Bombay High Court
Vijay S Khetan vs The Collector Of Stamps And 4 Ors on 29 June, 2017
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1347 OF 2015
Vijay S. Khetan ... Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 769 OF 2015
Vijay S. Khetan (HUF) ... Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 787 OF 2015
Mr. Anuj Vijay Khetan ... Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 791 OF 2015
Mrs. Meena V. Khetan ... Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 793 OF 2015
Meena Khetan ... Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 1774 OF 2015
Meena Khetan ... Petitioner
Vs.
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The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 1352 OF 2015
Vijay S. Khetan (HUF) ...
Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 1350 OF 2015
Vijay S. Khetan (HUF) ... Petitioners
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
WITH
WRIT PETITION NO. 1551 OF 2015
Meena Khetan ... Petitioner
Vs.
The Collector of Stamps & 4 Ors. ... Respondents
Ms. Rajani Iyer, Senior Counsel with Mr. Deepak Chitnis & Mr.
Mangesh Parte, i/b M/s. Deepak Chitnis Chiparikar & Co. for the
Petitioners.
Mr. G.W. Mattos, AGP for the Respondents.
CORAM : B.R. GAVAI AND
RIYAZ I. CHAGLA, JJ.
DATE : 29 JUNE 2017.
J U D G M E N T :- (Per B.R. Gavai, J.)
1. Rule. Rule made returnable forthwith. Heard by consent.
2. The facts in the above Writ Petitions are identical hence
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they are decided together.
3. The Petitioners are basically aggrieved with order dated
10th December 2014 passed under Section 53(A) of the Maharashtra
Stamp Act, thereby holding that the Petitioners herein are not entitled
for grant of remission in chargeable stamp duty under the government
order and thereby directing Petitioners to pay certain amount towards
sort levied of stamp duty.
4. The facts in brief give rise to the present Petitions are as
under:
One M/s. Hub Real Estate Pvt. Ltd. constructed a building
wherein he was permitted to use part of the building as Information
Technology Park vide Letter of Intent dated 28th November 2007. The
Municipal Corporation of Greater Mumbai has issued IOD dated 15th
June 2007 to the said M/s. Hub Real Estate Pvt. Ltd.
Since the Petitioner was desirous of starting a small scale unit
related to an IT Industry be entered into an agreement with M/s. Hub
Real Estate Pvt. Ltd. Purchase of the premises in the area earmarked
for IT Park.
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Under the government scheme, the units purchased for an
establishment of the small scale IT Industry were entitled for certain
exemption from payment of stamp duty. The Petitioner has, therefore,
made an application in the prescribed format for Letter of Intent on
29th September 2009. After finding the application of the Petitioner
in order, a Letter of Intent was granted by Joint Director of Industries
dated 7th November 2009. After the LOI was granted the Collector
for Stamps examined the case of the Petitioner and granted a
certificate under Section 52(1) (3) of the said Act on 27th April 2010.
5. The Petitioners received a notice on 30th July 2012 stating
therein that a query was raised by office of the Auditor General of
Nagpur as to the entitlement of the Petitioner for exemption of stamp
duty. The Petitioner was called upon to pay a sum of Rs.37,88,705/-
as short payment. After the receipt of the aforesaid communication,
on enquiry the Petitioner came to know that the Petitioner was found
not to be entitled since in the application his name was preceded by
"Mr." whereas in the LOI, it was preceded by "M/s.". The Petitioner
therefore, made an application to the competent authority i.e. the
Respondent No. 5 for carrying out the necessary corrections.
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However, the Office of the Joint Director of Industries (MMR) vide
letter dated 25th September 2012 informed that "M/s" in Marathi
language is "Sarvashree", and therefore, no such correction was
necessary.
6. However, since the Petitioner received communication
from the office of the Respondent No.2, he preferred an Appeal
challenging notice on 23rd October 2012. It appears that in the
meantime the Respondent No.2 while invoking the powers under
Section 53(A) passed the impugned order.
7. During the pendency of the present Petition, it further
appears that, since the period of three years has lapsed, the Petitioners
moved an application for extension of period of exemption. On the
said application the State Government has directed the Respondent
No.1, that unless the payment as per the earlier demand is made by
the Petitioner the application for extension cannot be considered.
8. In the present case, we do not propose to go into the
second question with regard to the extension of the period. However,
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we find that insofar as the order purportedly passed under Section
53(A) of the Stamp Act dated 10th December 2014 is concerned, the
Respondent No.2 appears to have adopted a novel procedure.
9. Shri Mattos, learned AGP for the State submitted that
under Section 53(A), the Respondent No.2 has empowers suo moto
entertained proceedings wherein it has been found that the duty
levied is short than the one which is payable by law. We do not
propose to go into question as to whether the stamp duty paid by the
Petitioner is in accordance with law or or not or as to whether the
Petitioner was entitled to exemption or not. We are of the considered
view that the approach of Respondent No.2 is totally unknown to the
principles of natural justice.
10. Even the perusal of Section 53(A) reveals that the
provision itself stipulates that the reasonable opportunity of hearing is
required to be given to a party against whom the powers are sought to
be invoked.
11. The perusal of impugned order dated 10th December 2014
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would reveal that no show cause notice was issued to the Petitioners
prior to invoking the jurisdiction under Section 53(A). No doubt that
Shri Mattos has submitted that in the appeal preferred by the
Petitioner, the lawyer was already represented. Merely, since a lawyer
was representing in collateral proceedings cannot be said that the
Petitioner was given show cause notice in the proceedings under
Section 53(A) and that there was compliance with principles of
natural justice in the said proceedings.
12. Apart from that, we find that the only reason of which the
impugned action is taken is that in the application form the name of
the applicant written as Mr. Vijay Khetan, whereas in the LOI
certificate issued in the name of M/s. Vijay Khetan. The State cannot
be permitted to take out self-contradictory stands. When on one hand
it is revealed from the document at Exhibit "I" issued by the Deputy
Director of Industries (MMR), that no correction is necessary in as
much as the word "M/s." would mean 'sarvashree', the authorities
who are dealing with charging stamp duty, are holding that the
Petitioner is not entitled to exemption only on the ground that the
application in the name of Mr. Vijay Khetan, whereas the Letter of
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Intent is in the name of M/s. Vijay Khetan. It is not as if that if the
Applicant has played any fraud in change of name. The mistake
appears to be at the end of Respondent authorities in granting the
certificate. However, by no stretch of imagination can it be said that
the error is of such nature which cannot be corrected.
13. In that view of the matter, we find that the impugned
order is not sustainable in law. The order dated 10th December 2014
is, therefore, quashed and set aside.
14. However, we make it clear that in the event the
Respondent No.2 desires to proceed by invoking provisions under
Section 53(A) of the said Act, he shall do so only after giving show
cause notice to the Petitioner and after giving opportunity of hearing
to the Petitioner.
15. Rule made absolute in terms of the above. No order as to
costs.
(RIYAZ I. CHAGLA J.) ( B.R. GAVAI J.)
