The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the communication dated 15th March, 2010 and also praying for the direction to the respondent authority to reconsider the case of the petitioner on merits. The petitioner has also prayed for stay against the implementation and execution of the notice dated 1st September, 2009 issued under Rule 118 of the Bombay Land Revenue Code.
This Court has issued notice on 8th April, 2010 with a direction to the petitioner to deposit Rs.2,500/- before this Court on or before the returnable date. The Court has also directed the respondents to clarify as to whether the notice as well as the impugned order issued by the Deputy Collector are served on the petitioner and if they are served, the proof of service must be produced on the record of this petition.
Pursuant to the notice, an affidavit-in-reply is filed on behalf of the respondent No.2 along with which certain documents are produced. The petitioner has also filed rejoinder affidavit to the said affidavit-in-reply.
Heard Mr.Rajesh K. Shah, learned advocate appearing for the petitioner and Mr.Rashesh Rindani, learned AGP appearing for the respondents.
At the time of hearing of this petition, Mr.Rashesh Rindani, learned AGP has fairly submitted that the order passed by the Deputy Collector was sought to be served on the petitioner by way of registered post A.D. However, the said postal envelope was returned back with an endorsement that the address is not correct and proper. It appears that thereafter, the order was not served on the petitioner. The petitioner has inquired of the order and he has come to know about the order only after receipt of the notice of recovery. An application was made in March, 2010 by the petitioner and on receipt of the certified copy of the order, the petitioner has asked for challan of 25% of the amount of deficit stamp duty which was not supplied to the petitioner on the ground that if an appeal is filed, the same shall be barred by limitation.
Under the above circumstances, the present petition is filed.
Having heard learned advocate appearing for the petitioner and learned AGP appearing for the respondents, the Court is of the view that since the final order was not served on the petitioner because of the incorrect address, it cannot be said that the petitioner was supposed to file an appeal in 2001. It is only when the certified copy of the final order was received by the petitioner, the liability to file an appeal arose. The petitioner came to know about the order passed by the Deputy Collector only when recovery notice was served. The petitioner was required to be served with the copy of the order by the authority so as to enable him to file an appeal before the respondent authority. It is true that, the first notice was issued in September, 2009. On receipt of that notice, the petitioner should have inquired about the order, but he has not done this and only applied for certified copy of the order on 15th March, 2010. Thus, there is a delay of six months in preferring the appeal.
Be that as it may, since the impugned order was received by the petitioner only on 15th March, 2010, that too, in the form of certified copy, the petitioner has every right to challenge the said order after March, 2010. The respondent authority should not refuse to issue the challan in favour of the petitioner. The challan would make the petitioner enable to file an appeal before the respondent authority. Since this has not been done, the impugned order / communication dated 15th March, 2010 is hereby quashed and set aside. The respondent authority is hereby directed to issue challan for 50% of the amount of the deficit stamp duty as agreed by the petitioner and on payment of the said amount, the respondent Chief Controlling Revenue Authority is hereby directed to decide the appeal of the petitioner on merits and in accordance with law. The amount of Rs,2,500/- deposited by the petitioner before the Registry of this Court is ordered to be remitted to the respondent authority.
With these directions, this petition is accordingly, disposed of.
[ K. A. PUJ, J. ] (vijay) Top