Meera S. Desai W/O Shaileshbhai ... vs Deputy Collector
2022 Latest Caselaw 5371 Guj

      C/SCA/12372/2016                                ORDER DATED: 22/06/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 12372 of 2016
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     MEERA S. DESAI W/O SHAILESHBHAI DESAI THROUGH POA NITIN
                YOGESHCHANDRA TIRVEDI & 1 other(s)
                              Versus
                   DEPUTY COLLECTOR & 1 other(s)
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Appearance:
MR ROHAN LAVKUMAR WITH MR ADITYA DAVE FOR NANAVATI
ASSOCIATES(1375) for the Petitioner(s) No. 1,2
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 22/06/2022
                       ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for the respondent-State.

2. At the outset, learned advocate Mr.Rohan Lavkumar appearing for the petitioners has submitted that the issue is squarely covered by various decisions of this Court. He has placed reliance on the judgment dated 01.04.2009 passed in Letters Patent Appeal No.1275 of 2006.

3. In this writ petition, the petitioner is assailing the show cause notice dated 21.11.2012, the order dated 22.04.2015 and further, the order dated 19.03.2016 passed in the revision application of the petitioner.

4. It is the case of the petitioners that the entire issue has been taken up by the respondent authority after passage of more than 8 years from the date of execution of agreement to sell dated 22.11.2004 since the petitioners were issued the notice dated 21.11.2012. As per the report of the Auditor General, the amount of stamp paid on the document dated 22.11.2004 is deficient. The petitioners were asked to pay stamp duty of Rs.31,62,667/- and penalty.

5. Learned advocate Mr.Lavkumar has submitted that the initiation of such proceedings itself is null and void as per the provisions of Section

C/SCA/12372/2016 ORDER DATED: 22/06/2022

32A(4) of the Gujarat Stamp Act, since no proceedings even in any manner can be initiated after a period of 6 years.

6. This Court has perused the affidavit-in-reply filed by the respondent authorities, wherein the aforesaid facts are not disputed and it is established fact that the show cause notice has been issued on 21.11.2012 for the agreement to sell dated 22.11.2004, which is after a passage of more than 8 years.

9. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench of this Court in the aforesaid decision dated 13.09.2006 passed in Special Civil Application No.3926 of 2006 and allied matters, which reads thus:-

"In view of the aforesaid judgments and provision of sub-section (4) of section 32-A of the Act,1958, the impugned order is hereby quashed as the same is time barred. The document in question was executed on 17th September,1997, whereas, the Notice was issued on 22nd July,2004 by the respondent authority (Annexure "D" to the memo of the petition) and, therefore, there is a clear breach of section 32- A(4) of the Act, 1958, which imposes a limitation of 6 years. Thus, except this matter, rest of the matters are hereby remanded for afresh decision by Deputy Collector/ Collector, Stamp Duty Valuation Organisation."

10. Thus, the impugned notice as well as the order passed by the respondent authorities are without jurisdiction and de hors the provisions of sub-section (4) of Section 32A of the Act, and hence, this Court, while exercising the powers under Article 226 of the Constitution of India can set aside the same. The Apex Court in the case of Radha Kirshan Industries Vs. State of Himachal Paresh and others, 2021 SCC OnLine SC 334, has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. The Apex Court has observed thus:-

"28. The principles of law which emerge are that:

C/SCA/12372/2016 ORDER DATED: 22/06/2022

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

        (ii) The           High Court has the discretion not to
        entertain         a writ petition. One of the restrictions
        placed on         the power of the High Court is where an
        effective          alternate remedy is available to the
        aggrieved        person;

        (iii) Exceptions         to   the    rule   of   alternate      remedy
        arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law."

11. The case of the petitioners will fall under exception (c) as reproduced hereinabove. In view of the above, this petition is allowed. The impugned show case notice dated 21.11.2012 as well as the order dated 22.04.2015, are hereby quashed and set aside. As the consequence thereof, the respondent No.3 is directed to return the original sale deed No.9327 dated 22.11.2004 to the petitioner within a period of 04 (four) weeks from the date of receipt of the writ of this order. Rule is made absolute. Direct Service is permitted.

(A. S. SUPEHIA, J) ABHISHEK/10