IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5940 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DAMODARPRASAD TORMAL PODDAR - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance :
MR NV GANDHI for Petitioner(s) : 1, MR ROHAN YAGNIK, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 4.
========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 09/07/2012 ORAL JUDGMENT
1. Leave to amend. Rule. Learned A.G.P. Mr. Rohan Yagnik waives service of rule on behalf of respondent authorities. In view of the facts of present case and with consent of the learned counsel for petitioner and respondent, the matter is taken up for hearing and final decision today.
2. The petitioner has taken out present petition seeking below mentioned relief and directions:
“8(A) THIS HON'BLE COURT may be pleased to issue writ of certiorari or any appropriate writ, order or direction and be pleased to quash and set aside the order of Respondent No.3 dated 18.7.2011 and decision of the Respondent no.2 not entering the appeal on the ground of alleged delay communicated vide letter dtd.Nil/11/2011;
AND in the alternative (B) THIS HON'BLE COURT may be pleased to issue writ of mandamus or any appropriate writ, order or direction and be pleased to direct the Respondent no.2 to hear and decide the appeal challenging the said order dated 18.07.2011 passed by the Respondent no.3 on merits and in accordance with law; AND be further pleased to condone the delay of one day in filing appeal.
3. Heard Mr. Gandhi, learned Advocate for petitioner and Mr.Yagnik, learned A.G.P. for the respondent authorities and considered the record available on file of present case and relied on by the learned counsel for the petitioner and respondent.
4. The dispute involved in present petition is in very narrow compass and the petition can be disposed of by taking into account some of the relevant dates and the response of the respondent authorities.
5. It appears that in connection with certain transactions entered into by petitioner along with certain other person, a deed was executed which was tendered for certification after payment of stamp duty as calculated by the petitioner on the basis of value mentioned in the document.
5.1. The competent authority examined the document and found that the stamp duty paid by the petitioner was insufficient and therefore order demanding payment of deficient stamp duty came to be passed on 18.07.2011. The order was forwarded to the petitioner. Since the petitioner felt aggrieved by the said order application was presented before the Authority under Section 53 of the Act. It also appears from the record that the petitioner deposited 25% of the amount determined vide order dated 18.07.2011 as pre- deposit in compliance of the condition under Section 53 of the Act. The competent authority noticed that the application was filed after expiry of prescribed period of limitation, i.e.
90 days, from the date of the order. Therefore, the application came to be rejected by the Appellate Authority. The competent authority passed the order dated Nil/11/2011 rejecting the application.
6. The petitioner is aggrieved by the said order. Hence, present petition.
7. Mr. Gandhi, learned counsel has appeared for the petitioner and submitted that if the date of filing is considered in light of the date of receipt of the order by the petitioner then the application cannot be said to be barred by limitation prescribed under the Act and the impugned order cannot be sustained. However, the respondent authorities have calculated the period from the date of order and therefore the application has been treated as barred by limitation which is incorrect and unjustified.
7.1. The learned A.G.P. has submitted that even if the period of limitation is calculated from the date of filing of application then also the application is filed after the prescribed period of limitation and delay of one day is caused in filing the application. The learned A.G.P. Mr. Yagnik appearing for respondent authorities submitted that the statute prescribes period of limitation under Section 53 of the Act and the
impugned order is legal and proper and in consonance with the provisions contained under Section 53 of the Act.
8. So as to consider the rival submission, it is necessary to take into account some of the relevant dates:
1. 18.07.2011 The competent authority passed the order determining deficient stamp duty
2. 21.07.2011 the petitioner received the copy of the order.
3. 20.10.2011 the petitioner filed application against the order dated 18.7.2011. However, the petitioner deposited 25% of the amount determined vide order dated 18.07.2011 as pre-deposit for preferring application.
4. NIL/11/2011 the competent authority declined to entertain the application on the ground that it was filed after expiry of period of limitation.
8.1. So far as the above mentioned details are concerned, they are not disputed by the learned A.G.P., however, learned A.G.P. has contended that the authority does not have any power to condone the delay caused in filing the application/application and that therefore the impugned order is legal and proper and in consonance with the provisions contained under Section 53 of the Act.
8.2. In present case, it is not in dispute that the order came to be passed on 18.07.2011 and it was duly served to the petitioner on 21.07.2011. It is also not in dispute that the application came to be filed in the office of the competent authority on 20.10.2011.
8.3. The learned counsel for the petitioner has submitted that the petitioner has already deposited 25% of the deficient stamp duty determined by the order dated 18.07.2011.
9. So as to consider the rival submissions it is necessary to take into account the provision contained under Section 53 which reads thus:
“53. Control of and statement of case to Chief Controlling Revenue Authority:
(1) The powers exercisable by a Collector under Chapter III except sub section (3) of section 32A Chapter IV and Chapter V and under clause (a) of the first proviso to section 27 shall in all cases be subject to the control of the Chief Controlling Revenue Authority.
Provided that the Chief Controlling Revenue Authority shall not entertain an application made by a person under sub-section (1) unless
(a) such application is presented within a period of ninety days from the date of order of the Collector.
(b) such person deposits twenty-five per cent of the amount of duty or as the case may be, amount of difference of duty payable by him in respect of subject matter of the instrument for which application has been made.”
9.1. A glance at the said provision would show that power to condone delay in preferring the application/appeal under the said provision is not conferred on the concerned authority.
9.2. Consequently, the authority, according to Section 53, does not have any power to condone delay and that, therefore, if the application is preferred after expiry of 90 days, then such application cannot be accepted and entertained by the concerned authority.
9.3. Under the circumstances, any fault cannot be found with the decision of the concerned authority whereby, the authority has declined to entertain the application sought to be tendered by present petitioner.
9.4. In this background, the question, which arises, is as to whether the party aggrieved by the first authority's order should be deprived of the remedy available under Section 53 and the opportunity of hearing on the ground that he could not file the application within the prescribed period of limitation, i.e. within 90 days.
9.5. However, such restriction or inability cannot hold back the Court from exercising discretion under Article 226 of the Constitution of India.
9.6. A 'Court' can pass necessary and appropriate order for ensuring that complete justice is done and/or to ensure that a person is not deprived of right of hearing, if it is established that:-
(a) the delay is not caused on account of sheer negligence on part of the applicant- petitioner or plaintiff;
(b) conjointly it is also established that the applicant or petitioner or plaintiff has shown due diligence to prosecute available remedy without being indolent or negligent;
(c) if the applicant or petitioner or plaintiff can establish and satisfy the Court that he could not prosecute the remedy within the prescribed time limit due to circumstances beyond his control and there is satisfactory explanation and sufficient cause to condone delay;
(d) it is also shown to the prima-facie satisfaction of the Court that the applicant or petitioner or plaintiff has reasonably good case and possibility of success,
(e) the length of delay or conduct of the applicant do not amount to waiver of the right;
(f) the applicant can establish substantial compliance of pre-condition and thereby the applicant could establish that he has not been negligent or indolent, then a “Court”, in exercise of power under Section 5 of Limitation Act and in accordance with said provision or in exercise of the discretionary jurisdiction under Article 226 of the Constitution this Court can condone the delay and direct the authority to consider the application or appeal on merits.
10. The above mentioned instances are illustrative and not exhaustive. There could be other germane, compelling, just and equitable reasons and justification to condone delay, for which any straight jacket formula cannot be laid down and it will mostly depend on length of delay and the steps taken by the applicant in the meanwhile i.e. applicant's conduct in the interregnum, the bonafides of the applicant i.e. the intention is not to frustrate the opponent or to merely delay the proceedings in given set of facts and circumstances.
11. Now, therefore, the question which arises in present petition is as to whether the petitioner should be deprived of opportunity of hearing before the Appellate Authority on the ground that the petitioner failed to file memo of appeal within 90 days.
11.1. If the petitioner's request is granted then any right of the opponent will not be irreversibly and adversely affected. In such circumstances, there is no strong and justifiable reason to deny opportunity of hearing to the petitioner.
11.2. Besides this, it is, ordinarily, considered preferable to decide an application or case on merits unless it is shown that the delay was intentional and/or the delay occurred on account of negligence on part of the applicant/plaintiff/appellant or in the interregnum any other or further equities (including third party rights) are created and/or any right accrued in favour of the opponent would be adversely affected if delay is condoned.
11.3. In present case, however, it appears that if the delay is condoned and the concerned authority is directed to decide the petitioner's application on its own merits and in accordance with relevant and applicable provisions as well as settled legal position, then any prejudice will not be caused to the concerned authorities, more particularly when the petitioner has, in response to the Court's query, declared his readiness to deposit further 25% of the amount determined vide order dated 18.07.2011.
12. The compliance of the pre- requirement/condition precedent prescribed under Section 53 of the Act is not in dispute. The petitioner has claimed that it has reasonably good case on merits and has also good chance for succeeding before the Appellate Authority.
13. It is true that the right of appeal is not an absolute right nor essential part or component or ingredient of natural justice, compliance of which must be ensured even by quasi judicial authority. However, as mentioned above, there may be cases and circumstances in which the aggrieved party may not be in position to challenge the order of adjudicating authority within the prescribed period of limitation due to compelling reasons or circumstances beyond control of the aggrieved party.
13.1. In present case, the action of depositing 25% of the determined amount establishes that the petitioner felt aggrieved by the order and he had the intention to challenge the order. The said action demonstrates and establishes that he was not negligent in taking steps for challenging the order by which he felt aggrieved. Furthermore delay of 1 day caused in submitting the memo cannot be termed as inordinate or unreasonable or sheer negligence.
14. In present case, it cannot be said, in facts and circumstances of present case, that if the competent authority is directed to hear and decide the appeal on merits then any loss or damage will be caused to the respondent State. It also appears that considering the fact that the delay caused in filing the appeal is relatively short span (1 day) and considering that the condition precedent is complied with (i.e. of depositing the amount in question in accordance with the procedure and time prescribed under Section 53 of the Act) the request of the petitioner to condone delay may be accepted and granted in exercise of equitable and discretionary jurisdiction under Article 226 of the Constitution of India.
14.1. Ordinarily, it is considered appropriate to decide the matter on merits instead of defeating a meritorious mater on ground of delay, unless any accrued right of the respondent is likely to be defeated by condonation of delay or unless any circumstances, few are mentioned above, which would persuade and convince the Court to not to condone delay emerge from the record or are shown to the Court. That is not the position in present case, it appears equitable and justifiable in the facts of present case, to condone delay.
14.2. However, such order ought not be passed without imposing appropriate condition on the petitioner and/or without compensating, wherever required or justified, the other side.
14.3. Therefore, it was inquired from the petitioner as to whether the petitioner would deposit further/more amount, out of the total amount of deficient stamp duty determined by the competent authority, as condition for hearing of the appeal on merits.
14.4. In response to the query, learned counsel for the petitioner has submitted that the petitioner is ready to deposit further 25% of the amount in question making total of 50% as deposit, against the statutory requirement of 25%. The Court, in facts and circumstances of the case, finds that the applicant has made out sufficient cause and the petitioner does not appear to be indolent or negligent and has satisfactorily explained the period of delay. It cannot be said that the petitioner lacks bonafides and in view of the fact that the petitioner has agreed to deposit additional 25% making total of 50% amount out of the amount determined, the Court is inclined to accept the said request of the petitioner and hence below mentioned order is passed:
(a) The delay caused in filing the application/appeal under Section 53 of the Act is condoned on the condition that the petitioner shall, on or before 28.07.2012, deposit before the authority specified under Section 53 of the Act, further additional 25% amount making total of 50% amount out of the total amount determined under order dated 18.07.2011.
(b) such deposit shall be without prejudice to the contentions of both sides.
(c) if the requisite amount, as aforesaid, is deposited by the petitioner within above-
mentioned time limit, then the delay shall be deemed to have been condoned and the authority will, thereafter, accept/receive and entertain the application-appeal on merits.
(d) the application-appeal shall be considered and decided on its own merits by the competent authority, after hearing the petitioner. Thus, on such deposit, the concerned authority shall independently consider the application on its own merits and on the basis of material available on record before it and shall come to its own independent conclusion on merits of the case in light of the relevant and applicable provisions and pass appropriate order, as may be required by law, on merits.
(e) In view of the foregoing discussion and reason, the impugned order dated Nil/11/2011 (i.e. the order refusing to decide the application on merits and rejected it on ground of delay) is only for the limited purpose i.e. for remanding the case to the competent authority, set aside and the matter is remanded to the competent authority for decision on merits, provided the condition of pre-deposit is complied. The case is returned to the authority under Section 53 of the Act i.e. respondent no.2. The said authority shall, after hearing the petitioner, pass appropriate order on merits.
(f) for the said purpose, the competent authority shall inform the petitioner the date and time of hearing.
(g) the petitioner shall accordingly remain present and shall not make request for adjournment.
(h) if the petitioner remains absent, then it will be open to the authority to proceed ex-parte and decide the appeal/application on merits on the basis of material available on record and to pass appropriate reasoned and speaking order.
(i) the amount deposited by the petitioner shall be subject to the order that may be passed by the competent authority.
(j) the competent authority will accept, entertain and decide the application only if the requisite amount, as aforesaid, is deposited within the time limit mentioned above. If the amount is not deposited, then application-appeal will not be entertained.
(k) all contentions available to the petitioner and the Department are kept open.
(l) the competent authority shall decide the appeal independently and on its own merits without being influenced by any order or observations.
(m) the petitioner shall place on record the receipt acknowledging the payment/deposit of the amount in question.
15. It is, again, clarified that the delay caused in preferring the appeal shall stand condoned if and after the amount, as aforesaid, is deposited.
16. The Appellate Authority will pass appropriate order on merits and strictly in accordance with law and in light of the provisions under the Act and the Rules as expeditiously as possible and preferably within 12 weeks from the date on which the amount is deposited.
17. If the petitioner fails to deposit the amount within the time limit prescribed above, present order will not take effect.
18. With the aforesaid clarifications and directions, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No cost.
jani (K.M.THAKER, J.)