Svm Plaza Trade Arena Pvt. Ltd. v. Revenue Secretary
2016-02-08
JAYANT PATEL, VIPUL M.PANCHOLI
body2016
DigiLaw.ai
JUDGMENT : Jayant Patel, J. The appeals are admitted. Mr. Chintan Dave, learned Assistant Government Pleader waives notice for respondents in all the appeals. With the consent of the learned counsel appearing for both the sides, the appeals are finally heard. 2. The present appeals are directed against the orders passed by the learned single Judge in the respective Special Civil Applications, whereby the learned single Judge has not entertained the petitions under Article 226 of the Constitution on the ground that remedy of appeal under Section 53(1) of the Gujarat Stamp Act, 1958 is available. 3. The short facts of the case appear to be that notice was issued for assessment of stamp duty to the respective original petitioner. In response to the notice, reply was filed by the respective original petitioner on 31.7.2015 Acknowledgment of the said reply is also made by the Inward clerk. It appears that thereafter, on 31st August, 2015, an order came to be passed by the Collector & Additional Superintendent of Stamps, copy whereof is produced at Annexure:C in the main petitions. The petitioners challenged the said order in the main respective Special Civil Applications. The learned single Judge found that there is remedy of appeal and hence the petitions were not entertained. Under the circumstances, the present appeals before the Division Bench of this Court. 4. We have heard Mr. Umang Choksi, learned counsel for the appellants and Mr. Chindan Dave, learned AGP for the State and authorities. 5. The perusal of the order of the Collector & Additional Superintendent of Stamps dated 31st August, 2015 shows that no reply was submitted on behalf of the original petitioners, whereas the record produced by the original petitioners is otherwise, namely that the reply was already submitted prior to the order dated 31.8.2015 The fact remains that the Collector & Additional Superintendent of Stamps proceeded on the basis that as no reply has been submitted, the matter is examined ex partewithout considering the contentions raised by the original petitioners in the reply and the order has been passed. As such, order of the Collector & Additional Superintendent of Stamp can be said to be in breach of principles of natural justice. Mr. Dave was unable to show that reply was not submitted. 6.
As such, order of the Collector & Additional Superintendent of Stamp can be said to be in breach of principles of natural justice. Mr. Dave was unable to show that reply was not submitted. 6. It is hardly required to be stated that if reply was already submitted on behalf of the appellants, it would be obligatory on the part of the respondent-Collector & Additional Superintendent of Stamp to consider the contentions raised in the reply and thereafter to pass appropriate order. If the reply was already submitted and the authority has proceeded on the basis as if no reply is submitted, the order could be said to be not only in breach of principles of natural justice, but it could also be termed as perverse to the record of the case, more particularly when the factum of filing of reply is undisputed. 7. It is true that in a petition under Article 226 of the Constitution, the Court would, by way of self-restriction, decline entertainment of the petition when alternative statutory remedy is available. Further, it is also well-settled principle that if principles of natural justice are breached, the Court may entertain the petition in a given case. Further, if remedy of appeal is resorted to, one is required to deposit 25% of the amount and therefore, if the order has been passed without hearing the petitioners or without considering the contents of the reply, which was also on record, the departure can be made from normal principles by relegating the party to the remedy of appeal by way of exceptional circumstances. 8. In view of the above, the impugned order dated 31st August, 2015 passed by the Collector & Additional Superintendent of Stamp for demand of additional stamp duty (Annexure:C) is set aside with further direction that Collector & Additional Superintendent of Stamp shall consider the reply submitted by the appellants and after giving an opportunity of hearing, appropriate order shall be passed in accordance with law. The order of the learned single Judge is set aside. The appeals shall stand allowed to the aforesaid extent. 9. Considering the facts and circumstances, no order as to costs.