Dayarambhai Muljibhai Patel vs Chief Controlling Revenue Authority & 1

1. RULE. Learned AGP Mr. Yagnik waives service of Rule on behalf of respondents.

2. By way of present petition under Articles 14, 21, 300­A, 226 and 227 of the Constitution of India and under the provisions of Bombay Stamp Act, 1958, the petitioner seeks following relief :

(A) to allow this petition with costs;

(B) to quash and set aside the decision/communication dated 23.7.2012 of Chief Controlling Revenue Authority, Gandhinagar – respondent No.1, declaring and holding the same to be illegal and against the settled principles of natural justice and also against the provisions of the Bombay Stamp Act, 1958 and accordingly issue appropriate directions to the Chief Controlling Revenue Authority – respondent No.1, by condoning delay, if any in filing Appeal, to entertain, hear and decide the Appeal of the petitioner (Annexure­D) on merits;

(C) to quash and set aside the order dated 31/1/2012 passed by the learned Deputy Collector, Olpad Prant, Surat – respondent No.2 and accordingly remit the matter back to him with the direction to hear and decide afresh the proceedings u/s. 32­A of the Bombay Stamp Act, 1958 after affording sufficient opportunity of hearing to the petitioner;

(D) to stay and suspend the execution, implementation and operation of the order dated 31/1/2012 of learned Deputy Collector, Olpad Prant, Surat, pending hearing and final disposal of this petition.

3. The facts in brief of the present petition, are as under :

The petitioner purchased agricultural land bearing Survey No.28, Block No.40 admeasuring H.02­29­66 Sq. Mtr. situated at Dakkhanwada, Ta. Choryasi, Dist. Surat. for the amount of consideration of Rs.49,999/­ by executing sale deed dated 1.11.1994 from its original owners. The said sale deed was registered before the Sub­Registrar, Surat on 2.11.1994. The said instrument of sale deed on being referred to the learned Deputy Collector, Olpad Prant, Surat, respondent No.2 for determination of market value of the property suit land, the proceedings envisaged under Section 32­A of the Bombay Stamp Act, 1958, notice dated 8.8.2011 was issued to the petitioner, after an inordinate delay of about 18 years. Thereafter, without affording proper opportunity of hearing, the Deputy Collector passed order dated 31.1.2012 calling upon the petitioner to pay up Rs.2,99,170/­ for deficit stamp duty. The petitioner had not received the said order from the office of Deputy Collector and later on, on enquiry on 29.3.2012, he came to know about the order and immediately applied for the certified copy of the said order and same was delivered on 5.4.2012. Thereafter, the petitioner preferred an Appeal under Section 53 of the Act before the Chief Controlling Revenue Authority, Gandhinagar and application for condonation of delay was sent by RPAD on 3.7.2012. The said Appeal was sent back to the petitioner by the said Authority by intimating that the decision seems to have been taken under the Gujarat Stamp Act, 1958 and not under the provisions of Bombay Stamp act, 1958. As per the case of the petitioner, the petitioner is now left without remedy of statutory Appeal and is not compelled to make the payment of excessive amount of deficit stamp duty under the order of Deputy Collector, which is illegal and unjust. Therefore, the petitioner files this petition.

4. Learned advocate Mr. Mehta for the petitioner states that the petitioner purchased the land in the year 1994 and sale deed was executed on 2.11.1994 and as per jantri of the year 1999 considering the market value of the land, the recovery is sought under the order passed by the learned Deputy Collector. He further states that the petitioner is ready and willing to deposit 25% of the amount of deficit stamp duty, if the delay in filing Appeal is condoned and appropriate directions are issued to the Appellate Authority to decide the appeal on merits. He read the provisions of Section 53(b) of the Bombay Stamp Act, 1958, which is as under :

Chapter VI Reference and Revision

53. Control of and statement of case to Chief Controlling Revenue Authority :

(1) The powers excisable by a Collector under [Chapter III, Chapter IV and Chapter V] and under clause (a) of the first provisio to Section 27 shall in all cases be subject to the control of the Chief Controlling Revenue Authority :

(a) .....

(b) such person deposits twenty­five percent, of the amount of duty or as the case may be amount of difference of duty payable by him in respect of subject matter of the instrument for which application has been made;

(2) .....

(3) ”

5. Learned advocate Mr. Mehta states that as per provisions of Bombay Stamp Act, the petitioner may be permitted to to deposit 25% amount towards the difference of duty payable by him. So far as aspect of delay is concerned, so called order passed by the respondent Authority was served through post, was not obtained by him and therefore, the petitioner did not know about the passing of the order. Due to such reason, delay was caused and therefore, delay is required to be condoned.

6. Learned AGP Mr. Yagnik appearing on behalf of the respondents Authorities states that as per the provisions under Section 53(1)(b), if the petitioner is ready and willing to pay the amount payable by him, then the Appellate Authority consider the issue of the petitioner. He further states that the petitioner may be directed to deposit 40% of the amount of difference towards stamp duty.

7. Perused the petition along with papers and considered the submissions made by the parties. I also considered the provisions of Section 53 of the Bombay Stamp Act, 1958. Here in this case, the petitioner is ready and willing to deposit the amount and therefore, the in the interest of justice and as per the provisions, the petitioner is required to be permitted to deposit the amount of difference towards deficit court stamp. But considering facts and circumstances of the case, here the deposit of 25% of amount of difference is not just and proper and therefore, I am in total agreement with the submission of learned AGP about the deposit of 40% amount. Therefore, the petitioner is hereby directed to deposit 40% amount of deficit stamp duty before the Chief Controlling Revenue Authority within 4 weeks from today and if the petitioner is ready to deposit, he may be permitted to move before the said Authority and the Authority is directed to decide and dispose of the Appeal of the petitioner, in accordance with law, on merits, after affording opportunity of hearing to the petitioner.

8. Learned AGP states that the Authority has no power to condone the delay caused in filing Appeal. Considering the facts and circumstances of the case, the delay caused in filing the Appeal is hereby condoned.

9. In view of the above, the order passed by Chief Controlling Revenue Authority, Gandhinagar, respondent No.1 on 23.7.2012 is hereby quashed and set aside. The petition is allowed. Rule is made absolute to the aforesaid extent.

YNVYAS (Z.K.SAIYED, J.)