Gujarat High Court
Reliance Mobile Limited vs Collector & Additional Superintendent ... on 2 April, 2014
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/149/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 149 of 2010
In SPECIAL CIVIL APPLICATION NO. 13364 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
=========================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
=========================================
RELIANCE MOBILE LIMITED
Versus
COLLECTOR & ADDITIONAL SUPERINTENDENT OF STAMPS & ANR
=========================================
Appearance:
Mr Saurabh Soparkar, Senior Advocate assisted by Mr Amar N Bhatt for the
Appellant
MR KKASHYAP PUJARA, Assistant Government Pleader for the Respondents
=========================================
CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 02/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) Page 1 of 6 LETTERS PATENT APPEAL/149/2010 25/06/2014 11:26:27 PM C/LPA/149/2010 JUDGMENT By way of filing this appeal, the appellant - original petitioner has challenged order dated 9th October 2009 passed by the learned Single Judge in Special Civil Application No.13364 of 2006 whereby the learned Single Judge has partly allowed the writ petition filed by the petitioner and, however, remanded the matter back to the stamp authority.
2 The short facts of the case are that the appellant and Reliance Communications Infrastructure Limited filed Company Petitions Nos.162 and 163 of 2004 for sanctioning the Scheme of Demerger, which was sanctioned by the learned Company Judge vide order dated 22 nd September 2004. Pursuant to the said order, the appellant filed application for preadjudication as to proper stamp duty to be paid under Section 31 of the Bombay Stamp Act, 1958 before Respondent No.1 on 3rd November 2004. However, in view of subsequent developments, namely, consolidation of telecom sector and changes in FDI policy and also the huge amount of stamp duty payable by the demerger of investment division making the proposal unviable, etc. the Board of Directors of the appellant company decided to withdraw the very scheme of arrangement of demerger and thereafter filed Misc. Civil Application No.132 of 2005 in Company Petition No.162 of 2004 and Misc. Civil Application No.133 of 2005 in Company Petition No.163 of 2004 for recall of order dated 22 nd September 2004. In the said Misc. Civil Applications, this Court passed the following order on 23.12.2005:
"1. As can be seen from the application, the applicant company seeks recall of order dated 22/9/2004 sanctioning the scheme in Company Petition Nos.162 & 163 of 2004. It is an admitted position that the order made by the Court under Section 391(2) under the Companies Act,1956(the Act), has not been filed with the Registrar as required by provisions and, hence, under subsection (3) of Section 391 of the Act, the order shall have no effect. In these circumstances, there Page 2 of 6 LETTERS PATENT APPEAL/149/2010 25/06/2014 11:26:27 PM C/LPA/149/2010 JUDGMENT would be no occasion to recall the order.
2 However, in relation to the prayer seeking permission to withdraw the petition NOTICE to Central Government through Regional Director returnable on 27th January, 2006 at 4.00 p.m. D.S. Registry to place copy of this order in cognate matter."
The learned Company Judge permitted the appellants to withdraw the Company Petitions vide order dated 27th January 2006.
3 In the meanwhile, the first respondent called upon the appellant to furnish certain details vide letter dated 20 th November 2005. The appellant company addressed a letter to the first respondent stating that since the very order due to which the stamp duty were to be attracted did not have any effect and since the appellant had already applied for withdrawal of the company petitions for scheme of demerger the question of conveyance did not arise and therefore the question of stamp duty did not arise. However, as Respondent No.1 passed order on 24.3.2006 holding that the appellant was liable to pay stamp duty of Rs.10 crores and if the same are not paid within the prescribed time limit, then steps under the Stamp Act, 1958 will be taken against the appellant, to which the appellant made representations dated 4 th May 2006 and 19th June 2006 to Respondent No.1.
4 The appellant, therefore, filed aforesaid writ petition challenging order dated 24th March 2006. The learned Single Judge by the impugned order dated 9th October 2009 in Special Civil Application No.13364 of 2006 partly allowed the writ petition filed by the petitioner by remanding the matter back to the stamp authority. Hence, the present appeal is filed.
5 Mr Soparkar, learned Senior Counsel for the appellant has
Page 3 of 6
LETTERS PATENT APPEAL/149/2010 25/06/2014 11:26:27 PM
C/LPA/149/2010 JUDGMENT
contended that the learned Single Judge has failed to appreciate that the application made by the appellant under Section 31 of the Bombay Stamp Act, 1958 seeking opinion of stamp duty payable on order sanctioning the scheme of demerger was withdrawn by the appellant on 27th December 2005 and when said application was withdrawn by the appellant there was no need to remand the matter to the authorities for taking a decision afresh in accordance with law. In support of his contention, he has relied upon the decision of the Honourable Supreme Court in the case of Government of Uttar Pradesh and others v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787, more particularly, paragraph 6 thereof.
6 Mr Pujara, learned advocate for the respondent has opposed the appeal and contended that the learned Single Judge has remanded the matter back to consider the case in view of the observations made in paragraph 9 that the authority will decide the applicability, if any, of Section 2(g)(iv), 2(l), 17, 18 and Article 20(d) of ScheduleI of the Bombay Stamp Act, 1958.
7 We have heard Mr Soparkar, learned Senior Advocate for the appellant and Mr K.K. Pujara, learned Assistant Government Pleader for the respondents.
8 In view of the order dated 27 th January 2006 passed by the learned Single Judge whereby permission to withdraw the main petitions being CompanY Petitions Nos.162 of 2004 and 163 of 2004 was granted, the document has remained unexecuted and unstamped. The Honourable Supreme Court in the case of Government of Uttar Pradesh and others v. Raja Mohammad Amir Ahmad Khan (supra) has held as under in paragraph 6:
Page 4 of 6LETTERS PATENT APPEAL/149/2010 25/06/2014 11:26:27 PM C/LPA/149/2010 JUDGMENT "6. Chapter IV of the Act which deals with instruments not duly stamped and which contains Ss. 33 to 48, provides for impounding of documents, how the impounded documents are to be dealt with, Collectors' powers to stamp instruments impounded and how the duties and penalties are to be recovered. It would be an extraordinary position if a person seeking the advice of the Collector and not wanting to rely upon an instrument as evidence of any fact to be proved nor wanting to do any further act in regard to the instrument so as to effectuate its operation should also be liable to the penalties which unstamped instruments used as above might involve. The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument, he approaches him under S. 31. If it is not properly stamped and the person executing the document wants to proceed with effectuating the document or using it for the purposes of evidence, he is to make up the duty and under S. 32 the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning. But if he does not want to proceed any further than seeking the determination of the duty payable then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of S. 33 have no application. The provisions of that section are a subsequent stage when something more than mere asking of the opinion of the Collector is to be done."
9 In view of the aforesaid observations made by the Honourable Supreme Court, we are of the opinion that no purpose will be served by remanding the matter back to the authority under the Stamp Act. In that view of the matter, since the appellant has already withdrawn, no Page 5 of 6 LETTERS PATENT APPEAL/149/2010 25/06/2014 11:26:27 PM C/LPA/149/2010 JUDGMENT adjudication is required. The order of the learned Single Judge to the extent of remanding the matter back tot he authority is modified as no adjudication is required. Consequently, order dated 24 th March 2006 is also quashed and set aside.
10 In the result, the appeal is partly allowed by setting aside the order of the learned Single Judge. No order as to costs.
(K.S.JHAVERI, J.) (A.G.URAIZEE, J.) mohd Page 6 of 6 LETTERS PATENT APPEAL/149/2010 25/06/2014 11:26:27 PM