Gujarat and Others reported in 2019 (2) GLR 1622 to substantiate the argument that when at the time of executing of the Sale Deed, the authority had a satisfaction which is about the market value, then such finding cannot be disputed by the authorities later on.
10. Reliance is placed upon the decision of Bileshwar Industrial Estate Developers Pvt. Ltd. v. State of Gujarat and Another reported in 2013 (2) GLR 1435 to contend that the competent authority cannot reopen their valuation after a long period by relying upon the Auditor's Report. In the instant case also, the revaluation is done only on the basis of the report of the Auditor to treat the land in question as a developed land and not as an agricultural land.
11. In response, learned Assistant Government Pleader submitted that the petitioner had an alternative remedy and infact availed such an alternative remedy by filing an appeal which was within the limitation period but had deliberately not deposited 25% of the deficit value as provided under Section 53 of the Act and therefore, the Appeal came to be rejected.
12. Learned Assistant Government Pleader has thereafter, submitted that the Auditor General office in connection with Page 4 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT the Sale Deed No.12205 pertaining to the sale transaction in question and objection was raised for the period from 01.03.2014 to 11.03.2014 wherein by applying the guidelines effective from 01.04.2011, the developed land to include the land which could be used for non-agricultural purpose wherein development can take place or it is capable of being developed like land converted to non-agricultural, land included in the development scheme / town planning scheme, land purchased under Sections 63A and 63AA of the Bombay Tenancy Act, 1948 and the land included in SEZ and IT Parks.
13. This being the land of restricted tenure which was changed subsequently would be covered under such objection of the Auditor and therefore, the land was required to be revalued in terms of the Report of 2011 treating the land to be a non-agricultural land.
14. It is submitted that the order dated 06.09.2014 to recover the stamp duty alongwith fine was signed on 09.09.2014 and was sent on 10.09.2014. The acknowledgment was received accordingly.
15. By a letter dated 30.12.2014, the petitioner was informed by the Superintendent of Stamp to make further procedure to make entry of recovery of deficit stamp duty in the record. The petitioner having followed the order of 06.09.2014 within a period of 90 days a notice came to be issued under Section 152 of the Gujarat Land Revenue Code on 03.01.2015 and ordered the Mamlatdar to make the entry in this regard. The petitioner was required to make an application within a period of 90 days. However such application was filed on 16.01.2015 with a challan by making 25% deficit stamp duty. However, the petitioner was Page 5 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT informed by a communication dated 22.01.2015 that the application was beyond period of 90 days and the challan could not be accepted and was informed to pay the stamp duty with interest and it is at this stage that the petitioner has filed the present petition.
16. I have heard learned Advocates for the respective parties and have perused the documents on record. The issue that requires to be considered is as to whether the Deputy Collector (Stamp Duty) was correct in taking into consideration the First Appeal 2011 Guidelines and treating the agricultural lands as developed lands.
17. The facts which are not in dispute are that the petitioner had purchased a land bearing Survey No.87 Paiki, Final Block No.145, admeasuring 14971 square meters of Village Dindoli, Sub District Surat for a total sale consideration of Rs.5,76,38,957.00 under the registered Sale Deed dated 23.08.2012 which was registered with the Sub Registrar/Surat/3/NVT at Survey No.12205. Towards the registration, a stamp duty of Rs.28,24,300.00 was paid by considering the Jantri Rate prevailing at the relevant time @ Rs.3,850.00 per square meter.
18. There appears to be an objection raised by the Office of the Accountant General on the basis of the guidelines issued for implementation of revised Jantri rates effective from 01.04.2011 wherein the developed land were treated to be inclusive of including the land which can be used for agricultural purpose and land wherein development can take place or which is capable of being developed. Such objection was sent to the office of the Sub Registrar on 23.02.2012 for further proceedings under Section 7(3) of the Act. Pursuant Page 6 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT to such objection, a notice was issued on 09.01.2014 for recovery of deficit stamp duty of Rs.30,44,282.00 by treating the value of land @ Rs.8,000.00 per square meter.
19. It is pertinent to point out that the very land which was of new tenure was required to be converted to old tenure for which an application was made to the Surat Collector and on 08.06.2012, as per the Government Resolution of 04.07.2008 and 03.05.2011 considering the Jantri Rate of development of land @ Rs.8,000/- per square meter, the petitioner was called upon to pay 40% of the value of land, at Rs.11,97,68,000/-, 40% of which being Rs.4,79,07,200/- was paid by the petitioner under Challan No.256/2012 on 21.06.2012.
20. It appears that aggrieved by the order of the Deputy Collector (Stamp Duty) dated 06.09.2014, the petitioner had approached the concerned authorities for challan of 25% of the deficit stamp duty for preferring an Appeal before CCRA. It appears that as the period of 90 days as contemplated under Section 53(1) of the Gujarat Stamp Act had expired, the said Challan was not accepted by the CCRA and the application dated 28.01.2015 came to be rejected and communicated to the petitioner on 21.03.2015. Obviously in view of the Full Bench judgment of this Court reported in Jayminbhai Navinbhai Doshi (supra), CCRA had no jurisdiction to condone the delay in an Appeal which was filed after 142 days. It is in the aforesaid set of circumstances that the petitioner has invoked Article 226 of the Constitution of India contending that on the basis of the Report of the Accountant General, the authorities ought not to have reviewed their decision and on the other ground that admittedly when the land in question was an agricultural land at the time of the sale transaction, the authorities ought Page 7 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT not to have treated the same as developed non-agricultural land and evaluate the land as such.
21. The aforesaid contentions are substantiated by the judgment of this Court in the case of Bileshwar Industrial Estate Developers Pvt. Ltd. (supra) wherein the Division Bench in Paragraph 12 has held that once the Certificate under Section 31 was issued by the respondents, they should not be allowed to re-open their own valuation after four years to say that the value of the property is higher relying upon the Auditor's Report. In the instant case as well, the facts indicate that after issuing the Certificate in the year 2012, proceedings were initiated on the basis of the Accountant General's objections in the year 2014.
22. The petitioner is justified in placing reliance upon the decision of this Court in the case of Nishant Vasudev Thakkar v. State of Gujarat Through Chief Controlling Revenue reported in 2012 (3) GCD 2212 wherein this Court apparently on the identical issue of treating the agricultural land as a developed land had set aside the order of CCRA and remanded the matter back to the authorities for re-consideration. The Court in Paragraphs 7 and 8 held as under :-
"7. The Court hasten to add here that Court has not opined in respect of other nitty-gritty which would otherwise raise a serious doubt with regard to the transaction on the land in question. Suffice, it to say here that the Court has examined this matter from the point of view of exercise of power or duty under Section 32A of the Stamp Duty Act and therefore, it has to confine itself qua the question raised. In my view, even plain reading of Clause 18, as reproduced at page 95 of the compilation, also does not show that there exists any order which would justify invoking that Clause and if that Clause is not invocable, then there exists no Page 8 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT basis whatsoever on the part of the Collector to arrive at a conclusion and therefore, orders impugned in this petition being bereft of merits, deserves quashment and accordingly it is quashed.
8. The Controlling Authority has unfortunately not appreciated this aspect and straightway upheld the order on the same reasoning and therefore, the order of Controlling Authority is also required to be quashed and set aside. Orders accordingly. The matter is remanded back to the concerned Deputy Collector for deciding it afresh in accordance with the provision of Section 32A of the Stamp Act and bearing in mind that whether applicability of Clause 18 is invocable in peculiar facts and circumstances of the present case. The Court has left it open to the Deputy Collector to examine it afresh and record its specific reasoning whether the Clause 18 is applicable. Rule made absolute. No costs."
23. In the opinion of the Court, the facts narrated hereinabove also give rise to indicate that the Accountant General's objections and the Guidelines of revised Jantri Rates were the foundation for initiating the proceedings against the petitioner. However, the judgment of this Court which in the opinion of the Court are relevant have not been taken into consideration.
24. In view of the aforesaid, the Court is inclined to interfere under Article 226 of the Constitution of India to limited extent and adopt the course adopted by this Court in the judgment of Nishant Vasudev Thakkar (supra) thereby remanding the matter back to the first authority, i.e the Deputy Collector, Stamp Duty Valuation Department, Division-I, Surat to reconsider the case of the petitioner afresh after giving an opportunity of hearing. The recordings and findings of the order dated 06-9.09.2014 bearing Reference No.Stamp/ Tapa/A.G./D.No.12205/12/ F.No.3 /2014 /6116 will not come in way of the authority in reconsidering Page 9 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020 C/SCA/6860/2015 JUDGMENT the issue in accordance with law and the Authority will also not insist on full compliance of impugned order dated 06-9.09.2014 bearing Reference No. Stamp/Tapa/A.G./ D.No.12205/12/F.No.3/2014/6116 while taking decision afresh.
25. The petition is allowed in the aforesaid terms. Rule is made absolute. Direct Service is permitted.
26. In view of the order passed today in the main matter, the Civil Application does not survive and stands disposed of as accordingly.
Sd/-
(A.Y. KOGJE, J) CAROLINE Page 10 of 10 Downloaded on : Mon Apr 27 20:25:57 IST 2020