Leave to amend the petition so as to amend prayer clause para 7(A). The amendment to be carried out forthwith. 2. Rule, returnable forthwith. Mr. Rohan Yagnik, learned AGP, waives service of notice of rule for the respondent – State Government. With consent of learned counsel appearing for the contesting parties, present matter is taken up for final hearing and decision today.
3. It emerges from the record and from the submissions made by Mr. Dave, learned advocate for the petitioner, that the petitioner purchased certain property and a saledeed was executed by and between the petitioner and the vendor. After the saledeed was presented for registration, the competent authority was requested to give opinion about market value of the property and the requisite stamp duty. On the opinion of the competent authority, the Registering Authority and the Dy. Collector came to the conclusion that the stamp duty paid by the petitioner was inadequate and not in accordance with the applicable rules. Therefore, the petitioner was asked to pay the deficient stamp duty.
Feeling aggrieved by the order of the competent authority, the petitioner preferred appeal/ application under Section 53 of the Bombay Stamp Act. However, the said appeal/application was delayed, inasmuch as it was filed after expiry of period of 90 days from the date of order of the authority under Section 32 of the Act. Therefore, the competent authority, under the provisions of Section 53 of the Act, declined to entertain the appeal/application filed by present petition.
Aggrieved by the said decision, the petitioner has preferred present petition.
4. Mr. Dave, learned advocate for the petitioner, has submitted that the competent authority, under Section 53 of the Act, has acted arbitrarily in not entertaining the appeal/application preferred by present petitioner despite the fact that the petitioner has complied the requirement of depositing 25% of the adjudicated amount at the time of filing the appeal/application. He submitted that the authority, under Section 53 of the Act, should have heard and decided the appeal/application on merits instead of rejecting the same on the ground of delay.
5. Mr. Yagnik, learned AGP, has submitted that in view of the provisions contained under Section 53 of the Act, the authority does not have any power to condone the delay and that therefore, the application preferred after expiry of limitation period could not have been entertained by the competent authority and that the order dated 4.9.2012 passed by the competent authority cannot be said to be illegal or arbitrary.
6. In this view of the matter, Mr. Dave, learned advocate for the petitioner, requested for permission to amend the petition, more particularly the prayer clause, which has been granted by the Court. The petitioner has amended para7(A) of the petition and has prayed that the Court, in exercise of prerogative jurisdiction, may condone the delay and remand the matter to the competent authority for deciding the application on merits.
Mr. Dave, learned advocate for the petitioner, has also submitted that the delay occurred in filing the application was caused mainly in receiving the copy of the order and that the petitioner, who is a farmer, could not make arrangement for necessary funds to deposit the requisite amount, as required under law.
7. Having regard to the submissions made by Mr. Dave, learned advocate for the petitioner, the Court is satisfied that the petitioner has offered satisfactory explanation and has made out sufficient cause to condone the delay. In the facts of the case, the petitioner cannot be said to be negligent. It is noticed from the submission of Mr. Dave, learned advocate for the petitioner, that about 45 days delay occurred in filing the appeal before the authority under Section 53 of the Act. If the delay is condoned, any prejudice will not be caused to the respondents whereas petitioner is likely to suffer injury if delay is not condoned.
7.1 Therefore, having regard to the facts and circumstances of the case and the explanation offered by Mr. Dave, learned advocate for the petitioner, the order dated 4.9.2012 is set aside and the matter is remitted to the competent authority under Section 53 of the Act.
The competent authority shall hear and decide the application on merits, after hearing the petitioner and thereafter, pass reasoned and speaking order in connection with the dispute raised by the petitioner in application/appeal said to have been filed in March2010 by the petitioner.
The said application/appeal will be heard and decided by the competent authority on merits.
With the aforesaid observations and direction, present petition is partly allowed. Rule is made absolute to the aforesaid extent.
The petition stands disposed of accordingly.
(K.M.Thaker, J.) kdc