IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13808 of 2011 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 ?
========================================================= KATIRA CONSTRUCTION LTD - Petitioner(s) Versus CHIEF CONTROLLING AUTHORITY & 1 - Respondent(s) ========================================================= Appearance :
MR SHIVANG M SHAH for Petitioner(s) : 1, MR AN SHAH, AGP for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 01/08/2012 CAV JUDGMENT
1. Heard learned advocate Ms.Dhara Shah for learned advocate Mr. Shivang Shah appearing for the petitioner and Mr. A. N. Shah learned AGP for the respondent.
2. Rule. Learned AGP Mr. A. N. Shah waives service of notice of rule on behalf of respondent state authority.
3. At the request of learned advocate for the petitioner and with consent of learned AGP, the petition is taken up for hearing and final decision today.
4. In present petition, the petitioner has prayed for below mentioned relief/s:
“10(A) Your Lordships will be pleased to issue a writ of or in the nature of mandamus or any other appropriate writ, order or direction, to quash and set aside the order dated 22.02.2011 (Annexure-A to the petition) passed by respondent No.1 authority refusing to accept the appeal preferred against the order dated (17.08.2010) 04/06.09.2010 passed by the respondent No.2 (Annexure-E to the petition) levying the additional stamp duty in relation to the document registered at Sr. No.3874 dated 31.05.2006.
10(B) Your Lordships will be pleased to issue a writ of or in the nature of mandmus or any other appropriate writ, order or direction, to quash and set aside thew order dated (17.08.2010) 04/06.09.2010 passed by the respondent No.2 levying the additional stamp duty in relation to the document registered at Sr. No.3874 dated 31.05.2006 (Annexure-E to the petition).”
5. At the time of hearing, learned advocate appearing for the petitioner requested that the petitioner may be permitted to amend the petition particularly the prayer clause so as to add further request that considering the facts of the case the Court may condone delay caused in filing application before the competent authority under Section-53 of Bombay Stamp Act, 1956 (hereinafter referred to as 'the Act”). The request as prayed for was granted on 04/07/2012. Accordingly the petitioner has amended para-10 so as to add para-10(AA) which reads thus:
“10(AA) Your Lordships will be pleased to issue a writ of or in the nature of mandamus or any other appropriate, writ, order or direction to condone the delay in preferring the Appeal against the order dated (17.8.2010) 4/6.9.2010 to the Respondent no.2 and direct the respondent no.2 to decide the appeal on merits.”
6. The petitioner is aggrieved by order dated 22/02/2011 passed by the competent authority refusing to accept and entertain the application submitted by the petitioner under Section-53 of the Act. The competent authority has declined to entertain the application on the ground that the applicant submitted the application after expiry of time limit prescribed under Section-53 of the Act.
7. Aggrieved by the said decision, the petitioner has taken out present petition.
8. It is claimed by the petitioner that the petitioner undertakes work of executing contracts and is also engaged in building construction activity. The petitioner was awarded a contract by Bhuj Area Development Authority for constructing commercial complex at different locations more particularly prescribed in the contract according to the terms and conditions of the tender and so also under the contract the petitioner was conferred with right to sub-lease certain number of shops in the complex constructed pursuant to the contract in question. For the said purpose a separate document i.e. lease deed was executed by and between the petitioner and Bhuj Area Development Authority. The petitioner presented the said document (i.e. the lease deed) for registration and certification. The document came to be registered at Sr. No.3874 on 31/05/2006 with the office of Sub Registrar, Bhuj. The petitioner claims that it calculated and paid stamp duty according to the valuation in accordance with the terms of the contract. The petitioner has essentially relied on Article-5(g)(a) of the Act so as to claim that the stamp duty calculated and paid by it is in accordance with the provisions contained under the Act. The document in question was taken up for verification by the concerned authority and during process of verification audit objection was raised as to the valuation and calculation of stamp duty. Therefore, the Sub Registrar forwarded the document in question to the competent authority for taking out proceedings under Section-
33 of the Act. The competent authority thereafter issued notice under Section-33 read with Section-39 intimating the petitioner that the stamp duty paid in respect of the document in question was insufficient. The petitioner was asked to pay the deficient stamp duty as per the details mentioned in the notice dated 31/07/2008 or to remain present before the authority on the date at the time mentioned in the notice. According to the authority the stamp duty should have been paid at rate of Rs.14,90,080/- as against Rs.1,600/- paid by the petitioner. Consequently the authority demanded payment of Rs.14,88,580/- towards deficient stamp duty.
9. Upon receipt of the said notice, the petitioner submitted its reply dated 20/09/2009 contending, inter alia, that the document in question cannot be classified under Article-30(6) read with Article-20 of the Act. After the petitioner's said reply, the concerned authority issued another notice dated 16/09/2008 calling upon the petitioner to pay the difference amount towards stamp duty with interest at the rate of 15%. The said notice was followed by another notice dated 29/08/1999. Subsequently the competent authority passed order dated (17/08/2010) 04-06/09/2010 directing the petitioner to pay Rs.14,88,985/- being the amount towards shortfall in stamp duty payable in respect of the document in question. The said amount included Rs.500/- towards penalty. The petitioner has claimed that the said order dated 04- 06/09/2010 was received by the petitioner on 09/09/2010. The petitioner felt aggrieved by the said order and therefore, initiated steps to challenge the said order by way of application under Section-53 before the competent authority.
10. Section-53 of the Act prescribes period of limitation for submitting application to the competent authority. The prescribed time limit is of 90 days from the date of order. According to the petitioner the time limit of 90 days would expire on 07/12/2010. It is claimed that so as to file the application the petitioner and his representative reached the office of competent authority on 07/12/2010 when they learnt that the respondent no.1 had shifted the office to another premises about which the petitioner was not aware. The petitioner has claimed and asserted that on 08/12/2010 (the next day) memo of the application was sought to be filed, however, it was not accepted on the ground that the time limit prescribed under the Act had expired and it was already after office hours when the petitioner sought to file the application memo. The petitioner has claimed that after persuasion on next day, the application was received in the office of competent authority on 09/12/2010. The petitioner has claimed that along with the memo of application, the amount required to be paid in accordance with the requirement prescribed under Section-53 of the Act (i.e. 25% of the amount determined by the competent authority) has been paid by the petitioner. The competent authority has, subsequently, declined to entertain the application on merits on the ground that the application was submitted after expiry of prescribed period and that therefore the application cannot be entertained. The petitioner has also claimed that after submitting the application, additional written request to register the application was made by the petitioner vide communication dated 07/03/2011, however, the request of the petitioner did not find favour with the competent authority and the application came to be rejected as time barred. The competent authority conveyed its decision to the petitioner under communication dated 22/02/2011. It is the said communication and order which is brought under challenge in present petition on the grounds raised in the petition.
11. Learned advocate Ms.Shah appearing for the petitioner has submitted that even if the petitioner's application under Section-53 is to be treated as time barred then also the total delay is of only two days and the delay cannot be said to have occurred due to negligence on part of the petitioner. She submitted that even considering the fact that the submissions of the application was delayed by only two days, the authority ought to have condoned delay and considered the application on merits instead of rejecting the application on ground of limitation. Learned counsel for the petitioner also submitted that instead standing on technicality, the competent authority should lean in favour of substantial and complete justice. It is claimed that the decision by the competent authority is unjust inequitable and arbitrary. It is also claimed that the decision is contrary to the view expressed by the Apex Court and this Court that the term “sufficient cause” should be construed liberally and meritorious matter should not be dismissed only on ground of limitation.
12. Learned AGP Mr. Yagnik has opposed the petition. He has submitted that it is not in dispute that the petitioner submitted the application after expiry of prescribed period of limitation. According to the submissions of learned AGP, the period for filing application before the competent authority is prescribed under Section-53 and the said provision does not confer any power on the competent authority to condone delay and that therefore, the competent authority could not have entertained the application which is undisputedly filed after expiry of prescribed period of limitation. Therefore, the order dated 22/2/2011 which is impugned in present petition cannot be said to be arbitrary or unjust. Learned AGP submitted that for want of authority and power to condone delay, the competent authority cannot entertain any application filed after prescribed period of limitation and that therefore, the petition does not deserve to be entertained. However so far as the facts and details stated by the petitioner are concerned, they are not disputed by the respondents.
13. In order to appreciate rival contentions it is necessary to take into account the provision under Section-53 of the Act. The said provision 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.”
13.1. At the outset it may be mentioned that after the impugned order dated 22-02-2011 filing of petition is not much delayed as it is filed in September, 2011
13.2. 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.
14. 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. It is pertinent to note that though the power to partly dispense with the requirement of pre-deposit (not exceeding 50% of the amount required to be deposited) is conferred on the authority, the power to condone delay in preferring the application is not conferred on the authority.
15. 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.
15.1 However, such restriction or inability cannot hold back the Court from exercising discretion under Article 226 of the Constitution of India.
16. 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.
17. 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.
17.1. 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.
18. 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.
18.1. 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.
18.2. Besides this, it is ordinarily, considered preferable to decide an application or case on merits rather than rejecting it on ground of delay 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.
19. 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.
20. 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.
21. 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. In response to the query put by the Court, learned counsel for the petitioner stipulated and declared that the petitioner is ready to deposit further/additional 25% amount (making total of 50% of the amount) out of the amount determined by the first adjudicating authority.
22. 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. After the order dated 22/02/2011 the petitioner is taken out without inordinate delay as the petition seems to have been filed in August/September, 2011. It cannot be said that the petitioner lacks bonafides and that therefore the Court is inclined to accept the said request but of course on appropriate condition, of the petitioner, 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 deposit, within two weeks, additional 25% out of the amount determined by the impugned order which shall be over and above (i.e. in addition to) the 25% amount required to be deposited as per condition under Section-53 of the Act.
(b) such deposit shall be without prejudice to the contentions of both sides and it will be subject to final order by the competent authority.
(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, entertain and decide 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 22/02/2011 (i.e. the order refusing to accept the appeal preferred against the order dated (17.08.2010) 04/06.09.2010 passed by respondent no.2) is only for the limited purpose i.e. for remanding the case to the competent authority set aside and the matter is remitted to the competent authority. 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 on merits on the basis of material available on record and to pass appropriate reasoned and speaking order.
(i) the competent authority will accept/receive and entertain the appeal if the requisite amount, as aforesaid, is deposited within the time limit mentioned above. If the amount is not so deposited, then application-appeal will not be entertained.
(j) all contentions available to the petitioner and the Department are kept open.
(k) the competent authority shall decide the appeal independently and on its own merits without being influenced by any order or observations.
(l) the petitioner shall place on record the receipt acknowledging the payment/deposit of the amount in question.
23. It is, again, clarified that the delay caused in preferring the appeal shall stand condoned if and after the amount, as aforesaid, is deposited.
24. The Competent 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.
25. If the petitioner fails to deposit the amount within the time limit prescribed above, present order will not take effect.
26. With the aforesaid clarifications and directions, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No cost.
(K. M. THAKER, J.) (ila)