1. Heard Mr. Mithil J. Mehta, learned Advocate for Ms. Sejal Mandavia, learned Advocate for the petitioner and learned A.G.P. for the respondent.
2. Rule. Learned A.G.P. waives service of Notice of Rule on behalf of the respondent. At the request of the learned Advocate for the petitioner and with consent of the learned A.G.P. rule is made returnable today and with consent of the learned Advocates appearing for the contesting parties the petition is taken up for hearing and final decision today.
3. The petitioner has brought under challenge order dated 02.04.2011 passed by respondent No.1. The petitioner has also challenged order dated 31.08.2010 passed by respondent No.2. The relief(s) prayed for by the petitioner in paragraph No. 10(B) and (C) read thus:-
“(B) Allow present petition by issuing a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 02.04.2011 passed by the respondent No.1-Principal Secretary, Revenue Department, Gandhinagar as well as the order dated 31.08.2010 passed by the Chief Controlling Authority, Gandhinagar in the interest of justice.
IN THE ALTERNATIVE (C) This Honourable Court would be pleased to condone the delay of 18 days caused in filing the appeal before the respondent No.1 and remand the matter back to the respondent No.1 for deciding the appeal on merits, in the interest of justice.”
4. The factual background emerging from the record of present petition and the submissions by learned counsel for the concerned parties give out that the petitioner claims that he purchased certain premises (hereinafter referred to as the suit premises)in October 2005 for sale consideration of Rs.50,000/-. A sale deed was executed between the parties. Thereafter, it was presented for registration. It is claimed that stamp duty in the sum of Rs.4,200/- was paid by the petitioner on the said document and the document was registered at Registration No.1897.
5. Subsequently, the competent authority examined the document and came to the conclusion that the document was inadequately stamped. Therefore, notice dated 26.12.2005 was issued and the petitioner was informed that appropriate stamp duty would be Rs.1,22,375/- and that therefore after adjusting the amount of Rs.4,200/- paid by the petitioner towards the stamp duty, he was obliged to pay further sum of Rs.1,18,175/-. Accordingly, demand for deficient duty, penalty and other statutory charge was raised. The petitioner has claimed that he had filed reply/objection dated 30.12.2005 against the said notice dated 26.12.2005. The Deputy Collector issued another intimation – notice dated 27.02.2006 calling upon the petitioner to pay the deficient stamp duty i.e. Rs.1,18,175/- and Rs.250/- towards penalty i.e. total sum of Rs.1,18,425/-. From the material which is available on record it appears that the petitioner neither submitted any reply to the said notice dated 27.02.2006 nor did he pay the amount as per the demand made under the said notice dated 27.02.2006. It also transpires from the record that though the petitioner did not give reply to the said notice dated 27.02.2006 and although did not make the payment, any action was not taken by the respondent authorities for almost 4 years and then another notice dated 25.01.2010 came to be issued. By the said notice the respondent authority again demanded Rs.1,18,425/-. This time petitioner forwarded his reply dated 15.02.2010.
6. Subsequently, after considering the reply of the petitioner and after visiting the site/premises in question, the competent authority (Deputy Collector, Stamp Duty Valuation) passed order dated 31.08.2010 confirming the demand raised by the notice i.e. for Rs.1,18,425/- (including Rs.250/- towards penalty). The said order was forwarded to the petitioner.
7. It is claimed by the petitioner that in view of the provision under Section 53 of the Act which obliges the aggrieved party to deposit 25% amount out of the amount determined by the Authority, he deposited a sum of Rs.29,644/- in the office of the Appellate Authority on 24.11.2010. The Challan bears bank's stamp dated 25th November 2010. It is, however, not in dispute that 25% amount out of the amount in question has been deposited by the petitioner on 24/25.11.2010.
8. Though the petitioner deposited the amount, he did not file the memo of appeal while depositing the amount. The appeal memo came to be filed by the petitioner on 18th December 2010.
9. Despite the fact that 25% amount was deposited by the petitioner as pre-deposit on 24/25.11.2010, i.e. within period of limitation, the Appellate Authority treated the appeal as barred by limitation on the ground that the memo of appeal was filed after expiry of prescribed period of limitation i.e. 90 days. On the said ground the Appellate Authority passed order dated 2nd April 2011 refusing to entertain the appeal. The petitioner is aggrieved by the said decision dated 02.04.2011. Hence, present petition.
10. Learned counsel for the petitioner would submit that the order by the Deputy Collector was passed on 31.08.2010 and the period of limitation prescribed under Section 53 is 90 days. The said provision also postulates pre-deposit of 25% amount out of the amount demanded by the order. The said amount was deposited by the petitioner on 24/25.11.2010, within prescribed period of limitation of 90 days accordingly the condition for pre-deposit was complied with within prescribed time limit.
10.1 The learned counsel for the petitioner submitted that the petitioner was under bonafide impression that once the requirement of pre- deposit is complied with (i.e. the amount required to be deposited for preferring the appeal is deposited) then even if the submission of memo of appeal is delayed, the appeal would not be treated as time barred. Learned counsel would also submit that due to certain unavoidable circumstances beyond control of petitioner the appeal memo could not be filed along with the deposit and some more time (i.e. until 18.12.2010) was consumed. Learned counsel would submit that according to the Appellate Authority submission of appeal was delayed by 18 days and on such ground appeal has not been entertained. Learned counsel for petitioner also submitted that the decision dated 2.4.2011 by the Appellate Authority is unreasonable and arbitrary.
11. Per contra, Mr. Alkesh Shah, learned AGP would submit that it is not in dispute that the petitioner did not file the appeal within prescribed period of limitation, inasmuch as the appeal was filed on 18th December 2010. Thus, the presentation of appeal memo was delayed by 18 days. He also submitted that in view of the provision under the Act the Appellate Authority has no power to condone delay and therefore the Appellate Authority could not have entertained the appeal. The learned AGP submitted that in such facts and circumstances the order of the Appellate Authority cannot be said to be contrary to the provision of the Act or arbitrary or unreasonable and that therefore it does not deserve to be set aside as prayed for by the petitioner.
12. Any other submissions have not been made by the learned counsel for the petitioner and learned AGP.
13. 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.”
13.1. 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.
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.
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.
16.1. However, such restriction or inability cannot hold back the Court from exercising discretion under Article 226 of the Constitution of India.
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, though he partly complied with the condition/requirement prescribed under Section 53 of the Act viz depositing 25% of the amount determined vide order dated 31.08.2010.
18.1. On the other hand, 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.
19. Besides this, ordinarily, it is preferable to consider and decide any 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.
20. 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 31.08.2010.
21. 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.
22. 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.
23. In present case, the action of depositing 25% of the determined amount within prescribed time limit would establish 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 18 days caused in submitting the memo cannot be termed as inordinate or unreasonable or sheer negligence.
23.1. The petitioner has contended that he could not file the memo of appeal within prescribed time limit and delay of 18 days is caused because the petitioner believed that if the requirement of depositing the amount in question is complied with and if the memo of appeal is filed subsequently then the appeal will not be treated as delayed or time barred. The learned counsel for the petitioner has, during the hearing, also submitted that some time was consumed by the petitioner in his efforts of coordinating the affairs with his Advocate and in the process of collecting relevant and necessary documents to be filed with the appeal.
24. 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 (18 days) and considering that the condition precedent is complied with within prescribed time limit (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 powers under Article 226 of the Constitution of India.
25. 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) exist 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.
26. 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.
27. Therefore, it was inquired from the petitioner as to whether the petitioner would deposit further amount, out of the total amount of deficient stamp duty determined by the competent authority, as condition for hearing of the appeal on merits.
28. 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 that therefore the Court is inclined to accept the said request of the petitioner and hence below mentioned order is passed:
(a) For the limited purpose of remitting the matter to the competent authority under Section 53 to decide the application on merits, the order dated 02.04.2011 passed by the competent authority declining to decide the matter on merits is set aside and 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 25% amount out of the total amount determined under order dated 31.08.2010, i.e. to deposit further sum of Rs.29,644/- and the matter is remitted to the competent authority under Section 53 of the Act for decision on merits.
(b) such deposit shall be without prejudice to the contentions of both sides.
(c) only 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, only 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 can independently consider the application on its own merits and on the basis of material available on record before it and can 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 02.04.2011 (i.e.
the order refusing to decide the application on merits and rejected it on ground of delay) is set aside. 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, on any ground, 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 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/receive and entertain the appeal only if the requisite amount, as aforesaid, is deposited within the time limit mentioned above.
(k) if the amount is not so deposited, then application-appeal may not be entertained.
(l) all contentions available to the petitioner and the Department are kept open.
(m) the competent authority shall decide the appeal independently and on its own merits without being influenced by any order or observations.
(n) the petitioner shall place on record the receipt acknowledging the payment/deposit of the amount in question.
29. It is, again, clarified that the delay caused in preferring the appeal shall stand condoned only if and only after the amount, as aforesaid, is deposited.
30. 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.
31. If the petitioner fails to deposit the amount within the time limit prescribed above, present order will not take effect.
32. 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.)