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Gujarat High Court

Nalin Jayvadan Mehta Lh Of Decd Linaben ... vs Deputy Collector on 15 July, 2022

Author: A. S. Supehia

Bench: A.S. Supehia

       C/SCA/3385/2022                               ORDER DATED: 15/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3385 of 2022

================================================================
     NALIN JAYVADAN MEHTA LH OF DECD LINABEN NALIN MEHTA & 2
                             other(s)
                             Versus
                  DEPUTY COLLECTOR & 1 other(s)
================================================================
Appearance:
BHOOMI M THAKORE(6237) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
================================================================
     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 15/07/2022
                                ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for the respondent-State.

2. In the present writ petition, the petitioners are seeking directions for quashing and setting aside the order dated 09.12.2021 passed by the respondent no.2 in Appeal No.24 of 2021, the order dated 17/22.03.2012 as well as the summon dated 05.08.2021 issued by the respondent no.1.

3. By the impugned orders, the petitioners are asked to pay deficit stamp duty of Rs.3,81,668/- along with fine of Rs.250/- aggregating to Rs.3,81,918/- on the registered document dated 20.08.1999 along with 15% interest.

4. Pursuant to the order dated 16.02.2022 passed by this Court, the petitioners have deposited 25% of the said amount.

5. The brief facts of the case are as under:-

5.1. The property, which is subject matter of proceedings, is bearing Plot No.9 admeasuring 447.36 sq. meters named as Raghuvir Plots Page 1 of 5 Downloaded on : Tue Jul 19 21:12:38 IST 2022 C/SCA/3385/2022 ORDER DATED: 15/07/2022 situated on Survey Nos.25 and 26, T.P. Scheme No.5, Umra North, O.P. Nos.30-31, F.P. No.122-121, Surat.

5.2. On 20.08.1999, the petitioner-Linaben purchased the said plot from its original owner Maganbhai Vallabhbhai Patel after payment of full sale consideration of Rs.2,24,000/-by way of a registered sale deed no.22569.

5.3. On 04.11.1999, the petitioner-Linaben sold the said plot in favour of third-party purchaser for a sale consideration of Rs.2,50,000/- by way of a registered sale deed no.22569.

5.4. On 03.02.2000, the petitioner -Linaben purchased a new house and shifted her residence to 95, Amrakunj Society,Ghod Dod Road, Surat.

5.5. On 29.01.2009, the petitioner-Linaben passed away due to cancer. On 14.08.2021, the petitioners were in receipt of one summons dated 05.08.2021 issued by the respondent no.1 seeking to recover by way of revenue under Section 189 of the Gujarat Land Revenue Code, 1879 an amount of Rs. 3,81,668 towards stamp duty + Rs. 250 towards penalty + 15% interest + 5% sur charge, aggregating to approx. Rs.10 Lakhs.

5.6. It is the case of the petitioners that the respondent authorities on 02.08.2001 after a period of 2 years from the date of sale deed, while exercising the powers under Section 32A of the Stamp Act, 1899 (for short "the Act") has derived the value of the concerned property as Rs.29,51,200/- and for the said value, it was decided that the petitioners were required to pay a sum of Rs.4,13,168/-, whereas they have used the stamp of Rs.3,81,668/-. Accordingly the respondent no.1 issued notices dated 02.08.2001, 06.10.2008 and final notice dated 22.07.2011 calling upon late Linaben Mehta to produce evidence in this regard. Ultimately, the respondent registered Case No.882 of 2011 on 01.08.2011 and pass Page 2 of 5 Downloaded on : Tue Jul 19 21:12:38 IST 2022 C/SCA/3385/2022 ORDER DATED: 15/07/2022 the impugned order dated 17/22.03.2012 and directed to pay the deficit stamp duty of Rs.3,81,668/- along with fine and interest.

5.8. It is the case of the petitioners that the petitioners were not aware of the aforesaid proceedings since none of the notices or the order were served to them and only summons dated 05.08.2021 was received through Police, who came to search for late Linaben to file Appeal No.24 of 2021 under Section 53(1) of the Act before the respondent no.1. The respondent no.2, by the impugned order dated 09.12.2021 rejected the appeal of the petitioners on two grounds; first the same is barred by limitation and the second the petitioners did not deposit 25% of the deficit amount. The same are subject matter of challenge in this writ petition.

6. Learned advocate Ms.Bhoomi Thakore appearing for the petitioners has submitted that the impugned orders are required to be quashed and set aside since the same are passed against a dead person.

She has submitted that the sale deed was entered by late Linaben Mehta in the year 1999 and she passed away 29.01.2009. It is also submitted that thereafter the proceedings are initiated against her and there were various notices issued to late Linaben, which remained unserved as she has shifted the residence after the sale deed was entered upon. It is stated that none of the notices were served and the impugned order dated 17/22.03.2012 was passed by the respondent no.1 ex parte, whereby the deficit stamp duty of Rs.3,81,668/- was determined. Thus, it is submitted that after the receipt of the summon, the legal heirs of the petitioner preferred an appeal, which has been dismissed on the ground of delay. Thus, it is submitted that the impugned orders may be set aside and the matter may be remanded to the respondent no.1.

C/SCA/3385/2022 ORDER DATED: 15/07/2022

7. In response to the aforesaid submissions, learned AGP Mr.Sahil Trivedi has contended that the impugned orders may not be set aside since admittedly the appeal has been filed beyond the period of limitation after a period of 3540 days and hence, the petitioners are required to pay the deficit stamp duty as determined by the respondent no.1 by the order dated 09.12.2021.

8. I have heard the learned advocates appearing for the respective parties.

9. As the facts suggest that late Linaben had sold the property in question on 04.11.1999 vide a registered sale deed no.129. Thereafter, she shifted from that place and bought a new house on 03.02.2000 and on 29.01.2009 she passed away due to cancer. The respondent authority, after a period of 2 years, on 02.08.2001, initiated the proceedings with regard to deficit stamp duty and accordingly, various notices were issued to the late Linaben, which were unserved since she has changed the address and thereafter, she passed away in the year 2009. The respondents have also issued the notices in the year 2011 even after she has passed away. Ultimately, the order dated 17/22.03.2012 has been passed by the respondent no.1 determining the deficit stamp duty of Rs.3,81,918/- on the registered document dated 20.08.1999 along with 15% interest. Thus, the order was passed against the dead person and it appears that, thereafter a summons was issued on 05.08.2021 and the same was served to the legal heirs of late Linaben i.e. the present petitioner and immediately, the petitioners filed Appeal No.24 of 2021 under Section 53(1) of the Act on 30.11.2021, which was rejected by the impugned order dated 09.12.2021 passed by the respondent no.2. The respondent no.2 has rejected the appeal merely on the ground of limitation and non payment of the 25% of the deficit stamp duty.

C/SCA/3385/2022 ORDER DATED: 15/07/2022

10. The aforenoted facts are undisputed. Since the entire proceedings are held ex parte by the respondent no.1 and in wake of the fact that late Linaben has passed away in the year 2009, in the interest of justice, the impugned orders dated 09.12.2021 passed by the respondent no.2 in Appeal No.24 of 2021, and the order dated 17/22.03.2012 are hereby quashed and set aside. The matter is remanded to the respondent no.1, who shall pass a fresh orders after giving an opportunity of hearing to the present petitioners. 25% of the amount, which is deposited by the petitioners before the respondent no.2 in view of the order dated 16.02.2022 shall be refunded to the petitioners, after due verification. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A. S. SUPEHIA, J) ABHISHEK/95 Page 5 of 5 Downloaded on : Tue Jul 19 21:12:38 IST 2022