IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9066 of 2004 to SPECIAL CIVIL APPLICATIONNo 9070 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE M.R. SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PRUSHOTTAMNAGAR CO-OP HOSG. SOCIETY LTD (VIBHAGI) Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9066 of 2004 MR RS SANJANWALA for Petitioner No. 1 Mr.A.D.Oza, learned G.P. for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.R. SHAH Date of decision: 18/12/2004 ORAL JUDGEMENT #. Since the common question of law and facts arises in all these matters, the same are being disposed of by this common order. #. In all these petitions filed under Article 226 of the Constitution of India, respective petitioners have challenged the legality and validity of initiation of the proceedings by respondent no. 2 under Section 32-A of the Bombay Stamp Act (`the Act' for short) with regard to the documents in question. Another prayer is with regard to quashing and setting aside the reference made by respondent no. 2 to respondent no. 3 by exercising powers under Section 53 (2) of the Act. #. It is the case of the petitioners that respective petitioners have purchased the property in question in the public auction in pursuance of the order passed by the Charity Commissioner vide order dated 20.06.1991 exercising powers under Section 36 of the Bombay Public Trusts Act, 1950. All the petitioners paid Rs.2,28,49,950/- towards sale consideration with regard to the entire parcel of land. It appears from the record that special civil application no. 4977 of 1995 came to be filed before this Court challenging the order dated 17.06.1991 passed by the State Government under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 and also the order dated 20.06.1991 passed by the Charity Commissioner while exercising the powers under Section 36 of the Bombay Public Trusts Act, 1950 with regard to the land in question which came to be purchased by the respective petitioners. In that special civil application, civil application nos. 2974, 4106 and 5400 of 2003 came to be filed which also came to be heard along with the main special civil application. The aforesaid special civil application as well as civil applications came to be finally disposed of by the learned single Judge of this Court (Coram : K.A.Puj, J) by His judgment and order dated 22.08.2003 and this Court dismissed the main special civil application. However, this Court has considered the offer made by the petitioners to deposit the amount of Rs.1.5 crore over and above the price of Rs.2,28,49,950/-. Thus, the petitioners / purchasers were required to pay amount of Rs.2,28,49,950/- + Rs.1.5 crore towards sale consideration. #. Being aggrieved and dissatisfied by the judgment and order of this court dated 22.08.2003 passed in special civil application no.4977 of 1995, letters patent appeal came to be filed before the Division Bench of this Court and the Division Bench of this Court (Coram : J.M.Panchal and A.M.Kapadia, JJ) by its order dated 27.08.2003 dismissed the civil application as well as letters patent appeal confirming the order passed by the learned single Judge in the aforesaid special civil application no. 4977 of 1995. Being aggrieved and dissatisfied with the same, one of the persons who was party to the aforesaid litigation approached the Hon'ble Supreme Court and the Hon'ble Supreme Court disposed of the special leave petition considering the offer made by the purchasers to enhance their offer by another Rs. 1 crore and accepting the same, the Hon'ble Supreme Court passed the order that there will be no further bidding in the Court proceedings. Considering the aforesaid statement of enhancing the offer by the purchasers by another Rs. 1 crore, the order passed by the Hon'ble Supreme Court reads as under : "We have heard the learned counsel for the petitioner as also the learned counsel for the respondent no. 6 present on caveat. We have grave doubts if the petitioner has any locus standi to prosecute this petition in this Court as the finding of the High court on this point is against the petitioner. However, during the course of hearing after obtaining instructions from the respondent no. 6, his learned counsel made a statement at the bar that respondent no. 6 enhances his offer by another Rs. 1 crore and submits that this amount, over and above what he has already deposited, shall be deposited within a period of three months from today and in that regard an undertaking on an affidavit by a competent person shall be filed within a period of two weeks before the Charity Commissioner. We take the statement of the counsel for respondent no. 6 on record as an undertaking on behalf of respondent no. 6, to be followed by a written undertaking to be filed within two weeks as already stated hereinabove. The statement and the offer made on behalf of the respondent no. 6 matches the offer that was made by the petitioner. The learned counsel for the petitioner sought to revise the petitioner's offer but we are not inclined, in the facts and circumstances of the case, to permit bidding in the Court proceedings. We accept and take on record the offer made on behalf of respondent no. 6 and in that view of the offer, dismiss the special leave petition. However, we make it clear that in case the respondent no. 6 does not honour the offer made on his behalf the suit property shall be liable to be disposed off by an open auction." Thus, the petitioners / purchasers were required to pay, in all, Rs.4,78,49,950/- (Rs.2,28,49,950/- + Rs.1,50,000/- + Rs.1 crore). #. It appears from the record that the documents in question came to be executed between the parties after disposal of the aforesaid Special Leave Petition by the Honourable Supreme Court and on payment of Rs.4,78,49,950/-. That, thereafter, respondent No.2 issued the impugned notice dated 22.6.2004 under Rule 4 of the Market Value Rules, 1984 ("the Rules" for short) calling upon the respective petitioners to appear before him and to produce necessary evidence in support of the market value determined by them which is reflected in the respective sale deeds. It is required to be noted that, in fact, the petitioners paid the stamp duty on the amount of Rs.2,28,49,950/- in all. Being aggrieved by and dissatisfied with the impugned notice issued under Rule 4 of the Rules dated 22.6.2004, the petitioners have preferred the present petitions. #. During the pendency of the present special civil applications, by way of interim order dated 27.07.2004, this Court (Coram : D.N.Patel, J ) directed the concerned respondent authority to decide the notice issued under Rule 4 of the Rules on or before 27.07.2004 upon reply, if any, that may be filed by the petitioners. Instead of deciding the notice issued under Rule 4 of the Rules dated 22.06.2004, respondent no. 2 Dy.Collector made reference to respondent no. 3 for giving his opinion as required under Section 53 (2) of the Act, as, according to him the petitioners are required to pay the stamp duty of Rs.4,78,49,950/- instead of stamp duty of Rs.2,28,49,950/-. By way of amendment, the petitioners have also challenged the said reference which is made vide reference dated 26.08.2004. #. Mr.Sanjanwala, learned senior advocate appearing for the respective petitioners have submitted that as such the petitioners are required to make the payment of stamp duty only on Rs.2,28,49,950/- as further amount of Rs.1,50,00,000/- was agreed to be paid by the respective petitioners due to loss of interest because of the litigation for the period between 1991 till this court has decided the aforesaid special civil application no. 4977 of 1995 and, therefore, it cannot be considered to be sale consideration. He submitted that impugned notice dated 22.06.2004 issued under Rule 4 of the Rules is without jurisdiction. He further submitted that when this Court has passed the order on 27.07.2004 directing respondent no. 2 to decide the notice dated 22.06.2004 issued under Rule 4 of the Rules, respondeat no. 2 should not have made reference to respondent no. 3 under Section 53-2 of the Act. He submitted that by this, the petitioners would be losing one chance of appeal and therefore respondent no. 2 should not have referred the documents to respondent no. 3. #. Mr.A.D.Oza, learned G.P. appears for the respondents. Affidavit-in-reply is filed on behalf of the concerned respondents. It is submitted that interpretation on the part of the petitioners to the effect that they are required to make payment of stamp duty on Rs.2,28,49,950/- is not correct. He has drawn the attention of this Court to the order passed by the Hon'ble Supreme Court in the aforesaid special leave petition to the effect that learned advocate appearing for the respective petitioners / purchasers have raised their offer for payment of further amount of Rs.1 crore before the Hon'ble Supreme Court and therefore on that the Hon'ble Supreme Court has stated that there will not be any further bidding, meaning thereby, when the offer is raised it is required to be considered as sale consideration and therefore the interpretation of the petitioners to pay the stamp duty on Rs.2,28,49,950/- is not correct and even it is contrary to the order passed by this court and Hon'ble Supreme Court. He further submitted that as such the concerned department was not party to the aforesaid proceedings and therefore they had not got any opportunity to point out the correct market value of the property in question. He submitted that as such the proceedings are at present at the show cause notice stage and according to him and according to the respondent authorities, the petitioners are required to pay the stamp duty on the market price to be fixed considering the jantri and therefore this court should not entertain this petition at this stage. #. At this stage, Mr.Sanjanwala, learned advocate appearing for the petitioners, has voluntarily agreed that the petitioners would make the payment of the stamp duty on Rs.4,78,49,950/- treating the same as sale consideration as considered by the Honourable Supreme Court. It is further submitted that difference of stamp duty between Rs.4,78,49,950/- and Rs.2,28,49,950/- would be paid by the petitioners within a reasonable time as may be directed by this Court. ##. Heard the learned advocates for the respective parties. ##. In view of the statement made by the learned advocate for the petitioners to pay the additional stamp duty considering the sale consideration at Rs.4,78,49,950/- now reference itself has become infructuous, as, reference is made by the Deputy Collector mainly considering the fact that according to him the petitioners are require to pay the amount of stamp duty not on Rs.2,28,49,950/-, but, at least, on Rs.4,78,49,950/-. Under the circumstances, now on payment of deficit stamp duty considering the stamp duty on Rs.4,78,49,950/- instead of Rs.2,28,49,950/- nothing further is required to be done by respondent No.3 on reference under Section 53(2) of the Act at present. ##. In view of the fact that respective petitioners have agreed to pay additional stamp duty considering the market value at Rs.4,78,49,950/- the respondents are required to be directed to return the original documents subject to further order that may be passed in the proceedings under Section 32-A of the Act. ##. In view of the fact that the proceedings are at show cause notice stage before respondent No.2 in pursuance of the notice under Rule 4 of the Rules dated 22.6.2004 and respondent No.2 is yet to apply his mind and decide the same after giving opportunity to the petitioners and considering the reply, if any, that may be filed by the petitioners, these petitions are not entertained at this stage, as, the same are at present premature. It will be open for the petitioners to contend before respondent No.2 with regard to the price considered by this Court as well as by the Honourable Supreme Court, but, in any case, the petitioners cannot contend now that they are not required to make the payment of stamp duty on Rs.4,78,49,950/-. It will be open for the petitioners to take all contentions which are available to them inclusive of that respondent No.2 cannot now in view of the order passed by the Honourable Supreme Court cannot determine the market value more than Rs.4,78,49,950/-. It will be open for the petitioners to file detailed reply within a period of four weeks from today and on receipt of the same, respondent No.2 is directed to pass appropriate orders on its own merits and in accordance with law under Section 32-A of the Act considering the reply and the submissions that may be made by the respective petitioners within a period of three months thereafter. ##. For the reasons stated above, the petitions partly succeed. On payment of the deficit stamp duty and the difference of duty between Rs.4,78,49,950/- and Rs.2,28,49,950/- along with interest at the rate of 9% from the date of execution of the documents till the actual payment is made, the concerned respondent is directed to return the original documents to the respective parties. However, it is made clear that return of the aforesaid documents will be subject to the ultimate outcome of the proceedings which are yet to be finalised in the proceedings under Section 32-A of the Act. Rule is made absolute to the aforesaid extent with no order as to costs. (M.R.Shah,J) (pathan)