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SCA/4265/2010 4/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4265 of 2010
=========================================
VALLABHBHAI
AMBABHAI SHAVSHANI
Versus
DEPUTY
COLLECTOR & 2
=========================================
Appearance
:
MR RAJESH K SHAH for Petitioner
MR
ASHVIN J POPAT for Petitioner
NOTICE SERVED for Respondent
Nos.1-2
MS MANISHA NARSINGHANI AGP for Respondent
No.3
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 11/05/2010
ORAL
ORDER
[1] The
petitioner has filed this petition under Article 226 of the
Constitution of India praying for quashing and setting aside the
communication dated 25th March, 2010. The petitioner has
also prayed for the direction to the respondent authority to
reconsider the case of the petitioner and to decide the same on
merits. The petitioner has also prayed for stay against the
implementation and execution of the notice dated 26th
February, 2010 issued under Rule 118 of the Bombay Land Revenue
Rules.
[2] This
Court has issued notice on 8th April, 2010 with a
direction to the petitioner to deposit an amount of Rs.2,500/- before
this Court on or before the returnable date. The said amount has been
deposited by the petitioner before the Registry of this Court. The
Court has also directed the respondents to clarify as to whether the
notice as well as the impugned order issued by the Deputy Collector
are served on the petitioner, and if they are served, the proof of
service must be produced on the record of this petition.
[3] Pursuant
to the said notice, an affidavit-in-reply is filed on behalf of the
respondent along with certain documents and extracts of dispatch
register are produced on record. The petitioner has also filed
rejoinder affidavit to the said affidavit-in-reply.
[4] Heard
Mr.Rajesh K. Shah, learned advocate appearing on behalf of the
petitioner and Ms.Manisha Narsinghani, learned AGP appearing on
behalf of the respondent No.3.
[5] It is
the case of the petitioner that the petitioner has purchased the
property by registered sale-deed dated 3rd February, 2001.
The respondent No.1 Deputy Collector and Stamp Duty Assessment
(Market Value) has valued the property in question at Rs.4,15,148/-
and demanded the deficit stamp duty of Rs.29,520/- and fine of
Rs.250/-. The notice was initially served on 6th February,
2002 on the petitioner and, thereafter, second notice was issued on
6th June, 2002. The said notice was received by the
petitioner on 18th July, 2002. The final order was passed
by the Deputy Collector on 16th August, 2002. It is the
case of the petitioner that the final order has not been received by
the petitioner. The petitioner came to know about the final order
only when the notice of recovery was issued in 26th
February, 2010. The petitioner, thereafter, approached to the Deputy
Collector by way of filing an application dated 23rd
March, 2010 for issuance of challan of 25% of the amount of deficit
stamp duty, for the purpose of filing an appeal before the Chief
Controlling Revenue authority. However, the said application was
rejected by communication dated 25th March, 2010 on the
ground that the appeal may be filed beyond the period of limitation
and hence, the challan was not issued.
[6] In
above circumstances, the present petition is filed by the petitioner
by invoking the writ jurisdiction under Article 226 of the
Constitution of India.
[7] The
main grievance of the petitioner is that as per the mandatory
provisions of Rule 7(4) of the Bombay Stamp (Determination of Market
Value of Property) Rules, 1984, the notice and / or order should be
served on the petitioner by registered post A.D. Admittedly, the
final order was not served on the petitioner by registered post A.D.
and was not received by the petitioner and hence, the order stated to
have been sent by ordinary post is in violation of the provisions
contained in Rule 7(4) of the said Rules and hence, it cannot be said
to be a valid service of the order. Since the certified copy of the
order was received by the petitioner only on 23rd March,
2010 and the petitioner has applied for challan, the respondent
authority should not have rejected the said application on the ground
of limitation.
[8] Mr.Rajesh
K. Shah, learned advocate appearing for the petitioner has,
therefore, urged before the Court that the respondent authority
should be directed to issue challan of the amount of deficit stamp
duty so as to enable the petitioner to prefer an appeal before the
Chief Controlling Revenue Authority.
[9] Ms.Manisha
Narsinghani, learned AGP appearing for the respondent No.3, on the
other hand, has submitted that the first notice was served to the
petitioner on 6th February, 2002 calling upon him for
hearing on 23rd February, 2002 and second notice was
issued on 6th June, 2002. The final order was passed on
16th August, 2002. She has further submitted that the
second notice was sent by registered post A.D. The petitioner,
therefore, was aware of the fact that the final order came to be
passed pursuant to the said second notice. The petitioner has not
inquired further about the order though it was passed in August, 2002
and entry of service of the order was made in the dispatch register.
She has further submitted that from the dispatch register, it is
clearly revealed that the order was dispatched on the same address at
which the earlier notices were issued and received by the petitioner.
She has, therefore, submitted that there is proper compliance of rule
7(4) of the said Rules and the petitioner cannot take the shelter of
the said Rules simply it was stated that the notice and / or order
shall be served by registered post A.D. She has further submitted
that if the necessary proof regarding the service is produced before
the Court by way of dispatch register the same shall not be disputed
or challenged before the Court after number of years. She has,
therefore, submitted that the order passed by the Deputy Collector in
2002 cannot be made subject matter of challenge in 2010 either before
the Chief Controlling Revenue Authority or before this Court and
hence, the petition is required to be dismissed.
[10] Having
heard learned advocate appearing on behalf of the petitioner and
learned AGP appearing on behalf of the respondent No.2 and having
considered the rival submissions in light of the documents produced
before the Court, this Court is of the view that though the mandatory
requirement contained in Rule 7(4) of the Rules has not been complied
while sending the final order by ordinary post, it is difficult to
believe that the said order has not been received by the petitioner.
Though earlier two notices were issued by the respondent
authorities, one notice was issued by registered post A.D., and the
same was duly received by the petitioner and the petitioner has not
disputed the receipt of the said notice. Immediately after one month
the order was passed by the Deputy Collector and the said order was
sent on the same address at which earlier notices were issued. The
final order was sent by ordinary post, the entry of which is made in
the dispatch register and the extract of the dispatch register is
produced before the Court. In this view of the matter, there is no
question of any doubt or dispute that the final order was dispatched
by the respondent authority at the address of the petitioner.
Though the said order was received by the petitioner in the year
2002 only and once the petitioner’s liability under the Act, has been
fixed, the petitioner has taken the shelter of Rule 7(4) of the Rules
which is not permissible. The person should come to the Court with
clean hands and the very fact that on receipt of the notice dated
26th February, 2010, the petitioner approached the
authority by way of letter dated 25th March, 2010 whereby
the petitioner was asked to make the payment of the deficit stamp
duty. At that time, the petitioner has not raised any dispute. On the
basis of legal advice, the whole story was made out by the petitioner
with regard to the non-receipt of the notice. The conduct of the
petitioner does, therefore, not generate any confidence in the Court.
The Court has not accepted the contentions that the final order was
not received by the petitioner in 2002. The challenge to the said
order in 2002 cannot be entertained.
[11] In
view of the above discussions, the Court is not inclined to accept
the petitioner’s case. The petition is accordingly, dismissed. The
amount of Rs.2,500/- deposited by the petitioner before the Registry
of this Court is ordered to be released in favour of the respondent
authorities. Notice is discharged.
[
K. A. PUJ, J. ]
(vijay)
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