JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India and under the provisions of the Gujarat Stamp Act, 1958 (hereinafter be referred to as “the Act”) seeking the following reliefs:-

A. Your Lordship(s) may be pleased to admit and allow this petition.

B. Your Lordship(s) may be pleased to quash and set aside the impugned order passed by the Ld. Collector and Additional Superintendent of Stamps, Gujarat State, Gandhinagar, on 11.07.2016 being illegal and pervasive.

C. Your Lordship(s) may be pleased to declare that the petitioner is not liable to pay the stamp duty or any penalty thereon in pursuance to the order passed by the Ld. Collector and Additional Superintendent of Stamps, Gujarat State, Gandhinagar on 11.07.2016 under the provision of law under which the order has been passed in the interest of justice.

D. Your Lordship(s) may be pleased to grant ad-interim stay on the order of the authority for during the hearing and till the final disposal of the matter in the interest of justice.

E. Your Lordship(s) may be pleased to grant the cost of this litigation and of incidental and ancillary works / tasks to the petitioner.

F. Your Lordship(s) be pleased to pass any other writ or order or direction or any other relief as may be deemed necessary to render justice and pass any further relief(s) that may be deemed fit and proper in accordance to the facts and circumstances of the case.

2. Brief facts of the present case are, in nutshell that the Director of SBI Cap Trustee Company Ltd had produced a document before the Collector and Additional Superintendent of Stamps under Section 31 of the Act for adjudication, which was a deed of hypothecation between Gokul Agri International Ltd i.e. present petitioner and SBI Cap Trustee Company Ltd and the same was continued and construed by consent of all the parties. It is also submitted that on 11.07.2016, the Collector and Additional Superintendent of Stamps passed an order imposing stamp duty of Rs.1,34,40,700/- on the instrument and the said amount of adjudication of stamp duty should be paid within 90 days and in absence and/or failure of the payment within prescribed time limit, proceedings would be taken against the petitioner and whereby penalty along with interest at the rate of 15% p.a. as per Section 46(2) of the Act shall be imposed.

3. Heard Mr.Rohan L. Shah, learned counsel for the petitioner and Mr.Nikunj Kanara, learned Assistant Government Pleader for the respondents – authorities.

4. Mr.Shah, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of appeal and has submitted that respondent No.2 is not empowered to pass any order while exercising the jurisdiction under Section 31 of the Act as it was simple process where the document was produced for registration but the same was sent for opinion. He has submitted that while exercising the jurisdiction under Section 31 of the Act, respondent No.2 has to opine that whether there is any deficit stamp duty or not and if it is there the process under Section 31(1) of the Act is to be initiated and thereafter further proceeding is to be heard instead of giving any opinion, however, respondent No.2 has passed an order which is under challenge in this petition. He has emphasized and referred to the provisions of Section 31 of the Act, which reads as under:-

“31. Adjudication as to proper stamps:

(1) When any instrument, whether executed or not and whether previously stamped or not, it is brought to the collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable and pays the free of such amount [not exceeding one hundred rupees and not less than twenty-five rupees] as the collector may, in each case direct, the collector shall determine the duty (if any) with which in his judgement, the instrument is chargeable.

(2) For this purpose the collector