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SCA/3505/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3505 of 2010
===================================
SHRINATH
QUARRY WORKS THRO. KRISHNABEN M GANDHI - Petitioner
Versus
SUPERINTENDENT
OF STAMPS & 2 - Respondents
===================================
Appearance
:
MR
ASHISH H SHAH for Petitioner.
MR RASHESH RINDANI, AGP for
Respondents.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 19/04/2010
ORAL ORDER
RULE. Mr.
Rashesh Rindani, learned Assistant Government Pleader waives service
of rule on behalf of the respondents. Looking to the issue involved
in the petition, the same is taken up for final hearing.
The petitioner
has filed this petition under Article 226 of the Constitution of
India praying for quashing and setting aside the impugned order
dated 13.12.2004 passed by the Deputy Collector, Himmatnagar and
notice dated 03.09.2009 issued by the Recovery Officer, Stamp Duty
and Registration department along with the order passed by the
respondent No.1 dated 19.01.2010.
This Court has
issued notice on 31.03.2010.
It is the case
of the petitioner that the petitioner is a proprietary firm and had
entered into an agreement to sell with Gujarat State Financial
Corporation for the lands bearing Survey Nos.53/P and 59/P situated
at village Lavari, Tal. Prantij, Dist. Sabarkantha admeasuring
24,788 Sq. Mts. The said agreement to sell was registered at Sr.
No.636 on 23.06.1997 with the office of the Sub-Registrar, Prantij.
Thereafter, registered Sale Deed was executed on 24.07.2001 in
respect of the said property. A show-cause notice came to be issued
on 12.10.2001 to the petitioner by the Deputy Collector in respect
of deficit stamp duty and the petitioner was directed to pay
Rs.17,450/- as deficit stamp duty along with penalty. The
petitioner paid the said deficit stamp duty on 16.10.2001.
It is also the
case of the petitioner that the proprietor of the petitioner
Mahendra Gandhi expired on 03.08.2003. Thereafter, way back on
03.09.2009, a show-cause notice was served on the petitioner under
Section 135 of the Bombay Land Revenue Code in the name of Hina
Query Works, the erstwhile owner of the lands in question and in the
said notice, the respondent No.2 held that in the agreement to sale
executed by the petitioner, a deficit stamp duty of Rs.45,089/- was
required to be paid. From this notice, the petitioner came to know
that the order dated 13.12.2004 was passed by the Deputy Collector,
Stamp Duty Valuation department, Himmatnagar which was never served
upon the petitioner. The petitioner came to know only on the basis
of the recovery notice issued in 2009. The petitioner thereafter
applied for certified copy of the said order and on supply of the
certified copy, the petitioner filed appeal under Section 53 of the
Bombay Stamp Act which also came to be dismissed on 19.01.2010 on
the ground that the appeal was filed late.
In the above
circumstances, the present petition is filed.
Heard Mr.
Ashish H. Shah, learned advocate appearing for the petitioner and
Mr. Rashesh Rindani, learned Assistant Government Pleader appearing
for the respondents.
The main
grievance of the petitioner is that before passing the order dated
13.12.2004, no notice was received by the petitioner. Even the
order dated 13.12.2004 was not received by the petitioner. It was
only received when the notice was served on 03.09.2009 and
thereafter application for certified copy was made and immediately
on receipt of the same, the appeal was filed. Even the appeal is
also dismissed without affording the opportunity of being heard. He
has, therefore, submitted that the petitioner was not given any fair
chance to represent his case before the respondent authorities.
Mr. Rashesh
Rindani, learned Assistant Government Pleader, on the other hand,
has submitted that even if it is assumed that the appeal was filed
in 2009, the same was without payment of the requisite deposit of
25% of the deficit stamp duty. The respondent No.1 has clearly
observed that the petitioner has not paid 25% of the deficit stamp
duty. He has, therefore, submitted that the appeal of the
petitioner can be entertained only on deposit of this amount.
Having heard
learned advocates appearing for the parties and having considered
their rival submissions, the Court is of the view that prima facie,
it appears that neither the notice nor the order dated 13.12.2004
were received by the petitioner. Even on receipt of the said order,
the appeal was filed which was dismissed without affording any
opportunity of being heard to the petitioner. In this view of the
matter, the order dated 19.01.2010 is hereby quashed and set aside.
The Chief Controlling Revenue Authority is hereby directed to decide
the appeal filed by the petitioner in 2009 challenging the order
dated 13.12.2004 of the Deputy Collector, Stamp Duty Valuation
Department, Himmatnagar on merits without raising the issue
regarding limitation. It is, however, clarified that the petitioner
will have to deposit 25% amount of the deficit stamp duty and only
after deposit of this amount, the appeal will be heard on merits.
With
this direction and observation, this petition is accordingly
disposed of. Rule is made absolute to the aforesaid extent without
any order as to costs.
Sd/-
[K. A. PUJ, J.]
Savariya
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