Heard learned advocate for the petitioners.
Learned advocate appearing for the petitioners submitted that the petitioner Association has locus to maintain this petition and even on earlier occasion also, this very petitioner Association had preferred Special Civil Application No. 15431 of 2008 on issuance of various circulars in respect of and under the provisions of Gujarat Stamp Act, 1958 and he has produced the inquiry sheet as well as order in said matter, whereby, the Court has disposed of the matter and thus, on a ground of judicial comity, he is urging the court may not non-suit the petitioner Association on the ground of locus, as ex-facie the circulars impugned in this petition are contrary provision of law and so obnoxious as to shake the conscious of any citizen and therefore, the petition may not be dismissed at the outset on the ground of locus. Let there be an opportunity to the petitioners for satisfying the court on the ground of locus. Learned advocate appearing for petitioner also relied upon the decision of the Division Bench in case of Kesubhai Panabhai Solanki Vs. Dahyaji Babaji Thakore & ors. reported in 2012 (1) GLR p-719 and submitted that the concept of locus standi in light of the observations made thereunder so far as Article 226 is concerned, is undergoing change and in light of those observations also, the Court may not non-suit the petitioners at this stage.
Learned advocate appearing for petitioners invited this court's attention to the impugned correspondence/resolution wherein, the instructions are issued to the registering authority not to accept the documents, which does not indicate the market value of the property as prescribed under the Annual Statement of Rates popularly known and referred to as 'Jantri' in vernacular. This circular dated 2.4.2011 is amounting to curtailing the entire discretion vested in the concerned authority which is a statutory authority functioning under the Gujarat Stamp Act, 1958. The authority, therefore, cannot be restricted in exercise of its discretion to act or rely upon the instructions so as to make those instructions binding upon them and to that extent, his discretion is absolutely nullified.
Learned advocate appearing for petitioners invited this court's attention to the provisions of Sections 31, 32, 32A, 53A and submitted that this provisions are required to be read into harmony of definition of 'market value' as prescribed under the Stamp Act in form of Section 2(na). He submitted that thus, the property sought to be conveyed by conveyance deed cannot have straight jacket formula of market value, nor can the transfer of property for consideration to govern by the formula prescribed by the State as the Transfer of property depends upon various factors and the area and factors affecting such transactions are so vide and varied as could make it impossible to make any authority take them into consideration and prescribed common market value for them. In other words, discretion of market value at the end of State and State's insistence for taking that value to be the market value, leave no room on the discretion of the officer concerned rendering aforesaid provisions namely Sections 31, 32, 33 nugatory and merely an adjudication as virtually speaking there exists no scope to be discretion to be affected in light of instructions passed to the officer concerned.
This Court is of the considered view that the statement made at bar cannot be brushed aside on the ground of locus-standi at this stage. The plain reading of Sections 31, 32, 32A, 53A read with definition of 'market value' Section 2(na) would persuade any court to hold that complete discretion is vested in the authority, who is entrusted the duty on adjudicating the market value for determining the stamp duty. The Legislature has in its wisdom prescribed appropriate guidelines and factors to be taken into consideration for adjudicating the issue in respect of market value or rather assessing market value of the property, which is subject matter of his consideration. The parties are also at absolute liberty to lead appropriate evidence in form of production of documents and other material to assist the concerned officer in arriving at correct market value of the property in question. When this adjudicatory process is prescribed under the statute as well as the rules available, then a question arises as to how far and to what extent, by executive instructions the statutory provisions could be curtailed, cribbed or conferred to a direction, which is issued by superior authority namely the respondent no.2. This circular leads no room for the authority to invoke his own adjudicatory skill or authority for deciding the market value or assessing the market value of the property in question but he has to follow the market value, which is determined and prescribed for the entire area under the Annual Statement of Rates referred to hereinabove.
In my view, therefore, such a instructions, which is no way merely a guidelines and language whereof is betray, which is mandate to the registering authority or assessing authority cannot be permitted to override the statutory provisions in terms of Sections 31, 32, 32A, 53A read with Section 2(na).
Therefore, this court is of the prima-facie view that matter deserves consideration. Hence, Rule returnable on 11.06.2012. Notice as to interim relief returnable on 11.06.2012. The respondents are directed to place on record by way of affidavit, to be filed by Principal Secretary to the Revenue Department, answering the contentions raised in the memo of petition and following on oath namely:-
Whether the document dated 2.4.2011 is a mandate or a guideline? In case, if it is treated as a mandate, then, under which authority such a mandate is to be issued to the statutory authority, which is carrying out statutory function of assessing the market value of the property mentioned in the conveyance deed referred to him.
Under which provisions of law, the respondent no. 2 could have issued such a direction so as to restrict heavily the statutory function of adjudication and assessment to be carried out in light of statutory provisions mentioned hereinabove.
Under which provisions of law, Annual Statement of Rate could be foisted upon the adjudicatory authority so as to be the sole guiding instructions, leaving no room for discretion to appreciate the evidence adduced, which may indicate contrary to the rates prescribed in Annual Statement of Rates. The State need to be clarified by taking appropriate steps under what circumstances and under what authority of law the market value could be determined by the State itself in respect of property situated in entire State. Whether said discretion of rates could be said to be a scientific rates of taxing rates so as to nullify the discretion of the authority to determine rate of market value or market value in the particular property.
The methodology of assessing the market value undertaken by the State for preparing Annual Statement of Rate be also placed on record. In case, if the State is taking a stand that the Annual Statement of Rate is rate to be accepted as a market rate or to be accepted as a guidelines to the authority, as even if Annual Statement of Rates is partaking characteristic of mere guidelines, then also, to that extent, the authorities' discretion stand restricted and if such a restriction is prescribed, then, there has to be complete discretion for restriction. The discretion which prima-facie cannot be permitted as to amount to infringement upon the statutory provisions without their being any legislative amendment to the existing act of Stamp Duty Act.
Direct service permitted.
(S.R.BRAHMBHATT, J.) pallav Top