1. Rule. Heard Mr. Mrugen K. Purohit, learned advocate for the petitioners and Mr. Rohan Yagnik, learned AGP. Leave to amend prayer clause is granted. Amendment to be carried out forthwith. Learned AGP has waived service of Rule on behalf of respondents. With consent of the parties, the matter is taken up for hearing and final decision today. Leave to amend para 8(b) is granted. Amendment to be carried out forthwith.
2. The petitioners have taken out present petition, seeking below mentioned relief(s) and directions:
“8(a) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, to declare that non acceptance and non deciding and adjudicating the appeal of the petitioners is illegal, unconstitutional and contrary to the law;
8(b) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari by quashing and setting aside communication dated 29.9.2011 passed by the respondents and may be pleased to direct the respondent No.1 to consider and decide the appeal preferred by the petitioners in accordance with law;”
2.1 During the hearing, learned counsel for the petitioner prayed for permission to amend para 8(b) so as to add the prayer that delay caused in filing the application may be condoned by the Court. Leave as prayed for was granted. The said para 8(b), after amendment, reads thus:
8(b) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari by quashing and setting aside communication dated 29.9.2011 passed by the respondents and may be pleased to direct the respondent No.1 to consider and decide the appeal preferred by the petitioners in accordance with law and Hon'ble Court may condone delay in filing appeal.;”
3. The aforesaid relief(s) have been requested for on the premise and with the grievance that against the order of first authority, the petitioner sought to prefer an application under Section 53 of Bombay Stamp Act, 1958 ('the Act' for short) before the Competent Authority, however, the Competent Authority did not accept and register the application and the application is not considered and decided on merits on the ground the application was submitted after expiry of prescribed time limit.
4. So as to support his request to the effect that the application may be considered on merits or the request for condonation of delay may be decided after hearing the petitioners on merit, the learned advocate for petitioners has stated relevant facts and the dates of relevant events, which are as follows:-
4.1 It appears from the submissions of learned counsel for the petitioners and also from the record that the petitioners had executed a memorandum and submitted the said Memorandum for Certification, on or around 12.6.2000.
4.2 Subsequently, on 22.9.2005, the Collector of Stamps informed the petitioners that the stamp duty paid by the petitioners was insufficient because the petitioners had paid only Rs.4,200/- towards stamp duty and that the amount payable towards deficient stamp duty comes to Rs.22,050/- and the petitioners are liable to pay penalty in the sum of Rs.22,050/- and charges/fee in the sum of Rs.10,275/- has to be paid. The authority, accordingly, demanded Rs.54,375/-. Accordingly, demand in the sum of Rs.54,375/- came to be raised vide said communication dated 22.9.2005.
4.3 The petitioners have claimed that they had not received the said communication/order dated 22.9.2005 and therefore, they could not take any action at the relevant time. The petitioners have further claimed that subsequently, a notice dated 23/26.11.2010 was received by the petitioner whereby the authority demanded payment and intimated that if the payment as demanded vide order dated 22.9.2005 is not made, then appropriate action for recovery shall be taken and that it is only after receipt of said notice dated 23/26.11.2011 that they came to know about the order dated 22.9.2005.
4.4 Feeling aggrieved by the said order dated 22.9.2005 and the subsequent demand notice, the petitioners sought to challenge the said order before the Competent Authority, however, their request to provide challan for depositing 25% of the amount demanded towards deficient stamp duty came to be rejected by communication dated 28.12.2010 whereby the competent authority informed the petitioners that the application sought to be preferred after prescribed time limit cannot be entertained and therefore, the request dated 22.12.2010 is closed/filed.
4.5 After receipt of the said communication dated 28.12.2010, the petitioners addressed a communication dated 3.1.2011 to the Collector of Stamps, requesting to accept the deposit of 25% amount out of the amount demanded towards deficient stamp duty along with Rs.100/- towards the prescribed charge.
4.6 It is further claimed by the petitioners that subsequently, the communication dated 29.9.2011 was received from the office of respondent No.1, informing the petitioners that since the application was not filed within prescribed period of limitation and 25% amount of the deficient stamp duty (as per the order) was also not deposited within the prescribed period of limitation, the application cannot be accepted/entertained. Aggrieved by the said decisions, the petitioners have preferred present petition.
5. Mr. Purohit, learned counsel for the petitioner, has submitted that the petitioner could not file the application within prescribed time limit because the said order was not received by the petitioner before the expiry of the time limit and the petitioner came to know about the order only after he received the Notice dated 28.12.2010 and therefore, the petitioner was not aware about the said order. He further submitted that without considering the said reason, the petitioner's application has been rejected by the competent authority only on ground of limitation. He alleged that the competent authority did not even consider the application praying for condonation of delay and even refused to provide the challan under which the petitioner could have deposited the amount in compliance of the requirements prescribed under Section 53. Learned counsel for the petitioner submitted that in view of the fact that the reasons for delay were beyond control of the petitioner, the application deserves to be considered on merits by the competent authority.
5.1 Per contra, Mr. Yagnik, learned AGP has opposed the petition and submitted that the order is in consonance with the provision under Section 53 and that, therefore, the said order does not deserve to be set aside. He submitted that Section 53 prescribes period of limitation within which the aggrieved party should file an application and that, therefore, the competent authority is justified in not entertaining application sought to be filed after expiry of period of limitation. He submitted that the competent authority does not have power to condone delay and that, therefore, the competent authority could not have entertained the application. Learned AGP, however, could not bring any material to the notice of this Court to demonstrate that the order was duly forwarded to and served on the petitioner. Learned AGP submitted that the application sought to be filed by the petitioner being barred by limitation was not maintainable and therefore, it has not been entertained and the petitioner is not justified in raising any grievance against the said decision.
6. The concerned officer is present at the time of hearing, thus, it was inquired from the concerned officer as to whether the order was duly forwarded and served on the petitioners or not. The said query was put to ascertain whether the office of the respondent can show any material to establish that the order was duly forwarded and served and also to ascertain as to whether the procedure prescribed by rules for service of order were followed or not. In this context, it is necessary, at this stage, to take into consideration provision under Rule 7 of the Bombay Stamp (Determination of Market Value of Property) Rules, 1984, which read thus:
“7. Manner of service of notice under rule 4.:-
Any notice or order under these rules shall be served in the following manner, namely:-
(1) In the case of any company, society or association of individuals, whether incorporated or not, the notice or order shall be served,
(a) on the Secretary or any Director or other principal officer of the company, society or association of individuals, as the case may be, or
(b) by sending it by registered post with acknowledgment due, addressed to the company, society or association of individuals, as the case may be, at its registered office or if there is no registered office, then at the place where the company, society or association of individuals, as the case may be, carries on business.
(2) In the case of any firm, the notice or order shall be served, --
(a) upon any one or more of the partners ; or
(b) at the principal place at which the partnership business is carried on, upon any person having control or management of the partnership business at the time of service.
(3) In the case of a family the notice or order shall be served upon the person in management of such family or of the property of such family, in the manner specified in clause (4) below.
(4) In the case of any individual person, the notice or order shall be served, --
(a) by delivering or tendering the notice or order to the person concerned or to his advocate or authorized agent; or
(b) by delivering or tendering the notice or order to some adult member of the family; or
(c) by sending the notice or order to the person concerned by registered post with acknowledgment due; or
(d) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned.”
The rule prescribes the procedure as to how the order should be forwarded to the concerned/affected person.
7. In response to the query, neither learned AGP nor concerned officer could give reply as to whether the said order dated 29.9.2005 was forwarded/despatched and served to the petitioners in accordance with the procedure prescribed under the Act; or not and as to whether there is any material on record to establish said aspect; or not.
7.1 In response to the Court's query, the concerned officer and the learned AGP have submitted that there is no material available on record to demonstrate that the order was despatched/forwarded for service in prescribed manner and it was duly served on the petitioners. Any material to establish that the procedure prescribed under said rule was complied while forwarding the order to the petitioner is not placed on record.
7.2 Likewise, any material to controvert the claim of petitioners that the order dated 22.9.2005 was not duly served on the petitioners, is not placed on record.
8. Under the circumstances, there is no option but to accept the petitioners' claim that the said order dated 22.9.2005 was not served on the petitioners. The petitioners would claim that the fact about the order dated 22.9.2005 came to their notice only when they received demand dated 28.12.2010.
8.1 In absence of any material to demonstrate and establish that the order was served on the petitioners, the said submission cannot be ignored.
8.2 Inspite of such facts in the background, the Competent Authority did not receive the application and did not consider the request to condone delay.
9. In present case, notice was issued by the Court vide order dated 12.1.2012 and it was made returnable on 2.2.2012, however, until now, any reply affidavit controverting the assertion made by the petitioners has not been made.
9.1 As mentioned above, the respondents have failed to bring any material to the notice of the Court to demonstrate that the order was duly forwarded to the petitioner. Any material to even controvert, muchless disprove, the petitioner's claim that he had not received the order dated 22.9.2005, is not brought to the notice of this Court. Therefore, the Court is constrained to proceed on the premise that the order was not received by the petitioner.
9.2 In order to consider the grievance and request made by the petitioner, it is necessary to take into account provisions under Section 53 of the Act. The said section 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.
Provided further that where in any particular case the Chief Controlling Authority is of the opinion that the deposit of the amount by the applicant may cause undue hardship to him, the authority may in its discretion, either unconditionally or subject to such conditions as it may think fit to impose, dispense with a part of the amount deposited so however that the part of the amount so dispensed with shall not exceed fifty per cent of the amount deposited or required to be deposited.
(2) If any Collector, acting under section 31, section 32A, section 39 or section 40, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue Authority.
(3) Such authority shall consider the case and send a copy of its decision to the Collector, who shall proceed to assess and charge the duty (if any) in conformity with such decision.”
9.2 A glance at the said provision would show that power to condone delay in filing the application under this provision is not conferred on the concerned authority. Consequently, in light of the provision, or rather in view of the restriction on authority's power under Section 53, the Competent Authority cannot condone delay in filing the application and/or in depositing the requisite amount in compliance of the condition prescribed under Clause (b) of proviso of Sub-section (1) of Section 53 and cannot entertain applications which are filed after expiry of prescribed period of limitation.
9.3 Therefore, if the application is preferred after expiry of 90 days and/or if the requisite amount is not deposited within prescribed time, then such application cannot be entertained by the concerned authority.
9.4 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 the present petitioner. The said order merely echoes the restriction imbeded in Section 53 of the Act. The authority has merely refused to exercise power not conferred on him.
9.5 Likewise, so far as first part of the relief prayed for by the petitioner in para 8(b), i.e. to set aside the communication dated 29.9.2011, is concerned, the said communication is in consonance with the provision contained under Section 53 of the Act.
10. However, so far as the second part of relief prayed for in para 8(B) is concerned, the first requirement, to consider the said request, would be to condone the delay caused in filing application and in depositing the requisite amount as prescribed under Section 53 of the Act.
10.1 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, though such delay or default occurred because the aggrieved person did not receive the order of the first authority. Differently put whether opportunity of hearing on merits should be denied to the party aggrieved by first authority's order irrespective of the cause for delay and/or irrespective of merits of the case.
10.2 There may be diverse reasons on account of which, in any given case, delay may occur in filing the suit/plaint or an application or an application. In given case, delay might have occurred due to sheer negligence of the plaintiff or the applicant or the appellant whereas, in some other case, it may occur due to reasons beyond control of the plaintiff or the appellant e.g. in present case, delay is said to have occurred because the petitioner was not aware that any order was passed demanding payment of deficient stamp duty and when it came to the notice of the petitioner that such order has been passed by the authority, the prescribed time for filing application had already expired.
10.3 Now so far as power to condone delay is concerned, the legislature has not conferred such power on the Competent Authority. The said authority, therefore, cannot overlook or ignore the fact that the application is filed after expiry of period prescribed for filing application. If any order to entertain the application filed after expiry of prescribed limitation is passed then it would amount to not only condoning delay without authority but would also amount to usurping and exercising power not conferred by law.
10.5 However, such restriction or inability cannot hold back the Court from exercising authority/jurisdiction under the Limitation Act. Likewise, the discretionary jurisdiction under Article 226 of the Constitution of India to condone delay in interest of justice and for equitable or other justiciable reason would not be eclipsed by a provision which does not provide for and which does not confer power to condone delay or which puts fetters on the power to condone delay.
10.6 A 'Court' can exercise power under Section 5 of the Limitation Act and in accordance with the said provision the 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 the part of the applicant-petitioner or plaintiff; and
(b) the extent or length of delay is not such as would amount to waiver of right; and
(c) conjointly the applicant also establishes that he/it has shown due diligence to prosecute available remedy without being indolent or negligent; and
(d) if it is established to the satisfaction of the Court that the applicant/plaintiff/appellant could not prosecute the remedy within prescribed time limit due to circumstances beyond his control and there is satisfactory explanation as to the reasons which caused delay and sufficient cause to condone delay; and
(e) 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, then the Court, in exercise of its inherent power, may condone the delay and direct the authority to consider the application on merits.
(f) the Court would also consider as to whether a meritorious matter will be defeated if delay is not condoned.
10.7 The above mentioned instances are illustrative and not exhaustive. There could be other germane, compelling, just and equitable reasons and justification to condone delay in given set of facts and circumstances.
11. Of course, the Court would not mechanically or casually condone delay. Besides the aspects mentioned hereinabove, the Court, while considering the request to condone delay, the Court should also be cautious to ensure that lenient view or concept of substantial justice does not jettison law of limitation and any accrued right to the opponent is not adversely affected.
11.1 The Court will also have to ascertain as to whether a satisfactory and sustainable justification in support of request to condone delay emerges from the application or not and the request cannot be entertained and granted highheartedly but after exercising proper care and caution. The restriction imposed by the legislature and law of limitation cannot be diluted or erased without 'sufficient cause' and 'satisfactory explanation'. Negligence or indolence cannot be rewarded or ignored.
12. As noticed in present case, any material to controvert or dislodge the petitioner's claim and assertion that the order dated 22.9.2005 was not received by him, is not brought to the notice of the Court.
12.1 It is not even claimed by the respondents that the order was duly forwarded to the petitioner and was duly served on / received by the petitioner.
12.2 In such circumstances, there is hardly any room to deny opportunity of hearing to the petitioner.
12.3 Besides this, ordinarily, it is preferable to consider and decide any application or case on merits unless it is shown that:-
(a) the delay was intentional and/or
(b) the delay occurred on account of negligence on the part of the applicant/plaintiff/appellant or
(c) 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. and/or
(d) the reason for delay is not satisfactorily explained and sufficient cause it not made out.
13. 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 the relevant and applicable provisions as well as settled legal position, then any prejudice will not be caused to any private litigant and any prejudice will not be caused even to the concerned authorities, more particularly when the petitioner has, in response to the Court's query, declared his readiness to deposit the entire amount as per the order dated 22.9.2005 (as against the requirement to deposit 25% of the amount determined by the order).
13.1 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.
14. In this view of the matter and in light of the above- mentioned facts and circumstances and for the foregoing reasons, it is considered appropriate that the petitioners' request for condonation of delay may be considered in present petition, more particularly because the competent authority, does not have power to condone the delay caused in preferring the application and the petitioner has declared readiness to deposit the entire amount determined by the order dated 22.9.2005.
15. The Act requires deposit of 25% amount out of the deficient stamp duty determined by the first authority, as pre- condition for entertaining application. Instead, in response to the Court's query, learned counsel for the petitioners has submitted that the petitioners are ready to deposit the prescribed charge as well as the entire amount as determined by the first authority, i.e. Rs.54,375/- + the charge before the Competent Authority, however, without prejudice to the contentions raised in the application.
16. Having regard to the facts and circumstances of present case viz. original/first authority's order was not duly served on the petitioners and the petitioners are ready to deposit the entire amount (as per the order dated 22.9.2005) in compliance of requirement for pre-deposit, it appears appropriate to condone the delay, in exercise of jurisdiction under Article 226 of the Constitution, caused in filing the application.
17. In view of the foregoing discussion and reason, below mentioned order is passed in exercise of discretionary and equitable jurisdiction under Article 226 of the Constitution of India, however on the condition that the petitioner shall, as stipulated by the learned advocate for petitioner, despite the entire amount in question, i.e. Rs.54,375/-.
(a) Only for this limited purpose, the communication dated 29.9.2011 is set aside and the case is remanded to the competent authority under Section 53 to hear and decide the application on merits.
(b) The delay caused in filing the application under Section 53 of the Act is condoned on the condition that the petitioner shall, within one week, deposit before the authority specified under Section 53 of the Act, the amount as quantified and demanded, i.e. Rs.54,375/- and the competent authority is directed to consider and decide the application, after the petitioner deposits the amount, on merits.
(c) Such deposit shall be without prejudice to the contentions of both sides.
(d) The competent authority will accept/receive and entertain the application only if the requisite amount, as aforesaid, is deposited within the time limit mentioned above.
(e) 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 on merits.
(f) The application shall be considered and decided on its own merits by the competent authority, after hearing the petitioner. For the said purpose, the competent authority shall inform the petitioner the date and time of hearing. The petitioner shall accordingly remain present and shall make request for adjournment.
(g) If the petitioner remains absent, then it will be open to the authority to proceed ex-parte and decide the application on merits on the basis of material available on record and to pass appropriate reasoned and speaking order.
(h) The amount deposited by the petitioner shall be subject to the order that may be passed by the competent authority.
(i) All contentions available to the petitioner and the Department are kept open.
(j) The competent authority shall decide the application on merits independently and on its own merits without being influenced by any order or observation.
18. It is, however, clarified that the delay caused in preferring the application shall stand condoned only if and only after the amount, as aforesaid, is deposited. If the petitioners fail to deposit the amount within the time limit prescribed above, present order will not take effect. The petitioner shall place on record the receipt acknowledging the payment/deposit of the amount in question.
19. The Competent Authority will pass appropriate order on merits strictly in accordance with law and in light of the provisions under the Act and the Rules as expeditiously as possible and preferably within 8 (eight) weeks from the date on which the amount is deposited.
20. With the aforesaid clarifications and directions, the petition is partly allowed. Rules is made absolute to the aforesaid extent. No cost.
(K.M. Thaker, J.) Bharat*