Gujarat High Court
Saptak Trade Link Private Limited vs Chief Controlling Revenue ... on 21 February, 2023
Bench: Biren Vaishnav
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1345 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SAPTAK TRADE LINK PRIVATE LIMITED
Versus
CHIEF CONTROLLING REVENUE AUTHORITY & 3 other(s)
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR.JAY TRIVEDI, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/02/2023
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Jay Trivedi
learned AGP waives service of notice of Rule on
behalf of the respondent State.
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2. With the consent of learned advocates for the
respective parties, the petition is taken up for
final hearing.
3. By way of this petition under Article 226 of the
Constitution of India, challenge is to the orders
dated 30.05.2015 passed by the respondent no.1
and dated 24.02.2014 by the respondent no.2.
The consequential prayer is that the additional
stamp duty of Rs.28,94,085/- and interest amount
which is Rs.5,79,360/- be refunded.
4. Facts in brief would indicate that the assets of
M/s. G.T.C.L. Mobile-cum-Technologies Limited
('GTCL' for short) were mortgaged to Dena Bank
towards the loan secured by the said company.
Since GTCL could not repay the loan to the bank,
the properties were put to auction wherein the
petitioner offered a bid of Rs.7,21,00,000/- which
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
was accepted by the High Court vide order dated
13.01.2009 passed in Company Application
No.619 of 2008. It is the case of the petitioner
that thereafter the Court passed an order
directing the bank to cooperate with the
applicant company in entering into a sale deed.
Accordingly the sale deed was executed on
18.05.2013.
5. It is the case of the petitioner that the
respondent no.3 did not accept the stamp duty of
Rs.35,33,000/- on the ground that the property
would actually be valued at Rs.14,52,63,948/-
and therefore the required stamp duty was
Rs.71,17,934/-. The petitioner was asked to pay
the deficit stamp duty of Rs.35,84,930/- and
therefore the sale deed was impounded under
Section 33 of the Stamp Act. The case of the
petitioner is that without considering the
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
submissions, the respondent no.2 held that the
value of the property should be Rs.13,11,64,600/-
requiring to pay the deficit stamp duty of
Rs.28,94,065/- with penalty of Rs.250/- which the
petitioner ultimately paid along with interest.
6. Mr.Asthavadi learned counsel for the petitioner
would submit that once the property was
purchased in a public auction as settled by the
decision of this Court by following the decision of
the Supreme Court in case of V N Devadoss V.
Chief Revenue Control Officer-CUM-INS
reported in 2009 (7) SCC 438, it was open for
the authorities to ask for stamp duty at the
additional/enhanced rate.
7. Mr.Jay Trivedi learned AGP would vehemently
oppose the petition and submit by reading the
order passed by this Court in Company
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
Application No.619 of 2008, that though it is
termed as a public auction, 23 bidders were
informed and it was only the petitioner who
showed interest and participated in the inter-se
bidding offering Rs.7.50 crores. Obviously
therefore this was not the true reflection of the
value of the property in question. He would also
fall back upon the affidavit in reply filed on
behalf of the authorities and bring it to the notice
of the Court that in light of the provisions of
Section 2(la) which defines the term market
value, it is clear that 'market value' in relation to
any property means the price which such
property would have fetched if sold in open
market on the date of execution of the sale deed.
He would emphasise on the word 'execution'. He
would submit that though the property in
question was purchased in the year 2009, the
sale deed was only executed in the year 2013 i.e.
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
18.05.2013. No inspection for waiting for the
sale deed to be registered for the period of four
years is forthcoming and therefore market value
of the property has to be taken in consonance
with the differing Jantri rate on the date of
execution of the sale deed.
8. In support of his submission, Mr.Trivedi would
rely on a decision of a coordinate bench of this
Court in case of Bajaj Col Chem v. Deputy
Superintendent of Stamp and Anr. reported
in 2011 (1) G.L.H. 243. Para 6 of the
judgement would be pressed into service where
the Court negated the contention of the advocate
for the petitioner holding that there is a
difference between two prices in respect of one
property. One that is fixed in public auction and
the another that is fixed by Jantri decided by the
State.
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
9. Considering the submissions made by the
learned counsel for the respective parties, the
decision in the case of V N Devadoss (supra) of
the Supreme Court which considered the
question of a sale in public auction needs
reference. Pursuant to a sale by an Assets Sale
Committee, a property in question was sold for a
certain consideration. The sale deed was lodged
on 17.06.2004. The Supreme Court examining
the provision of Section 47A of the Stamp Act
opined that the stand of the State is fallacious
and though the market value is a changing
concept, registration has to be done at the price
disclosed in the document of conveyance. The
relevant para reads as under:
"7. Apart from explaining and setting out
the circumstances under which he
purchased the property, the appellant also
questioned the jurisdiction of the authorities
to invoke Section 47-A of the Act. It is the
specific case of the appellant that without
affording personal hearing, the second
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
respondent by order dated 11.04.2005,
confirmed the market value of the land as
Rs.465/- per sq. ft. and called upon him to
pay the additional stamp duty. Aggrieved by
the order of the second respondent, the
appellant preferred an appeal before the
first respondent on 13.04.2005.
8. On 08.02.2006, the first respondent
rejected his appeal, confirming the market
value of the property as Rs.465/per sq, ft.
The first respondent also directed the
appellant to pay interest at the rate of 2%
per month towards the demand made by the
authorities. Aggrieved over the same, the
appellant filed the appeal before the High
Court under Section 47-A (10) of the Act.
9. The High Court took the view that it
was not a case of sale by the government or
a transaction between the government
organizations/bodies. It was held that
statutory authorities like BIFR and AIFR
acted as facilitators and, therefore, it was
held that there was no scope for a different
view to be taken regarding the market value
and for this limited purpose the matter was
remanded to the original authority for
passing an appropriate order.
10. Learned counsel for the appellant
submitted that the aforesaid view of the
High Court is clearly erroneous. It was a
case where the sale was conducted under
the orders of the statutory authority i.e.
BIFR. There are several instances, it is
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
submitted, where the official liquidator is
involved to take a decision in the matter of
acceptance of the bid made.
11. Learned counsel for the respondents on
the other hand submitted that the High
Court is correct in holding that it was
essentially not a matter between State or a
party and the role of the BIFR is that of
mediator.
12. To appreciate the rival stands Section
47-A and Rules 3 and 4 of Rules need to be
noted. The said rules have been framed in
exercise of powers conferred under Sections
47-A and 75 of the Act. Rule 4 and Section
47-A so far as relevant read as follows:
"47-A.Instruments of conveyance etc.
undervalued how to be dealt with -
(1) If the registering officer appointed
under the Indian Registration Act, 1908
(Central Act XVI of 1908) while
registering any instrument of
conveyance, exchange, gift, release of
benami right or settlement has reasons
to believe that the market value of the
property of which is the subject matter
of conveyance, exchange, gift, -release of
benami right or settlement, has not been
truly set forth in the instrument he may,
after registering such instrument, refer
the same to the Collector for
determination of the market value of
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
such property and the proper duty
payable thereon.
(2) On receipt of a reference under
subsection (1), the Collector shall, after
giving the parties a reasonable
opportunity of being heard and after
holding an enquiry in such manner as
may be prescribed by rules made under
this Act, determine the market value of
the property which is the subject matter
of conveyance, exchange, gift, release of
benami right or settlement, and the duty
as aforesaid. The difference, if any, in
the amount of duty,- shall be payable by
the person liable to pay the duty.
(3) The Collector may, suo motu or
otherwise, within five years from the
date of registration of any instrument of
conveyance, exchange, gift, release of
benami right or settlement, not already
referred to him under sub-section (1),
call for the examine the instrument for
the purpose of satisfying himself as to
the correctness of the market value of
the property which is the subject matter
of conveyance, exchange, gift, release of
benami, right or settlement, and the duty
payable thereon and if after such
examination, he has reason to believe
that the market value of the property has
not been truly set forth in the
instrument, he may determine the
market value of such property and the
duty as aforesaid in accordance with the
procedure provided for in sub-section
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
(2). The difference, if any, in the amount
of duty, shall be payable by the persons
liable to pay the duty:
Provided that nothing in this subsection
shall apply to any instrument registered
before the date of commencement of the
Indian Stamp (Tamil Nadu Amendment)
Act, 1967.
(4) ......................
(5) Any person aggrieved by an order of
the Collector under sub-section (2) or
sub section (3), may appeal to such
authority as may be prescribed in this
behalf. All such appeals shall be
preferred within such time, and shall be
heard and disposed of in such manner,
as may be prescribed by rules made
under this Act.
(6) ......................
(7) ......................
(8) .....................
(9) ......................
(10) Any person aggrieved by an order of
the authority prescribed under
subsection (5) or the Chief Controlling
Revenue Authority under sub-section (6)
may, within such time and in such
manner, as may be prescribed by rules
made under this Act, appeal to the High
Court."
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
"Rule 4: Procedure on receipt of
reference under Section 47A:
(1) ..............
(2) ..............
(3) ..............
(4) After considering the
representations, if any, received from
the person to whom notice under sub-
rule (1) has been issued, and after
examining the records and evidence
before him, the Collector shall pass an
order in writing provisionally
determining the market value of the
properties and the duty payable. The
basis on which the provisional market
value was arrived at shall be clearly
indicated in the order."
A bare perusal of the rules make the
position clear that sub-Rule (4) enumerates
procedure on receipt of reference under
Section 47-A. Rule 5 speaks about the
principles for determination of market
value. Sub-clause (a) refers to lands; (b)
house sites; (c) buildings and (d) properties
other than lands, house sites and buildings.
13. Sub-Sections (1) and (3) of Section 47-A
clearly reveal the intention of the
Legislature that there must be a reason to
believe that the market value of the
property which is the subject matter of the
conveyance has not been truly set out in the
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
instrument. It is not a routine procedure to
be followed in respect of each and every
document of conveyance presented for
registration without any evidence to show
lack of bona fides of the parties to the
document by attempting fraudulently to
under value the subject of conveyance with
a view to evade payment of proper stamp
duty and thereby cause loss to the revenue.
Therefore, the basis for exercise of power
under Section 47-A of the Act is willful
under valuation of the subject of transfer
with fraudulent intention to evade payment
of proper stamp duty.
14. In the instant case the factual scenario
shows that the vendors of the appellant i.e.
M/s Dunlop India Limited became a sick
industry and was declared so under the
provisions of 1985 Act. Consequent upon
such declaration, surplus properties and
assets belonging to the said company were
disposed of on the basis of orders passed by
BIFR and AIFR by forming an Assets Sales
Committee. The appellant submitted that his
tender alongwith others and his offer of
Rs.24.34 crores approximately was the
highest, and the same was accepted by the
Assets Sales Committee and also by the
statutory authorities. The company was
granted permission to execute the sale deed
in favour of the appellant.
15. Stand of the State is that what has been
disclosed is clearly a sale value and the
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same cannot be termed as market value.
There is fallacy in this argument.
16. Market value is a changing concept. The
explanation to sub-Rule (5) makes the
position clear that value would be such as
would have fetched or would fetch if sold in
the open market on the date of execution of
the instrument of conveyance. Here, the
property was offered for sale in the open
market and bids were invited. That being so,
there is no question of any intention to
defraud the revenue or non disclosure of the
correct price. The factual scenario as
indicated above goes to show that the
properties were disposed of by the orders of
BIFR and AIFR and that too on the basis of
value fixed by ASG. The view expressed by
the Assets Sales Committee which consisted
of members such as representatives of IDBI,
Debenture Holders, Government of West
Bengal and Special Director of BIFR. That
being so, there is no possibility of any under
valuation and, therefore, Section 47-A of the
Act has no application. It is not correct as
observed by the High Court that BIFR was
only a mediator.
17. Sale has been defined under Section 54
of the Transfer of Property Act, 1882 (in
short the `TP Act'). Although the Act has not
included the definition of sale, Section 2(10)
of the Act defines conveyance as including a
conveyance on sale, every instrument and
every decree or final order of any Civil
Court by which property whether
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
immovable or moveable or any estate or
interest in any property is transferred to, or
vested in or declared to be of any other
person, inter vivos, and which is not
otherwise specifically provided for by
Schedule I or Schedule 1-A, as the case may
be.
18. On the facts of the case it cannot be said
that Section 47-A has any application
because there is no scope for entertaining a
doubt that there was any under valuation.
That being so, the High Court's order is
clearly unsustainable and is set aside. The
registration shall be done at the price
disclosed in the document of conveyance.
There is no scope for exercising power
under Section 47-A of the Act as there is no
basis for even entertaining a belief that the
market value of the property which is the
subject matter of conveyance has not been
truly set forth with a view to fraudulently
evade payment of proper stamp duty.
19. The appeal is allowed. There will be no
order as to costs."
10. The Division Bench of this Court in Letters
Patent Appeal No.1436 of 2019 following the
decision in case of V N Devadoss (supra) in para
4 of the decision held as under:
"4. We are of the view that no error not to
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
speak of any error of law could be said to
have been committed by the learned Single
Judge in passing the impugned order. The
issue decided by the learned Single Judge is
squarely covered by a decision of the
Supreme Court in the case of V.N. Devadoss
vs. Chief Revenue Control Officer-cum-
Inspector, reported in (2009) 7SCC 438,
wherein the Supreme Court held as under:
"13. Sub-Sections (1) and (3) of Section 47-
A clearly reveal the intention of the
Legislature that there must be a reason to
believe that the market value of the
property which is the subject matter of the
conveyance has not been truly set out in the
instrument. It is not a routine procedure to
be followed in respect of each and every
document of conveyance presented for
registration without any evidence to show
lack of bona fides of the parties to the
document by attempting fraudulently to
under value the subject of conveyance with
a view to evade payment of proper stamp
duty and thereby cause loss to the revenue.
Therefore, the basis for exercise of power
under Section 47-A of the Act is willful
under valuation of the subject of transfer
with fraudulent intention to evade payment
of proper stamp duty.
14. In the instant case the factual scenario
shows that the vendors of the appellant i.e.
M/s Dunlop India Limited became a sick
industry and was declared so under the
provisions of 1985 Act. Consequent upon
such declaration, surplus properties and
assets belonging to the said company were
disposed of on the basis of orders passed by
BIFR and AIFR by forming an Assets Sales
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
Committee. The appellant submitted that
his tender alongwith others and his offer of
Rs.24.34 crores approximately was the
highest, and the same was accepted by the
Assets Sales Committee and also by the
statutory authorities. The company was
granted permission to execute the sale deed
in favour of the appellant.
15. Stand of the State is that what has been
disclosed is clearly a sale value and the
same cannot be termed as market value.
There is fallacy in this argument.
16. Market value is a changing concept. The
explanation to sub-Rule (5) makes the
position clear that value would be such as
would have fetched or would fetch if sold in
the open market on the date of execution of
the instrument of conveyance. Here, the
property was offered for sale in the open
market and bids were invited. That being
so, there is no question of any intention to
defraud the revenue or non disclosure of
the correct price. The factual scenario as
indicated above goes to show that the
properties were disposed of by the orders of
BIFR and AIFR and that too on the basis of
value fixed by ASG. The view expressed by
the Assets Sales Committee which consisted
of members such as representatives of IDBI,
Debenture Holders, Government of West
Bengal and Special Director of BIFR. That
being so, there is no possibility of any under
valuation and, therefore, Section 47-A of the
Act has no application. It is not correct as
observed by the High Court that BIFR was
only a mediator.
17. Sale has been defined under Section 54
of the Transfer of Property Act, 1882 (in
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
short the `TP Act'). Although the Act has not
included the definition of sale, Section 2(10)
of the Act defines conveyance as including a
conveyance on sale, every instrument and
every decree or final order of any Civil
Court by which property whether
immovable or moveable or any estate or
interest in any property is transferred to, or
vested in or declared to be of any other
person, inter vivos, and which is not
otherwise specifically provided for by
Schedule I or Schedule 1-A, as the case may
be.
18. On the facts of the case it cannot be said
that Section 47-A has any application
because there is no scope for entertaining a
doubt that there was any under valuation.
That being so, the High Court's order is
clearly unsustainable and is set aside. The
registration shall be done at the price
disclosed in the document of conveyance.
There is no scope for exercising power
under Section 47-A of the Act as there is no
basis for even entertaining a belief that the
market value of the property which is the
subject matter of conveyance has not been
truly set forth with a view to fraudulently
evade payment of proper stamp duty."
11. The Division Bench held that when a party
purchases any property in an open auction and
when such party is the highest bidder and the
sale deed is executed, then the sale
consideration set for in the instrument in
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question should be considered as the true
market value of the property in question, of
course subject to a rider that is framed.
12. Considering the facts of the case, though learned
AGP Mr.Jay Trivedi in his submissions pointed
out that the petitioner was the sole bidder, what
is evident is that it was a sale in light of an
auction held in the High Court in a company
petition where only the petitioner remained
present and offered the highest bid. The sale
having taken place in the proceedings before the
High Court would therefore would not be tainted
with fraud and therefore the judgements
referred to herein above is squarely applied to
the facts of the case.
13. Even in the case of Registrar of Assurances
and Another v. ASL Vyapar Private Limited
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
and Anr. reported in 2022 LawSuit (SC) 1342,
decided by the Supreme Court on 10.11.2022,
reading the conclusions in paras 22 to 30, the
same are as under:
"Conclusion:
22. On the conspectus of the matter, we
have not the slightest hesitation in
upholding the view that the provision of
Section 47A of the Act cannot be said to
have any application to a public auction
carried out through court process/receiver
as that is the most transparent manner of
obtaining the correct market value of the
property.
23. It is no doubt true that in a court
auction, the price obtainable may be slightly
less as any bidder has to take care of a
scenario where the auction may be
challenged which could result in passage of
time in obtaining perfection of title, with
also the possibility of it being overturned.
But then that is a price obtainable as a
result of the process by which the property
has to be disposed of. We cannot lose sight
of the very objective of the introduction of
the Section whether under the West Bengal
Amendment Act or in any other State, i.e.,
that in case of under valuation of property,
an aspect not uncommon in our country,
where consideration may be passing
through two modes - one the declared price
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and the other undeclared component, the
State should not be deprived of the revenue.
Such transactions do not reflect the correct
price in the document as something more
has been paid through a different method.
The objective is to take care of such a
scenario so that the State revenue is not
affected and the price actually obtainable in
a free market should be capable of being
stamped. If one may say, it is, in fact, a
reflection on the manner in which the
transfer of an immovable property takes
place as the price obtainable in a
transparent manner would be different. An
auction of a property is possibly one of the
most transparent methods by which the
property can be sold. Thus, to say that even
in a court monitored auction, the
Registering Authority would have a say on
what is the market price, would amount to
the Registering Authority sitting in appeal
over the decision of the Court permitting
sale at a particular price.
24. It is not as if a public auction is carried
out just like that. The necessary pre-
requisites require fixation of a minimum
price and other aspects to be taken care of
so that the bidding process is transparent.
Even after the bidding process is completed
the court has a right to cancel the bid and
such bids are subject to confirmation by the
court. Once the court is satisfied that the
bid price is the appropriate price on the
basis of the material before it and gives its
imprimatur to it, any interference by the
Registering Authority on the aspect of price
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
of transaction would be wholly unjustified.
25. We may only note that this Court in P.
Laxmi Devi15 case has opined the purpose
behind bringing into force Section 47A in
the Andhra Pradesh State, i.e., in case of
large scale under-valuation of the real value
of property in the sale deed, the
Government is defrauded of a proper
revenue. It was to take care of the absence
of any provision in the original Stamp Act
empowering revenue authority to make an
inquiry about the value of the conveyed
property, that the Amendment was brought
forth so that the revenue did not suffer. The
judgment in V.N. Devadoss 16 case albeit in
respect of Amendment in Tamil Nadu,
opined that it was not a routine procedure
to be followed in respect of each and every
document of conveyance presented for
registration without any evidence to show a
lack of bona fides of the parties. There has
to be a willful under-valuation of the subject
of transfer with fraudulent intention to
evade payment of proper stamp duty.
26. We do not accept the contention that the
mere wordings of these different provisions
in any way take away the fundamental
intent with which the provision was brought
into force and specifies so in the same
manner though albeit in a different
language. In a court auction following its
own procedure, the Registering Officer
cannot have any reason to believe that the
market value of the property was not duly
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
set forth - a pre-requisite for a Registering
Authority to exercise its power under the
said Section.
27. If we see in the factual context of the
two scenarios before us in respect of the
two cases, the telling aspect in a partition
case was the existence of 98 tenants on a
land at a monthly rent of Rs.8,000 for the
entire land and 80 vendors occupying the
land for hawking business during day time.
It is trite to say that the mere existence of
tenancy results in a considerable decline in
the market value of the property as they
may have their statutory rights and even
otherwise, the purchaser would be
acquiring the property hardly in an ideal
scenario and would be left with the burden
to take legal processes for the eviction. In
such a scenario, there is actually a great
depression in the market value of the
property as even if a fair transaction
without an auction takes place with full
reflection of price, the transacted value
would be half or less of a vacant property.
The tenancy aspect can hardly be said to be
an aspect which could be ignored in the
determination of the price.
28. In the company matter, repeated
auctions were held and it is in the
negotiated bid that the higher price was
obtained. It was court monitored. There
would be no occasion for the court to accept
the bid if it was not satisfied with the
process and the valuation. A correct value of
a property is the one where there is a
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
purchaser and a seller ad idem on the price
(the actual price). The market value is, thus,
the value which the highest bidder is willing
to pay in the facts and prevailing
circumstances and not a notional price.
29. We find hardly any rational in adopting
the submissions on behalf of the appellant.
The provisions are not dissimilar in the
different enactments in its fundamentals;
the "reason to believe" of a Registering
Officer has to be based on ground realities
and not some whimsical determination; the
Registering Authority cannot be permitted
to doubt the liquidation proceedings as
having some superior knowledge when it is
a court monitored process where the court
would take care of aspects such as
cartelization; the Registering Authority can
hardly be said to be the only authority with
knowledge of the subject to the exclusion of
the court; the independent determination by
a Registering Officer would not apply to a
court sale but to a private transaction; the
Stamp Act being a fiscal statute, while being
interpreted strictly and literally would not
imply some kind of absolute power.
30. The decision of this Court in V.N.
Devadoss17 case can hardly be said to be
per incuriam. No doubt a court monitored
auction is a forced sale, but then it has a
competitive element of a public auction to
realize the best possible price. In many
court cases, this is the process followed by
the court to get the best obtainable price
taking due precaution."
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
14. Reading the conclusions would indicate that the
Supreme Court observed that it is no doubt true
that in a Court auction, the price obtainable may
be slightly less as any bidder has to take care of
a scenario where the auction may be challenged
but then that is the price obtainable as a result of
the process by which the property has to be
disposed of. An auction of a property is possibly
one of the most transparent methods. Even the
Court monitored the auction. Therefore the
registering authority cannot sit in appeal over
the decision of the Court directing a sale at a
particular price.
15. Coming to the other submissions of the learned
AGP as pointed out in the affidavit of the sale
deed being registered four years after the date of
the auction, reading of the order annexed to the
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
petition indicates that the auction was held
pursuant to the order first in point of time on
13.01.2009. Thereafter, after an order passed on
18.12.2009, in Company Application No.46 of
2009, the applicant was permitted to execute a
sale deed. An O.J. Appeal was filed which was
partly allowed by a judgement of the Division
Bench on 14.06.2011 and finally it was by an
order dated 27.02.2013 of this Court that the
way was paved for the petitioner to execute the
sale deed which he did on 18.05.2013. No delay
therefore can be attributed to press into service
the argument advanced by the State in its
affidavit suggesting that the Jantri rates would
be different at the date of confirmation of the
sale and execution of the sale deed.
16. Prima-facie, in light of the judgement of the
Supreme Court in case of V N Devadoss (supra)
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
the observations of this Court in Bajaj Col
Chem (supra) may not be binding on this Court.
17. For the aforesaid reasons, the order dated
30.05.2015 passed by the respondent no.1 and
the order dated 24.02.2014 passed by the
respondent no.2 are quashed and set aside. The
amount of Rs.28,94,085/- and the penalty of
Rs.250/- is directed to be refunded to the
petitioner within a period of 10 weeks from the
date of receipt of copy of this order.
18. So far as the issue of interest is concerned, at
this stage Mr.Asthavadi would rely on the
decision in case of Alok Shanker Pande v.
Union of India reported in 2007 LawSuit (SC)
154, particularly Para 9 thereof suggesting that
there is misconception about interest. Interest is
not a penalty or punishment at all. It is normally
C/SCA/1345/2017 JUDGMENT DATED: 21/02/2023
acquisition of capital. Here is a case where on
an interpretation of the provisions of the Act, the
authorities in their wisdom may be which now is
subsequently held to be erroneous have passed
an order. The remedy has been availed of by the
petitioner, for which, the petitioner has earned
the amount of refund. Therefore, no interest as
prayed for can be granted. Petition is allowed to
the aforesaid extent. Rule is made absolute
accordingly. No costs.
(BIREN VAISHNAV, J)
ANKIT SHAH
