Navnitbhai Gordhandas Chokshi vs Appropriate Authority

S.D. Dave, J.—Rule, Mr. M. R. Bhatt, learned counsel, waives services of rule.

Considering the limited scope of the controversy involved in this Special Civil Application, we have taken it up for final disposal today itself.

The petitioners, as the Executors of the Will of deceased Ramniklal Chunilal Patel, who had died on 24th May, 1987 leaving behind certain properties, had entered into an agreement to sell, which is popularly known as "Banakhat", on 13th May, 1992. The petitioners had got registered the above said Banakhat and the copy of the same was furnished to the authorities dealing under Chapter-XXC of the IT Act, 1961. Clause No. 7 of the agreement to sell in Gujarati language and script clearly provided that the expenses for the stamp, registration, conveyance, etc., were to be borne by the purchaser. As the agreement to Sell was in Gujarati language, the petitioner had thought it fit and proper to supply the English translation of the above said document. Anyhow, the translation was not carried out in a proper manner and the translated script, which is said to be a mistranslated one, showed, inadvertently, that the above, said expenses were to be borne by the seller and not the purchaser. In view of this position, the appropriate authority had taken view that the above said expenses, which would be in sum of Rs. 17,45,853, should be deducted from the apparent consideration. The petitioner, thereafter, had approached the appropriate authority once again, urging that there is an error apparent on the face of the order, which requires rectification. At this juncture also, it was pointed out that the above said transaction was a mistaken translation and that the correct translation, along with the copy of the agreement to sell in Gujarati language, would conclusively show that the above-said expenses were to be borne by the purchaser and not by the seller. Anyhow, it was the opinion of the appropriate authority that the above-said would not constitute an apparent mistake, which could be rectified and that the above-said contention being raised by the petitioners was not correct and tenable at law. It is in this background that the petitioners have approached us by filing the present petition.

We have seen a copy of the said agreement to sell in Gujarati language and script, along with the mistaken translation and the correct translation. Upon doing so, we have been satisfied that, in fact, the agreement to sell does say that the above-said expenses are to be borne not by the seller, but by the purchaser, learned counsel Mr. M. R. Bhatt, who appears on behalf of the respondent, was also not in a position to challenge successfully the above-said challenge posed by the learned counsel for the petitioners. It is indeed true that the respondent has filed an affidavit-in-reply. But, even after the consideration of the above-said affidavit-in-reply, we are not inclined to take a different view. It is clear that the agreement to sell clearly provided that all the above-said expenses were to be borne by the purchase and not the seller. It was not a correct view on the part of the appropriate authority to say that there was no error apparent on the face of the record, which could have been rectified. We feel that the error was apparent, which required rectification, as urged by the learned counsel for the petitioners.

In the result, the present petition succeeds and the same is allowed. The orders under challenge are modified. We direct that the above-said amount of expenses shall not be excluded from the apparent consideration. The respondent shall return the above-said amount, within a period of two weeks from the date of receipt of a copy of this judgment.

Rule is made absolute accordingly, with no order as to costs.