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2018 DIGILAW 774 (GUJ)

RAPHAEL ANTON DABHI v. STATE OF GUJARAT

2018-06-22

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2018
JUDGMENT : VIPUL M. PANCHOLI, J. 1. This appeal is filed under Clause 15 of the Letters Patent against the order dated 18.09.2017 passed by the learned Single Judge in Special Civil Application No.4574 of 2016 by which the learned Single Judge has dismissed the petition. 2. Heard learned advocate Mr.Harsheel D. Shukla for the petitioner and learned Assistant Government Pleader Mr.K.M. Antani for the respondents. 3. Learned advocate for the appellant – original petitioner submitted that the petitioner was the owner of the land bearing Survey No.871 admeasuring 217.76 sq. meters situated in the city of Rajkot. It is stated that a Sale Deed came to be executed on 17.07.1999 in respect of the said land. Thereafter, for the very same property, on 25.10.1999, Release Deed was executed by the family members of the petitioner relinquishing their shares in the said property in favour of the petitioner. The dispute in the petition was with regard to the Deed of Relinquishment executed on 25.10.1999, which came to be registered at Serial No.3577 with the office of the Sub-Registrar. 3.1 Learned advocate Mr.Shukla for the appellant – original petitioner thereafter submits that the competent authority exercised the powers under Section 32A of the Gujarat Stamp Act, 1958 (hereinafter referred to as “the Act” for short) and passed an order on 03.10.2015, by which it was held that the correct market value of the property in question was Rs.17,68,377/and as per ScheduleI of Article 20 of the Act, stamp duty of Rs.1,76,840/was required to be paid. However, the stamp duty of Rs.9,000/was paid and, therefore, the petitioner is liable to pay the deficit stamp duty of Rs.1,67,840/and a penalty of Rs.250/. The said amount is to be recovered from the petitioner. 3.2 Learned advocate, thereafter, contended that the aforesaid order came to be passed by the respondent authority exparte i.e. without granting an opportunity of hearing to the petitioner and surprisingly, after a period of 90 days i.e. on the 91st day, notice dated 02.01.2016 was issued at the correct address of the petitioner. The petitioner, therefore, inquired and came to know that the respondent authorities issued various notices, during the course of the proceedings initiated under Section 32A(1) of the Act, at the address where the petitioner was not residing. The petitioner, therefore, inquired and came to know that the respondent authorities issued various notices, during the course of the proceedings initiated under Section 32A(1) of the Act, at the address where the petitioner was not residing. Thus, with malafide intention, the respondent authorities issued various notices at the old address of the petitioner and, thereafter, notice for recovery was issued at the new address and, therefore, the impugned order passed by the respondent authorities and recovery notice issued in pursuance thereto were required to be quashed and set aside by the learned Single Judge. However, the learned Single Judge has committed an error while dismissing the petition and, therefore, the order passed by the learned Single Judge as well as the respondent authorities be set aside. 4. On the other hand, learned Assistant Government Pleader has supported the reasoning recorded by the learned Single Judge and pointed out that the Relinquishment Deed executed on 25.10.1999, which was registered with the office of the Sub-Registrar at Serial No.3577. The respondent authority exercised the powers under Section 32A of the Act and issued notice to the petitioner at the address mentioned in the Relinquishment Deed/Release Deed. It is pointed out that in Form No.1, the address was not mentioned by the petitioner. Thereafter, the respondent authorities issued various notices at the address mentioned in the instrument. As the notices were not served at the address, the respondent authorities have followed the procedure prescribed under the Gujarat Stamp (Determination of Market Value) Rules, 1984 (hereinafter referred to as “the Rules” for short). It is pointed out that the notices were issued on 14.02.2002, 13.03.2006, 21.09.2011, 16.02.2012 and 28.02.2013. The said notices sent by Registered Post Acknowledgement Due were returned unserved. Thereafter, the notice was affixed on the conspicuous part of the last known place of the residence as per Rule 7(4)(d) of the Rules on 26.04.2015 and Rojkam was also prepared in presence of Panchas. Thus, the respondents have followed the procedure prescribed under the Rules. 4.1 It is further submitted that the respondent authority has filed an affidavit, in which it is pointed out that how the respondent authority came to know about the present address of the petitioner and, therefore, the recovery notice was also issued at the present address of the petitioner. Thus, the respondents have followed the procedure prescribed under the Rules. 4.1 It is further submitted that the respondent authority has filed an affidavit, in which it is pointed out that how the respondent authority came to know about the present address of the petitioner and, therefore, the recovery notice was also issued at the present address of the petitioner. It is, therefore, urged that when the learned Single Judge has not committed any error while dismissing the petition, this Court may not interfere with the said order. 5. Having learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that on 17.07.1999, a Sale Deed came to be executed in connection with the land bearing Survey No.871 admeasuring 217.76 sq. meters situated in the city of Rajkot as the petitioner was the owner of the said property. Immediately thereafter i.e. on 25.10.1999, family members of the petitioner executed Relinquishment Deed/Release Deed relinquishing their shares in the said property in favour of the petitioner. The said document is registered in the office of the Sub-Registrar, Rajkot. The respondent authority when examined the said document realised that proper stamp duty is not affixed on the Relinquishment Deed/Release Deed and, therefore, the respondent authorities exercised the powers under Section 32A(1) of the Act and issued notice to the petitioner at the address shown in the Relinquishment Deed. It is the specific case of the respondent that the petitioner has not supplied his present address in Form No.1, therefore, the respondent authorities issued various notices to the petitioner from time to time by Registered Post Acknowledgement Due at the address shown in the instrument. However, the said notices were returned unserved. The respondent authorities, therefore, followed the procedure prescribed under the Rules and affixed the notice on the conspicuous part of the place of the petitioner, which was shown in the instrument. The Panchnama was also prepared in presence of three persons. The Deputy Collector, Stamp Duty, Rajkot, has filed an affidavit to that effect along with a copy of the Panchnama Rojkam. The respondent authorities, thereafter, passed an order on 03.10.2015 observing that the petitioner is liable to pay deficit stamp duty of Rs.1,67,840/. 6. The Panchnama was also prepared in presence of three persons. The Deputy Collector, Stamp Duty, Rajkot, has filed an affidavit to that effect along with a copy of the Panchnama Rojkam. The respondent authorities, thereafter, passed an order on 03.10.2015 observing that the petitioner is liable to pay deficit stamp duty of Rs.1,67,840/. 6. At this stage, we would like to refer Rule 7(4) of the Rules which provides as under: “7(4) In the case of any individual person, the notice or order shall be served, (a) by delivering or tendering the notice or order to the person concerned or to his advocate or authorized agent; or (b) by delivering or tendering the notice or order to some adult member of family; or (c) by sending the notice or order to the person concerned by registered post with acknowledgement due; or (d) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned.” 7. In view of the aforesaid facts and circumstances of the present case, we are of the view that when the respondent authority has followed the procedure prescribed under the Rules before passing the impugned orders, principles of natural justice cannot be said to have been violated as contended by the learned advocate appearing for the petitioner. It is required to be noted that the petitioner has not challenged the legality and validity of the Rules. 8. Another contention of learned advocate for the petitioner is that after a period of 90 days, when the recovery notice was issued by the respondents, the same was issued at the correct address of the petitioner and, therefore, the respondent authority has malafidely not served the notices of the proceedings initiated under Section 32A of the Act at the correct address and only after period of 90 days when the recovery notice was issued, the same was served at the correct address of the petitioner. It is also contended that how the respondent authority came to know about the correct address of the petitioner, after the order was passed on 03.10.2015. It is required to be noted that the respondent Deputy Collector has filed an affidavit dated 20.03.2017, in which it is stated in Paragraph 8 as under: “8. It is also contended that how the respondent authority came to know about the correct address of the petitioner, after the order was passed on 03.10.2015. It is required to be noted that the respondent Deputy Collector has filed an affidavit dated 20.03.2017, in which it is stated in Paragraph 8 as under: “8. I further say and submit that the recovery proceedings were initiated by the respondent no.3 authority on the basis of the order dated 03.10.2015. The respondent no.3 authority has issued notice dated 28.12.2015 on the address mentioned in the instrument. The same was returned without service to the petitioner. The concerned officer at the relevant point of time knowing the petitioner personally as petitioner and concerned lady officer are residing in the same society. At the relevant point of time Smt. Ritaben Bhikhabhai Gosaliya was serving as Deputy Mamlatdar and Ex-Officio Recovery officer in the office of the respondent no.2 and the resident address of the Smt.Ritaben Bhikhabhai Gosaliya was Ambika Krupa, R.K. Park, Block No.12, AirPort Road, Rajkot. Therefore, she has issued notice dated 02.01.2016 to the petitioner at the residence address mentioned in the title of the petition as well as at the office of the petitioner, where he was serving. From the address mentioned above, it would be clear that respondent authority has acted with good faith for recovering the deficit stamp duty. To substantiate above stated facts I crave leave of this Hon’ble Court to produce Aadhar Card of the officer who was serving at the relevant point of time. Annexed herewith and marked as Annexure R-III is the copy of Aadhar Card of concerned officer.” 9. The petitioner has not filed any rejoinder affidavit controverting the averments made in Paragraph 8 of the affidavit filed by the respondent Deputy Collector. Thus, when the respondent has explained that the concerned Deputy Mamaltdar and Exofficio Recovery Officer was residing in the society in which the petitioner is residing and, therefore, she personally came to know about the address of the petitioner, the recovery notice was issued at the correct address of the petitioner. Thus, the submission canvassed by the petitioner on the aforesaid count is also not required to be entertained. 10. Thus, the submission canvassed by the petitioner on the aforesaid count is also not required to be entertained. 10. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we see no reason to interfere with the order passed by the learned Single Judge. Accordingly, the appeal is dismissed with no orders as to cost. Notice is discharged. Consequently, Civil Application does not survive and is disposed of, accordingly. Interim relief granted earlier in Civil Application stands vacated.