Gujarat High Court
Mit Housing Association Through ... vs Chief Controlling Revenue Authority on 30 September, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/LPA/919/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 919 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 1008 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 919 of 2016
With
R/LETTERS PATENT APPEAL NO. 920 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1009 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 920 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1009 of 2011
With
R/LETTERS PATENT APPEAL NO. 921 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1010 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 921 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1010 of 2011
With
R/LETTERS PATENT APPEAL NO. 922 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1011 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 922 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1011 of 2011
With
R/LETTERS PATENT APPEAL NO. 923 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1012 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 923 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1012 of 2011
With
R/LETTERS PATENT APPEAL NO. 924 of 2016
Page 1 of 39
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C/LPA/919/2016 JUDGMENT
In
SPECIAL CIVIL APPLICATION NO. 1013 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 924 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1013 of 2011
With
R/LETTERS PATENT APPEAL NO. 925 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1014 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 925 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1014 of 2011
With
R/LETTERS PATENT APPEAL NO. 926 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1015 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 926 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1015 of 2011
With
R/LETTERS PATENT APPEAL NO. 927 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1016 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 927 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1016 of 2011
With
R/LETTERS PATENT APPEAL NO. 928 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1017 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 928 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1017 of 2011
With
R/LETTERS PATENT APPEAL NO. 929 of 2016
Page 2 of 39
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C/LPA/919/2016 JUDGMENT
In
SPECIAL CIVIL APPLICATION NO. 1018 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 929 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1018 of 2011
With
R/LETTERS PATENT APPEAL NO. 930 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1019 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 930 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1019 of 2011
With
R/LETTERS PATENT APPEAL NO. 931 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1020 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 931 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1020 of 2011
With
R/LETTERS PATENT APPEAL NO. 932 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1021 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 932 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1021 of 2011
With
R/LETTERS PATENT APPEAL NO. 933 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1022 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 933 of 2016
In
SPECIAL CIVIL APPLICATION NO. 1022 of 2011
Page 3 of 39
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C/LPA/919/2016 JUDGMENT
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI Sd/-
===========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
Circulate this judgment in the subordinate judiciary
================================================================
MIT HOUSING ASSOCIATION THROUGH RAJESHBHAI N PATEL
Versus
CHIEF CONTROLLING REVENUE AUTHORITY & 3 other(s)
================================================================
Appearance:
MR DIPEN C SHAH(3374) for the Appellant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 4
MR RAKESH PATEL, AGP (1) for the Respondent(s) No. 1,2,3
================================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 30/09/2019
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As the issue involved in all the captioned appeals are the same and the parties are also the same, those were heard analogously and are being disposed of by this common judgment and order.
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2. For the sake of convenience, the Letters Patent Appeal No.919 of 2016 is treated as the lead appeal.
3. This appeal under Clause 15 of the Letters Patent is at the instance of the original writ applicant of a Special Civil Application and is directed against a common judgment and order passed by the learned Single Judge of this Court dated 22.12.2015 rejecting the Special Civil Application No.1008 of 2011 and allied petitions.
4. The Special Civil Application No.1008 of 2011 came to be preferred by the appellant herein with the following prayers:
"A) Be pleased to admit this Petition;
B) Be pleased to issue appropriate writ, order or direction quashing and setting aside the order passed by respondent No.1 dated 29.07.2010 whereby the order passed by respondent No.2 dated 24.12.2004 has been cancelled and the certificate issued by respondent No.2 under Section 32A of the Act in respect of instrument to the effect that no procedure u/s.32A was required to be undertaken has been cancelled and the market value of the land has been assessed to the tune of Rs.15,99,900/ and accordingly deficit stamp duty of Rs.1,92,276/ has been assessed and it has been decided to recover penalty of Rs.250/ from the petitioner and be pleased to hold that the order passed by respondent No.1 dated 29.07.2010 is perse illegal, arbitrary and suffers from the vice of nonapplication of mind;
C) Pending admission and final disposal of this petition be pleased to issue appropriate writ, order or direction staying further operation, implementation and execution of the order passed by respondent No.1 dated 29.07.2010 till the aforesaid petition is finally heard and decided;
D) Be pleased to pass such orders as thought fit in the interest of justice."
5. We may borrow the facts giving rise to the present litigation from paras 2 to 3.5 of the impugned judgment passed by the learned Single Page 5 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT Judge. We quote paras2 to 3.5 of the impugned judgment dated 22.12.2015 passed by the learned Single Judge in Special Civil Application No.1008 of 2011 and allied matters as under:
"2. The common petitioner has challenged different order sall dated 29.07.2010 in each of the petitions passed by Chief Controlling Revenue Authority- respondent No.1 herein whereby the said authority cancelled order 24.12.2004 of the Deputy Collector respondent No.2 herein. As a consequence, the certificates issued by respondent No.2 under Section 32A of the Bombay Stamp Act, 1958 (now, Gujarat Stamp Act, 1958) in respect of the instruments of deed of conveyance were set at naught and in each case, the market value of the land came to be assessed requiring the petitioner concerned to pay the additional stamp duty and penalty.
3. Stating the relevant facts, the petitioner Mit Housing Association in each case, purchased different land properties in an auction sale from respondent No.4Gujarat State Textile Corporation Limited. As far as first Special Civil Application No. 1008 of 2011 is concerned, the property purchased was plot No.27 admeasuring 300 sq. mtrs. of land revenue survey No.609 paiki at Vadodara. The sale was confirmed in favour of the petitioner as he was the highest bidder. Sale deed bearing No. 5583 dated 01.11.1996 (new No. 221 dated 17.01.1997) came to be executed.
3.1 At that time, upon presentation of the sale deed for registration, respondent No.2 took a view that no procedure under Section 32A was required to be undertaken and since the purchase of the land was from respondent No.4 corporation, stamp duty was exempted. Certificates of exemption under Section 32A came to be issued by respondent No.2 on 24.12.2004. Subsequently, respondent No.1 exercised powers under Section 53A of the Bombay Stamp Act, 1958 and cancelled the certificate of exemption, determining the market value of the property to the tune of Rs.15,99,900/- and directing recovery of additional stamp duty of Rs.1,92,276/- together with penalty of Rs.250/- from the petitioner.
3.2 The Certificates of exemption and the date of impugned order are same in all cases. The market value determined in each case was Rs.15,99,900/- and recovery of additional stamp duty directed was Rs.1,92,276/- plus penalty of Rs.250/- in each case.Page 6 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021
C/LPA/919/2016 JUDGMENT 3.3 For the purpose of completion of recording of facts, the minimum details about sale deed and plot numbers in each case, are stated in the tabular form hereinbelow, Sr. Special Civil Sale Deed Description of No. Application No. Number & Date the property (of Revenue Survey No. 609 of Vadodara 1 SCA No. 1008 OF No.5583 dated Plot No.27, 2011 01.11.1996 admeasuring 300 (new No. 221 sq. mtrs.
dated
17.01.1997)
2 SCA No. 1009 of No.5584 dated Plot No.20,
2011 01.11.1996 admeasuring 300
(new No. 222 sq. mtrs.
dated
17.01.1997)
3 SCA No. 1010 of No.5585 dated Plot No. 19,
2011 01.11.1996 admeasuring 300
(new No. 223 sq. mtrs.
dated
17.01.1997)
4 SCA No. 1011 of No.5586 dated Plot No. 18,
2011 01.11.1996 admeasuring 300
(new No. 224 sq. mtrs.
dated
17.01.1997)
5 SCA No. 1012 of No.5587 dated Plot No. 23,
2011 01.11.1996 admeasuring 300
(new No. 225 sq. mtrs.
dated
17.01.1997)
Page 7 of 39
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C/LPA/919/2016 JUDGMENT
6 SCA No. 1013 of No.5588 dated Plot No. 24,
2011 01.11.1996 admeasuring
(new No. 226 449.37 sq. mtrs.
dated
17.01.1997)
7 SCA No. 1014 of No.5589 dated Plot No. 25,
2011 01.11.1996 admeasuring
(new No. 227 449.37 sq. mtrs.
dated
17.01.1997)
8 SCA No. 1015 of No.5590 dated Plot No. 16,
2011 01.11.1996 admeasuring 300
(new No. 228 sq. mtrs.
dated
17.01.1997)
9 SCA No. 1016 of No.5591 dated Plot No. 21,
2011 01.11.1996 admeasuring 300
(new No. 229 sq. mtrs.
dated
17.01.1997)
10 SCA No. 2017 of No.5592 dated Plot No. 33,
2011 01.11.1996 admeasuring 300
(new No. 230 sq. mtrs.
dated
17.01.1997)
11 SCA No. 1018 of No.5593 dated Plot No. 31,
2011 01.11.1996 admeasuring 300
(new No. 231 sq. mtrs.
dated
17.01.1997)
12 SCA No. 1019 of No.5594 dated Plot No. 29,
Page 8 of 39
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C/LPA/919/2016 JUDGMENT
2011 01.11.1996 admeasuring 300
(new No. 232 sq. mtrs.
dated
17.01.1997)
13 SCA No. 1020 of No.5595 dated Plot No. 26,
2011 01.11.1996 admeasuring 300
(new No. 233 sq. mtrs.
dated
17.01.1997)
14 SCA No. 1021 of No.5596 dated Plot No. 22,
2011 01.11.1996 admeasuring 300
(new No. 234 sq. mtrs.
dated
17.01.1997)
15 SCA No. 1022 of No.5597 dated Plot No. 28,
2011 01.11.1996 admeasuring 300
(new No. 235 sq. mtrs.
dated
17.01.1997)
3.4 It appears that total 15 documents dated 01.11.1996 bearing Nos. 221 to 235 were executed. The certificate under Section 32A was given exempting payment of stamp duty on the footing that Gujarat State Textile Corporation Limited was a government corporation, and under the Proviso to Section 32A, the conveyance of property would entitle for the exemption. Accordingly the Collector certified under Section 32A on 24.12.2004 read with the Resolution dated 30.09.1991 of the Revenue Department that it was exempt under Section 32A. It appears that thereafter, the petitioner approached respondent No.2 requesting to hand over copy of the sale deeds. He subsequently issued notice to the authority through advocate asking for the sale deed duly registered and returned.
3.5 The Deputy Collector appears to have addressed letter dated 06.12.2008 to the Superintendent of Stamp stating that the cases were required to be taken in revision for the Page 9 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT various reasons including for considering whether the transaction by Gujarat State Textile Corporation Limited could qualify for exemption under Section 32A of the Act. It was thereafter that the proceedings were initiated by the Chief Controlling Revenue Authority by issuing notice dated 17.05.2010 in each case. In the said notice, the details were indicated and the petitioner was called upon to show cause. After complying with the principle of natural justice, the impugned order came to be passed.
6. It appears from the impugned judgment that two principal submissions were canvassed before the learned Single Judge while assailing the order passed by the Chief Controlling Revenue Authority.
The first contention was with regard to the delay on the part of the Chief Controlling Revenue Authority in invoking its suo motu power under Section 53A of the Gujarat Stamp Act, 1958 (for short 'the Act') and the second contention canvassed was with regard to seeking exemption from stamp duty under the proviso to Section 32A of the Act.
7. So far as the first contention as regards the delay on the part of the Chief Controlling Revenue Authority in exercising its suo motu power under Section 53A of the Act is concerned, the learned Single Judge recorded the following findings:
"5. The relevant provisions may be considered. Section 53A of the Act under which the powers are exercised by respondent No.1-the Chief Controlling Authority reads as under, 53A. Revision of Collectors decision under sections 32, 32A, 39 and 41 (1) Notwithstanding anything contained in sub-Page 10 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021
C/LPA/919/2016 JUDGMENT section (3) of section 32, sub-section (3) of section 32A, sub-section (2) of section 39 and sub-section (2) of section 41, when through mistake or otherwise any instruments is charged with less duty than leviable thereon, or is held not chargeable with duty, by the Collector, the Chief Controlling Revenue Authority may, within a period of six years from the date of certificate of the Collector under sections 32, 32A, 39 or 41, as the case may be, required the concerned party to produce before him the instrument and, after giving reasonable opportunity of being heard to the party, examine such instrument whether any duty is chargeable or any duty is levied less thereon and pass an order for recovery of the deficit duty, if any, from the concerned party.
An endorsement shall be made on the instrument after payment of such deficit duty.
(2) On failure to produce the original instrument by the party, the Chief Controlling Revenue Authority shall proceed under this section on the basis of the true copy or an abstract of the instrument filed with the Collector and such true copy or abstract shall be deemed to be the original instrument for the purposes of this section.
5.1 The aforesaid provision in Section 53A gives power of revision to the Chief Controlling Revenue Authority over the Collectors decision taken under Sections 32, 32A, 39 or 42 of the Act. In the present case, certificate of exemption was issued under Section 32A of the Act.
5.2 Section 32A is extracted hereunder, 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 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 Page 11 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT 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 approximate 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 instrument, has not been truely 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.
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.
(2) ............
(3) ............
(4) ............
5.3 The Proviso to sub section (1) of Section 32A says that as far as an instrument executed by the State Government, Central Government, local authority, Housing Board, Gujarat Slum Clearance Board and the Gujarat Industrial Development Corporation is concerned, whatever consideration is set forth in the instrument Page 12 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT executed by the said named government or authority or Board or Corporation, shall be deemed to be the true market value of the property.
6. Adverting to contentions of the petitioner, first was that respondent No.1 exercised powers under Section 53A belatedly. It was pressed by learned advocate for the petitioners that the sale deeds were of the year 1996, whereas the powers under Section 53A were exercised after several years and that the said powers were invoked as late as in the year 2010. It was submitted that even if counted from the date of certificate under Section 32A, that is, 24.12.2004, time of almost six years elapsed resulting into unreasonable delay.
6.1 Section 53A contemplates a period of six years for the Chief Controlling Revenue Authority to exercise his powers from the date of the certificate given under Section 32A. As noted above, in the present cases, the Deputy Collector made certificate under Section 32A on 24.12.2004. Respondent No.1 Chief Controlling Revenue Authority invoked his powers and issued notice 17.05.2010 under Section 53A and finally passed the impugned order dated 29.07.2010. Therefore, reckoned either from the date of the order or even from the date of the notice under Section 53A the powers are exercised within six years. When Section 53A contemplates a period of six years for the authority to act and exercise powers conferred to it thereunder, and the authority has acted during the said period, the ground of delay would not be available to assail the exercise of powers; it was within the time-limit even though invocation may, no matter be at the fag end.
6.2 When a statute prescribes a specified period either by way of limitation or outer limit for discharging a particular function by the authority or taking any action or passing some order, or for any such other purpose, entire period is available to the authority on whom such power is conferred, to invoke his powers and exercise the same. The authority may exercise powers even at the end of such period. But in such eventuality, it cannot be said that the authority acted on the verge of expiry of the period permitted under the statute and thus whiled away the time. The action taken or order passed by the authority concerned acting within the time period would not be prone to be assailed on the ground that there was delay in exercising the powers, so long as the exercise falls within the stipulated time period.
6.3 Taking this position to the impugned action, it Page 13 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT is an admitted position that respondent No.1-Chief Controlling Revenue Authority acted and exercised his powers within a period of six years from the date of the certificate of the Deputy Collector under Section 32A. Suo motu powers available to the Chief Controlling Revenue Authority was exercised by issuing notice and passing order within six years contemplated under Section 53A, ruling that certificate of the Deputy Collector exempting stamp duty was not acceptable as the Gujarat State Textile Corporation was not falling within the umbrella of the proviso so as to qualify for stamp duty exemption. Once the Chief Controlling Revenue Authority has exercised his powers within a period of six years from the date of certificate of the Deputy Collector, the plea that the authority acted after unreasonable long time can in no way be countenanced. The concept of unreasonable delay for exercise of powers does not arise in this case for the reason already stated that it is the statutory provision itself which prescribed the period of six years and within which the authority concerned has acted."
8. Thus, the learned Single Judge rejected the contention as regards the delay holding that the Chief Controlling Authority has the power to take suo motu action under Section 53A of the Act within a period of six years from the date of the certificate of the Deputy Collector under Section 32A of the Act. The Chief Controlling Revenue Authority noticed that the Deputy Collector wrongly granted exemption from the payment of stamp duty under an erroneous belief that the Gujarat State Textile Corporation being an instrumentality of the State would be covered within the proviso to Section 32A of the Act. The learned Single Judge while rejecting the first contention took the view that the concept of unreasonable delay in exercise of suo motu powers would not arise in the present case as the statutory provision itself has prescribed the period of Page 14 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT six years within which the authority concerned is empowered to act.
9. We are in complete agreement with the reasoning assigned by the learned Single Judge while rejecting the first contention canvassed on behalf of the original writ applicant as regards the delay in exercise of powers by the Chief Controlling Revenue Authority under Section 53A of the Act. In fact, in this appeal, the learned counsel appearing for the appellant has not touched the issue of delay. To put it another words, the learned counsel appearing for the appellant has not questioned the legality and validity of the findings recorded by the learned Single Judge so far as the aspect of delay is concerned. The learned counsel appearing for the appellant has mainly focused and concentrated on the second contention referred to above.
10. The second contention, which was canvassed before the learned Single Judge, was that the Gujarat State Textile Corporation being a statutory corporation and State within the Article 12 of the Constitution could be said to be covered within the proviso to Section 32A of the Act.
Such contention came to be negatived by the learned Single Judge holding as under:
"6.4 The second limb of the submission that Gujarat State Textile Corporation was a government corporation, therefore conveyance by it was exempted from stamp duty under the proviso to Section 32A is equally meritless. The proviso to Section mentions specific categories in respect of which the stamp duty is exempted and certificate under Section 32A for exemption could be issued. The categories Page 15 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT mentioned are the State Government, Central Government, local body; it thereafter names particular boards and corporations to be Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation. The Gujarat State Textile Corporation does not fall in any of the category of State Government, Central Government, nor it is a local body. It is not a board or corporation specifically named. It is a statutory corporation, however separate entity and it cannot be equated with the State Government or Central Government to be included for the purpose of proviso to the Section. It is settled that even if a body can be said to be instrumentality of the State for the purpose of ambit of Article 12, such body or instrumentality cannot be for the said reason becomes State Government or could be placed on the same pedestal of the State Government. Therefore Gujarat State Textile corporation is a legal entity duly constituted and has separate existence not to be equated or included within the concept of the State Government or Central Government. Certain boards and corporations which the Legislature wanted to be the beneficiaries are specifically named in the proviso. Gujarat State Textile Corporation is not mentioned nor stands included.
6.5 Resolution dated 30.09.1991 is based on the aforesaid provision, that is proviso to Section 32A, mentioning categories as above. Therefore the decision of the Deputy Collector to give exemption certificate under Section 32A of the Act on the ground that the property belonged to Gujarat State Textile Corporation was erroneous and the exemption certificate was not permissible in law. The conveyance of the property by the said Gujarat State Textile Corporation does not qualify for exemption from stamp duty. Decision of the Collector and the certificate of exemption dated 24.12.2004 was therefore bad on merits as well. The said decision is rightly set-at-naught by the Chief Controlling Revenue Authority by exercising powers in accordance with Section 53A of the Act."
11. Thus, on both the counts referred to above, the appellant herein failed before the learned Single Judge and ultimately, all the writ applications came to be rejected by a common judgment and order passed by the learned Single Judge.
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12. Being dissatisfied with the impugned judgment and order passed by the learned Single Judge, the appellant (original writapplicant) has come up with this appeal.
13. Mr.Dipen Shah, the learned counsel appearing for the appellant, vehemently submitted that the learned Single Judge committed a serious error in rejecting the writ application. According to Mr.Shah the jurisdiction to determine the true market value of the property is conferred only upon the Collector under Section 32A of the Act and therefore, the determination of the market value by the Revisional Authority for the first time under Section 53A of the Act could be termed as without jurisdiction.
14. Mr.Dipen Shah, the learned counsel appearing for the appellant, submitted that it is not in dispute that the property was purchased by the appellant herein in an auction conducted by the Gujarat State Textile Corporation Limited (a Government of Gujarat undertaking). He submitted that it is not in dispute that the Corporation had fixed the upset price of the property and accepted the highest bid of the appellant herein as the sale consideration of the property. According to Mr.Shah, in such circumstances, the Chief Controlling Revenue Authority ought not to have exercised its suo motu power under Section 53A of the Act on the premise that the appellant herein purchased the property at a Page 17 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT lesser price or value. The argument of Mr.Shah is that the Corporation is an instrumentality of the State within the Article 12 of the Constitution of India. If an instrumentality of a State thought fit to fix a particular price, then the Chief Controlling Revenue Authority could not have taken the view that the upset price fixed was not appropriate.
15. Mr.Shah, the learned counsel appearing for the appellant, has invited our attention to Section 3 of the Gujarat Sick Textile (Nationalization) Act, 1986 (for short 'the Act 1986'). Section 3 of the Act, 1986 reads thus:
"Section 3 Acquisition of rights of owners in respect of sick textile undertakings: (1) On the appointed day, every sick textile undertaking and the right, title and interest of the owner in relation to every such sick textile undertaking shall stand transferred to, and shall vest absolutely in, the State Government.
(2) The sick textile undertaking which stands vested in the State Government by virtue of subsection(1) shall, immediately after it has so vested, stand transferred to, and vested in, the Corporation."
15.1. Mr.Shah submitted that the plain reading of Section 3 of the Act, 1986 referred to above would indicate that on the appointed day, all the sick textile undertakings with the right, title and interest of the owner in relation to every such sick textile undertakings stood transferred to and vested absolutely in the State Government. According to Mr.Shah, all the sick textile undertakings stood vested in the State Government by virtue of subSection (1) and thereafter stand transferred to and vested in the Corporation. The endeavour on the part of Mr.Shah is to persuade this Page 18 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT Court to take the view that the assets of the sick textile undertaking would vest absolutely in the State on the appointed day and the State would become the owner of such property, thereafter it stands transferred and vested in the Corporation. According to Mr.Shah, the same is indicative of the control of the State Government on such sick textile undertaking.
16. Mr.Shah, thereafter invited our attention to Section 34 of the Act, 1986. Section 34 of the Act, 1986, reads as under:
"Section 34.Declaration as to the Policy of the State: It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in clause (b) of article 39 of the Constitution.
ExplanationIn this section, "State" has the same meaning as in article 12 of the Constitution."
17. Mr.Shah submitted that Section 34 referred to above makes it clear that the Act, 1986 came to be enacted for the purpose of giving effect to the policy of the State Government towards securing the principles specified in clause (b) of Article 39 of the Constitution.
According to Mr.Shah, the explanation to Section 34 further clarifies that "State", would have the same meaning as in Article 12 of the Constitution.
18. In short, Mr.Shah tried his level best to convince us to take the view that the Gujarat State Textile Corporation Limited is a State within Page 19 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT the Article 12 of the Constitution of India and being a State would be covered by the proviso to Section 32A of the Act, 1958. According to Mr.Shah, once the Corporation could be said to be covered within the proviso to Section 32A of the Act, then the upset price fixed by the Corporation could be termed to be the true market value of the property, which would be the subject matter of any instrument.
19. Mr.Shah, the learned counsel appearing for the appellant has placed strong reliance on the following decisions:
(1) Central Inland Water Transport Corporation Limited & Anr. V/s. Brojo Nath Ganguly & Anr., reported in (1986) 3 SCC
156.
(2) Som Prakash Rakhi V/s. Union of India & Anr., reported in (1981) 1 SCC 449.
And (3) A judgment delivered by a learned Single Judge of this Court in the case of Jayant Shantilal Sanghvi V/s. State of Gujarat in Special Civil Application No.12015 of 2016 decided on 12.12.2018.
20. In such circumstances referred to above, Mr.Shah prays that there being merit in all his appeals those be allowed and the impugned judgment and order passed by the learned Single Judge be quashed and set aside.
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21. On the other hand, all the appeals have been vehemently opposed by Mr.Rakesh Patel, the learned AGP appearing for the State of Gujarat.
Mr.Patel submitted that no error, not to speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned order. According to Mr.Patel, the learned Single Judge has rightly rejected both the contentions, canvassed on behalf of the appellant herein as noted above. According to Mr.Patel, by any stretch of imagination the Gujarat State Textile Corporation cannot be said to be "State Government" for the purpose of bringing the Corporation within the proviso to Section 32A of the Act, 1958.
22. Mr.Patel submitted that the legislature while adding the proviso to Section 32A of the Act, 1958 has been very specific and clear. In the proviso, the term used is "State Government". According to Mr.Patel, the intention of the legislature appears to be very clear. According to Mr.Patel, if the intention of the legislature was also to include the instrumentalities of State within the Article 12 of the Constitution, then it would have been specifically stated so. Mr.Patel submitted that there is no scope of applying Article 12 of the Constitution so as to bring the Gujarat Textile Corporation within the ambit of the "State Government".
According to Mr.Patel, the Article 12 of the Constitution is a special definition with a broader goal. He would submit that the Gujarat State Page 21 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT Textile Corporation may be "State" within the meaning of Article 12 of the Constitution of India as one of the instrumentalities, but the proviso to Section 32A does not embrace all the authorities under the control of the State Government. In other words, the line of argument adopted by Mr.Patel is that the Gujarat State Textile Corporation may be a legal entity duly constituted and may be having a separate existence, however such Corporation cannot be equated or included within the concept of the State Government or the Central Government. Mr.Patel submitted that the proviso is very specific with regard to the three boards viz., (1) Gujarat Housing Board, (2) Gujarat Slum Clearance Board and (3) Gujarat Industrial Development Corporation. These three entities are specifically named in the proviso to the exclusion of all other boards or Corporations or the instrumentalities of the State.
23. Mr.Patel submitted that the decision of this Court in the case of Jayant Shantilal Sanghvi (supra) on which strong reliance is sought to be placed on behalf of the appellants has been challenged by the State of Gujarat by preferring the Letters Patent Appeal No.1436 of 2019.
According to Mr.Patel, Jayant Shantilal Sanghvi (supra) does not lay down the correct proposition of law and is of no avail to the appellant.
24. In such circumstances referred to above, Mr.Patel submits that there being no merit in this appeal the same may be dismissed.
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25. Having heard the learned counsel appearing for the parties and having gone through the materials on record. The only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned order.
26. At the cost of repetition, we quote Section 32A of the Act, 1958, which reads as under:
"32A. Determination of market value of property which is the subject matter of conveyance, etc. refer. - Market values Rules Part- II (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 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 approximate 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 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.
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."
27. In the main part of the provision of Section 32A of the Act, 1958 the word "market value" is important. In the same manner, in the proviso to Section 32A of the Act, 1958, which came into effect from 11.06.2004, the important term therein is "State Government". The term Page 23 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT "State Government" has not been defined under the Act, 1958. However, the term "State Government" as defined under the General Clauses Act, 1897, reads thus:
"State Government",-
(a) as respects anything done before the commencement of the Constitution, shall mean, in a Part A State, the Provincial Government of the corresponding Province, in a Part B State, the authority or person authorised at the relevant date to exercise executive government in the corresponding Acceding State, and in a Part C State, the Central Government;
(b) as respects anything done after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A State, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central Government;
(c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union territory, the Central Government;
and shall, in relation to functions entrusted under article 258A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under the article;"
28. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Srikant V/s. Vasantrao, reported in 2006 (2) SCC 682 wherein the Supreme Court in context with Section 9A of the Representation of People Act, 1951 has observed as under:
"15. The term 'State Government' is not defined either in the Constitution of India or in the Act (that is Representation of the People Act, 1951). Clause (a) of sub-section (1) of section 2 of the Act provides that unless the context otherwise requires, each of the expressions defined in section 2 or sub-section (1) of section 27 of the Representation of the People Act, 1950, but not defined in the Act, shall have the same meaning as in that Act. Section 2(j) of the Representation of the People Act, 1950 defines "State Government" as follows :-
"2(j). 'State Government'.- State Government in relation to Union Territory means the administration thereof."
Section 2(60) of the General Clauses Act, 1897, provides that the term "State Government", as respects anything done or to be done, shall mean in a State, the Governor.
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16. The High Court after an exhaustive consideration of the provision of MGMIDC Act and MJA Act, and the principles laid down by this Court with reference to Article 12, has held that GMIDC and MJP answer the definition of "State" under Article 12 of the Constitution. This is not seriously disputed by the Appellant. Having reached the conclusion that both GMIDC and MJP answer the definition of State under Article 12, the High Court wrongly and if we may say so, without any logical basis, assumed that they are 'appropriate government' and consequently, the appellant who had subsisting contracts with GMIDC and MJP incurred disqualification under section 9-A of the Act. Neither Article 12 nor the decisions rendered with reference to Article 12 is of any assistance for interpreting Section 9A of the Act. The term 'State Government' (as also the term 'Central Government') is used in the various provisions relating to disqualification, in contradistinction from its instrumentalities or local or other authorities. While it is true that the meaning of the terms 'State' and 'State Government' may depend on the context in which they are used, the manner in which the said terms are used in the various provisions relating to disqualification leaves no doubt that 'State' refers to an entity described in the First Schedule to the Constitution of India and 'State Government' refers to the three wings of governance of the 'State' that is Executive, Legislature and Judiciary. The term 'State Government' in section 9A (read with section 7 of the Act) should, therefore, be understood in its ordinary and normal sense, and not with reference to the extended meaning under Article 12 of the Constitution of India.
17. Article 12 provides that in Part III of the Constitution dealing with fundamental rights, the word 'State' would refer to and include not only the Government of India, Parliament of India, the Government and Legislature of each of the States, but also all local and other authorities within the territory of India and all local and other authorities under the control of Government of India. The significance of Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with Fundamental Rights. The various Articles in Part III have placed responsibilities and obligations on the "State" vis-a-vis the individual, to ensure constitutional protection of the individual's rights against the "State", including the right to equality under Article 14, and equality of opportunity in matters of public employment under Article 16 and most importantly the right to enforce all or any of those fundamental rights against the "State" as defined in Article 12, either under Article 32 or Article 226 of the Constitution [vide Pradeep Kumar Biswas (supra)]. The decisions rendered under Article 12 lay down that a body would answer the definition of State under Article 12 if it is financially, functionally and administratively dominated by or under all pervasive control of the "Government". On the other hand, where the control by the "Government" is merely regulatory, whether under any statute or otherwise, it would not serve to make the body 'State'. Thus the very decisions relied on by the High Page 25 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT Court make it clear that 'instrumentalities of State' are different from 'State Government', though both may answer the definition of 'State' under Article 12 for the limited purpose of Part-III of the Constitution. Further, the very inclusive definition of 'State' under Article 12 by referring to Government of India, the Government of each of the States and the local and other authorities, makes it clear that a 'State Government' and a local or other authorities, are different and that they fall under a common definition only for the purpose of Part-III of the Constitution. This Court has consistently refused to apply the enlarged definition of 'State' given in Part-III (and Part-IV) of the Constitution, for interpreting the words 'State' or 'State Government' occurring in other parts of the Constitution. While the term "State" may include a State Government as also statutory or other authorities for the purposes of part-III (or Part- IV) of the Constitution, the term "State Government" in its ordinary sense does not encompass in its fold either a local or statutory authority. It follows, therefore, that though GMIDC and MJP may fall within the scope of 'State' for purposes of Part-III of the Constitution, they are not "State Government" for the purposes of section 9-A (read with section 7) of the Act."
29. However, the term "market value" has been defined under Section 2(na) of the Act, 1958. The definition reads thus:
"Section 2(na) "market value", in relation to any property which is the subject matter of an instrument means the price which such property would have fetched if sold in open market on the date of execution of such instrument;"
30. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular Page 26 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (at All ER p.
544I), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result", we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC where at AC p. 577 he also observed: (All ER p. 664I) "This is not a new problem, though our standard of drafting is such that it rarely emerges."]
31. The intention of a Legislature normally comprises of two components. The first relates to the concept of meaning i.e. what is commonly understood meaning of the expressions chosen to be used by the Legislature and the second aspect conveys the purpose and object or the reason or spirit behind the legislation itself. In all normal circumstances, primarily, the language employed in the statute is the determinative factor of the legislative intention. The first and primary rule of construction therefore, is that the intention of the Legislature must be gathered from the words employed by the Legislature itself.
Page 27 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021C/LPA/919/2016 JUDGMENT Long years ago, Lord Atkin in Pakala Narayana Swami v. Emperor has observed:
" But in truth when the meaning of words is plain, it is not the duty of the Courts to busy themselves with supposed intentions."
If the words of a statute are very precise and unambiguous, then no more can be necessary than to expand those words in their natural and ordinary sense. In Emperor v. Benoarilal Sarma, it is set out that:
" In construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."
In Kanailal Sur v. Paramnidhi Sadhu Khan, it is held that " The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act, whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction."
32. We are not impressed by the vociferous submission canvassed on behalf of the appellants that the word "State Government" in the proviso to Section 32A of the Act, 1958 must be understood to mean "State" in the wider sense of the term as in the Article 12 of the Constitution of India. According to Mr.Shah, a property belonging to a local authority or an agency or the instrumentalities of the State would also come within Page 28 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT the ambit of "Government Property" for the purpose of the Act.
33. In our view, this submission must be rejected. The extended meaning of "State" is relevant only for Part III of the Constitution of India which is the chapter on fundamental rights. It, therefore, follows that the State not only includes the Government and Parliament of India and the Government and the legislature of each of the State, but also all local and other authorities within the territory of India or under the control of the Government of India, for the purpose of Part III of the Constitution of India and even the agencies or instrumentalities of the State will come within the definition of State. In the instant case, we are not concerned with a petition filed by the petitioner for the enforcement of his fundamental rights, and therefore, the definition of State under Article 12 of the Constitution of India can be of no help to the petitioner.
There is nothing in the Section 32A of the Act which gives to the term "State Government" an extended meaning so as to include its agencies, instrumentalities and local authorities under its control.
34. In our opinion, the view taken by the learned Single Judge lays down the correct proposition of law. In the context of the Indian Constitution "State Government" would mean the Governor acting through the council of Ministers.
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35. The Supreme Court in the case of V. Padmanabhan Nair V/s.
Kerala State Electricity Board, reported in AIR 1989 KERALA 86(1), has observed thus:
"7. There is a vital and clear difference between 'Government' and 'State'. The jurisprudential position is explained by authoritative and helpful legal literature explaining and elucidating the concept of State and Government Salmorid and Paton, Dias and Alien and other jurists have commented upon the concepts. The theory of the State by J. K. Bluntschli contains much of thought on State and Government. It is, however, unnecessary to attempt an elaborate discussion on that topic as the connected ideas have been exhaustively discussed by the Supreme Court in Pashupati Nath v. Nem Chandra, AIR 1984 SC 399. It was pointed out therein :
"A State implies the existence of a community or group of people occupying a geographical area or territory in which they permanently reside possessing internal sovereignty and independence of foreign control and a political organisation or agency through which the collective will, of the people is expressed and enforced. The last of the elements of a State referred to above is generally called as a Government.
From the legal point of view, Government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public functions. The structure of the machinery of Government and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law which also prescribes to some extent the mode in which these powers are to be exercised or these duties are to be performed. (See Halsury's Laws of England, Fourth Edition, Vol. 8. Para
804) Government generally connotes force estates, namely, the Legislature, the Executive and the Judiciary while it is true that in a narrow sense it is used to connote the Executive only."
(Emphasis supplies)
8. Reference has been made to the earlier decisions of the Supreme Court such as the Gurugobind Basu v. Sankari Prasad Ghosal, AIR 1964 SC'254, Union of India v. Sankal Chand Himatlal Sheth, AIR 1977 SC 2328 and Hargovind Pant v. Dr. Raghukul Tilak, AIR 1979 SC 1109 where the status of the Comptroller and Auditor-General of India as also the Judges of the Supreme Court and of the High Courts had been discussed Page 30 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT as to whether they were Government servants or not.
36. A statutory bodywhether it be Electricity Board or the Food Corporation or the Urban Development Corporation or the Textile Corporation as in the present case or any of that categorymay be an instrumentality of the State within the Article 12 of the Constitution. It nevertheless would not answer the description of the "State Government" as understood in law and as it is understood in the context of the proviso to Section 32A of the Act, 1958. The intention of the State legislature at the time when it introduced the proviso to Section 32A of the Act, 1958 was very clear. Apart from the State Government and the Central Government, the proviso includes two statutory boards and a Corporation. It thought fit to specify two boards and one statutory corporation excluding all other boards and corporations for the purpose of the proviso to Section 32A of the Act, 1958.
37. We may now look into the three decisions relied upon by Mr.Shah, the learned counsel appearing for the appellants. In the case of Central Inland Water Transport Corporation Limited & Anr. (supra) the issue before the Supreme Court was whether a Government company as defined in Section 617 of the Companies Act, 1956, is "the State" within the meaning of Article 12 of the Constitution. We quote the relevant paragraphs on which reliance is placed on behalf of the appellant:
Page 31 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021C/LPA/919/2016 JUDGMENT "17.The word "State" has different meanings depending upon the context in which it is used. In the sense of being a polity, it is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2005, as:
a body of people occupying a defined territory and organized under a sovereign government.
The same dictionary defines the expression "the State" as:
the body politic as organized for supreme civil rule and government; the political organization which is the basis of civil government; hence, the supreme civil power and government vested in a country or nation.
According to Black's Law Dictionary, Fifth Edition, page 1262, "In its largest sense, a 'state' is a body politic or a society of men". According to Black, the term "State" may refer: either to the body politic of a nation (e.g. United States) or to an individual governmental unit of such nation (e.g. California).
In modern international practice, whether a community is deemed a State or not depends upon the general recognition accorded to it by the existing group of other States. A State must have a relatively permanent legal organization, determining its structure and the relative powers of its major governing bodies or organs. This legal organizational permanence of a State is to be found in its Constitution. With rare exceptions, such as the United Kingdom, most States now have a written Constitution. The Constitutional structure of a State may be either unitary, as when it has a single system of government applicable to all its parts, or federal when it has one system of government operating in certain respects and in certain matters in all 307 its parts and also separate governments operating in other respects in distinct parts of the whole. In such a case the units or sub- divisions having separate governments are variously called 'states' as in India, U.S.A. and Australia, 'provinces' as in Canada, 'cantons' as in Switzerland, or designated by other names.
19.Thus, the expression "the State" when used in Parts III and IV of the Constitution is not confined to only the federating States or the Union of India or even to both. By the express terms of Article 12 the expression "the State" includes -
(1) the Government of India, (2) Parliament of India Page 32 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT (3) the Government of each of the States which constitute the Union of India, 310 (4) the Legislature of each of the States which constitute the Union of India, (5) all local authorities within the territory of India, (6) all local authorities under the control of the Government of India, (7) all other authorities within the territory of India, and (8) all other authorities under the control of the Government of India.
20.There are three aspects of Article 12 which require to be particularly noticed. These aspects are:
(i) the definition given in Article 12 is not an explanatory and restrictive definition but an extensive definition,
(ii) it is the definition of the expression "the State" and not of the term "State" or "States", and
(iii) it is inserted in the Constitution for the purposes of Parts III and IV thereof.
21.As pointed out in Craies on Statute Law, Seventh Edition, page 213, where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and facie restrictive; and whenever an interpretation clause defines a term to include something, the definition is extensive. While an explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause, so that wherever the word defined is used in the particular statute in which that interpretation clause occurs, it will bear only that meaning unless where, as is usually provided, the subject or context otherwise requires, an extensive definition expands or extends the meaning of the word defined to include within it what would otherwise not have been comprehended in it when the word defined is used in its ordinary sense. Article 12 uses the 311 word "includes". It thus extends the meaning of the expression "the State" so as to include within it also what otherwise may not have been comprehended by that expression when used in its ordinary legal sense.
22.Article 12 defines the expression "the State" while the other Articles of the Constitution referred to above, such as Article 152 and Article 308, and clause (58) of section 3 of the General Page 33 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT Clauses Act defines the term "State". The deliberate use of the expression "the State" in Article 12 as also in Article 36 would have normally shown that this expression was used to denote the State in its ordinary and Constitutional sense of an independent or sovereign State and the inclusive clause in Article 12 would have extended this meaning to include within its scope whatever has been expressly set out in Article 12. The definition of the expression "the State" in Article 12, is however, for the purposes of Parts III and IV of the Constitution. The contents of these two Parts clearly show that the expression "the State" in Article 12 as also in Article 36 is not confined to its ordinary and Constitutional sense as extended by the inclusive portion of Article 12 but is used in the concept of the State in relation to the Fundamental Rights guaranteed by Part III of the Constitution and the Directive Principles of State Policy contained in Part IV of the Constitution which Principles are declared by Article 37 to be fundamental to the governance of the country and enjoins upon the State to apply in making laws.
23.What then does the expression "the State" in the context of Parts III and IV of the Constitution mean?
24.Men's concept of the State as a polity or a political unit or entity and what the functions of the State are or should be have changed over the years and particularly in the course of this century. A man cannot obstinately cling to the same ideas and concepts all his life. As Emerson said in his essay on "Self- Reliance", "A foolish consistency is the hobgoblin of little minds". Man is by nature ever restless, ever discontent, ever seeking something new, ever dissatisfied with what he has. m is inherent trait in the nature of man is reflected in the society in which he lives for a society is a conglomerate of men who live in it. Just as man by nature is H 312 dissatisfied, so is society. Just as man seeks something new, ever hoping that a change will bring about something better, so does society. Old values, old ideologies and old systems are thus replaced by new ideologies, a new set of values and a new system, they in their turn to be replaced by different ideologies, different values and a different system. The ideas that seem revolutionary become outmoded with the passage of time and the heresies of today become the dogmas of tomorrow. What proves to be adequate and suited to the needs of a society at a given time and in particular circumstances turns out to be wholly unsuited and inadequate in different times and under different circumstances.
40.The State is an abstract entity and it can, therefore, only act through its agencies or instrumentalities, whether such agency or instrumentality be human or juristic. me trading and business activities of the State constitute 323 "public enterprise". The structural forms in which the Government operates in the field of public enterprise are many and varied. These may consist of Page 34 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT Government departments, statutory bodies, statutory corporations, Government companies, etc. In this context, we can do no better than cite the following passage from "Government Enterprise - A Comparative Study" by W. Friedmann and J.F. Garner, at page 507 :
"The variety of forms in which the various States have, at different times, proceeded to establish public enterprises is almost infinite, but three main types emerge to which almost every public enterprise approximates: (1) departmental administration; (2) the joint stock company controlled completely or partly by public authority; and finally (3) the public corporation proper, as a distinct type of corporation different from the private law company. Each of these three types will be briefly analysed in a comparative perspective.
As the tasks of Government multiplied, as a result of defence needs, post-war crises, economic depressions and new social demands, the framework of civil service administration became increasingly insufficient for the handling of the new tasks which were often of a specialised and highly technical character. At the same time, 'bureaucracy' came under a cloud. In Great Britain j the late Lord Hewart had written of 'the new l despotism,' and Dr. C.K. Allen of 'bureaucracy triumphant'. In France the Confederation Generale du Travail (CGT) had stated in its Programme in 1920 that 'We do not wish to increase the functions of the State itself nor strengthen a system which would subject the basic industry to a civil service regime, with all its lack of responsibility and its basic defects, a process which would subject the forces of production to a fiscal monopoly. This distrust of government by civil service, justified or not, was a powerful factor in the development of a policy of public administration 324 through separate corporations which would operate largely according to business principles and be separately accountable. In the common law countries, where the Government still enjoys considerable immunities and privileges in the fields of legal responsibility, taxation, or the binding force of statutes, other considerations played their part. It seemed necessary to create bodies which, if they were to compete on fair terms in the economic field, had to be separated and distinct from the Government as regards immunities and privileges."
41.The immunities and privileges possessed by bodies so set up by the Government in India cannot, however, be the same as those possessed by similar bodies established in the private sector because the setting up of such bodies is referable to the Page 35 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT executive power of the Government under Article 298 to carry on any trade or business. As pointed out by Mathew, J., in Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another, [1975] 3 S.C.R. 619 (at page 648), "The governing power wherever located must be subject to the fundamental constitutional limitations". The privileges and immunities of these bodies, therefore, are subject to Fundamental Rights and exercisable in accordance with and in furtherance of the Directive Principles of State Policy."
38. In our opinion, the principles of law as explained by the Supreme Court in the case of Central Inland Water Transport Corporation Limited & Anr. (supra) are not applicable in the present case. We have not been called upon to consider whether the Gujarat State Textile Corporation is an instrumentality of the "State" within the meaning of Article 12 of the Constitution of India. We are called upon to decide whether it is permissible for us to include the Gujarat State Textile Corporation within the ambit of the "State Government" for the purpose of the proviso to Section 32A of the Act, 1958.
39. In the case of Som Prakash Rakhi (supra) the issue before the Supreme Court was whether the Bharat Petroleum Corporation is a State within the meaning of Article 12 of the Constitution. This decision also is of no avail to the appellant.
40. In the case of Jayant Shantilal Sanghvi (supra), the learned Single Judge of this Court observed as under:
"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:Page 36 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021
C/LPA/919/2016 JUDGMENT "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."
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 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 instrument, has not been truly set forth therein, he [shall before] registering the instrument or, as the case Page 37 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT 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 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."
41. In fact, the judgment impugned before us is prior in point of time then the judgment delivered by this Court in the case of Jayant Shantilal Sanghvi (supra). It appears that the judgment of the learned Single Judge, which has been impugned before us in the present appeal was not brought to the notice of the learned Single Judge while deciding the Special Civil Application No.12015 of 2016. Be that as it may, there is no discussion in the judgment of the learned Single Judge Page 38 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021 C/LPA/919/2016 JUDGMENT in the case of Jayant Shantilal Sanghvi (supra) as to how the "Board for Industrial and Financial Reconstruction (BIFR)" would fall within the ambit of "Central Government" so far as the proviso to Section 32A of the Act, 1958 is concerned.
42. In view of the aforesaid discussion, we have reached to the conclusion that we should not disturb the impugned judgment and order passed by the learned Single Judge. In the result, all the appeals fail and hereby dismissed.
In view of the dismissal of all the appeals, Civil Applications (for stay) No.2 of 2016 would not survive and the same are disposed of accordingly.
Sd/-
(J. B. PARDIWALA, J) Sd/-
(VIRESHKUMAR B. MAYANI, J) ABHISHEK Page 39 of 39 Downloaded on : Sat Feb 06 07:34:32 IST 2021