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2012 Supreme(Guj) 456
IN THE HIGH COURT OF GUJARAT
Hon’ble Mr. Justice K.M. Thaker
Swaminarayan Sarvopari Siddhant Digvijay Trust & Anr.
Versus
State of Gujarat Thro Principal Secretary & Anr.
Special Civil Application No. 10385 of 2012—Decided on 21/09/2012
Appearance :
Mr Ravindra Shah, for the Petitioners No. 1 - 2.
Mrs. Kanan R Shah, for the Petitioners No. 1 - 2.
Mr. A.N. Shah, AGP, for the Respondent No. 1.
None, for the Respondent No. 2.
Point in Issue :
Whether in the facts of the case writ petition instead of availing the statutory remedy of appeal maintainable.
Headnote:Bombay Stamp Act, 1958 — Sections 39(1)(b), 53 — Constitution of India, 1950 — Article 226 — Writ petition — Direction to pay deficient stamp duty with fine — Instead of appeal before competent authority petitioner filed writ petition — Maintainability — After considering petitioner submissions and objection authority passed the impugned order dated 01.03.2012 calling upon petitioner to pay Rs. 1686170 towards deficient stamp duty and Rs. 250 towards fine on sale deed executed by him — Petitioner instead of challenging the said order before competent authority under Section 53 of the Act has preferred the foreseen petition alleging violation of principles of natural justice — Court refused to entertain the petition in view of statutory alternative remedy being available to petitioner — Court held that against the order of first adjudicating authority statutory remedy is available to the petitioner and that said remedy or provision are not onerous or inefficacious or illusory and that there is no justification to by pass or short circuit the statutory remedy — The petitioner has also failed to made out any strong exception to entertain the petition therefore — Petitioner discuss to be relegated to statutory remedy.
Held :
Court is not inclined to exercise discretion so as to entertain the petition when statutory alternative remedy is available to the petitioners. In the facts and circumstances of the case, it has clearly emerged that against the order of first adjudicating authority (which is impugned in present petition) statutory remedy is available and that the said remedy or provision are not onerous or inefficacious or illusory and that there is no basis or justification to by-pass or short-circuit the statutory remedy. The petitioner has failed to make out any strong exception to entertain the petition. Any case to entertain the petition instead of requiring the petitioner to approach statutory authority is not made out and petitioner deserves to be relegated to statutory remedy.
[Para 24]
Law Laid Down :
When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute a writ petition should not be entertained ignoring the statutory dispensation.
K.M. Thaker, J.—The petitioner trust is seeking below mentioned relief in present petition:—
“7(A) To issue a writ of mandamus/certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned notice dated 23.01.2012 at Annexure-D to the petition and the impugned order dated 01.03.2012 at Annexure-F to the petition declaring it to be ultra vires, void ab initio and non-est;”
1.1 The petitioners are aggrieved by notice dated 23.1.2012 whereby the petitioner was, vide Notice issued under Section 39(1)(b) of the Bombay Stamp Act, 1958 [hereinafter referred to as “the Act”], asked to show cause as to why deficient stamp duty in the sum of about Rs. 16.86 lacs should not be recovered with appropriate fine.
1.2 By the said notice, the petitioner was also given opportunity to appear before the authority and submit its objections against the said demand.
1.3 The petitioner is also aggrieved by order dated 1.3.2012 whereby the petitioner has been directed, in pursuance of the proceedings conducted in connection with the above referred notice dated 23.1.2012, to pay Rs. 16,86,170/- towards deficient stamp duty and Rs. 250/- towards fine.
1.4 The said order also informed the petitioner that an appeal application against the order can be preferred (under Section 53 of the Act) within 90 days before the competent authority.
1.5 However, instead of approaching the competent authority under Section 53 of the Act, the petitioner has chosen to prefer present petition.
2. So far as the facts leading to and involved in present petition are concerned, the petitioner has stated, inter alia, that somewhere in September – 2011, the petitioner, a body which is registered as a trust under the provisions of Bombay Public Trust Act, 1950, purchased certain agricultural land bearing S.No.679 paiki 1 and paiki 2 at village Palanpur.
2.1 The petitioner has claimed that it purchased the said land for consideration of Rs. 55.40 lacs and executed a sale-deed which was presented for registration and it came to be registered at registration No.4739.
2.2 It is also clarified by the petitioner that the original sale deed is still in the custody of respondent No.2. The petitioner has also claimed that on the basis of the sale consideration mentioned in the sale-deed, requisite stamp duty was calculated and paid by the petitioner at the relevant time.
2.3 Subsequently, after verification and scrutiny of the said document, the concerned officer formed a tentative and prima facie opinion that the petitioner had not paid requisite stamp duty as per the market value of the property and in accordance with applicable provisions of the Act.
2.4 Therefore, a show-cause notice dated 23.1.2012 was issued and the petitioner was given opportunity to show cause as to why deficient stamp duty, as mentioned in the notice, should not be recovered. The notice informed the petitioner, inter alia, that the market value of the property would be Rs. 4,99,40,450/- and that therefore, the petitioner was required and obliged to pay Rs. 19,57,670/- towards stamp duty whereas the petitioner had paid only Rs. 2,71,500/- ( i.e. affixed stamp in the value of Rs. 2,71,500/-) and that therefore, it was obliged to pay deficient stamp duty at Rs. 16,86,170/-.
2.5 The said notice dated 23.1.2012 also offered opportunity to the petitioner to submit his reply and appear for hearing on 2.2.2012 before the Collector (Stamp).
2.6 On 2.2.2012 the petitioner made request for more time. The request was accepted and the hearing was adjourned to 13.2.2012.
2.7 On 13.2.2012, the petitioner filed its written submissions – reply before the authority wherein the petitioner claimed that it was not required to pay the stamp duty at the rate claimed under the said notice or at any other rate. Subsequently, after considering petitioner’s submissions and objections, the competent authority passed the order dated 1.3.2012 which is challenged in present petition. The petitioner has alleged
