in the high court of gujarat at...
TRANSCRIPT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
DISTRICT: DAHOD
SPECIAL CIVIL APPLICATION NO. OF 2019
In the matter under Articles 14,19(1)(g), 21, 226
and 227 of the Constitution of India,
And,
Under the Bombay Stamp Act, 1958 and Rules
framed thereunder:
And,
In the matter between:
1. Nileshkumar Motilal Valand
Aged: ______, Gender: Male
Residing at Limdi, Tadl: Zalod,
Dist. Dahod.
2. Rahul Pradipsinh Jodha Rathod
Aged: ______, Gender: Male
Residing at Zalod, Tal: Zalod,
Dist. Dahod.
3. Farukbhai Anishbhai Kamal
Aged: ______, Gender: Male
Residing at Zalod, Dist. Dahod.
Ba:r & Bench (www.barandb,ench.com)
4. Jasvantlal Ramanlal Desai
Aged: ______, Gender: Male
Residing at Zalod,
Dist. Dahod.
5. Rangrej Salimbhai Mohd’husen
Aged: ______, Gender: Male
Residing at Zalod,
Dist. Dahod.
6. Shabbirbhai Hamidbhai Chunawala
Aged: ______, Gender: Male
Residing at Dahod,
Dist. Dahod.
7. Ashvinbhai Kalubhai Bhuriya
Aged: ______, Gender: Male
Residing at Namikharaj
Dist. Dahod.
8. Kharadiya Sanjaybhai Mavlabhai
Aged: ______, Gender: Male
Residing at Zalod,
Dist. Dahod.
9. Dalal Abbasbhai Sabbirbhai
Aged: ______, Gender: Male
Ba:r & Bench (www.barandb,ench.com)
Residing at Huassai Maholla, Dadho
Dist. Dahod.
10. Chavada Rahulkmar Ganeshbhai
Aged: ______, Gender: Male
Residing at Dahod,
Dist. Dahod.
11. Chintan Mohitkumar Parikh
Aged: ______, Gender: Male
Residing at Dahod,
Dist. Dahod.
12. Chauhan Maheshkumar Shankarbhai
Aged: ______, Gender: Male
Residing at Navagam,
Tal & Dist. Dahod.
13. Nakum Mukeshbhai Jivabhai
Aged: ______, Gender: Male
Residing at Rachorda,
Tal & Dist. Dahod.
14. Parmar Jayendramumar Vasantlal
Aged: ______, Gender: Male
Residing at Himala,
Ba:r & Bench (www.barandb,ench.com)
Tal & Dist. Dahod.
15. Shah Ananl Nikhilkumar
Aged: ______, Gender: Male
Residing at Dahod,
Dist. Dahod.
16. Panchal Bhanuprasad Shankarlal
Aged: ______, Gender: Male
Residing at Gamla,
Tal & Dist. Dahod.
17. Ishwarlal Ratanlal Valand
Aged: ______, Gender: Male
Residing at Limbdi,
Tal & Dist. Dahod.
18. Rasubhai Zitharabhai Damor
Aged: ______, Gender: Male
Residing at Chokalia Tal: Zalod,
Dist. Dahod.
19. Kanubhai Ratanbhai Parmar
Aged: ______, Gender: Male
Residing at Limbdi, Tal: Zalod,
Dist. Dahod.
Ba:r & Bench (www.barandb,ench.com)
20. Hursing Fatabhai Nisorata
Aged: ______, Gender: Male
Residing at Zalod,
Dist. Dahod.
21. Pareshkumar Lalchand Pancha
Aged: ______, Gender: Male
Residing at Zalod,
Dist. Dahod.
22. Samudabhai @ Shambhubhai Madiyabhai
Aged: ______, Gender: Male
Residing at Raniar Inami, Tal: Zalod,
Dist. Dahod.
23. Ashvinkumar Rajiabhai Pargi
Aged: ______, Gender: Male
Residing at Mormohudi, Tal: Fatepura,
Dist. Dahod.
24. Gavjibhai Bhurobhai Barjod
Aged: ______, Gender: Male
Residing at Valundi, Tal; Fatepura,
Dist. Dahod.
25. Pradipkumar Bhomorlal Shah
Ba:r & Bench (www.barandb,ench.com)
Aged: ______, Gender: Male
Residing at Fatepura, Tal: Fatepura,
Dist. Dahod.
26. Sabbir Abdulla Sunelwala
Aged: ______, Gender: Male
Residing at Fatepura,
Dist. Dahod. … Petitioners
VERSUS
1. The State of Gujarat
Notice to be served through
The Secretary
Government of Gujarat
Department of Revenue
Having his office at
9th Floor, Block No.11
Sardar Patel Complex
Gandhinagar.
2. Inspector General of Registration
Office of the Inspector General of Registration
Having his office at
Stamp and Registration Bhavan,
KH-5 Circle,
Sector 14,Gandhinagar
Ba:r & Bench (www.barandb,ench.com)
3. Superintendent of Stamp
Having his office at
1st Floor,
Stamp and Registration Bhavan,
KH-5 Circle, Sector 14,
Gandhinagar.
4. Deputy Collector and Stamp
Duty Valuation, Dahod. … Respondents
To,
The Hon’ble Chief Justice and the
Other Hon’ble Judges of the High
Court of Gujarat, Ahmedabad.
The humble petition of the
Petitioner above named:
MOST RESPECTFULLY SHEWETH THAT:
1. The Petitioner/s are the national and citizen of
India and therefore entitled to the protection of
fundamental right enshrined in part III of the
constitution of India. The Respondents are the state
within meaning of Article 12 of the Constitution of
the India and therefore amenable to the writ
jurisdiction of this Hon’ble High Court.
2. The petitioners are residing at the address
mentioned in the title clause. The petitioners are
holding the license of the stamp vendor duly issued
by the competent authorities. One of the license is
annexed hereto and marked as Annexure A to the
petition. Some of the petitioner had in past
Ba:r & Bench (www.barandb,ench.com)
preferred writ petition before this Hon’ble Court
being SCA No.9422 of 2014 which was allowed by
this Hon’ble Court vide order dated 21.1.2015, a
copy whereof is annexed hereto and marked as
Annexure B.
3. By way of this petition under Article 226 of the
Constitution of India the Petitioner/s prays for a
writ of mandamus or any other appropriate writ
order or direction to quash and set aside the
notification dated 23.08.2019 bearing no
GHM/2019/75/M/STP/122019/1035/H.1 issued by
the Respondent No 1. Annexed hereto and marked
as ANNEXURE "C" is the copy of the Notification
dated 23.08.2019 bearing no
GHM/2019/75/M/STP/122019/1035/H.1 Issued by
the Respondent No. 1. The petitioners also seek an
appropriate writ order or direction to quash and set
aside the circular dated 09.09.2019 issued by the
Respondent No.2. Annexed hereto and marked as
ANNEXURE "D" is the copy of the Circular dated
09.09.2019. The petitioners also seek an
appropriate writ order or direction to quash and set
aside the circular dated 16.09.2019 bearing no
STP/LAW/51/2019/14967-15002 issued by the
Respondent no 2. Annexed hereto and marked as
ANNEXURE "E" is the copy of the circular dated
16.09.2019.
4. It is submitted that by the aforesaid impugned
action drastic changes are made in the existing The
Gujarat Stamp Act,1958 (“the Act” for short) and the
whole class of existing stamp vendors are brought to
an end and as against that provisions are made by
making changes in Rule 13 of the Gujarat Stamp
(Payment of Duty by means of E Stamping) Rules,
2014 (“E Stamping Rules of 2014” for short)
enabling a whole new class of persons including
Ba:r & Bench (www.barandb,ench.com)
stamp vendors, charted accountants, company
secretary, C & F agents, common service centers,
Non banking financial company, licensee notary etc
are made eligible for the appointment/selection as
an Authorised Collection Center (“ACC” for short).
That further by making changes/addition of Rule
8(A) in Gujarat Stamps Supply and Sales Rules,
1987 (“Stamp supply and sales Rules” for short) a
decision has been made to stop the sales of Non
judicial stamp paper by the stamp vendors. It is
submitted that thus by new changes the whole class
of existing stamp vendors are eliminated and the
sales of non judicial stamp papers are also stopped.
It is submitted that further by changes in Rule 13 of
E stamping Rules, a whole new class of persons
including stamp vendors, charted accountants,
company secretary, C & F agents, common service
centers, Non banking financial company, licensee
notary etc are made eligible for their selection as an
Authorised Collection Center and they shall be
authorized to perform the function of E stamping. It
is submitted that even there has been anomaly and
ambiguity in the rate of commission also and it
emerges that the existing rate of 3 % on stamp
papers of 100 Rs and 1% on stamp papers above
100 Rs are still going to be reduced. It is submitted
that the existing rules itself are on a very much
lower level and still it has been made to be reduced
at a considerate level and no definite scheme has
been provided.
5. The petitioners state that as per the provisions of
the Sales Rules, the discount is being paid to each
stamp vendor on the face value of the stamp paper.
For selling of the stamp paper up to Rs. 100, the
discount given is 3%, whereas, in case of selling of
the stamp paper beyond Rs. 100/-, the flat discount
Ba:r & Bench (www.barandb,ench.com)
of 1% of the face value of the stamp is given to the
each stamp vendor.
6. The petitioners state that section 2H of the Act
defines the term “duly stamped” which reads as
follows:
2H: "duly stamped" as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the State;
7. The petitioners state that the section 2K of the Act
defines the term “impressed stamp” which reads as
follows:
2K:
"impressed stamp" includes,-
(i) labels affixed and impressed by the properofficer;
(ii) stamps embossed or engraved on stampedpaper;
[(iii) impression by franking machine;]
(iv) Receipted challan or the certif icate issuedunder e-stamping system or any other systemas may be prescribed by rules.",
8. The petitioners state that the section 10 of the Act
provides for mode of payment of the stamp duty.
The section 10 of the Act reads as follows:
10. Duties how to be paid. –
(1) Except as otherwise expressly provided inthis Act, all duties with which any instrumentsare chargeable shall be paid, and such paymentshall be indicated on such instruments, bymeans of stamps,-
(a) according to the provisions herein contained;or
Ba:r & Bench (www.barandb,ench.com)
(b) when no such provision is applicable,thereto, as the State Government may, by rules,direct, refer Annexure-A.
(2) The rules made under sub-section (1) may,among other matters, regulate,-
(a) in the case of each kind of instruments, thedescription of stamps which may be used;
(b) in the case of instruments stamped withimpressed stamps, the number of stamps whichmay be used.
[(2A) The Chief Controlling Revenue Authority may authorise, subject to such conditions as it may deem fit, the use of franking machine for making impressions on instruments chargeable with duties, to indicate payment of duties on such instruments.
(2B)(i) Where the Chief Controlling Revenue Authority or Superintendent of Stamps authorised by him in this behalf is, having regard to the number of instruments executed by a person and the amount of duty charged thereon, satisfied that it is necessary in the public interest so to do, it or he may by an order in writing, authorise such person to use franking machine subject to such conditions as laid by general or special order in this behalf by the Chief Controlling Revenue Authority.
(ii) Where there is breach of any of conditions ofthe authorisation, the authority grantingauthorisation under clause (i) may revoke theauthorisation.
(iii) The Chief Controlling Revenue Authoritymay, by order, determine the procedure forregulating the use of franking machine. "and forother systems specified in entry (iv) of clause (k)of section 2"]
[(3) (a) Notwithstanding anything contained in sub-section (1), where,
(i) the State Government, in relation to any areain the State, or
(ii) the Collector, in relation to any area in thedistrict under his charge, is satisfied that onaccount of temporary shortage of stamps in anyarea, duty cannot be paid, and payment of dutycannot be indicated on such instruments theregistration of which is compulsory under theRegistration Act, 1908(16 of 1908), by means ofstamps, the State Government, or, as the casemay be, the Collector, may, by notif ication in
Ba:r & Bench (www.barandb,ench.com)
the Official Gazette, direct that, in such area and for such period as may be specified in such notif ication, the duty may be paid in cash in any Government treasury or sub-treasury and the officer-in-charge of such treasury or sub-treasury shall, on production of a challan evidencing payment of stamp duty in the Government treasury or sub-treasury, certify by endorsement on the instrument in respect of which the stamp duty is paid, that the duty has been paid, and state in the said endorsement the amount of the duty so paid.
(b) An endorsement, made on any instrumentunder clause (a) shall have the same effect as ifthe duty of an amount equal to the amountstated in the endorsement had been paid inrespect of, and such payment had beenindicated on, such instrument by means ofstamps, under sub-section (1).]
9. The petitioners state that the section 69 of the Act
provides for powers delegated to the State
Government for framing the rules which reads as
follows;
69. Power to make rules relating to sale ofstamps. - The State Government may make rulesfor regulating,-
(a) the supply and sale of stamps and stampedpapers,(b) the persons by whom alone such sale is to beconducted, and(c) the duties and remuneration of such persons:
10. The petitioners state that the section 71 of the Act
provides for publication of rules which reads as
follows:
71. Publication of rules. –
(1) All rules made under this Act shall bepublished in the Official Gazette.
Ba:r & Bench (www.barandb,ench.com)
(2) All rules published as required by thissection shall, upon such publication, have effectas if enacted by this Act
11. The petitioners state that the section 72 of the Act
provides for delegation of powers which reads as
follows:
72. Delegation of certain powers. - The StateGovernment may by notification in the OfficialGazette delegate-
(a) all or any of the powers conferred on it bysection 2 (f), 33 (3) (b), 64, 69 and 75 to theChief Controlling Revenue Authority; and
(b) all or any of the powers conferred the ChiefControlling Revenue Authority by sections 44,53 (1) and 64 (2) to such subordinate Revenueauthority as may be specified in thenotif ication.
12. The petitioners state that the State Government in
purported exercise of powers conferred upon it
under section 69 framed the rules named and called
as Gujarat Stamp Rules, 1978 (hereinafter referred
to as “Stamp Rules”). The sub-rule 2 of rule 3
speaks about the kinds of the stamps which reads
as follows:
3. Description of Stamps:
(1) Except as otherwise provides by the IndianStamps Act, 1899 or the Bombay Act, 1958, orby these rules
(2) There shall be two kinds of stamps forindicating the payment of the duty with whichinstruments are chargeable namely:-
(a) impressed stamps, and
(b) Adhesive stamps
Ba:r & Bench (www.barandb,ench.com)
13. The petitioners state that the State Government in
exercise of powers conferred upon it under section
2(K)(4) read with section 10 and section 70 of the
Act framed the rules named and called as Gujarat
Stamp (Payment of duty by means of e-stamping)
Rules, 2014 (hereinafter referred as to E-Stamp
Rules). Rule 20 of the E-Stamp Rule provides for the
payment of the duty by e-stamping which reads as
follows:
20. Application for e-stamp certif icate:- theperson desiring to pay stamp duty mayapproach any of the approved Intermediaries;provide the requisite details in FORM-3 alongwith the payment of the Stamp duty amount, forgetting the e-stamp certificate
14. The petitioners state that the Superintendent of
Stamp vide circular dated September 09, 2019 has
informed that as per the provisions contained in
rule 13 of the E-Stamp Rules, the Authorized
Collection Centers (ACC) were appointed amongst
the schedule banks, financial institutions under the
control of the State and Central Governments and
Post Office. However, so as to see that the general
public may not find it difficult, the rules are being
changed and the ACC would be appointed from
amongst the schedule banks, financial institutions
under the control of the Central and State
Government, Post Officers, Licensed Stamp Vendor,
Chartered Accountant, Company Secretary, CF
Agents of Ports and the Common Service Centers of
Ba:r & Bench (www.barandb,ench.com)
E-Governance, RBI Registered Non Banking
Financial Institutions, Notary or any other persons
identified with the consultation of the State
Government. The copy of the circular dated
September 09, 2019 is annexed hereto and marked
as Annexure F to this petition.
15. The petitioners state that the State Government in
purported exercise of powers conferred upon it
under section 69 and section 70 read with section
2K and 10 of the Act read with section 74 and
section 74 read with section 10 of the Act amended
the Sales Rules by insertion of rule 8A. The copy of
the notification dated September 7, 2019 is annexed
hereto and marked as Annexure G to this petition.
16. The said rules have been framed ultra vires the
provisions of the Act and the several rules made
there under and which will result into death knell of
the stamp vendors all throughout the State of
Gujarat and would create number of difficulties to
the general public at large, in as much as, there
may not be availability of the networking in the
small town and villages. The power supply is very
erratic and the all stamp vendors may not be able to
enroll themselves as ACC on account of the fact that
the commission being awarded to the ACC is
negligible, in as much as, 23% of the discount
earned by the Stock Holding Corporation India
Ba:r & Bench (www.barandb,ench.com)
Limited (SHCIL) from sale of the stamp. It may be
noted that the said facts have been disclosed by the
respondent government who has circulated the
proposed agreement between SHCIL and ACC. As per
the information of the petitioners, SHCIL is being
paid 0.65% of the discount of the face value of the
stamp therefore, for sale of stamp of Rs. 100/-,
SHCIL will get 65 paise and therefore, on sale of s-
stamp of Rs. 1 lac, SHCIL will get Rs. 650 as
discount. 23% of the said discount would be parted
by the SHCIL to the ACC and therefore, the ACC will
get Rs. 149.50 paise. At present, the stamp vendor
is paid 1% of the face value of the stamp beyond the
sale of stamp paper of Rs. 100 therefore, on sale of
the stamp paper of Rs. 1 lac, the stamp vendor was
getting Rs. 1000/- as discount against that, as per
the new provisions, the stamp vendor would get less
than 1/6th of the total discount payable as per the
original schedule. In fact, as per the revised
schedule, as proposed by the respondent, the stamp
vendor would get 14.95% of its original discount
therefore, the total discount would be reduced from
1% to 0.1495%. The copy of the proposed agreement
described as Annexure B is annexed hereto and
marked as Annexure H to this petition.
17. The petitioners state that some of the stamp
vendors across the State representing the general
cause, have approached the government and made
Ba:r & Bench (www.barandb,ench.com)
representations pointing out that the rules framed
are not in consonance with the provisions of the Act
and Rules made thereunder and there would be
several difficulties faced by the stamp vendors and
the public at large. It may be noted that in case of
the physical stamp, the stamp vendor can move the
stamp papers along with him, whereas, in case of e-
stamping, the stamp vendor will have to be
stationed at one place with necessary
infrastructures namely the computer, franking
machines and the facility of internet and power
supply. Considering the meager discount being
offered under the new rules, the 80% of the stamp
vendors would be out of the business. More and
above, this facilities are being provided as suggested
notary, chartered accountant and others, it may not
be possible to enter into an agreement by those
persons and institutions since, the discount offered
is not remunerative for holding the infrastructures
therefore, in the name of providing facility to the
public at large, in fact, by introductions of the rule
8A of the Sales Rules, the more troubles are being
created for the public at large.
18. The petitioners state that the rules 8A is ultra vires
to the provision of the Act and therefore, the
petitioners beg to approach this Hon’ble Court by
way of present petition under article 226 of the
Constitution of India.
Ba:r & Bench (www.barandb,ench.com)
19. The petitioners submit that the clause H of rule 2
defines duly stamped which speaks about the
adhesive and impressed stamp. It may be noted that
the clause K of section 2 defines impressed stamp
which speaks about four kinds of mode for
collection of duty namely (1) label affixed or
impressed by the proper officer (2) the stamp
embossed or engraved on the stamp paper (3)
impression by franking machine (4) receipted
challan or certificate issued under the e-stamping
system or any other system as may be prescribed by
rules. The subsection 1 of section 10 provides as to
how the duty is to be paid. It provides that the
chargeable duty on the instruments shall be paid as
indicated on such instruments by means of stamps,
according to the provisions contained and when
there is no provision contained, as may be
prescribed by the State Government. It is pertinent
to note that the subsection 2A in section 10 has
been inserted by Gujarat Act No. 7 of 2009 which
provides that Chief Controlling Revenue Authority
may authorize for use of franking machine for
making impression on the instruments chargeable
with duties. The subsection 2B has been inserted by
Gujarat Act No. 11 of 2007 in section 10 of the Act
which provides that Chief Controlling Revenue
Authority or the Superintendent of Stamp
considering the number of instrument to be
Ba:r & Bench (www.barandb,ench.com)
executed by a person, an amount of duty charged
can authorize the use of franking machines, if it is
so satisfied in the public interest. The subsection 3
of section 10 provides that when the State
Government in relation to any specified area or the
Collector in relation to any district under his
charge, is satisfied that there is temporary shortage
of stamp in such area, the stamp duty can be paid
by issuing notification in official gazette in cash in
the government treasury or sub-treasury. The
petitioners would therefore, submit to this Hon’ble
Court that the conjoint reading of section 10 with
clause H and K of the subsection 2 provides that the
stamp duty is to be paid by means of stamp in
accordance with the provisions contained in Act.
There is no power conferred on State Government to
prohibit the payment of the stamp duty by use of
physical stamp, no such power is conferred on the
State Government to frame the rules in section 69 of
the Act. Section 69 of the Act provides the rule
making power of the State Government which
provides for the regulation of supply and sale of the
stamp and stamp paper and the manner in which
the stamp or the sale of the stamp papers to be
conducted and duties and remuneration of such
persons. No powers is conferred on the State
Government in section 69 of the Act which
empowers them to provide that the duties is to be
Ba:r & Bench (www.barandb,ench.com)
payable by e-stamping alone. It is pertinent to note
that no act can be framed, no enactment can be
enacted by the legislature which is not empowered
under the constitutions to be enacted. Even, as per
the interpretation of the constitution enunciated by
several judicial pronouncements by the
constitutional bench and larger benches of the
Supreme Court of India, no constitutional
amendments can be allowed which is beyond the
basic structure of the constitution. The same
principle applies as per the cardinal principle of the
Indian Jurisprudence and the principle of
interpretation of statutes that no rules can be
framed which is contrary or inconsistence with the
provisions of the statute under which power of
framing rules is conferred. When the provisions of
the Act provides that the stamp duty payable on
the instruments are to be paid by any of the four
modes as contemplated under section 10 of the Act,
the State Government has no power or authority to
give a preference to one against all and prohibit all
other modes of payment and therefore, the rules
framed by the government by insertion rule 8A in
the Sales Rules is ultra vires.
20. The petitioners submit that the rule 8A has been
inserted in Sales Rules on the alleged intention and
the purpose of the State Government that by
providing e-stamping, the public at large would be
Ba:r & Bench (www.barandb,ench.com)
more benefitted. There is no logic behind such claim
being made by the State Government and its
authorities. It may be noted that each stamp vendor
are having the stamp paper according to their
financial capacity. The certain stamp vendors are
holding stock of stamp papers valued in lacs of
rupees. There are large number of the stamp
vendors in Gujarat who are holding the stock of
stamp papers of more than Rs. 10 lacs, few of them
are holding the stock of more than Rs. 50 lacs. The
petitioner would therefore, like to point out to this
Hon’ble Court that as per the rough estimate, the
total stock of the stamp papers of all the stamp
vendors in the Gujarat State would be about 45 to
50 crores. In case of treasury at Ahmedabad, the
total available stock of stamp paper is about Rs.
350 crores approximately. In all, all treasuries in
State of Gujarat would be holding, the total stock of
Rs. 1500 crores. The buffer stock of stamp paper
would be available in the office of the Inspector
General of Stamp would be about Rs. 1500 crores.
Therefore, as on today, the government and its
agencies are holding the stock worth Rs. 3000
crores of stamp papers and 15 crores stock is
available with all the stamp vendor. The government
propose to prohibit sale of this physical stamp
paper on and from October 01, 2019. It may be
noted that there is no sale of stamp paper since,
Ba:r & Bench (www.barandb,ench.com)
inauspicious period of pitru paksha is going on and
therefore, the stock will remain as it with negligible
sale. Therefore, the stock of stamp papers valued
about Rs. 3000 crores is being wasted by the
government which is a criminal waste of the public
money and unwarranted and unethical burden on
the public exchequer. The stamp papers are printed
in the security press. The destroying of these
valuable stamp papers would be nothing but
criminal waste of the public money and therefore,
also the claim made by the respondent State
Government is not in furtherance of providing
facilities to the public at large but it is criminal
waste of the public money.
21. The petitioners submit that the petitioners would
like to point out to this Hon’ble Court that the
stamp vendors are available in metro cities alone
but in all other towns and even in small taluka
towns as well. The small taluka towns which are at
far distance interior part of the state are not having
the facilities of internet network all throughout. It
may be noted that the hazardous rules is likely to
create more problem than solving it. Each ACC will
have to line up with SHCIL on the internet. The
timing is 10 to 5 therefore, on the website of the
SHCIL all the stamp vendors, all public institutions,
notaries, chartered accountants, company
secretaries and post offices would be trying to log
Ba:r & Bench (www.barandb,ench.com)
on the website of SHCIL. The working of this website
of the said company would not be in the hand and
control of the said company since, everybody will
have to work with the median of communication i.e.
internet. The internet networking is not only
available for the sale of the stamp. There may be
various consideration which would crash the
networking system because of various other grounds
and in the small town, the availability of the
networking is one of the major issue, more and
above, the supply of the electric power. Therefore,
the claim made by the government for the object and
purpose of insertion of rule 8A had no logic.
22. It is humbly submitted that the object is stated by
the Hon’ble Revenue Minister in the press note that
it shall facilitate the people to get the Stamp Paper
is thoroughly illusive. It has been stated that stamp
vendors are manipulating the supply of stamp
papers and therefore a decision has been taken to
provide only for digital stamp paper only and
through out in the state use of physical stamp paper
is to be stopped w.e.f 01.10.2019. It is submitted
that the object stated in the press report itself looks
very evasive. It is submitted that if this is the
concern of the state government, it could have been
also achieved by providing more venues for e-
stamping.
Ba:r & Bench (www.barandb,ench.com)
23. It is submitted that another changes made vide
circular dated 19.09.2019 is to the effect of making
changes in Rule 8 of Gujarat Stamp Supply and
sales Rules, 1987. It is submitted that Rule 8
provides that the licensed vendor shall subject to
rules 3 and 4 sell such stamps of such value as may
be specified in the license. It is submitted that
merely by office circular changes are made by
inserting new Rule 8A providing that w.e.f
01.10.2019 the stamp vendors shall not sell the Non
Judicial Stamp paper. It is submitted that such
changes in the Statutory rules by mere circular is
thoroughly impermissible, delegated legislation, void
ab inito and abdication of legislative function.
24. It is submitted that there has been no assurance for
the rate of discount or commission also in the new
changes. It is submitted that at present it shall be
governed by the Appendix III of the Gujarat Stamp
Supply and Sales Rules. It is submitted that
existing rules itself are too meager as against that it
has been orally conveyed during the course of
representation that rates shall go still much down.
It is submitted that no fixed policy is provided
under the new scheme.
25. It is submitted that the present petitioners who are
holding valid license renewed from time to time
cannot be extinguish in their work and that too by
Ba:r & Bench (www.barandb,ench.com)
the delegated legislation. It is submitted that it
virtually amounts to simplicitor termination of their
licensee without issuing any notice and/or without
giving them any opportunity of hearing and without
following any due procedure of law. The impugn
action is against all the canons of rule of law.
26. The petitioners submit that the circular issued by
the Superintendent of the Stamp has been issued
without application of mind. It has been stated that
notary would also be permitted to trade in e-stamp.
With profound respect, it is submitted that the
notaries are essentially lawyers and advocates and
no lawyer or advocate so far holds the sanad and
practicing license can enter into any activities of
business by trading e-stamp. This is one of the
example to suggest that the insertion of rule 8A
made by the government is without application of
mind and is ex facie arbitrary and therefore,
violative of article 14 of the Constitution of India.
27. The petitioners submit that the subsection 2 of
section 10 of the Act provides that the rules can be
framed for the regulation of the kind of the
instruments for which the stamp can be used
and/or the number of the impressed stamp to be
used in such cases. The subsection 2 of section 10
of S Act does not confer the power on the State
Government to frame the rules which would permit
Ba:r & Bench (www.barandb,ench.com)
them to prohibit the use of all other stamps
therefore, the framing of the rules by the State
Government by insertion of rule 8A of the Sales
Rules is ultra vires.
28. The petitioner states that the petitioner has no
other alternative efficacious remedy but to approach
this Hon’ble Court by way of the present petition.
29. The petitioner states that the petitioner has not
filed any other petition, in the subject matter of the
present case, before this Hon’ble Court or any other
Court of law including the Hon’ble Supreme Court,
for the very same relief.
30. The petitioner craves leave to add, alter, amend or
rescind or modify or delete any of the foregoing
paragraphs as and when necessary
31. The petitioners, therefore, humbly prays to this
Hon’ble Court that:
A. The Hon’ble Court may be pleased to issue a
writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ,
order or direction and hold and declare that
rule 8A of the Sales Rules is ultra vires to the
provision of the Act;
B. Your Lordship may be pleased to issue an
appropriate writ order or direction to quash
and set aside the circular dated 09.09.2019
Ba:r & Bench (www.barandb,ench.com)
and circular dated 16.09.2019 bearing no
STP/LAW/51/2019/14967-15002 issued by
the Respondent no.2;
C. Pending admission and final disposal of the
present petition, be pleased to stay the
implementation, execution and operation of
the impugned rule 8A of the Sales Rules;
D. Pending the admission, hearing and till the
final disposal of the present petition, Your
Lordship may be pleased to stay the
implementation, execution and operation of
the notification dated 23.08.2019 bearing no
GHM/2019/75/M/STP/122019/1035/H.1
issued by the Respondent No 1; AND also
the circular dated 09.09.2019 and
16.09.2019 issued by the Respondent No. 2;
E. Pending the admission, hearing and till the
final disposal of the present petition, Your
Lordships be pleased to restrain the
respondent authorities from discontinuing
the supply of stamp paper to the stamp
vendors in accordance with the provision of
the Act and Rules framed thereunder and
further be pleased to direct the respondent
authority not to prohibit the petitioner from
supplying stamps as per Act and Rules
framed thereunder:
Ba:r & Bench (www.barandb,ench.com)
F. To pass such other and further order/s
necessary in the interest of justice.
AND FOR THIS ACT OF KINDNESS THE APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY.
Place: Ahmedabad (DHAVAL D. VYAS)
Date : .9.2019 Advocate for the Petitioners
A F F I D A V I T
I, ________________________________________, Aged about
_____ years, residing at______________, the petitioner
herein, do hereby solemnly affirm and state on oath as
under:
I have gone through the contents of memo of the above
application. I have understood the same. I state that what
is stated in paragraph nos.1 ___ to ____ is true to my
knowledge and I believe the same to be true. Paragraph
No.___ contains prayer clause. The annexures annexed to
this application are true copies of the original of which
they purport to be copies. I state that no part of this
affidavit is false and nothing has been suppressed from
this Hon’ble Court.
Ba:r & Bench (www.barandb,ench.com)
Solemnly affirmed at __________ on this ____ day
of September, 2019.
_____________
D e p o n e n t
Identified by me
Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(DISTRICT:DAHOD)
SPECIAL CIVIL APPLICATION NO. __________ OF 2019
Nileshkumar Motilal Valand & Ors. … Petitioners
Versus
State of Gujarat & Others ... Respondents
INDEX
Annexure Particulars Page Nos.
-- Memo of Petition
A Copy of One of the license issued by the competent authority.
B Copy of order dated 21.1.2015 passed in SCA No.9422 of 2014.
C Copy of the Notification dated 23.08.2019 bearing no GHM/2019/75/M/STP/122019/1035/H.1 Issued by the Respondent No. 1.
D Copy of the Circular dated 09.09.2019.
E Copy of the circular dated 16.09.2019.
F Copy of the circular dated September 09, 2019.
G Copy of the notification dated September 7, 2019.
H Copy of the proposed agreement described as Annexure B.
Ba:r & Bench (www.barandb,ench.com)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
(DISTRICT:DAHOD)
SPECIAL CIVIL APPLICATION NO. __________ OF 2019
Nileshkumar Motilal Valand & Ors. … Petitioners
Versus
State of Gujarat & Others ... Respondents
LIST OF EVENTS
Date Particulars
Challenge By way of this petition under Article 226 of the
Constitution of India the Petitioner/s prays for a writ
of mandamus or any other appropriate writ order or
direction to quash and set aside the notification
dated 23.08.2019 bearing no
GHM/2019/75/M/STP/122019/1035/H.1 issued
by the Respondent No 1. The petitioners also seek
an appropriate writ order or direction to quash and
set aside the circular dated 09.09.2019 issued by
the Respondent No.2. The petitioners also seek an
appropriate writ order or direction to quash and set
aside the circular dated 16.09.2019 bearing no
STP/LAW/51/2019/14967-15002 issued by the
Respondent no 2.
That the present petitioners are the stamp vendors
appointed by the State of Gujarat under the
provisions of Gujarat Stamp Act and as such they
are functioning in Dahod District. That all the
petitioners are the authorized license holders as a
stamp vendor and their licenses are renewable on a
year to year basis.
That by way of the impugned action, drastic changes
are made in the existing Act and the whole class of
Ba:r & Bench (www.barandb,ench.com)
existing stamp vendors are brought to an end and
the aforesaid action is in violation of the act and is
ultra vires to the Act. Therefore, present petition for
quashing and setting aside the same as well as
appropriate observations and direction upon the
respondent authority.
Hence, present petition.
Ba:r & Bench (www.barandb,ench.com)