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SCA/4998/2010 5/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4998 of 2010
=========================================================
PATEL
AMBARAMBHAI NARSINHBHAI - Petitioner(s)
Versus
DEPUTY
COLLECTOR & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SL VAISHYA for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1 - 3.
MS
JIRGA JHAVERI, AGP for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 11/10/2010
ORAL
ORDER
Heard
leaned advocates appearing on behalf of respective parties.
According
to petitioner, he has purchased an old constructed house and it was
purchased by sale deed dated 5th June 2001 being
registered No.1687. Respondent No.1 has assessed the valuation of the
property Rs.4,43,400/-, but, it was purchased by petitioner in
Rs.1,90,000/-. Accordingly, stamp duty was affixed Rs.19,000/-. But,
respondent No.1 passed an order of deficit stamp duty Rs.25,590/-,
therefore, 25% amount has been deposited before appellate authority
and appeal was preferred against that order passed by Deputy
Collector which has been confirmed by appellate authority while
exercising power under Section 53(1) of Bombay Stamp Act dated 15th
December, 2009.
Learned
advocate Mr. Vaishya submitted that respondent authorities have
committed gross error in determining market price of land in
question, for that, there was no base has been discussed by
respondent authority and therefore, present petition has been
preferred by petitioner.
Learned
AGP Ms. Jhaveri submitted that Deputy Collector, Palanpur has decided
matter by order dated 26th December 2001 as market value
or price which has been fixed by petitioner is found to be inadequate
under Section 32(A), therefore, documents sale deed has been sent
for proper determination of market price to Deputy Collector and
thereafter, market price has been fixed on the basis of ‘Jantri’
prevailing at relevant time for the properties which are situated in
area. Before that, notice was served to petitioner, but, no evidence
has been produced by petitioner on what basis market price of the
land in question has been fixed being a consideration to be received
while sale deed has been executed between parties. Therefore, market
price of the land in question has been determined by Deputy Collector
rightly which was found to be deficit stamp duty. Accordingly, it has
been worked out by Deputy Collector. For that, Deputy Collector is
having power and jurisdiction to decide, therefore, Deputy Collector
has not committed any error in passing such order. Similarly, Chief
Controlling Revenue Authority has examined appeal being No.
Stamp/Appeal/53(1)-168 of 2001 and after giving reasonable
opportunity of hearing to petitioner Ambaram Narsinhbhai Patel,
but, no record or evidence has been produced before Chief Controlling
Revenue Authority inspite of number of opportunities were given to
petitioner on 29th November 2006, 13th June
2007, 1st March 2008, 26th June 2008 and 7th
July 2009. Therefore, property which has been situated in resident
area and also being a original old house and considering construction
cost as well as ‘Jantri’ of relevant period which has been found to
be reasonable to fix market price of the land in question including
construction comes to Rs.4,43,400/- and deficit stamp duty comes to
Rs.25,590/- after including cost of fine of Rs.250/-. Once the
petitioner is not able to justify market price fixed in sale deed of
the property in question, then, Deputy Collector has rightly
considered market price of the property in question which has been
rightly confirmed by Chief Controlling Revenue Authority while
exercising power under Section 53(1) of Bombay Stamp Act.
Learned
advocate Mr. Vaishya further submitted that in interest part also,
this Court may interfere, but, this Court cannot interfere in the
order passed by both authorities where no infirmity has been pointed
out by learned advocate Mr. Vaishya.
Therefore,
according to my opinion, contentions which has been raised by learned
advocate Mr. Vaishya cannot be accepted, because, before Deputy
Collector as well as Chief Controlling Revenue Authority, no record
as well as document has been produced to justify market price fixed
in sale deed by both parties. Therefore, market price which has been
fixed by Deputy Collector is found to be reasonable, just and proper
after considering price of land as well as price of building on the
basis of prevailing policy of State Government. Therefore,
contentions raised by learned advocate Mr. Vaishya cannot be
accepted, hence, rejected. No error is committed or no illegality or
infirmity is committed by either of authority which requires
interference by this Court while exercising power under Article
226/227 of the Constitution of India. This Court cannot act as an
appellate authority while exercising powers of judicial review which
can be limited upto decision making process as decided by Apex Court
in case of Union of India and Anr. V/s. K.G. Soni
reported in (2006) 6 SCC 794. The relevant Para
13 and 14 are quoted as under :
13. In
Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), this
Court summed up the position relating to proportionality in
paragraphs 31 and 32, which read as follows:
31. The
current position of proportionality in administrative law in England
and India can be summarized as follows:
(1) To
judge the validity of any administrative order or statutory
discretion, normally the Wednesbury test is to be applied to find out
if the decision was illegal or suffered from procedural improprieties
or was one which no sensible decision-maker could, on the material
before him and within the framework of the law, have arrived at. The
court would consider whether relevant matters had not been taken into
account or whether irrelevant matters had been taken into account or
whether the action was not bona fide. The court would also consider
whether the decision was absurd or perverse. The court would not
however go into the correctness of the choice made by the
administrator amongst the various alternatives open to him. Nor
could the court substitute its decision to that of the administrator.
This
is the Wednesbury (1948 1 KB 223) test.
(2) The
court would not interfere with the administrator s decision unless
it was illegal or suffered from procedural impropriety or was
irrational in the sense that it was in outrageous defiance of logic
or moral standards. The possibility of other tests, including
proportionality being brought into English administrative law in
future is not ruled out. These are the CCSU (1985 AC 374)
principles.
(3)(a)
As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the Convention is not incorporated
into English law, the English courts merely exercise a secondary
judgment to find out if the decision-maker could have, on the
material before him, arrived at the primary judgment in the manner he
has done.
(3)(b)
If the Convention is incorporated in England making available the
principle of proportionality, then the English courts will render
primary judgment on the validity of the
administrative
action and find out if the restriction is disproportionate or
excessive or is not based upon a fair balancing of the fundamental
freedom and the need for the restriction thereupon.
(4)(a)
The position in our country, in administrative law, where no
fundamental freedoms as aforesaid are involved, is that the
courts/tribunals will only play a secondary role while the primary
judgment as to reasonableness will remain with the executive or
administrative authority. The secondary judgment of the court is to
be based on Wednesbury and CCSU principles as stated by Lord Greene
and Lord Diplock respectively to find if the executive or
administrative authority has reasonably arrived at his decision as
the primary authority.
(4)(b)
Whether in the case of administrative or executive action affecting
fundamental freedoms, the courts in our country will apply the
principle of proportionality and assume a primary role, is left
open, to be decided in an appropriate case where such action is
alleged to offend fundamental freedoms. It will be then necessary to
decide whether the courts will have a primary role only if the
freedoms under Articles 19, 21 etc. are involved and not for Article
14.
14. The
common thread running through in all these decisions is that the
Court should not interfere with the administrator s decision unless
it was illogical or suffers from procedural impropriety or was
shocking to the conscience of the Court, in the sense that it was in
defiance of logic or moral standards. In view of what has been stated
in the Wednesbury s case (supra) the Court would not go into the
correctness of the choice made by the administrator open to him and
the Court should not substitute its decision to that of the
administrator. The scope of judicial review is limited to the
deficiency in decision-making process and not the decision.
Therefore,
there is no substance in present petition. Accordingly, present
petition is dismissed.
[H.K.
RATHOD, J.]
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