1 wp-1532-10 jpc IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1532OF 2010 Neetu Narain Tolani Flat Nos. 2 & 3, Ground Floor, “Mahalaxi Mahal”, Mahalaxmi Mandir Compound, Bhulabhai Desai Road, Mumbai 400 026 Versus 1. The Superintendent of Stamps, Mumbai General Stamp Office, Town Hall, Fort, Mumbai 400 023 2. The Collector of Stamps Old Custom House, 3 rd Floor, Fort, Mumbai 400 023 3. The Additional Controller of Stamps General Stamp Office, Town Hall, Fort, Mumbai 400 023 4. The Sub-Registrar and Administrative Officer for Mumbai District Old Custom House, 3 rd Floor, Fort, Mumbai 400 023 .. Respondents .... 2 wp-1532-10 Mr. A. V. Chatuphale for the Petitioner Mr. Niranjan Pandit, AGP for the Respondents .... CORAM: S. J. KATHAWALLA, J. DATED: 1 st September, 2010. JUDGMENT 1. Heard learned Advocate for the Petitioner as well as learned AGP for the Respondents. 2. Rule. 3. Learned AGP appearing for the Respondents waives service. 4. By consent of the parties, Rule made returnable forthwith and the Petition is taken up for final hearing. 5. By this Writ Petition, the Petitioner seeks to challenge the order dated 31st March, 2010 passed by the Respondent No.3 (Additional Controller of Stamps) in an Appeal preferred by the Petitioner against the order of the Respondent No.2 ( the Collector of Stamps). 6. Brief facts giving rise to this Petition are as under: 3 wp-1532-10 i. The Petitioner, by an agreement for sale dated 14th January, 2000, purchased two flats from the Vendors being Flat Nos. 2 and 3 admeasuring 1020 sq. ft. (built up) area on the ground floor of the building known as “Mahalaxmi Mahal” situated at Mahalakshmi Mandir Compound, Bhulabhai Desai Road, Mumbai 400 026 (the said building) for a total consideration of Rs.45,00,000/- (Rupees forty five lacs only). The said agreement for sale was duly registered with the Sub-Registrar of Assurances, Mumbai on 14 th January, 2000 having paid a sum of Rs. 20,000/- towards registration fees and Rs.3,18,750/- towards stamp duty. ii. The Respondent No.1 issued a demand notice dated 27 th June, 2002 to the Petitioner, inter alia calling upon the Petitioner to deposit the deficit stamp duty as contemplated under Section 25(d) of the Bombay Stamps Act, 1958 (the said Act) as the said instrument dated 14 th January, 2000 was impounded under section 33 of the said Act by the Sub-Registrar. The Respondent No.1, vide the said notice, demanded an amount of Rs.9,04,670/- alongwith penalty at the rate of 2% per month on the unpaid duty. 4 wp-1532-10 iii. Thereafter, correspondence was exchanged between the Petitioner and the Respondents and further notices were issued to the Petitioner. The Petitioner being aggrieved by the Notice dated 17 th June, 2009, by her letters dated 13 th August, 2009 and 10 th September, 2009 presented her case before the Respondent No.2. The Respondent No.2, by his order dated 19 th September, 2009 passed under Section 32-A of the said Act, held that the Petitioner is liable to pay deficit stamp duty of Rs.5,85,920 alongwith penalty of Rs.1000/- The Petitioner, being aggrieved by the said order dated 19 th September, 2009, preferred a statutory Appeal before the Respondent No.3. The Respondent No.3 has reduced the market value of the property by 10% from Rs. 1,18,23,840/- to Rs.1,06,41,500/- after taking into account the contention of the Petitioner that the property is situated in a congested area having no proper access to the fire fighting vehicles, ambulances etc. The Petitioner being aggrieved by the order passed by the Respondent No.3 dated 31st March, 2010/12th April, 2010, has filed the present Writ Petition. 5 wp-1532-10 7. The learned Advocate appearing for the Petitioner has submitted before this Court that the Respondent No.3 has, without application of mind passed the impugned order by not appreciating.__ i. That the Respondent No.2 has not considered the necessary ingredients while assessing the correct market value of the property such as free access to the vehicles of the owners of the property, free access to the fire fighting vehicles, ambulances, etc. ii. That the Respondent No.2 has not taken into account the comparable instances in respect of the other flats in the same building, which transactions have taken place in the year 2005-2006. iii. That the Respondent No.2 even after carrying out the inspection of site on 18.04.2009 has not considered that the construction is not only old but is in very bad condition. iv. That the Respondent No. 2 has not considered that the property is not located on the main road named as Bhulabhai Desai Road. 6 wp-1532-10 8. The learned Advocate appearing for the Respondents has taken this Court through the detailed affidavit filed on behalf of the Respondent Nos. 2 and 3 dated 27 th August, 2010 alongwith its annexures and has submitted that each and every grievance of the Petitioner has been considered and dealt with by the Respondent No.2 as well as Respondent No.3. It is submitted that in fact Respondent No.3 has reduced the market value of the said property by 10% from Rs.1,18,23,840/- to Rs.1,06,41,500/- after taking into account the relevant circumstances, including the contention of the Petitioner that the property is situated in a congested area having no proper access. It is submitted that the orders passed by the Respondent Nos. 2 and 3 can, by no stretch of imagination said to have been passed without application of mind. Such allegations on the part of the Petitioner is devoid of any substance or merit and the Writ Petition deserves to be dismissed with costs. 9. I have considered the submissions made on behalf of the Petitioner. I have also perused the detailed affidavit filed on behalf of the Respondent Nos. 2 and 3 in response to the Petition. The allegation of the Petitioner that while assessing correct market value of the property, facts, such as lack of free access to the vehicles of the owners of the property, free access to the fire fighting 7 wp-1532-10 vehicles, ambulances etc. are not considered, is incorrect. The impugned order shows that the same have been considered by the Respondent No.3 who has, after appreciating the said facts granted 10% reduction in the market value, thereby reducing the market value of the property from Rs. 1,18,23,840/- to Rs.1,06,41,500/-. The contention of the Petitioner namely that the Collector of Stamps has failed to take into account the comparable instances in respect of the other flats in the same building, which transactions have taken place in the years 2005-2006, also cannot be accepted. In fact the said two comparable instances which were relied upon by the Petitioner were considered by the Respondent No.2. In both the said instances referred to by the Petitioner, the concerned purchasers have in fact paid the entire stamp duty as computed in their respective cases. In each of the said two instances, the market value of both the flats was computed by the stamp authority according to the Annual Statement of Rates (ASR) for the relevant zone and the relevant year viz. 2005 in one case and 2006 in another case. The market value of the said two flats in the said comparable instances was calculated for granting depreciation in accordance with the guidelines of the ASR. The stamp duty was computed and charged according to the stamp duty rates for flats for the relevant years in each of the said two instances. In respect 8 wp-1532-10 of the Petitioner’s flat also, the market value has been arrived at according to the ASR for the relevant year i.e. 2000 and by granting depreciation as per the guidelines of ASR. The Petitioner’s flat being 19 years old at the time of purchase, 20% depreciation has been granted while calculating the market value as per the guidelines of the ASR. In the said two instances of sale, depreciation of 30% has been granted while calculating the market value as the building and the flat were 24 and 25 years old respectively at the time of the said transactions. The said depreciation has been granted according to the guidelines of the ASR. Therefore, the grievance of the Petitioner on this ground is also untenable and baseless and is rejected. 10. As regards the contention advanced on behalf of the Petitioner that the property is not located on the main Bhulabhai Desai Road, the Respondent Nos. 2 and 3 have in their Affidavit correctly pointed out that the Petitioner herself has candidly stated in the Petition that her flats are situated in the building known as ‘Mahalxmi Mahal’, Mahalakshmi Mandir Compound at Bhulabhai Desai Road, Mumbai. The Respondent Nos. 2 and 3 have further pointed out that in any event the contention of the Petitioner that the Respondents have taken into account the rate applicable to Bhulabhai Desai Road is incorrect, in as much as the rate 9 wp-1532-10 applicable for flats on the main Bhulabhai Desai Road for the year 2000 as per the ASR was much higher i.e. Rs.15,525/- per sq. ft. whereas the rate which was made applicable to the Petitioner’s flat was Rs.14,490/- per sq. ft. i.e. the rate applicable for building on land on East Side, vertical slope of Khamballa Hill, on West Side Arabian Sea, on South Side August Kranti Marg and on North Side Keshavrao Khade Marg from Haji Ali to sea, complete sea side portion. In view thereof, this contention advanced by the Petitioner also deserves to be rejected. 11. Under the circumstances, I am of the view that the Respondents have taken into account the relevant circumstances and have arrived at the market value of the flats in accordance with law and have computed the stamp duty at the applicable rates. The Petitioner’s contention that the orders are passed without application of mind and are perverse is totally devoid of any substance. Under the circumstances, the Rule stands discharged and the above Writ Petition is dismissed with no order as to costs. ( S. J. KATHAWALLA, J.)