Point of law: Once certificate under section 31 was issued by the respondents, they should not be allowed to reopen their own valuation after four years to say that valuation of the property is higher, relying only upon the Auditor’s report -Market value is price of the property which can be fetched if sold in open market on the date of execution of instrument and, therefore, stamp duty is payable on such sale price when the Stamping Authority had issued a notice to the purchaser in that case, to pay the stamp duty as per market value.

ORDER :

VIKRAM NATH, J.

1 We have heard Ms. Shruti Pathak, learned Assistant Government Pleader for the State appellants.

2 The learned Single Judge allowed the writ petition filed by Radheshyam Developers, the sole respondent in the appeal and set aside the orders dated 19.09.2015 passed by the Collector of Stamps, Anand as also the order dated 18.04.2013 passed by the Deputy Collector, Stamp Duty Valuation Department, Anand whereby a demand of deficiency in stamp duty was raised against the petitioners. The learned Single Judge held that the stamp duty was payable on the auction price at which the petitioner had purchased the property in an open auction conducted by the Official Liquidator and such auction confirmed by the Company Judge. It further held that the price offered in the auction and accepted would be the fair market value of the property. On such findings the learned Single Judge allowed the writ petition.

3 Before us, Ms. Pathak, learned Assistant Government Pleader, has sought to argue that the stamp duty would be payable firstly on the market value to be determined at the time of the execution / registration of the sale deed and secondly that the proviso to Section 32A of the Gujarat Stamp Act, 1958 would not be applicable.

4. From the admitted facts, as recorded in para 2 and its sub-paragraphs of the judgment of the learned Single Judge what we find is that the value at which the auction was confirmed in favour of the petitioner in the year 2007 was double the jantri value at the time of purchase of the land. It was for the fault on the part of the Official Liquidator and delay caused from his office that the registration could not take place in 2007, but it took place in 2015. It is an admitted position that the High Court had confirmed the auction sale in 2007 itself. The stamp duty was paid by the petitioner at that stage on the auction purchase price fixed by the Court. Further, we find that the demand raised by the Deputy Collector, Stamp Duty, Anand was taking into consideration the jantri value which was of the subsequent year, much after the date of auction.

5. We may not go into any further detail and we may refer to the market value as defined in Section 2(na) of the Gujarat Stamp Act, 1958, which reads as follows:

“2(na) `market value', in relation to any property which is the subject matter of an instrument means the price which such property would have fetched if sold in open market on the date of execution of such instrument”.

5.1 According to the above definition, the market value in relation to any property is the price which such property would have fetched if sold in open market on the date of execution of such instrument. In the present case, the open auction was held in 2007 by the Official Liquidator an extended arm of the Company Judge of the High Court of Gujarat and the auction price having been approved by the High Court. No other price could have been said to be market value of that property, but the price so approved by the High Court. It could not be said that there is any kind of under-valuation. It also cannot be argued by the State that if the Official Liquidator failed to execute the sale deed or get the same registered in time, even though the petitioner or the auction purchaser had deposited the required stamp duty in time, the auction purchaser could be further harnessed with deficiency of stamp duty being calculated at the market value of a much later date after several years.

5.2 The property was purchased by the original petitioner in an inter se bidding before the Company Judge in the High Court. There was therefore no question of any intention to defraud the revenue or that there was non-disclosure of the correct price.

5.3 The Supreme Court in the case of V.N.Devadoss vs. Chief Revenue Control Officer-cum- Inspector and Others reported in (2009)7 SCC 438, in para 16 has held as under:

“16 It is settled law under the Transfer of Property Act, 1882 that a purchaser cannot have a