Gujarat High Court
Mukeshbhai Balabhai Kabaria - Heir Of ... vs State Of Gujarat on 24 February, 2025
NEUTRAL CITATION
C/SCA/18681/2016 ORDER DATED: 24/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18681 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18682 of 2016
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MUKESHBHAI BALABHAI KABARIA - HEIR OF DECD. BALABHAI
SAVJIBHAI KABARIA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DIVYESH SEJPAL(1322) for the Petitioner(s) No. 1,2,3
MR ADITYA PATHAK AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 24/02/2025
ORAL ORDER
1. The present Writ Petitions are filed praying for the following reliefs :-
"(A) Your Lordships may be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned order dated 17-18/5/2016 passed by the respondent no.2 herein as well as the order dated 7/1/2015 passed by the respondent no.3 herein as the same being illegal, arbitrary and bad in law.
(B) Pending hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation, implementation and execution of the impugned order dated 17-18/5/2016 passed by the respondent no.2 herein as well as the order dated 7/1/2015 passed by the respondent no.3 herein.
(C) Any other relief deemed just and proper may kindly be granted in the interest of justice."
2. It is the case of the petitioners that the petitioners had purchased the land bearing survey No.259/1 admeasuring 0-72-84 sq. mtrs., the land bearing survey No.396/1 admeasuring 0-38-45 Page 1 of 6 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:08:02 IST 2025 NEUTRAL CITATION C/SCA/18681/2016 ORDER DATED: 24/02/2025 undefined sq. mtrs., and the land bearing survey No.396/2 admeasuring 01-24- 45 sq. mtrs.,Mouje Amreli, Taluka Amreli, District Amreli. Thereafter, the petitioners presented the sale deeds for registration. By the show cause notice dated 13.11.2024, the respondents herein initiated the proceedings under Section 39(1)(b) of the Bombay Stamp Act, 1958 calling upon the petitioners herein to pay the deficit stamp duty of Rs.2,16,718/- and Rs.4,93,786/-. Pursuant to the show cause notice, the petitioners appeared before the authority and had filed a reply denying the contents of the show cause notice. The petitioners denied the stamp duty assessed by the authority as incorrect as the land was situated far away from the road and that the land was not cultivable on account of shortage of water. It is the case of the petitioners that without considering the said reply, an order directing to pay the deficit stamp duty after deducting the amounts of Rs.24,200/- and Rs.49,000/- paid by the petitioners, was passed by the respondent No.3. Aggrieved by the said order dated 07.01.2015 passed by the respondent No.3, the petitioners preferred an appeal under Section 53 of the Gujarat Stamp Act, 1958 challenging the said order before the respondent No.2.
2.1 By the impugned order dated 17-18/5/2016, the said appeal came to be rejected by the respondent No.2 on the ground that the said appeal was filed beyond the period of limitation of 90 days and further that the petitioners had also not paid the requisite amount of 25% of the deficit stamp duty assessed by the respondent No.3.
2.2 Aggrieved, the petitioners have preferred the present Special Civil Applications.
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3. The learned counsel Mr. Divyesh Sejpal appearing for the petitioners submits that the order dated 07.01.2015 erroneously records that the petitioners herein had agreed to pay the deficit stamp duty as assessed by the respondent No.3. The learned counsel submits that the petitioners had never given a consent for paying the deficit stamp duty as assessed. He submits that therefore, the petitioners had challenged the same in appeal. The learned counsel submits that the actual value of the land has not been assessed by the respondent authority and therefore also, there was no question of the petitioners consenting to the payment of deficit stamp duty as assessed. The learned counsel submits that the order passed by the respondent No.3 is on erroneous grounds. He submits that the appeal has also been dismissed on the ground of limitation and not on the merits. He, therefore, submits that the present Special Civil Applications be allowed.
4. Per contra, the learned AGP appearing for the respondent State authorities submits that the time limit to challenge the order of the respondent No.3 under the Act is 90 days. He submits that since the appeal was filed beyond the period of 90 days, the respondent No.2 authority had no power to condone the delay. In support of his contentions, the learned AGP has relied upon the judgment passed by the Full Bench of this Court in the case of Jayminbhai Navinbhai Doshi and ors. vs. State of Gujarat and ors. [2015(1) GLH (FB) 167], whereby it has been held that the Chief Controlling Revenue Authority exercising power under Section 53(1) of the Act has no power of condonation of delay in filing the application beyond the period mentioned therein and it necessarily follows that the High Court in exercise of power under Article 226 of the Constitution against the order of the Chief Controlling Revenue Authority cannot condone the delay when the Chief Controlling Revenue Authority did not possess such power. The learned AGP Page 3 of 6 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:08:02 IST 2025 NEUTRAL CITATION C/SCA/18681/2016 ORDER DATED: 24/02/2025 undefined further relies upon another judgment of the Coordinate Bench of this Court in the case of Jayminbhai Navinbhai Doshi vs. State of Gujarat and anr. [2017 1 GLR 648] wherein it has been held that this Court cannot condone the delay in exercise of power under Article 226 as the original order of the Deputy Collector (Stamp) having merged with the order of the Revisional Authority. He, therefore, submits that the Writ Petitions be dismissed.
5. Considered the submissions of the parties and perused the documents on record.
6. After considering the written as well as oral submissions of the petitioners and that the petitioners had agreed to pay the deficit stamp duty as well as penalty under Section 39(1)(b) of the Stamp Act, the order dated 07.01.2015 came to be passed. The said order came to be challenged by the petitioners herein by preferring an appeal after a period of 1 year 2 months and 7 days. The respondent No.2 rejected the said appeal of the petitioners on the ground of delay since the respondent No.2 did not have authority to condone the delay beyond 90 days as per the Act. Further, the said impugned order also observes that the petitioners had not deposited 25% of the deficit stamp duty so assessed for entertaining the appeal. On both these grounds, the appeal of the petitioners came to be rejected. The Full Bench of this Court in Jayminbhai Navinbhai Doshi and ors. vs. State of Gujarat and ors. [2015(1) GLH (FB) 167] has held that the Chief Controlling Revenue Authority exercising power under Section 53(1) of the Act has no power of condonation of delay in filing the application beyond the period mentioned therein. For the refusal on the part of the authority to condone delay for want of jurisdiction, none of the legal rights of the petitioners have been infringed and if the Chief Controlling Authority has no power of condonation, it necessarily Page 4 of 6 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:08:02 IST 2025 NEUTRAL CITATION C/SCA/18681/2016 ORDER DATED: 24/02/2025 undefined follows that the High Court in exercise of power under Article 226 of the Constitution against the order of the Chief Controlling Revenue Authority cannot condone the delay when the Chief Controlling Revenue Authority did not possess such power. In the judgment in the case of Jayminbhai Navinbhai Doshi vs. State of Gujarat and anr. [2017 1 GLR 648], following the judgment of the Full Bench, the Coordinate Bench of this Court dismissed the writ petition on the ground that the exercise of powers under Article 226 of the Constitution would not be justified in a case where the petitioner has challenged the original order of Deputy Collector (Stamp) before the Chief Controlling Authority after limitation period of 90 days since the said time limit has to be observed. Even while exercising the plenary jurisdiction, period of limitation statutorily prescribed in relation to the subject matter dealt with in the writ jurisdiction has to be kept in view and the High Court would not grant relief to a party by by-passing such statutory limitation period to grant relief straightway merely because it had power under Article 226 of the Constitution of India.
7. In view of the law settled by the Full Bench of this Court and in the facts of the present case, where admittedly, the appeal was filed by the petitioners after a period of 1 year 2 months and 7 days, this Court cannot exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in view of the limitation prescribed under Section 53(1) of the Gujarat Stamp Act.
8. For the aforesaid reasons and observations, the present Writ Petitions are dismissed. No order as to costs.
9. The learned counsel for the petitioners submits that the petitioners may be permitted to file an appropriate application for waiver of interest and penalty before the respondent No.3 Deputy Page 5 of 6 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:08:02 IST 2025 NEUTRAL CITATION C/SCA/18681/2016 ORDER DATED: 24/02/2025 undefined Collector (Stamp) in view of pendency of present Writ Petitions since the year 2016. It is made clear that if such an application is preferred by the petitioners, the respondent No.3 Deputy Collector (Stamp) shall decide the said application on its own merits and in accordance with law.
(ANIRUDDHA P. MAYEE, J.) cmk Page 6 of 6 Uploaded by CHANDRASHEKHAR MEHESHKUMAR KOSHTI(HC01066) on Fri Feb 28 2025 Downloaded on : Sat Mar 01 00:08:02 IST 2025