BHIKHUBHAI SOMABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) On 30th October, 1990, the Collector for the District of Banaskantha at Palanpur passed the order withdrawing the notice and refusing to levy more stamp duty qua the Sale Deeds executed and registered. The petitioner, feeling aggrieved by such order, has filed this petition under Art. 226 of the Constitution of India praying to issue a Writ of Mandamus or any other appropriate writ quashing and setting aside the order of the Collector.

(2.) The facts which led the petitioner to prefer the present petition may in brief be stated. In 1982 in favour of the opponent No. 4, a Sale deed was executed when he purchased the property and another Sale Deed was executed in favour of the opponent Nos. 4 and 5 to 9, who also purchased another property. The petitioner who came to know about the sale transactions complained to the Collector on 12th July, 1982 bringing the facts to his notice that the said two Sale deeds executed were not sufficiently stamped and the value for payment of stamp duty was assessed far below the prevalent market value so as to devicefully evade the stamp duty. A complaint to the Vigilance Commissioner in this regard was also made, and thereafter, the Collector, holding inquiry passed the order on 6th November, 1986. He found that the valuation of the property made was much less than the real market value, and it was for the purpose of evading the stamp duty. One of the properties' value was assessed at Rs. 2,00,000/- although the market value of which was Rs. 12,00,000/-, likewise the value of another property though being Rs. 1,75,000/-, assessment thereof for the purpose of paying stamp duty was made at Rs. 90,000/-. He therefore, directed to pay the deficit stamp duty and penalty thereon. Against that order, the opponent Nos. 4 to 9 approached the Appellate Authority namely the Chief Controlling Revenue Authority of Gujarat State in September, 1988 without paying 75% of the amount of the duty and penalty. That application was entertained by the Appellate Authority, though it was barred by the period of limitation and delay caused was not at all condoned. The Appellate Authority without issuing a notice to the petitioner and without affording an opportunity to the petitioner to submit, despite the fact that the petitioner had made an application on 7th June, 1988 for giving the opportunity to submit, passed the order and remanded the matter to the Collector. The petitioner was also not informed about the order passed and was not even supplied with the copy of the order. The petitioner, on going to the office of the Collector to inquire whether the stamp duty was paid, came to know that the Appellate Authority had already remanded the matter, and thereafter, the Collector had withdrawn the notice dated 16th September, 1989, passing the impugned order on 30th October, 1990. The Collector and the Chief Controlling Revenue Authority ought to have passed the order giving every reasonable opportunity to the petitioner to submit his say. The orders were passed without jurisdiction. The opportunity to submit was also not given. The orders passed, are therefore, invalid and illegal in the eye of law. The appeal was not preferred within 60 days, and therefore, also the order passed in Appeal is a non est in the eye of law. The petitioner had made it clear in his complaint that he was ready to purchase both the properties for Rs. 12,00,000/- and more. Having come to know about such orders already passed, the petitioner has filed this petition calling in question the legality and validity of both the orders.

(3.) The learned Advocate representing the petitioner has raised only two points so as to challenge the order. Firstly, it is contended that when the petitioner was deprived of the opportunity of being heard, the impugned order may be held bad; and secondly, any person can challenge the order so as to protect public exchequer and check dishonesty or misuse of power on the part of the concerned authority. The Court has, therefore, to deal with two questions namely (1) whether in such cases a third party is having a locus standi to complain against the undervaluation made for the purpose of evading stamp duty, and (2) whether the person complaining has a right to have the opportunity to submit his say. The learned Advocate for the petitioner in this regard has submitted that if the authority is not performing its duty honestly and sincerely, or is ignorant about the undervaluation and in the interest of the public exchequer, if a third party raises the issue about the levy of more stamp duty, his complaint should not only be entertained but opportunity to submit should also be given to him so as to check the mischief or collusion.