Leave to join State of Gujarat, through the Secretary, Revenue Department as Respondent no.4.
The petitioner has to file this petition as entry made in the revenue record was not certified by the Mamlatdar on the ground that the document under which the right is claimed to have accrued to the petitioner is the document which is not properly stamped and therefore, kachha entry made by the talati was not certified. Petitioner had to in fact move this Court on earlier occasion also by preferring Misc. Civil Application No. 22 of 2011, as at that time entry no. 6114 made in his name was not certified on account to recording of charge on account of sales tax due on the property. Said property was purchased by the petitioner under auction held by the Company Judge in Company Law Court proceedings.
This Court (Coram Anant S. Dave, J) while allowing this MCA vide order dated 3/3/2011, issued following direction:
"13.
Considering the above aspects and law laid down by the learned Company Judge as well as Division Bench, I am of the opinion that it is no more res integra that the attachments/lien of the department of Sales Tax which is reflected in the revenue records on the assets of the Company in liquidation which are sold to the auction purchaser cannot be continued any further. The respondent No.3 is therefore directed to remove the attachments, charge, lien, if any, on account of the dues, pertaining the pre-liquidation period of the Company in liquidation from the revenue records in respect of the assets/properties purchased by the applicant. The respondent no.3 is also directed to record name of the applicant in the revenue records in respect of the properties sold under the order of confirmation made by this Court."
Petitioner accordingly approached the revenue authorities for registration of his lien and right in the record of right. Once again concerned Talati-Cum-Mantri made an entry on 19/3/2011 in accordance with Court's order, however the concerned Mamlatdar vide his order dated 2/9/2011 did not approve the same on the ground that after studying the document registered with Sub Registrar Office, Gondal, bearing Index No. 12755/2010 dated 30/7/2010 it appeared to him that the stamp duty paid on the document was less than the prevalent rate, commonly known as 'jantri' in local parlance and Annual Statement of Rate, this being an incident of 'sale cum sale and no due stamp duty' is not certified.
The Court called upon learned AGP Ms. Archana Raval to indicate as to whether the concerned Mamlatdar acting under provision of Chapter
-XA is in any way empowered to raise the issues and question for not certifying the entry made by Talati Com Mantri . Learned AGP could not point out any provision out of the land revenue record justifying such a refusal. Hence this Court is of the considered view that the Secretary of Revenue Department, Respondent no.4 shall himself examine this case and file an explanation by way of affidavit indicating the following, namely:-
1) When the Court's order in para no. 13 in MCA No. 22 of 2011 dated 3/3/2011 was unequivocally clear and when no attempt was made to seek any clarification from any quarter, namely either AGP or G.P., or the District Collector, how the Mamlatdar can disobey the said order as the last three lines of the order leaves no room for any rejection. Assuming for the sake of examining without holding that there is possibility of interpretation that the direction was qua removing the impediment in the form of sales tax charge, but apart there from, if there was any other infirmity in the document, then, there was a scope for refusing the entry to be made. But this interpretation is also not permissible under power of implementing authority. Had this been the reason nothing prevented the implementing authority to seek appropriate clarification either from his superiors or from learned GP. In the instant case there appears to be none on the record. Therefore prima facie this Court is of the view that concerned Mamlatdar has flouted the order without any rime or reason on his part.
2) The respondent no.4, newly added party, shall also explain under which provision of law there can be examination to document at the end of Mamlatdar when the document is presented to him under provision of Chapter- XA of Bombay Land Revenue Code 1879, on the ground of so called deficit of stamp duty.
3) The respondent no.4 is also hereby called upon to make statement on oath in the affidavit that under which provision of law said Mamlatdar while making order at page-44 can exercise power of the officer or competent officer appointed under the Gujarat Stamp Act, 1958 (Amended Act No. 15 of 2011) The affidavit explaining aforesaid shall be filed on or before 2/4/2012. In the meantime it would be open to the concerned authority, if they are unable to justify stand of the Mamlatdar to record the entry or correct their mistake and certify the entry. Even if the entry is certified, concerned officer is not absolved of his duty to file affidavit on 2/4/2012. In case if the affidavit is not filed, then, the Revenue Secretary is hereby directed to present himself before this Court at 11.00 '0' clock.
Copy of this order be made available to learned AGP Ms. Archana Raval, for its onward communication and compliance. Adjourned to 2/4/2012.
[ S.R. BRAHMBHATT, J ] /vgn Top