14. wp 5209­11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5209 OF 2011 Sai Trading Company .. Petitioner Vs State of Maharashtra & Ors .. Respondents Mr. Drupad S. Patil for the Petitioner Mrs. S.S. Bhende, AGP for Respondent Nos. 1 to 6 CORAM : D. D. SINHA & SMT. V.K. TAHILRAMANI, JJ DATE : 21st SEPTEMBER, 2011. P.C.: 1. Heard the learned counsel for the respective parties. 2. Writ Petition is directed against the notices dated 13th March 2007, 15th May 2007 and 19th July 2007 issued by respondent no. 5 as well as recovery notice issued by Tehsildar - Respondent No. 6 in the month of June 2011 by exercising powers under Section 46 read with 174 of the Maharashtra Land Revenue Code, 1966. 3. The learned counsel for the petitioner has submitted that on 27th April 2006, an agreement came to be executed between Sangli, Miraj and Kupwad Municipal Corporation and the 1 14. wp 5209­11.doc petitioner, and the petitioner was appointed as an agent to act on behalf of the Corporation for collection of octroi imposed, assessed and levied by the Corporation under the provisions of Bombay Provincial Municipal Corporation Act 1949 and rules made thereunder. The period of contract was from 1st May 2006 to 30th April 2007. The agreement was for one year and was executed on stamp paper of Rs. 500/-. 4. The learned counsel for the petitioner has submitted that on 13th March 2007, the show cause notice was issued by respondent no. 5 as to show cause why an amount of Rs. 1,29,19,510/- should not be recovered from the petitioner towards deficit stamp duty and amount of Rs. 31,00,682/- towards the penalty. The said notice was issued by respondent no.5 allegedly by exercising powers under Bombay Stamps Act, 1958. It is submitted that no specific provision under which the action is taken, is mentioned in the notice. 5. Similarly, respondent no. 5 issued second notice of demand dated 15th May 2007 whereby the petitioner was called upon to pay an amount of Rs. 1,62,78,583/-. It is further contended that respondent no. 5 again issued another notice dated 19th July 2007 to the petitioner whereby once again demand is made to pay an amount of Rs. 1,62,78,583/ towards deficit stamp duty and penalty. The learned counsel for the petitioner 2 14. wp 5209­11.doc has submitted that representations dated 4th April 2007, 30th July 2007 and 25th April 2011 were submitted before respondent no. 5 against these three demand notices which are pending for decision. It is submitted that respondent no. 5 has not taken any decision on those representations till this date, however, Tehsildar issued impugned recovery notice to the petitioner by exercising power under Section 46 of the Maharashtra Land Revenue Code 1966. It is contended that direction be given to respondent no.5 to decide the representations of the petitioner by following principles of natural justice and show cause notices issued by respondent no. 5 as well as recovery notice issued by Tehsildar may be set aside. 6. The learned AGP does not dispute the factual aspect of the matter, however supported the action of respondent no. 5 as well as Tehsildar. It is submitted that the deficit of stamp duty and penalty thereon was payable under Section 39(1)(b) of the Bombay Stamp Act, 1958. It is not disputed by the learned counsel for the State that recovery notice is issued by the Tehsildar since the amount which was due and payable by the petitioner towards the deficit stamp duty as well as penalty imposed thereon, the action is initiated for recovery of amount by the Tehsildar. 7. We have considered the contentions canvassed by the 3 14. wp 5209­11.doc respective counsel. In the backdrop of the above referred facts, it appears that respondent no. 5 issued above referred recovery / demand notices to the petitioner whereby the petitioner is called upon to make payment of deficit stamp duty and penalty imposed by respondent no. 5. In the instant case, it is not in dispute that the petitioner submitted representations against the demand notices issued by respondent no. 5 as referred herein above which are pending for decision before respondent no. 5. The agreement in question was executed between the petitioner and Sangli, Miraj and Kupwada Municipal Corporation, for a period of one year commencing from 1st May 2006 to 30th April 2007. The show cause notices were issued by respondent no. 5 in the year 2007 and the petitioner submitted their representations against the said show case notices which are pending for decision before respondent no. 5. Taking into consideration the peculiar facts and circumstances of the present case, we are of the view that it will be appropriate for respondent no. 5 in the interest of justice to reconsider the issue of payment of deficit stamp duty and penalty afresh in accordance with law and the procedure applicable in this regard by following principles of natural justice. 8. So far as the recovery notice dated June,2011 issued by Tehsildar is concerned, since we are remanding the matter 4 14. wp 5209­11.doc back to respondent no. 5 to reconsider the issue afresh, it will be appropriate to quash and set aside the recovery notice issued by Tehsildar dated June, 2011 at this stage. If the contingency arises in future, it will be open for the Tehsildar to issue fresh demand notice or recovery notice under the provisions of Maharashtra Land Revenue Code. 9. For the reasons stated herein above, the demand / show cause notices dated 13th March 2007, 15th May 2007 and 19th July 2007 issued by respondent no. 5 are hereby quashed and set aside. The recovery notice issued by Tehsildar dated June 2011 is also quashed and set aside. 10.The matter is remanded back to respondent no. 5 to reconsider the issue of payment of deficit stamp duty as well as penalty in accordance with law and procedure applicable in this regard on its own merit by following principles of natural justice within a period of eight weeks from the date of communication of this order. 11.For the reasons stated herein above, Writ Petition is disposed of accordingly. [ SMT. V.K. TAHILRAMANI, J ] [ D. D. SINHA, J ] 5 14. wp 5209­11.doc 6