SCA/11942/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11942 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SMT. MANJU H. SHAH - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MITUL K SHELAT for the Petitioner. Mr.L.R.Pujari, GP for the respondents. ======================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 13/02/2008 ORAL JUDGMENT 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned order SCA/11942/2007 2/8 JUDGMENT dated 1-3-2007 passed by the respondent no.2-Deputy Collector, Stamp Duty Valuation, Vadodara, calling upon the petitioner to pay the deficit stamp duty with penalty aggregating Rs Rs.2,33,650/-. 2. It was the case of the petitioner that she had purchased the property bearing Survey no. 525 paiki admeasuring 5166 sq.ft situated at village Jetalpur, District, Baroda by executing a sale deed dated 15-2-1992. According to the petitioner, a sum of Rs.4,50,000/- was paid by her to the seller towards consideration and the sale deed was got registered vide registration no.2418/1992 on the same day. It was further the case of the petitioner that on 1-11-2006 , the respondent no.2 forwarded a notice to her titled “second notice” wherein it was stated that the property in question was assessed at Rs.23,95,000/- and the petitioner was called upon to show cause why order of recovery of deficit stamp fee and penalty be not passed against her. According to the petitioner, she then repeatedly sought information as to details of calculation of the market value of the property as also the relative Government Resolutions with regard to stamp duty vide letters dated 6-11-2006, 14-11-2006, 21-11-2006 and 29-11- 2006, however, the respondent no.2 though replied vide letters dated 18-11-2006, 23-11-2006 and 4-1-2007 SCA/11942/2007 3/8 JUDGMENT respectively, failed to supply the information sought for by the petitioner. According to the learned Counsel, the petitioner again on 7-2-2007 sent a detailed reply objecting to any action against the petitioner by pointing out that the respondent no.2- authority itself has assessed lower market value for the property in question as on January 2007 by enclosing therewith relevant valuation report. According to the petitioner, ultimately without paying any heed to the aforesaid communications of the petitioner, the respondent no.2-authority passed the impugned order against the petitioner which is the subject matter of challenge in the present petition. 3. Learned Counsel for the petitioner contended that the impugned order cannot be sustained in the eye of law as the notice has been hit by law of limitation . According to the learned Counsel, the sale deed in question has been executed on 15-2-1992 whereas the notice came to be issued on 1-11- 2006 that is after a period of 14 years from the date of registration of the sale deed. According to the learned Counsel as according to the respondent no.2-authority itself the notice has been issued under Section 32(A)(4) of the Bombay Stamp Act, 1958 according to which the period of limitation expires after completion of six years from the date of registration of SCA/11942/2007 4/8 JUDGMENT the sale deed. The learned Counsel next contended that the impugned order is not a reasoned order inasmuch as even though the petitioner had on several occasions requested for the calculation on the basis of which the market value of the property in question has been determined, the respondent no.2-authority has failed to do so. According to the learned Counsel in absence of any explaining on this aspect there being no cogent and convincing reasons, the impugned order is illegal and improper, and therefore, deserves to be quashed and set aside. 4. In order to make good his submissions, the learned Counsel has relied on the judgment dated 5-12-2001 delivered by this Court ( Coram: Hon'ble Mr. Justice Ravi R. Tripathi) in Special Civil Application no.654/2000 wherein the legal position with regard to expiry of the prescribed period of limitation being six years when a notice is issued under Section 32(A)4 of the Act has been highlighted. It is important to note here that the said decision in Special Civil Application no.654/200 as been upheld by the Division Bench of this Court in L.P.A. no.1425 of 2004 by the Court (Coram: Hon'ble Mr. Justice : B.J.Shethna & M.C.Patel,JJ.) as they then were. 5. As against that, the learned AGP Mr.L.R.Pujari appearing on behalf of the respondents has submitted that alternative SCA/11942/2007 5/8 JUDGMENT and efficacious remedy is available to the petitioner by way of appeal under Section 32(B) of the Act before the Chief Controlling Revenue Authority, and the petitioner having not exhausted that remedy the petitioner should not be entertained by this Court. The learned AGP next submitted that the respondent no.2-authority has by mistake stated that the proceedings are initiated under Section 32(A)4 instead of 32(A)1 of the Act. According to the learned AGP there is no time limit prescribed in case of a Reference under Section 32(A)1, and therefore, also the petition is not maintainable. The learned AGP has next contended that there is no delay in issuance of the notice as the registration of the sale deed was postponed for want of production of Income-tax certificate before the Sub-Registrar as a result of which fresh registration no.370/2002 was given and the document was presented on 19-1-2002. According to the learned AGP, thereafter, upon completing the necessary procedures, notices came to be issued to the petitioner on 16-10-2006 and 1-11- 2006, and therefore,there is no delayed issuance of notice/proceeding. 6. I have heard the learned Counsel for both the sides and carefully examined the entire record of the case. The fact remains that the sale deed has been executed and registered SCA/11942/2007 6/8 JUDGMENT on 15-2-1992 vide registration no.2418/1992 whereas the impugned notice at pages 14 to 17 of the compilation is dated 1-11-2006. There is a recital in the notice that it is issued under Section 32(4) A of the Act. That being so, the period of limitation prescribed would be of six years while in the instant case, it is amply clear that the notice has been issued after a period of fourteen years. The stand taken by the respondent no.2-authority that by mistake it has been stipulated in the notice that it has been issued under Section 32(A)1 under a Reference to the Sub Registrar cannot come to the rescue of the respondent no.2-authority as in that case the respondent no.2-authority should thank himself. The respondent no.2- authority cannot be permitted to take advantage of his own wrong, and that too, after pretty long period of fourteen years. Going through the order dated 1st March, 2003 passed by the Dy. Collector, stamp Duty Valuation, Vadodara, we find that in the order portion it is specifically mentioned as under: “ In exercise of powers vested under Section 32(A) 4 of the Bombay Stamp Act, 1958, the sale-deed was called for examining whether the stamp duty was paid as per the market value according to rules or not.” This clearly shows that suomoto the sale deed was called for , and hence, order is passed under Section 32(A) 4 of the Act as SCA/11942/2007 7/8 JUDGMENT suo moto proceedings came to be initiated by the Dy. Collector, Stamp Duty Valuation, Vadodara. Even (at page 46 of the compilation) in the order portion it is clearly mentioned by the Dy. Collector that: .....”Notice was issued within six years under Rule 4 of Section 32 of the Bombay Stamp Act on 1st November, 2006. This also shows that the Dy. Collector, Stamp Duty Valuation, Vadodara, suo moto initiated the proceedings and passed the order under Section 32(A) 4 of the Bombay Stamp Act, and therefore, by no stretch of imagination can it be said that the notice was issued under Section 32(A) 1 of the Act. Thus, the theory of typographical error having crept in the order/notice in mentioning the wrong Section as submitted by the learned AGP cannot be accepted. In order to substantiate his say, the learned AGP has relied on the judgment rendered in Letters Patent Appeal no.1619 of 2006 in Special Civil Application no.1973 of 2006 with Civil Application no.14863 of 2006 in Letters Patent Appeal no.1619 of 2006 decided on 19-2-2007 (Coram: Honourable the Chief Justice Y.R.Meena and Honourable Mr. Justice A.S.Dave, however, in the facts of the present case, this decision is not applicable. The contention that the petitioner has first to exhaust the alternative remedy available to her also does not assume any significance looking to the patent SCA/11942/2007 8/8 JUDGMENT illegality committed by the respondent-authority in passing the impugned order. As a result of the above conclusion, I find no justification calling upon the petitioner to exhaust the remedy of preferring appeal before the competent authority as it would result in multiplicity of proceedings. 7. In the result, since the notice in question as also impugned order has been passed after an inordinate long period of 14 years there being patent illegality apparent on the face of the record in passing the impugned order, the petition deserves to be allowed and is hereby allowed. The impugned order dated dated 1-3-2007 passed by the respondent no.2-Deputy Collector, stamp Duty Valuation, Vadodara,is quashed and set aside. The respondents are directed to return the sale deed in question to the petitioner forthwith without fail. Rule is made absolute with no orders as to costs. (M.D.Shah,J.)