Heard learned senior advocate Mr.Sanjanwala appearing on behalf of petitioner and learned AGP Mr.Anand Sharma appearing on behalf of respondent Nos.1 to 3.
In this matter, notice was issued on 04.11.2009. Thereafter, Rule has been issued by this Court on 29.12.2009 and it was made returnable on 19.01.2010. Brief facts of present petition are as under:-
2.1 Petitioner has purchased a flat No.103 in Shantiniketan Apartment on first floor, constructed on land situated at Adajan bearing Revenue Survey No.226/1, Town Planning Scheme No.13, Final Plot No.118, non-agricultural residential land bearing Block No.G, admeasuring 465.19 sq.mts. For a sum of Rs.3,50,000/-. Though stamp as per prevailing norms was Rs.17,150/-, petitioner has paid stamp duty of Rs.20,000/- of non-judicial stamp. Document of sale was registered on 19.07.2008.
2.2 Sine document of sale was not given to petiioner, petitioner inquired and it was informed by respondent No.3 that in view of Government Resolution dated 24.04.2008, document of sale cannot be released. Petitioner was also told that if petitioner is prepared to pay double stamp duty and penalty of Rs.500/-, same can be returned to petitioner.
2.3 Respondent No.1 has passed an order dated 09.08.199 addressed to Deputy Collector Stamp wherein it is clearly stated and he has given a clear guidelines under Section 53 of Bombay Stamp Act, 1958 that it is not relevant as to when and who has purchased stamp and that stamp which is purchased by one person can always be used by other person and that there is no provision in law under Stamp Act to say that it is illegal.
2.4 Petitioner served a registered legal notice to respondents. In other cases, respondent No.3 has recovered double premium and thereafter returned document of sale.
2.5 Special Civil Application No.9513 of 2009 was preferred by petitioner, which was withdrawn with a view to get necessary details under Right to Information Act. This Court has kept liberty open for filing petition if grievance survives. On 09.09.2009, application under RTI Act was made and department replied on 03.10.2009 that department are taking steps as per Government Resolution dated 18.02.2009.
It is necessary to note factual aspects, which are not in dispute between the parties that stamp paper has been purchased by Kishorsinh Gemalsinh Mahida, advocate, residing at Priya Apartment, Nanpura, Surat on 31.03.2008, where endorsement made by Stamp Vendor is Registration No.22645 and name of Stamp Vendor is Yashwantlal Dahyabhai Desai having license No.12-02. The total amount of consideration of sale comes to Rs.3,50,000/- and purchaser was Smt.Chandrikaben Kishorsinh Mahida wife of advocate, Kishorsinh Mahida, who has purchased stamp paper and same has been used by Smt.Chandrikaben Kishorsinh Mahida. Legal notice (Annexure "C", Page-41) dated 27.04.2009 was given to Deputy Collector, Stamp Valuation, Surat Division-1, but, Deputy Collector has not decided it and no answer was given.
Circular, issued by office of Superintendent of Stamps (Page-40-A) on 24.04.2008 is relied upon by respondent No.3 and affidavit-in-reply (Page-111) is filed by respondent No.3. Relevant averments are made in para Nos.4, 6, 7 and 8 are quoted as under:-
"4. As transpires from the plain reading of the memorandum of the petition, the petitioner has sought to challenge the action on the part of the respondent no.3 in not releasing the document of sale which was presented for registration before the competent authority. In support thereof, the petitioner has contended that on the premise of false interpretation of resolution of the Government, the authority has not released the document so far, as the petitioner was asked to deposit double the stamp duty and penalty of Rs.500/-. At the outset it is submitted that the present petition is devoid of any substance and the contentions raised therein do not merit acceptance. If the recourse is made to the prayer, as prayed for in the memorandum of the petition, it would become evident that the petitioner has not challenged the legality and validity of the Circular issued by the office of the Superintendent of Stamps, Gandhinagar dated 24.04.2008. The said circular has an effect of interpreting and clarifying the provisions of Rule 14 (1) of the Gujarat Stamps Supply and Sales Rules, 1987. In view of this it would be profitable to refer to the provisions of Rule 14 (1) of the Gujarat Stamps Supply and Sales Rule, 1987. Sub Rule 1 of Rule 14 of the Rules of 1987 requires every ex-officio, official or licensed vendor to mention the name and residence of the purchaser, with his own hands, on the face of every stamp embossed or engraved on the stamp paper which he shell. However, it was experienced that in the event of publication of news in the newspaper with regard to increase in stamp duty, a handful of persons were found to have indulged into mass purchasing the stamp papers and thereafter the said handful of persons used to sale the said stamp papers for their personal enrichment. In view of this, the Office of the Superintendent of Stamps issued Circular on 24.04.2008 and thereby issued several guidelines in the matter of sell of stamp papers by the persons who are given license in the regard. Clause 3 of the said circular has an effect of clarifying/ interpreting the provisions of Rule 14 (1) of the Rules of 1987. The provisions of the said clause 3 of the circular, inter alia, makes it obligatory for every ex-officio, official or licensed vendor to mention the name of a person who has purchased the said stamp paper. The said clause further makes it obligatory for the Sub Registrar i.e. the Authority before whom such documents are presented for registration, to verify as to whether the stamp paper has been used by the person who has purchased the said stamp paper.
6. The contention is sought to be pressed into service that the circular date 24.04.2008 cannot have any retrospective effect as in the present case, the document is executed on 31.03.2008. The contention is as misconceived as it could be.
Firstly the said circular is having an effect of interpreting / clarifying the provisions of the Rules 14 (1) of the Rules of 1987 and therefore the said provisions is required to be read into the book of statute as if the same exists right from the inception of the Rules 1987;
Secondly there is a thin line of demarcation between the retrospective operation and retroactive operation. The present circular has an effect of retroactive operation and therefore the contention is absolutely fallacious;
Thirdly when an exercise of verification of document was undertaken by the Authority, the said circular was in vogue and therefore the petitioner cannot escape from the application of the provisions of the said circular. In view of this also the said contention is require to be rejected.
7.Even otherwise, the petitioner is not entitled to challenge the action on the part of the Authority in not releasing the document which was presented for its registration in as much as said action is based on the circular of the Office of Superintendent of Stamps. The petitioner has neither fundamental right nor any legal right to assail the provisions of the said circular. The law in this regard no longer remains res-integra. As held by the Hon'ble Supreme Court in catena of decisions that no person has any right to claim that the Rules, forever should remain the same. In addition thereto, it deserves to be mention that the said clarification/ interpretation canvassed in the circular dated 24.04.2008 has its genesis under the public policy and doctrine of necessity. Time and again the authority had experienced unblocked purchase of stamp papers at the end of handful of persons solely for their personal enrichment and therefore solely with a view to curbing the said illegal activities, the present circular came to be issued by the Component Authority and illegality and validity of the said circular has also been upheld by this Hon'ble Court. In the present case admittedly, the document which was presented for registration by the petitioner which was not purchased by the said document has not specified that the said documents has not specified that the same stamp paper was purchased for the petitioner. Thus in absence of any particular about the present petitioner, the authority has no other option but to retain the same document unless the petitioner prays the stamp duty as specified under article 20 of Schedule 1 of the Bombay Stamp Act, 1958.
8.Even the contention of the petitioner that the petitioner has been asked to pay double the stamp duty and a fine or Rs.500/- is also misconceived and to some extent misleading. As a matter of fact, since the said stamp paper has not been used by the purchaser himself. The sale deed which was presented for registration would be deemed to have been constituted on the blank paper (unstamped) and therefore, the petitioner is require to pay the stamp duty as prevailing on the date of execution of the sale deed."
In reply to affidavit-in-reply filed by respondent No.3, petitioner has filed affidavit-in-rejoinder (Page-118) on 30.11.2009, where petitioner has demonstrated that how there is no breach of circular dated 24.04.2008. Relevant para Nos.5, 6, 7, 8, 9, 10, 11 and 12 of affidavit-in-rejoinder are quoted as under:-
"5.Now, I will demonstrate as to how there is no breach of the Circular dated 24.04.2008 as under:-
(a) The very fact that for nearly 16 months no notice is issued by any authority who is supposed to satisfy himself with the irregularity of the transaction, has not so far issued any notice either on the stamp vendor or on the petitioner. Therefore, it is very clear that there is no breach of the provisions of the said circular.
(b) That the said circular, if properly read only authorized to check certain things. In the present case, all these things are complied with. There is no breach of the said circular since the said stamp has been purchased from the licensed stamp vendor against whom no notice is issued as per the said circular, for any breach or irregularity.
(c) That the said document is neither impounded nor sent for proper valuation under Section 32-A of the Stamp Act.
6. I further say and submit that my husband has purchased the said stamp as a single transaction and he has not purchased bulk stamps. Therefore, the said circular cannot be blindly applied. Even as per the said circular, no inquiry can be instituted because by common sense, if my husband has purchased the stamp on my behalf and he is a lawyer, dealing with the conveyance, it cannot be said that their myself or my husband has committed any irregularity or breach of that circular for the following reasons:-
I. Clause 1 of the circular dated 24.04.2008 provides that the stamp has to be purchased on or before 31.03.2008 and the document has to be signed before 31.03.2008 which is exactly done in the present case.
II. Clause-2 of the circular provides that there is no irregularity regarding the priority number also and even the receipt issued, there is no irregularity.
III. Regarding clause No.3, all the details are mentioned in the document itself regarding the name of the stamp vendor, issue date, serial no. and date and the name of the purchaser of the stamp which is all done in the present case.
IV. Regarding Clause No.4, no proceeding has been issued under Rule 41 of the Gujarat Stamps Supply and Sales Rules. Therefore, there is no breach in that respect also.
V. Regarding Clause No.5, there is no breach of the provisions of Section 63 and even for that matter, in the present case, no proceedings are initiated as per the said clause. Therefore, it is taken for granted that there is no such breach. Even the said Section 63 is not applicable in the present case.
VI. Regarding clause No.6, the petitioner has not received any notice from the Deputy Collector, Stamps, that there is breach of the provisions of the Rules or that there is no notice from the Deputy Collector, Stamps, sending the said document for valuation. There is no breach in this regard.
VII. Regarding Clause No.8, the details regarding the same are duly sent by the Stamp Vendor to the authority and even no breach is alleged in this regard, even in the affidavit in reply. Everything has been satisfactory in the cross-verification also.
VIII.
Regarding Clause No.9, even no proceedings are initiated against the Stamp Vendor at least for transaction or in any other case. Therefore, he is licensed Stamp Vendor and there is no breach in this regard.
7. In totally, even assuming that the said circular is applicable, there is no breach.
8.It is respectfully submitted that the said circular was issued mainly for the reasons as there were some bulk purchases by the advocate and that was to be take care of. There is no bulk purchase by my husband as he has purchased only one stamp. Therefore, there was no question of even verifying the aspects as mentioned in the said circular because on the face of it, the said circular is not applicable and the purpose of issuing such a circular is not defeated.
9. It is further submitted that there is a challenge to the circular dated 24.04.2008, but that may not be necessary to go into it since there is no breach of the said circular. There was no question of issuing any such circular in view of the fact that Rule 14(1) of Gujarat Stamps Supply and Sales Rules, 1987, was already operating. Therefore, there cannot be circular against the statute. Even as per the said Rule, Sub-rule 1 of Rule 14, the present document is mentioned and even as mentioned in the Government circular dated 09.08.1999, it is very clear that it is lawful to use the stamp purchased by one for executing the document in favour of another. Therefore, the said circular cannot be given a go-bye.
10. It is further submitted that the allegation is made in the said paragraph that the handful persons were found to have indulged into mass purchasing the stamp papers and thereafter, the said handful of persons used to sale the said stamp papers for their personal enrichment. Therefore, the circular was required to be published is also factually not correct. So called matters published in the newspapers are not true and burden is on the department to prove the same. No date is given regarding the same as to how many advocates have purchased bulk stamps since the G.R. Dated 09.08.1999 would permit the same. However, in the present case, my husband has purchased only one stamp from the license Stamp Vendor . Therefore, on the basis of such imaginary facts, documents cannot be withheld.
11. Even otherwise, the G.R. Dated 24.04.2008 has not been published to intimate public at large. Moreover, if the document is not executed by me on proper stamp, it becomes the duty of the concerned authority to issue notice regarding the same and to give opportunity of hearing which has not been done.
12. The interpretation put in paragraph 8 of the affidavit under reply, it clearly ignores the provisions of Section 47 of the Stamp Act. It is not correct to say that the stamp which has not been used by the purchaser himself and therefore, it should be deemed to have been constituted on the blank paper (unstamped) and therefore, I am required to pay the stamp duty. In any case, there is provisions that double the stamp duty can be recovered".
Thereafter, further affidavit (Page-130) has been filed by petitioner on 19.01.2010. Relevant Para No.3 is quoted as under:-
3. I say that Section 39(1)(b) is not at all applicable. So also there is breach of Rule 14 (1) of the Gujarat Stamps Supply and Sales Rules, 1987. I say that Section 39 is applicable only in two contingencies, namely, when the Collector impound any instrument under Section 33 and/or receives any instrument under Section 33 and/or receives any instrument send to him under Sub-section (2) of Section 37, then and then only, he gets jurisdiction to exercise powers under Section 39 of the Act. I say that none of the two provisions are attracted in the present case. Admittedly, the instrument is not impounded under Section 33 since there is already an averment in the petition that it is not impounded and there is no reply. Secondly, the Collector had not received the instrument under Section 37(2) of the Act. Section 37 provides that if any person impounding the instrument under Section 33 has by law or consent of the parties authority to receive evidence and admit such instrument in evidence upon payment of a penalty as provided by Section 34 or on duty as provided by Section 36, he shall send to the Collector an authenticated copy of such instrument to give that certificate in writing stating that the amount of duty and penalty levied in respect thereof and shall send such amount to the Collector or to such person as he may appoint in this behalf. Sub-section (2) provides that in every other case, the person so impounding the instrument shall send it to the original to the Collector. Section 37(2) is not attracted for the simple reason that no other person has impounded the said document and send it to the Collector in original for taking action under Section 37(2). This is also an admitted position. Therefore, the demand of double the stamp duty relying upon Section 37 read with Section 39 is not maintainable in law. Apart from the same, the reason for withholding the document in the said decision that instrument bears the signature of the purchaser i.e. Chandrikaben Mahida and the seller Ajitsinh D. Rana and since the instrument is purchased in the name of the other than these two persons, the document can be withheld. With respect, this reasoning is also not correct and it amounts to taking hyper-technical view since admittedly, the stamp has been purchased by the husband of the petitioner himself as a single stamp. Further, the Government G.R. Dated 09.09.1984 at page 63 of the petition makes it absolutely clear that there is nothing to prevent and impress them by one person being used by some other persons. The said G.R. Still holds the field and has not been superseded by the G.R. Dated 24.08.2008. In the premises aforesaid, it is submitted that the authorities may be directed to return the withhold document forthwith to the petitioner.
Rule
- 14 of Gujarat Stamps Supply and Sales Rules, 1987 is quoted as under:-
Rule 14:-
(1) Every ex-officio, Offical or Licensed vendor shall, with his own hand, write, on the face of every stamp embossed or engraved on stamped paper which he sells, just below the stamp impression, a serial number, the date of sale, the name and residence of the purchaser (i.e. of the person for whom the stamp is bought), the value of the stamp in full in words and his own signature.
(2) The ex-officio, official or licensed vendor shall maintain a register in the Form in Appendix IV and make corresponding entries in such Register.
No ex-officio, official or licensed vendor shall knowingly make a false endorsement on the stamp sold or a false entry in his register.
(4) Every Licensed Stamp Vendor shall, upon the completion of the financial years, deposit this register to the Collector or to any officer authorised by him in this behalf.
Deputy Collector, Stamp Duty Valuation Department, Division-1, Surat has given answer or reasons for retaining sale deed in his letter dated 22.12.2009, addressed to Government Pleader (Annexure "K", Page-110-A). Reason was given by Deputy Collector that stamp has been purchased by Kishorsinh Gemalsinh Mahida and it was not purchased by Smt.Chandrikaben Kishorsinh Mahida or Ajitsinh Dolatsinh Rana, therefore, stamp, which was purchased by third party cannot be used by Smt.Chandrikaben Kishorsinh Mahida or Ajitsinh Dolatsinh Rana and because of that sale deed has been retained. Deputy Collector, Stamp duty valuation has also relied upon Rule-14(1) of Gujarat Stamps Supply and Sales Rules, 1987 and circular of Superintendent of Stamps dated 24.04.2008. Deputy Collector, Stamp duty valuation has also relied upon Section 39(1)(b) of Bombay Stamp Act. According to Deputy Collector, he is entitled to recover fine from petitioner, therefore, Section 39(1)(b) is quoted as under:-
"Section
39. Collector's power to stamp instruments impounded.
(1) When the Collector impounds any instrument under Section 33, or receives any instrument send to him under Sub-section (2) section 37, not being an instrument chargeable with a duty of twenty naye paise, or less, he shall adopt the following procedure:-
(a) ...
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five reupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion therefore, whether such amount exceeds or falls short of five rupees.
Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section".
In light of these facts, objection raised by respondents is that stamp paper, which was purchased by Kishorsinh Gemalsinh Mahida and it was not utilised by him, but, somebody else has utilised it and therefore, document has been retained by Deputy Collector.
In view of aforesaid objection raised by respondent and considering submission made by learned advocate senior Mr.Sanjanwala question, which is to be examined by this Court is based on facts, which are not in dispute betweens the parties that stamp paper of Rs.20,000/- was purchased by Kishorsinh Gemalsinh Mahida, who is a husband of Smt.Chandrikaben Kishorsinh Mahida and same stamp paper is used by wife of purchaser. Therefore, while reading Rule - 14, where stamp vendor shall have to write with his own hand, on face of every stamp embossed or engraved on stamped paper which he sells, just below the stamp impression, a serial number, the date of sale, the name and residence of the purchaser (i.e. of the person for whom the stamp is bought), the value of the stamp in full in words and his own signature.
In view of facts, stamp paper purchased by Kishorsinh Gemalsinh Mahida means stamp paper which has been bought by person is used by same person, because, sale deed arrived in the name of his wife, therefore, stamp was used by person for whom stamp was bought, technically name of wife was not mentioned, but actually, husband has purchased stamp paper for sale deed, which has been arrived at between wife of Kishorsinh Gemalsinh Mahida and one Ajitsinh Dolatsinh Rana. Therefore, considering Rule-14 and Government Circular dated 24.04.2008, issued just to control selling of stamp by stamp vendor in a illegal manner and method, means unauthorised sale of stamp paper by stamp vendor and its purpose is also that if one person can purchase number of stamp papers from stamp vendor, then that person may resale that stamp papers to another person, which is considered to be unauthorised sale. Therefore, as mentioned in item No.1 of aforesaid circular issued by Superintendent of Stamps, if stamp paper has been purchased on or before 31.03.2008 and same has been utilised on or before 31.03.2008 and as per item No.3 - as per Rule-14(1) of Gujarat Stamps Supply and Sales Rules, 1987, name of vendor, signature, serial number and date of issued stamp paper, name and address of purchaser (means name and address of person for whom stamp is bought) and stamp is used by purchaser is to be checked. Kishorsinh Gemalsinh Mahida has purchased stamp for his own use, because, he wants to purchase property in name of his wife. Therefore, strictly speaking, Rule-14(1) of Gujarat Stamps Supply and Sales Rules, 1987 is not violated by petitioner, for that, action has been initiated by respondent. Circular dated 24.04.2008 is also accordingly not applicable to facts of this case.
It is not case of respondent that stamp paper, which has been purchased and used by petitioner while executing agreement of sale deed of property, is not according to market value or Jantri prevailing at relevant time in area and it is also not case of respondent that for same proceeding is initiated by respondent against present petitioner for recovering deficit stamp duty. The document has not been impounded under Sections 33 or 37 by Competent Authority, therefore, question of Section 39(1)(b) is also not applicable to this case, because, no steps have been taken by Collector under Section 33 of 37(2), therefore, question of taking action under Section 39(1)(b) apparently does not arise.
In light of these legal aspects as discussed by this Court, circular dated 24.04.2008, Rule 14(1) of Gujarat Stamps Supply and Sales Rules, 1987 and Section 39(1)(b) of Bombay Stamp Act are not applicable to facts of present case and considering facts which are found from record that sale deed (Annexure "A", Page-30), for which stamp paper has been purchased by advocate, Kishorsinh Gemalsinh Mahida for his own use as he wanted to purchase property from vendor Ajitsinh Dolatsinh Rana in name of his wife Smt.Chandrikaben Kishorsinh Mahida, therefore, stamp paper has been purchased by person for his own use and actually it has been used in name of his wife Smt.Chandrikaben Kishorsinh Mahida.
Therefore, in light of this background, action/ decision taken by respondent No.3 is found to contrary to law. Hence, it is directed to respondent No.3 - Deputy Collector, Stamp duty valuation, Division-1, Block No.7-C, Multi-storied building, Surat to consider reasoning given by this Court and also to consider legal notice given by petitioner on 27.04.2009 and thereafter to release document, which has been registered on 19.07.2008 by registration No.12185, which has been purchased on 31.03.2008 and sale deed has been arrived at between the parties on 31.03.2008, means on date on which it was purchased and on the same day it was utilised by present petitioner, for his own use who has purchased stamp from stamp vendor. This direction is required to be carried out, within a period of 1(One) month from the date of receiving a copy of this order.
This Court has not examine other legal aspects raised by learned senior advocate Mr.Sanjanwala, because, matter has been examined on the basis of facts, therefore, that contentions are remained open.
Rule is made absolute to aforesaid extent accordingly with no order as to costs.
[H.K.RATHOD, J.] ..mitesh..
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