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SCA/11604/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11604 of 2008
=========================================================
PRATAPJI
HIRAJI THAKOR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
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Appearance :
MR
UMANG K CHOKSI for Petitioner(s) : 1,
MR
NEERAJ SONI AGP for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 24/09/2008
ORAL
ORDER
1 Rule.
Learned Assistant Government Pleader waives service of Rule on behalf
of respondent. At the request of learned counsel for the parties,
this petition is taken up for final hearing.
2
By this petition under Article 226 of the Constitution of India, the
petitioner calls in question the legality, validity and propriety of
the order dated 25.2.2000 passed by respondent No.3, whereby, the
petitioner is called upon to pay deficit stamp duty on the instrument
pending for registration.
3 Learned
counsel appearing for the petitioner and the learned Assistant
Government Pleader both have jointly submitted that the subject
matter of the present petition is squarely covered by the decision of
this Court [Coram: Jayant Patel, J.] dated 8th August 2008
rendered in Special Civil Application No.10177 of 2008, wherein, in
identical case, after considering the submissions of the learned
Assistant Government Pleader, this Court issued the following
directions in paragraphs 15 and 16:
15. Considering
the aforesaid, in any case so far as the present petition is
concerned, the impugned orders of the Deputy Collector and of the
appellate authority both are quashed and set aside, and the matter
shall stand restored to the Deputy Collector. The petitioner shall
appear before the Deputy Collector within two weeks from today by
submitting the reply to the show cause notice, and the Deputy
Collector shall pass fresh order in accordance with law. In the
event the petitioner is aggrieved by the order, which may be passed
by the Deputy Collector after giving opportunity of hearing to the
petitioner, the petitioner shall be at the liberty to resort to the
appropriate proceedings in accordance with law.
16. It
is also observed that:
1)
It would be open to the State Government to treat orders passed by
the Deputy Collector as well as by the appellate authority under the
Act for assessment of the deficit stamp duty, as not in operation,
if such decisions have been taken on or before 15.05.2007.
2)
As a consequence of the aforesaid, it would also be open to the
State Government to intimate the decision to all Deputy Collectors
or the appellate authorities as the case may be, to treat the orders
for adjudication of the stamp duty, which are passed prior to
15.5.2007, as not in operation and consequently no recovery is to be
effected pursuant to such orders.
3)
It would also be open to the State Government to intimate all
authorities under the Act, may be the Deputy Collector or the
appellate authority as the case may be to consider and treat the
proceedings as restored at the level of the Deputy Collector from
the stage of show cause notice, if already issued and received by
the person concerned or in absence thereof for issuance of the fresh
show cause notice in accordance with law.
4)
The State Government shall be at the liberty to communicate to the
Deputy Collector or the appellate authority as the case may be that
on account of the restoration of the proceedings, at the level of
the Deputy Collector, it would be required for the concerned Deputy
Collector to consider the proceedings a fresh in accordance with
law, after giving opportunity of hearing to the person concerned and
thereafter, to pass a fresh order in accordance with law.
5)
It is clarified that the aforesaid directions shall apply only in
cases –
A)
of documents which are pending for registration, but presented prior
to 15.5.2007.
B)
of documents which were presented and registered prior to April
2000, but references were made for determination of the market value
under Section 32 A of the Act to the concerned authority.
However,
in all such cases, the requirement would that the deficit stamp duty
with or without penalty is not paid by the person concerned against
whom the order has been passed.
6)
Liberty to either side to apply in case of difficulty.
4 In
view of the above, the following directions are issued:
The
impugned order is quashed and set aside and the matter shall stand
restored to the Deputy Collector.
The
petitioner shall appear before the Deputy Collector within two weeks
from today by submitting the reply to the show cause notice, and the
Deputy Collector shall pass fresh order in accordance with law.
In
the event the petitioner is aggrieved by the order, which may be
passed by the Deputy Collector after giving opportunity of hearing
to the petitioner, the petitioner shall be at the liberty to resort
to the appropriate proceedings in accordance with law.
The
respondents herein are directed to follow the observations made in
paragraph 16 of the Oral Order dated 8th August 2008
passed by this Court in Special Civil Application No.10177 of 2008
and pass appropriate orders in accordance with law after affording
an opportunity of hearing to the petitioner.
5 With
the aforesaid directions, this petition is allowed. Rule is made
absolute with no order as to costs.
(ANANT
S. DAVE, J.)
*pvv
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