[Cites 25, Cited by 0]
Gujarat High Court
Motiben Khengarbhai Vadher vs Chief Controlling Revenue Authority, ... on 9 April, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15996 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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MOTIBEN KHENGARBHAI VADHER
Versus
CHIEF CONTROLLING REVENUE AUTHORITY, GUJARAT STATE & ANR.
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Appearance:
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1
MS NIRALI SARDA, ASST. GOVERNMENT PLEADER for the Respondent(s)
No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/04/2026
JUDGMENT
1. Rule returnable forthwith. Ms. Nirali Sarda, learned Assistant
Government Pleader, waives service of notice of Rule for and on
behalf of the respondents Authorities.
2. With the consent of the learned counsel appearing for the
respective parties, the petition has been taken up for final hearing
today.
3. By way of present petition under Articles 14, 19(1)(g), 21, 226,
227 & 300A of the Constitution of India read with the provisions of the
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Gujarat Stamp Act, 1958 (hereinafter be referred to as "the Act") and
the Gujarat/Bombay Stamp (Determination of Market Value of
Property) Rules, 1984 (hereinafter be referred to as "the Rules"),
petitioner has prayed for the following reliefs :
"(A) YOUR LORDSHIPS may be pleased to admit this Special Civil
Application;
(B) YOUR LORDSHIPS may further be pleased to issue a writ of
certiorari or any other appropriate writ, Order or direction in the
nature of certiorari and be pleased to quash and set aside the Order
dated 25.04.2022 passed by the Respondent No. 1 in Stamp/ Appeal/
53(1)/ Rajkot-2/ 35/2021 (Annexure "A") and the Order dated
06.09.2021 passed by the Respondent no. 2 (Annexure "B") and the
Order dated 15.07.2019 passed by the Respondent no. 1 (Annexure
"C").
(C) Pending the admission, hearing and final disposal of this petition,
YOUR LORDSHIPS may be pleased to stay the further execution,
operation and implementation of the Order dated 25.04.2022 passed
by the Respondent no. 1 in Stamp/ Appeal/ 53(1)/ Rajkot-2/35/2021
(Annexure "A") and the Order dated 06.09.2021 passed by the
Respondent no. 2 (Annexure "B");
(D) Any other and further relief as thought fit may kindly be granted."
4. Brief facts giving rise to the present petition are that, upon the
application of the petitioner's predecessor in title, the respondent No.
2 after adjudication in exercise of powers u/s. 31 of the Act decided
that the market value of the subject property is Rs. 15,00,000/-. It is
the case of the petitioner that, the petitioner purchased the subject
land from Kishorbhai Vaghjibhai Lunagriya at the price of Rs.
17,80,000/- and accordingly, paid Stamp Duty of Rs. 87,500/- on the
registered said sale-deed. That, the respondent No. 1 in exercise of
powers u/s. 53-A of the Act, issued show-cause notice and initiated
proceedings for review of the decision of the respondent No. 2 on the
premise that the market value of the subject property was valued less
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at the relevant point of time and therefore, sufficient stamp duty was
not paid on the document. That, the respondent No.1 set aside the
decision of the Deputy Collector u/s. 31 of the Act and remanded the
matter to the respondent No. 2 directing him to re-decide the case
taking into consideration the details contained in the said Order. That,
the respondent No. 2 issued show cause notice exercising powers u/s.
39(1)(b) of the Act enclosing copy of the Calculation Sheet. That, the
respondent No. 2, exercising powers u/s. 32-A of the Act and Rules of
1984, passed the Order to recover deficit stamp duty of Rs. 5,66,871/-
and fine of Rs. 250/- and in total, Rs. 5,67,121/- from the petitioner.
That, on the basis of the Order dated 06.09.2021, an Entry No. 3243
came to be mutated creating encumbrance on the subject land
certified on 25.10.2021. That, the petitioner paid Rs. 1,41,718/-
towards 25% of the deficit stamp fees with a view to prefer revision.
That, the petitioner challenged the Order dated 06.09.2021 passed by
the respondent No. 2 by preferring Appeal No. 35 of 2021 before the
respondent No. 1. That, the petitioner in support of his Appeal
submitted Written Reply-cum-Arguments along with the list of
documents. That, the respondent No. 1 confirmed the Order dated
06.09.2021 and rejected the Appeal of the petitioner vide its order
dated 25.04.2022.
5. Being aggrieved and dissatisfied with the impugned orders
dated 25.04.2022 and 06.09.2021 passed by the respondents No.1
and 2 respectively, petitioner has preferred this petition.
6. Heard Mr. Bhaumik Dholariya, learned counsel appearing on
behalf of the petitioner and Ms. Nirali Sarda, learned Assistant
Government Pleader, appearing on behalf of the respondents.
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7. Learned counsel Mr. Dholariya has submitted that the impugned
order passed by the respondent No.1 under Section 53(1) of the Act,
confirming the order passed by the respondent No.2, is illegal,
erroneous and unjust and against the settled legal principles and
therefore, the same is required to be quashed and set aside. He has
submitted that the impugned order confirming the order passed by
the respondent No.2, wherein, the documents registered in the office
of the Sub-Registrar, Rajkot Zone-3 (Ratanpar) at registration no.
6860 dated 24.09.2009 for which, notice was issued by the office of
the Deputy Collector, Stamp Duty on 02.06.2020 and 17.07.2020
under the provisions of Section 39(1)(b) of the Act for deficit stamp
duty. He has submitted that it was also mentioned that this document
is registered on 24.09.2009 on the basis of the opinion of the office of
the respondent No.1. He has submitted that for the first time such
notice was issued to the petitioner after almost 11 years of the
registration of the said document, which itself is without jurisdiction
and against the settled principles of law. He has further submitted
that the document was registered way back in the year 2009,
however, on the audit carried by the office of the Accountant General,
the objection was raised on the basis of the scrutiny of the document
registered during 2009-2010 to 2013-2014 and during that period, the
documents which were registered, wherein price mentioned in the
particular document was not as per the Jantri and therefore, the
Auditor General has raised objection and directed the respondent
No.2 to recover the deficit stamp duty from the concerned person and
on the basis of the audit remarks, the proceedings were initiated by
the respondent No.2, which itself is against the settled principles of
law and against the provisions of the Act.
7.1 Learned counsel Mr. Dholariya has submitted that the issue
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involved in the present petition is squarely covered by the decision of
this Court rendered in case of Nandadevi Dineshkumar Sharma
vs. Chief Controlling Revenue Authority & Ors. reported in
[2006] 3 GLR 2535; the recent decision of this Court rendered in
case of Century Tiles Through Director Ganpatbhai Dahyabhai
Patel vs. Deputy Collector & Ors. in Special Civil Application
No. 6640 of 2008, decided on 05.08.2022; the decision of the
Division Bench of this Court rendered in case of Bileshwar
Industrial Estate Developers Pvt. Ltd. vs. State of Gujarat,
Through Under Secretary reported in [2013] 2 GLR 1434; and
also the decision of this Court rendered in case of Jayant Shantilal
Sanghvi vs. State of Gujarat in Special Civil Application No.
12015 of 2016. Over and above the grounds agitated in the memo
of petition, learned counsel Mr. Dholariya has urged that the present
petition be allowed and the impugned orders be quashed and set
aside.
8. As against that, learned AGP Ms. Sarda, appearing on behalf of
the respondents authorities has objected the present petition and
submitted that the orders passed by the respondents authorities do
not require any interference as the orders are completely legal, just
and proper. Referring the the affidavit-in-reply filed on behalf of the
respondent No.2, she has submitted that the respondent No. 1 vide
order dated 22.04.2022, while rejecting the appeal preferred by the
present petitioner, has upheld the order dated 06.09.2021 passed by
respondent No. 2 by stating the valid reasons for refusal. She has
submitted that the respondent No.1 has provided concurrent finding
by reasoned and speaking order and in para 5.9 of the impugned
order, the respondent No. 1 has completely demonstrated the
calculation of land in question as per the market value as per the
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transaction of the land in question. She has submitted that, while
upholding the decision passed by the respondent No. 2, the
respondent No. 1 has considered the fact that at the relevant point in
time, the Deputy Collector, Stamp Duty, and Calculation Department,
in the valuation report dated 04.09.2009 under Section 31 of the Act,
has not analyzed the site situation or market value of the land in
question. She has submitted that the order passed by respondent No.
1 is completely reasoned and speaking order and therefore, does not
required any consideration more so in view of the judgment of the
Hon'ble Apex Court in case of Shri Sachidanand Pandey vs. State
of West Bengal reported in AIR 1987 SC 1109, and therefore,
looking to the order and the facts of the present case, it becomes
clear that valuation is done in accordance with the Act. She has
submitted that the impugned order passed by the respondent No. 2
does not require any consideration or interference because, while
passing the said order, the Deputy Collector Stamp Duty, Valuation
Department, explicitly gone into the calculation and valuation of the
land in question as per the market value and in accordance with the
Act, Article 20 of Schedule-I, and the said order was passed by
respondent No. 2 after issuing notice to be heard on 02.06.2020 and
17.07.2020 to the present petitioner. She has submitted that the
impugned order passed by respondent no. 2 is in consonance with the
provisions of the Act, more particularly, Section 32K of Act read with
Gujarat Stamp (Market Value) Rules, 1984, which is within the
parameters of the powers enumerated in the said Act or the Rules
thereunder. She has submitted that the say of the petitioner that the
notice under Section 32A of the Act was issued after 10 years, is
completely misconceived and misleading, since on 04.09.2009, the
Deputy Collector, Stamp Duty gave opinion under Section 31 of the
Act to the original purchaser namely Kishorbhai Vaghejibhai and
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thereafter, the said Kishorbhai sold the land to the petitioner as per
the market value assessed at that time. She has submitted that
thereafter, the Audit was conducted by the Accountant General and
therefore, the Sub-Registrar sought opinion from the Deputy Collector
(Stamp and Duty) and the Deputy Collector sent the request made by
Sub-registrar to the office of the respondent No.1 and that, the
respondent No.1, being the appropriate authority, issued notice to the
petitioner on 13.02.2015, 07.02.2017, 07.06.2017, 04.07.2017 and
thereafter, the respondent No.1 remanded the case to the office of
the respondent No.2 on 15.07.2019 and thus, the issuance of notice
by the respondent No.1 is within the limitation period prescribed for
exercising the power under 32A, Section 53(C) of the Act. She has
submitted that the impugned order dated 06.09.2021 also does not
required any interference in view of the order passed by this Court in
the Letters Patent Appeal No. 336 of 2013, wherein this Court
vide order dated 03.07.2014 held that Section 53 r/w Sub-Section (1)
empowers the Controlling Authority to increase the duty leviable on a
document even if, Collector had previously adjudicated such a
question and that would be in realm of the powers of Controlling
Authority.
8.1 Learned AGP Ms. Sarda has further submitted that the
impugned order passed by respondent No. 1 - Chief Controlling
Revenue Authority is completely legal, just, and proper and does not
require any interference, since while passing the reasoned and
speaking order the respondent No. 1 in para 6.3 and 6.4 has analyzed
every aspect such as while deciding the market value of land in
question the Deputy Collector, Stamp Duty Valuation Department,
Rajkot Department-II at that relevant point, had not gone into other
aspects of land in question. i.e., development aspects of land in
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question, area, market value of adjacent survey numbers, roads
passing inter se or nearby the land in question, etc. She has
submitted that the Deputy Collector, while passing the order dated
24.09.2009 did not analyzed any other documents of sale or purchase
took place at that point in time regarding property situated adjacent
to the land in question and therefore, para 6.3, 6.4 and 6.5 of the
order passed by respondent No. 1 dated 15.07.2019 are relevant.
Under such circumstances, learned AGP Ms. Sarda has urged that no
interference is required to be called for in the present petition and the
present petition be dismissed.
9. I have heard the learned counsel appearing for the respective
parties and perused the material placed on record. I have also gone
through the impugned orders passed by the respondents authorities.
The issue involved in the present petition is that whether the initiation
of the proceedings on the basis of the audit remarks of the auditor
after almost 11 years of the registration of the documents is justified
or not, whether the authorities are right and justified in initiating the
proceedings, whether the respondents authorities are justified in
passing the impugned orders without considering the settled legal
principles enunciated by this Court, in response to which, the decision
referred and relied upon by the learned counsel Mr. Dholariya in case
of Nandadevi Dinehskumar Sharma (Supra), wherein, this Court
has considered the provisions of Rule 4 of the Bombay Stamp
(Determination of Market Value of Property) Rules, 1984 read with
Section 32A of the Act with regard to levy of stamp duty,
determination of market value of property on the basis of Jantri is
merely probability and the hypothetical Jantri determines the market
value of the property. This Court has further held that the market
value is to be determined in accordance with the procedure and
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principles contained in Rule 4 and 8 of the Rules read with the
provisions of the Act, and when any authority determines or proposed
to determine higher market value then the said authority has to
justify fixation of such higher market value and the authority has to
assign reasons for arriving at such higher market value and if, the
authority assigns no reasons, no basis, no calculation for arriving at
the higher market value, then such order is required to be quashed
and set aside. This Court in case of Jayant Shantilal Sanghvi
(Supra) in Special Application No. 12015 of 2016 has also observed
on the same lines and quashed and set aside the order passed by the
concerned authority.
9.1 In case of Century Tiles Through Director Ganpatbhai
Dahyabhai Patel (Supra), this Court has observed and held as
under :
"5. On both the aforesaid counts, the case of the petitioner could be
countenanced. On going through the document dated 07.03.2005,
which is titled as "Memorandum of Deposit of Title Deeds", it could
be gathered that it provided for handing over to and deposit with the
bank the title deeds of the property mentioned in the second
schedule of the memorandum. The deposit was in connection with
credit facility granted to the petitioner- Company.
5.1 This being the position emerging, the learned advocate for the
petitioner could successfully rely on the decision of this court in the
case of Sumesh Prahladbhai Bakshi vs. State of Gujarat being Special
Civil Application No.15388 of 2013 decided on 04.07.2016, in which
similar issue was dealt with and it was held that for attracting stamp
duty in respect of document in the nature of Memorandum of Deposit
of Title Deeds, Article 6 of Schedule-I of the Bombay Stamp Act, 1951
would apply. The authorities could not have adverted to Article 36 of
Schedule-I for the purpose of levying stamp duty treating the
documents to be a mortgaged deed. In the facts of this case, the
decision of this court in Sumesh Prahladbhai Bakshi (supra) is
required to be followed.
5.2 The second contention raised by the petitioner also merits
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acceptance which is that the authority under the Stamp Act, could
not have exercised his powers unless there was an impounding of the
document. A valid exercise of the powers under Section 33 read with
Section 39 of the Act can only be done after the instrument is
impounded. Mere securing copy of the instrument is no impounding
but original document has to be taken into custody to make it an act
of impounding. It is well settled that it is only after the instrument is
lawfully impounded, the jurisdiction would vest in the stamp
authorities to proceed under Sections 33 and 39 of the Act for the
purpose of charging document and assessing the same to stamp
duty."
9.2 In case of Bileshwar Industrial Estate Developers Pvt. Ltd.
(Supra), the division Bench of this Court has observed and held as
under :
"8. Provisions of sections 33 and 39 of the Act read as under :
"33. Examination and impounding of instruments.-
[1] Subject to the provisions of section 32-A, every person having, by law or
consent of parties, authority to receive evidence and every person in
charge of a public office, except an officer of police or any other officer,
empowered by law to investigate offences under any law for the time being
in force, before whom any instrument chargeable, in his opinion, with duty,
is produced or comes in the performance of his functions shall, if it appears
to him that such instrument is not duly stamped, impound the same
irrespective whether the instrument is or is not valid in law.
[2] For that purpose, every such person shall examine every instrument so
chargeable and so produced or coming before him in order to ascertain
whether it is stamped with a stamp of the value and description required by
the law for the time being in force in the State when such instrument was
executed or first executed;
"39. Collector's power to stamp instruments impounded.-
[1] When the Collector impounds any instrument under section 33, or
receives any instrument sent to him under sub- section [2] of section 37,
not being an instrument chargeable with a duty of twenty naye paise, or
less, he shall adopt the following procedure :-
[a] if he is of opinion that such instrument is duly stamped or is not
chargeable with duty, he shall certify by endorsement thereon that it is duly
stamped, or that it is not so chargeable, as the case may be.
[b] if he is of opinion that such instrument is chargeable with duty and is
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not duly stamped, he shall require the payment of the property duty or the
amount required to make up the same, together with a penalty of five
rupees; or, if he thinks fit, an amount not exceeding ten times the amount
of the proper duty or of the deficient portion therefor, whether such amount
exceeds or falls short of five rupees ..."
9. The plain reading of above two sections makes it clear that the powers
under section 39 [a] comes in picture only when document is impounded as
provided in section 33 read with section 32-A of the Act. Section 32-A is
part of Chapter 3 of the Act, which deals with adjudication as to stamp;
whereas sections 33 and 39 are part of Chapter 4 of the Act, which deals
with instruments not duly stamped. But when reference of section 32 is in
section 33 and reference of section 33 is in section 39, all such provisions
practically speak and deal with the documents which are otherwise
produced before any authority as an evidence and empowers such
authority to impound such document if it appears to it in the performance
of its functions that such instrument is not duly stamped. Though such
provision of section 33 is subject to provision of section 32-A, which
empowers the Registrar at the time of registration itself to initiate
proceedings under such sections; as such provision was added only in the
year 1982; it is certain and clear that the Deputy Collector, Stamp Duty
Valuation, can impound the document only if it appears to him that such
instrument is not duly stamped. Whereas in the present case,
unfortunately, the Deputy Collector, Stamp Duty Valuation, has while
issuing impugned show cause notice dated 2-11/4/2012 failed to appreciate
that in fact the appellant has applied to him under section 31 calling upon
him to determine the stamp duty and only after determination of the stamp
duty by the Competent Authority, which is for higher amount than the
actual sale price, the appellant has already paid such stamp duty.
10. Thus, it appears that the show cause notice was issued by the Deputy
Collector, Stamp Duty Valuation, Ahmedabad, under the impression that
the sale-deed dated 15/4/2008 had been impounded by the respondents.
Though there is no scope to impound the document when it was presented
for registration on the ground that it was not duly stamped. In the affidavit-
in-reply it has not been disputed that after registration, the sale-deed or
deed of sale has been returned back to the appellant. It was never required
to be impounded by the respondents or the authorities concerned, since
stamp duty was paid after obtaining certificate under section 31 of the Act.
Such restriction is confirmed in section 32-A itself. Therefore, provision of
section 39 [1][b] would only come into play where the instrument has been
impounded under section 33 or required to be impounded under section 32-
A of the Act and only then the the Deputy Collector, Stamp Duty Valuation,
Ahmedabad, shall have power to demand stamp duty or penalty. The Act
does not provide or grant any power to the Deputy Collector, Stamp Duty
Valuation, to impound the document where the instrument is found
sufficiently stamped and has been registered. In such a situation, there is
no provision in the Act under which the the Deputy Collector, Stamp Duty
Valuation, Ahmedabad, could issue show cause notice to the concerned
party under section 39[1] [b]. The provisions of the Act are crystal clear,
wherein though powers are vested in the Competent Authority to impound
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the instruments which are not duly stamped and to penalize the person
who executes any instrument chargeable with duty without the same being
duly stamped, the Competent Authority can take steps in only accordance
with law and any action under law shall be restricted to the applicable law
and the rules with reference to the instrument in question. Thereby, when
the Competent Authority has selected wrong provision to initiate any
proceedings, such act cannot be considered legal and within powers and
jurisdiction of the Competent Authority.
11. In the present case, at the cost of repetition it is to be recollected that
the appellant has purchased the property in the auction from the DRT and
even after issuance of sale certificate by DRT mentioning the sale price as
Rs.4.51 crore, the appellant has paid stamp duty on the market value being
Rs.5.49 crore as determined by the Competent Authority and present
respondents themselves. Therefore, at later stage, after four years, the
respondents are not permitted to reopen the issue only by making
reference of some internal audit. It is also necessary to consider here that
by passage of time, value of immovable property increases and, therefore,
the value of the property at the time of audit cannot be considered, but
market value and price of the property is to be considered as on the date of
the auction and sale. Therefore, we are of the considered opinion that the
Deputy Collector, Stamp Duty Valuation, has no power to issue impugned
notice under section 39 [1][b] of the Act, and the notice issued by him is
without jurisdiction.
12. The appellant has relied upon the judgment rendered in Special Civil
Application No. 18319/2007 dated 23/2/2010 as well as reported judgment
in the case of Nandadevi Dineshkumar Sharma v. Chief Controlling Revenue
Authority reported in 2006 [2] GLH 775. Both the judgments are though of
the Ld. Single Judge, specifically confirmed that the respondents have no
authority either to impound the document or to reopen the valuation only
upon the report of the auditor, under section 39 and that burden of proof to
determine the market value is upon the Stamp Duty Valuation Authority
and they have to justify fixation of higher market value. Therefore, in the
present case, once certificate under section 31 was issued by the
respondents, they should not be allowed to reopen their own valuation after
four years to say that valuation of the property is higher, relying only upon
the Auditor's report. Whereas the judgment rendered by the Hon'ble Apex
Court in V N Devadoss v. Chief Revenue Control Officer reported in 2009
GLHEL SC 43655 [Civil Appeal No. 3411/2009 decided on 8/5/2009]
specifically confirmed and held that when any property has been purchased
as per open offer, question of undervaluation does not arise. In the given
case, when property was purchased under the directions of BIFR and AAIFR,
the Hon'ble Apex Court has held that the market value is price of the
property which can be fetched if sold in open market on the date of
execution of instrument and, therefore, stamp duty is payable on such sale
price when the Stamping Authority had issued a notice to the purchaser in
that case, to pay the stamp duty as per market value."
10. In view of the foregoing reasons, discussion and position of law
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emerging, the present petition is allowed. The impugned order dated
25.04.2022 passed by the respondent No.1 - The Chief Controlling
Revenue Authority, Gandhinagar in Stamp / Appeal / 53(1) / Rajkot-2 /
35/2021 and the order dated 06.09.2021 passed by the Respondent
No. 2 - The Deputy Collector, Stamp Duty Valuation Department,
Rajkot are hereby quashed and set aside. Rule is made absolute.
(HEMANT M. PRACHCHHAK,J)
Dolly
