ORDER :

1. Rule returnable forthwith. Ms. Dhairitri Pancholi, learned Assistant Government Pleader waives service of notice of Rule for and on behalf of the respondents.

2. With consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

3. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed to declare the action of the respondent authorities in compelling the petitioner to pay stamp duty on the sale of the property in question as per new jantri rate instead of the amount fixed by the Joint Charity Commissioner, Surat as illegal. By way of an amendment, an additional prayer was made to set aside the order dated 16.06.2010 of the CCRA by which the appeal of the petitioner dated 11.09.2008 against the order of the Deputy Collector of 08.09.2008 was rejected.

4. The facts in brief would indicate that it is the case of the petitioner that a property belonging to public trust was advertised in the local daily newspaper for sale. Offers were invited by virtue of an advertisement. Annexed as Annexture 'A' to the petition. The Joint Charity Commissioner by an order dated 27.02.2007 confirmed the sale in favour of the petitioner for consideration of Rs.19,50,000/-.

5. Mr. Utpal M. Panchal, learned counsel for the petitioner would submit that the property in question having been sold by virtue of the order of the Charity Commissioner would have the traits of a public auction and, therefore enhanced stamp duty assessed based on the jantri rates which came into effect post the sale on 08.04.2008 cannot be considered as a correct assessment of the stamp.

5.1. Mr. Panchal would rely on an order passed by this Court in context of the property in question on 09.05.2008 in Special Civil Application No.7160 of 2008 to submit that since there were some discrepancies in number of properties, so as to enable the petitioner to execute the sale deed, such correction was necessary and hence he approached this Court where the order was so passed. Accordingly, on 08.09.2008, the Deputy Collector (Stamps) based on the jantri value of the property in question of Rs.47,11,000/- directed to pay stamp duty of Rs.2,30,800/- which the petitioner paid. On an appeal, the appellate authority confirmed the order of Deputy Collector which is a subject matter of challenge. A submission of the learned counsel therefore is that since the order of the Charity Commissioner was passed on 27.02.2007 and after corrections were made was pre-coming into force of the market rates, property being purchased in auction, no additional stamp duty could be levied.

6. In support of his submission, Mr. Panchal would rely on a decision of this Court in the case of Metro Hospital & Research Institute, Vadodara v. State of Gujarat reported in 2009 (2) GLR 1537. With regard to refund of excess amount and maintainability of a writ petition, seeking a writ of mandamus for refund, Mr. Panchal would rely on a decision in the case of Shamjibhai Ranchhodbhai Dabhi v. The Chief Controlling Revenue Authority reported in 2009 (2) GLH 191. Also decision of the Hon’ble Supreme Court in the case of U.P. Pollution Control Board v. Kanoria Industrial Limited reported in 2001 (2) SCC 549 was relied upon for the purposes of claim of refund of excess amount. For the question whether such stamp duty can be levied when a sale is by way of public auction, reliance was also placed on a decision dated 12.02.2016 of Special Civil Application No.7104 of 2012 of this Court in the case of Chanasma Commercial Co-operative Bank Ltd. v. State of Gujarat and also relied on a decision dated 21.08.2017 of SCA No.15975 of 2016 for the claim of refund.

7. Ms. Dhairitri Pancholi, learned Assistant Government Pleader for the respondents would invite the Court’s attention to the order passed by this Court in Special Civil Application No.7160 of 2008. What was supported by her is that in paragraph No.5 of the order, a specific observatio