NEUTRAL CITATION
Modification of Order dtd.
C/SCA/12372/2016 22/06/2022 in R/SCA/12372/2016ORDER DATED: 06/07/2022
2022:GUJHC:27252
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12372 of 2016
[On note for speaking to minutes of order dated 22/06/2022 in
R/SCA/12372/2016 ]
==========================================================
MEERA S. DESAI W/O SHAILESHBHAI DESAI THROUGH POA NITIN
YOGESHCHANDRA TIRVEDI & 1 other(s)
Versus
DEPUTY COLLECTOR & 1 other(s)
==========================================================
Appearance:
MR AADITYA P 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 : 06/07/2022
ORAL ORDER
Learned advocate Mr.Aaditya Dave has filed the note for speaking
to minutes with regard to refund of the amount, which is already
deposited by the petitioner before the revisional authority. He has
submitted that the petitioner had deposited 25% of the stamp duty deficit
amount, which is recorded in the order dated 19.03.2016.
In this view of the matter, the following directions shall be added
in the order dated 22.06.2022.
“The revisional authority shall refund the amount of 25% of the
deficit stamp duty deposited by the petitioner after due verification.”
Rest of the order remains intact. The note for speaking to minutes
stands disposed of accordingly. Registry to issue fresh writ/order
accordingly.
(A. S. SUPEHIA, J)
ABHISHEK/1
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NEUTRAL CITATION
Present Order is modified vide
C/SCA/12372/2016 Order dtd. 06/07/2022 in ORDER DATED: 22/06/2022
R/SCA/12372/2016
2022:GUJHC:27252
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12372 of 2016
==========================================================
MEERA S. DESAI W/O SHAILESHBHAI DESAI THROUGH POA NITIN
YOGESHCHANDRA TIRVEDI & 1 other(s)
Versus
DEPUTY COLLECTOR & 1 other(s)
==========================================================
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
==========================================================
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
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NEUTRAL CITATION
Present Order is modified vide
C/SCA/12372/2016 Order dtd. 06/07/2022 in ORDER DATED: 22/06/2022
R/SCA/12372/2016
2022:GUJHC:27252
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:
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NEUTRAL CITATION
Present Order is modified vide
C/SCA/12372/2016 Order dtd. 06/07/2022 in ORDER DATED: 22/06/2022
R/SCA/12372/2016
2022:GUJHC:27252
(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
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