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2010 Supreme(Guj) 359
2011 (1) GCD 436 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Chandrikaben Kishrosinh Mahida
Versus
Chief Controlling Revenue Authority & Ors.
Special Civil Application No. 11301 of 2009—Decided on 19/10/2010
Appearance :
Mr. R.S. Sanjanwala, for the Petitioner No. 1.
Mr. A.L. Sharma, AGP for the Respondents No. 1 - 3.
Rule Served, for the Respondents No. 1 - 3.
Point in Issue :
Whether stamp purchased by husband for his use, can be justified when purchase made in the name of wife.
Headnote:Head Note :
Bombay Stamp Act, 1958 — Sections 39(1)(b), 33, 37 and 53 — Gujarat Stamps Supply and Sales Rules, 1987 — Rules 14 and 14(1) — Sale deed — Stamp purchased by husband — Used for purchase in the name of wife — It is an use of stamp by the person who purchased stamp — Refusal by authority to release document unless double stamp duty and penalty paid — Not sustainable — Consequential appropriate directions issued.
Held :
Considering facts which is found from record that sale deed (Annexure “A”, Page-30), for which stamp paper has been purchased by advocate, Kishorsinh Gemalsinh Mahida for his own use as he wanted to purchase property from vendor Ajitsinh Dolatsinh Rana in name of his wife Smt. Chandrikaben Kishorsinh Mahida, therefore, stamp paper has been purchased by person for his own use and actually it has been used in name of his wife Smt. Chandrikaben Kishorsinh Mahida. [Para 13]
Therefore, in light of this background, action/ decision taken by Respondent No. 3 is found to contrary to law. Hence, it is directed to Respondent No. 3 – Deputy Collector, Stamp duty valuation, Division-1, Block No. 7-C, Multi-storied building, Surat to consider reasoning given by this Court and also to consider legal notice given by petitioner on 27.04.2009 and thereafter to release document, which has been registered on 19.07.2008 by registration No. 12185, which has been purchased on 31.03.2008 and sale deed has been arrived at between the parties on 31.03.2008, means on date on which it was purchased and on the same day it was utilised by present petitioner, for his own use who has purchased stamp from stamp vendor.
[Para 14]
Law Laid Down :
When the stamp has been purchased by husband for his own use it is not contrary to use for himself if he purchases property in the name of his wife.
H.K. Rathod, J.—Heard learned senior advocate Mr. Sanjanwala appearing on behalf of petitioner and learned AGP Mr. Anand Sharma appearing on behalf of Respondent Nos. 1 to 3.
2. In this matter, notice was issued on 04.11.2009. Thereafter, Rule has been issued by this Court on 29.12.2009 and it was made returnable on 19.01.2010. Brief facts of present petition are as under:—
2.1 Petitioner has purchased a flat No. 103 in Shantiniketan Apartment on first floor, constructed on land situated at Adajan bearing Revenue Survey No. 226/1, Town Planning Scheme No. 13, Final Plot No. 118, non-agricultural residential land bearing Block No. G, admeasuring 465.19 sq.mts. For a sum of Rs. 3,50,000/-. Though stamp as per prevailing norms was Rs. 17,150/-, petitioner has paid stamp duty of Rs. 20,000/- of non-judicial stamp. Document of sale was registered on 19.07.2008.
2.2 Sine document of sale was not given to petiioner, petitioner inquired and it was informed by Respondent No. 3 that in view of Government Resolution dated 24.04.2008, document of sale cannot be released. Petitioner was also told that if petitioner is prepared to pay double stamp duty and penalty of Rs. 500/-, same can be returned to petitioner.
2.3 Respondent No. 1 has passed an order dated 09.08.199 addressed to Deputy Collector Stamp wherein it is clearly stated and he has given a clear guidelines under Section 53 of Bombay Stamp Act, 1958 that it is not relevant as to when and who has purchased stamp and that stamp which is purchased by one person can always be used by other person and that there is no provision in law under Stamp Act to say that it is illegal.
2.4 Petitioner served a registered legal notice to respondents. In other cases, Respondent No. 3 has recovered double premium and thereafter returned document of sale.
2.5 Special Civil Application No. 9513 of 2009 was preferred by petitioner, which was withdrawn with a view to get necessary details under Right to Information Act. This Court has kept liberty open for filing petition if grievance survives. On 09.09.2009, application under RTI Act was made and department replied on 03.10.2009 that department are taking steps as per Government Resolution dated 18.02.2009.
3. It is necessary to note factual aspects, which are not in dispute between the parties that stamp paper has been purchased by Kishorsinh Gemalsinh Mahida, advocate, residing at Priya Apartment, Nanpura, Surat on 31.03.2008, where endorsement made by Stamp Vendor is Registration No. 22645 and name of Stamp Vendor is Yashwantlal Dahyabhai Desai having license No. 12-02. The total amount of consideration of sale comes to Rs. 3,50,000/- and purchaser was Smt. Chandrikaben Kishorsinh Mahida wife of advocate, Kishorsinh Mahida, who has purchased stamp paper and same has been used by Smt. Chandrikaben Kishorsinh Mahida. Legal notice (Annexure “C”, Page-41) dated 27.04.2009 was given to Deputy Collector, Stamp Valuation, Surat Division-1, but, Deputy Collector has not decided it and no answer was given.
4. Circular, issued by office of Superintendent of Stamps (Page-40-A) on 24.04.2008 is relied upon by Respondent No. 3 and affidavit-in-reply (Page-111) is filed by Respondent No. 3. Relevant averments are made in Para Nos. 4, 6, 7 and 8 are quoted as under:—
“4. As transpires from the plain reading of the memorandum of the petition, the petitioner has sought to challenge the action on the part of the Respondent No. 3 in not releasing the document of sale which was presented for registration before the competent authority. In support thereof, the petitioner has contended that on the premise of false interpretation of resolution of the Government, the authority has not released the document so far, as the petitioner was asked to deposit double the stamp duty and penalty of Rs. 500/-. At the outset it is submitted that the present petition is devoid of any substance and the contentions raised therein do not merit acceptance. If the recourse is made to the
