Learned advocate for the petitioner has submitted that this matter is in a narrow compass, as the concerned authority i.e. respondent no.2 while issuing order dated 19.03.2010, has not taken into consideration the relevant factors germane for deciding the true and correct value of the land in question so as to make it amenable for levying the appropriate stamp duty under the provision of Gujarat Stamp Act, 1958.
The facts in brief, as narrated by the petitioner could be summarized as under;
The petitioner's predecessor-in-title was granted benefit of conversion of land from new tenure to old tenure on payment of premium to the tune of Rs.36,60,160/-. However, at that time the request for rendering the land non agricultural also was not accepted and hence in the permission which came to be granted in respect of two parcels of land, the authority incorporated condition that non agricultural permission be obtained under Section 65 of the Bombay Land Revenue Code within one year from the date of issuance of change of tenure. The two parcels of land namely land of Survey No.30P and land of Survey No.173 came to be purchased by this petitioner from the vendor who had already obtained partial permission of tenure change but that in itself did not change the characteristics of land, as the land is technically yet to be declared to be non agricultural land by levying appropriate premium thereon. Therefore, the transaction of purchase of these two parcels of land by sale deed dated 04.06.2009 was taken into assessment by Deputy Collector for verifying the exact levyable stamp duty thereon and vide order dated 19.03.2010, he came to the conclusion that the land is developed land meaning thereby non agricultural land and as such was required to be charged as per the Annual Statement Rates prescribed by the State for the guidance of the concerned officer. This order was assailed into revision to the Chief Controlling Revenue Authority (CCRA), who also in turn upheld the reasoning of Deputy Collector by treating the land to be a non agricultural land and hence did not entertain the application which came to be resulted into order dated 16.11.2010. These two orders are subject matter of this petition under Article 226 of the Constitution of India.
Learned advocate for the petitioner invited this Court's attention to various facts and indicated that the new tenure land, when it was converted into that of old, it did not cease to be an agricultural land and as and when the said land is required to be used for any other purpose than agriculture, the permission under Section 65 of the Bombay Land Revenue Code is absolutely essential and therefore, the Annual Assessment Rates would have no applicability, as if the land is non agricultural land i.e. NA land, as it is sought to be considered by both the authorities for levying stamp duty thereon.
Learned AGP invited this Court's attention to the affidavit-in-reply and the guidelines issued by the State and especially at Page No.95 of the compilation to substantiate the reasoning adopted by both the authorities to show that the land in such a situation could not said to be a land which known as agricultural land in fact the location of the land, the development in the surrounding area and the development of events so far as these two parcels of land are concerned, in itself are sufficient to show that the land in no way could have been sold for the amount which manifested in the sale document and therefore, the Deputy Collector as well as the Controlling Authority were justified in coming to the conclusion that the land is treated to be an NA land for all practical purposes.
Learned AGP, however, could not controvert the submission made on behalf of the petitioner that in the instant case the formal order of NA to be issued under Section 65 of the Bombay Land Revenue Code has yet not been issued by any authority and therefore, the 7/12 extract issued as back as on 2010 also contains the same fact and the Deputy Collector also in his order dated 19.03.2010 specifically mentioned that the land in question is an agricultural land and in view of this, the straight way ASR on its plain reading could not have been invoked by the authorities concerned.
The Court is of the view that the plain reading of Section 32(A) of the Stamp Act would brook no other interpretation, then one which is espousing the power of the statutory authority to come to its independent assessment and therefore, the orders impugned in this petition are required to be examined in the light available for the provision of Section 32 (A) of the Stamp Act only. The Section 32 (A) is set out as under;
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32A. Determination of market value of property which is the subject matter of conveyance, etc.:- [(1) Every instrument of conveyance, exchange, gift, certificate of sale, partition, partnership, settlement, power of attorney to sell immovable property when given for consideration or transfer of lease by way of assignment, presented for registration under provisions of the Registration Act, 1908 (XVI of 1908) shall be accompanied by a true copy thereof; [and the Statement in such form as may be prescribed by rules] and if an officer registering such instrument under the aforesaid Act or any person referred to in section 33 before whom such instrument is produced or comes in the performance of his functions, has reason to believe that the consideration set forth therein does not approximate to the market value of the property which is the subject matter of such instrument or as the case may be the market value of the property which is the subject matter of such instrument, has not been truly set forth therein, he [shall before] registering the instrument or, as the case may be, performing his functions in respect of such instrument, refer the instrument or true copy thereof to the Collector of such district in which either the whole or any part of the property is situated for determining the true market value of such property and the proper duty payable on the instrument under this section.] [Provided that for the purpose of this Sub-section, the consideration set forth in an instrument executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation, shall be deemed to be the true market value of the property which is the subject matter of such instrument.] (2) On receipt of the instrument under sub-section (3) of [section 31 or instrument or true copy of instrument under] sub-section (1) of this section, the Collector of the district, shall, after giving the parties concerned a reasonable opportunity of being heard, and in accordance with the rules made by the State Government in this behalf, determine the true market value of the property which is the subject matter of the instrument and the proper duty payable thereon.
Upon such determination, the Collector of the district shall require the party liable to pay the duty, to make payment of such amount as is required to make up the difference between the amount duty determined under this sub-section and the amount of duty already paid by him and shall also require such party to pay a penalty [of two hundred and fifty rupees] [or the amount of the proper duty or of the deficient portion there of whichever is less] and on such payment, return the instrument to the officer referred in sub-section(5) of section 31 or, as the case may be, sub-section(1) of this section:
Provided that, no such party shall be required to pay any amount to make up the difference or to pay any penalty under this sub-section if the difference between the amount of the consideration or, as the case may be, the market value as set forth in the instrument and the market value as determined by the Collector of the district, does not exceed ten percent of the market value determined by the Collector of the District, this proviso deleted w.e.f. 11-6-2004.
The Collector of the district may, suo motu or on receipt of information from any source, within [six years] from the date of registration of any instrument referred to in sub-section (1), not being the instrument upon which an endorsement has been made under section 32 or the instrument in respect of which the proper duty has been determined by him under sub-section (3) or an instrument executed before the date of the commencement of the Bombay Stamp (Gujarat Amendment Act, 1982) call for and examine the instrument for the purpose of satisfying himself as to the correctness of the consideration or of the market value of the property which is the subject matter of such instrument and the duty payable thereon; and if on such examination, he has reason to believe that the consideration does not approximate to the market value of such property or, as the case may be, market value of such property has not been truly and fully set forth in the instrument, he shall proceed as provided in sub-sections (2) and (3)."
Now, as per the provision, the concerned authority is enjoyed upon by the statute to use the discretion in respect of the land in question, as to what could be the market value of the land. There could be guiding factors, but in my view applicability of those guiding factors straight way may some times amount to violation of the principle of exercising discretion. However, in the present case, the Court is not called upon to examine this issue, therefore, Court need not elaborately delve thereupon. Suffice it to say that assuming for the sake of examining without holding that the Deputy Collector was well within his discretionary power to fall back upon i.e. Annual Assessment Rates, then also reading simply the Clause 18 thereof would show that the land for being treated as a developed land is required to be having status of non agricultural land. In short the land is required to be declared as a NA Land after appropriate exercise undertaken as provided under Section 65 of the Bombay Land Revenue Code and in the instant case having that exercise having not been there, it was not open to the Collector to arrive at the conclusion that the land is a non agricultural land. Though, the said finding is not supported at all on account of the various documents produced on the record namely 7/12 extract issued in the year 2010, the order whereunder the change of tenure was granted namely the orders dated 08.09.2004 and 30.11.2005. When these are the documents produced before the Deputy Collector as well as the concerned authority i.e. Controlling Authority, question arises as to was there any justification on their part to ignore these factors and even go beyond the provision of State's Annual Statement Rates, which also had not envisaged developed land as it is but it provides that the land should be non agricultural land. The plain reading of Clause 18 reproduced at page no.95 on the compilation also indicate unequivocally that there has to be a transfer of land by way of purchase under Sections 63(A) and 63 (AA). Admittedly, those sections are not pressed into service so far as the present petitioner and/or his predecessors are concerned in the entire transaction.
The Court hasten to add here that Court has not opined in respect of other nitty-gritty which would otherwise raise a serious doubt with regard to the transaction on the land in question. Suffice, it to say here that the Court has examined this matter from the point of view of exercise of power or duty under Section 32A of the Stamp Duty Act and therefore, it has to confine itself qua the question raised. In my view, even plain reading of Clause 18, as reproduced at page 95 of the compilation, also does not show that there exists any order which would justify invoking that Clause and if that Clause is not invocable, then there exists no basis whatsoever on the part of the Collector to arrive at a conclusion and therefore, orders impugned in this petition being bereft of merits, deserves quashment and accordingly it is quashed.
The Controlling Authority has unfortunately not appreciated this aspect and straightway upheld the order on the same reasoning and therefore, the order of Controlling Authority is also required to be quashed and set aside. Orders accordingly. The matter is remanded back to the concerned Deputy Collector for deciding it afresh in accordance with the provision of Section 32A of the Stamp Act and bearing in mind that whether applicability of Clause 18 is invocable in peculiar facts and circumstances of the present case. The Court has left it open to the Deputy Collector to examine it afresh and record its specific reasoning whether the Clause 18 is applicable. Rule made absolute. No costs.
(S.R.BRAHMBHATT, J.) Pankaj Top