1. The petitioners have taken out present petition seeking below mentioned relief/s:-
“8(a) Quashing and setting aside the order dated 8.10.2010 of Collector of Stamps, Mehsana at Annexure-H and the impugned order dated 15.11.2011 of the Additional Superintendent of Stamps, Respondent No.2 herein, at Annexure-A (b)...........
(c) ”
2. The facts involved and leading to the present petition are as follows:-
2.1 The petitioners purchased certain parcel of land in 1944.
The said transaction, because of certain subsequent events, became subject matter of Civil Suit No.256 of 2006 which was preferred by respondent No.5 in present petition. In the said suit it was prayed, inter alia that the document at annexure-B of present petition may be declared as null and void. The plaintiff i.e. respondent No.5 claimed in the said suit that the land in question i.e. land which is said to have been purchased by the petitioners in 1944, was given back to the plaintiff i.e. respondent No.5 under the alleged and disputed document dated 16.7.1945.
2.2 It appears that the petitioners herein appeared in the said suit and opposed the allegations and the proceedings by way of filing written statement.
2.3 During the proceedings of the said suit an interlocutory application - exhibit 39 was submitted by the petitioners whereby the petitioners requested that appropriate action against the plaintiff i.e. respondent No.5 may be initiated under Section 33, 34 and 37 of the Bombay Stamp Act, 1958 (hereinafter referred to as the “Act”).
2.4 It appears that learned trial Court passed order dated 29.9.2010 on the said interlocutory application exhibit 39 whereby the learned trial Court directed competent authority to initiate and complete the proceeding under Sections 33, 34 and 37 of the Act within 30 days.
2.5 In view of the said order passed below application exhibit 39 the authority initiated proceedings against respondent No.5 and passed order dated 8.10.2010.
2.6 According to the petitioners while passing the said order dated 8.10.2010 the competent authority transgressed the authority and its jurisdiction and acted beyond the scope of his authority under the provisions of the Act including provisions under sections 33, 34 and 37 and also acted beyond the scope of order dated 29.9.2010 passed by the learned trial Court.
2.7 The competent authority, vide said order dated 8.10.2010 passed twin directions whereby under first direction the competent authority directed the heirs of the deceased to pay deficit stamp duty in the sum of Rs.38/- with fine of Rs.380/- in all Rs.418/- and by way of second direction the competent authority further directed the revenue authority to make appropriate entry in the revenue record because the document in question was not duly registered in accordance with section 17 of the Registration Act, 1908.
2.8 According to the petitioners the said direction is beyond the jurisdiction of the competent authority and the said authority could not have passed order under the provisions of the Bombay Stamp Act.
2.9 The petitioners herein felt aggrieved by the said direction in the order dated 8.10.2010 because, according to the petitioners, it is because of the said observation / direction the revenue authority made entry in the revenue record which is adverse to the petitioners.
2.10 It is also claimed that feeling aggrieved by the said entry in the revenue record the petitioners had taken out proceedings before the competent revenue authority and the petitioners have succeeded before the revenue authority and entry is directed to be cancelled.
2.11 Be that as it may, so far as present proceedings are concerned it is the case of the petitioners that they felt aggrieved by the said second direction contained under order dated 8.10.2010.
2.12 It is claimed by the petitioners that since the petitioners were not party opponent in the proceedings before the Collector wherein the said order dated 8.10.2010 came to be passed, the petitioners were not aware about the said proceedings and / or about the order dated 8.10.2010.
2.13 It is also claimed that the petitioners became aware of the said order dated 8.10.2010 only when the petitioner came to know about entry made in the revenue record.
2.14 It is claimed by the petitioners that they came to know about the entry in the revenue record on or around 1.6.2010 and immediately thereafter the petitioners had taken out application under provision of Right to Information Act whereby the petitioners requested for copy of the said order and the information under the Right to Information Act came to be supplied on petitioner on 8.9.2011.
2.15 It is further claimed by the petitioners that subsequently the petitioners filed Appeal under Section 53 before the Appellate Authority under the Stamp Act, on 7.10.2011. The petitioners have contended that though the petitioners filed Appeal within period of one month after receipt of the document on 8.9.2011, the Appeal has been treated as time barred by the competent authority and on the said solitary ground the Appeal has not been entertained by the Appellate Authority on merits.
2.16 The petitioners have aggrieved by the said decision and action of the Appellate Authority, hence present petition.
2.17 On the premise that the application under Right to Information Act was made on 8.9.2011 the petitioners have claimed that considering from the said date, Appeal can be said to have been filed within time limit. Then the petitioners have contended that if the cited document has taken into account the Appeal cannot be treated as time barred.
3. The respondent authority has opposed the petition by way of reply affidavit. It is contended that the appeal is sought to be preferred against order dated 8.10.2010 and that therefore the appeal is treated as time barred because it came to be filed on 7.10.2011. For the purpose of calculating the period of limitation, the Appellate Authority has taken into account date of impugned order. It is observed by the competent authority that since the Appeal was not filed within period of 90 days the order is not illegal or arbitrary or contrary to the provisions under the Act.
4. Mr. Unwala, learned advocate for the petitioners has submitted that the proceedings before the Collector were conducted in absence of the petitioners. He further submitted that the petitioners were not made party to the proceedings.
Any notice regarding hearing was not served on the petitioners and that therefore the petitioners were not aware about the order dated 8.10.2010. He also submitted that the petitioners received copy of the order only on 8.9.2011 and that therefore within one month i.e. 7.10.2011 the Appeal was filed and that therefore it should not be considered time barred as per the provision under Section 53 of the Act.
5. Mr. Yagnik, learned AGP has opposed the submission and contended that considering the date of the order, appeal is inordinately delayed inasmuch as it has been filed after almost one year and that therefore order cannot be said to be illegal or arbitrary.
6. I have considered the submissions made by the learned advocate for the petitioners as well as learned AGP and I have also taken note of the record. Considering the facts and circumstances of the case, Rule. Mr. Yagnik, learned AGP waives service of notice of Rule on behalf of the respondents. At the request of the petitioners and with consent of learned AGP the petition is taken up for final decision today.
7. At the outset certain undisputed facts are required to be noted:
7.1 It is not in dispute that the amount in question i.e. amount quantified by the appellate authority has already been deposited.
7.2 It is also not in dispute that the petitioners herein were not party to the proceedings and the Collector passed order dated 8.10.2010.
7.3 It is also not in dispute that the respondent authority had, in the first instance not forwarded copy of the order to the petitioners.
7.4 Learned AGP has not disputed that the copy of the order was not forwarded to the petitioners. Any material to controvert the said contention is not placed on record.
7.5 Actually it emerges from the record and submission from the learned advocate for the petitioners that the document was made available to the petitioners in response to the application under Right to Information Act. The petitioners have claimed that the application under Right to Information Act was made after the petitioners came to know about the revenue entry. However, exact date on which the petitioner came to know about the entry in revenue record is not mentioned by the petitioners. All that the petitioners have claimed is that they came to know about entry on or around 1.6.2010. Learned advocate for the petitioners has, during hearing of present petition, submitted that the application under Right to Information Act was submitted on or around 25.8.2011 and the copy of the order, in response to the said application, came to be supplied to the petitioners on 8.9.2011 and the application under Section 53 of the Act came to be filed by the petitioners on 7.10.2011 i.e. on expiry of one month from the date when the copy of the order was supplied to the petitioners.
7.6 It is not disputed by the learned AGP that the application under Section 53 of the Act came to be filed on 7.10.2011. Any material to controvert the details mentioned by the petitioners viz. (a) that the petitioners were not party to the proceedings before the First Adjudicating Authority (b) that a copy of the order of the First Adjudicating Authority was not forwarded to the petitioners (c) that in pursuance of the order passed by the First Adjudicating Authority revenue entry came to be made by the Competent Authority (d) that thereafter the petitioners moved an application under Right to Information Act and (e) that a copy of the order came to be supplied to the petitioners, in response to the said application under Right to Information Act, on 8.9.2011, is not placed on record. In this view of the matter the petitioners would claim that the application under Section 53 of the Act cannot be considered as time barred.
Learned AGP has not been able to dispute the said submission.
7.7 Though it is true that the power to condone delay in preferring application under Section 53 of the Act is not conferred on the Competent Authority. However, the above mentioned details bring out that the application has been filed before expiry of period of 90 days from the date on which the copy of the order of First Adjudicating Authority was made available to the petitioners. Under the circumstances the submission by the learned advocate for the petitioners is not such which can be dismissed without consideration. The restriction or inability which would allow the authority under Section 53 of the Act to condone delay, if any, do not stand in way of the Court in exercising discretionary jurisdiction under Article 226 of the Constitution of India and power under Section 5 of the Limitation Act.
7.8 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.
7.9 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.
7.10 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.
7.11 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.
7.12 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.
7.13 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.
7.14 As mentioned earlier, in present case even if the petitioners application under Section 53 of the Act is to be treated as application filed after expiry of limitation, petitioners have offered satisfactory explanation and sufficient case to condone delay is made out. Besides this, the petitioners have also asserted that the entire amount as quantified by the First Adjudicating Authority is already paid. Therefore, other condition prescribed under Section 53 of the Act i.e. about pre-deposit also stands complied with.
7.15 In such circumstances, in absence of any knowledge about order in question delay cannot be attributed to the petitioners and in any case, it cannot be attributed due to negligence on part of the petitioners. It is noticed from the record and it is not disputed by the learned AGP that after receiving copy of the order the petitioners filed appeal before the appellate authority within period of one month.
7.16 Even if Appeal is to be treated as filed after expiry of period of limitation then also explanation given by the petitioners would amount to satisfactory explanation and the Court would be inclined to hold that the petitioners have made out sufficient cause to condone delay.
In view of the above, following order is passed:
(a) the order refusing to entertain Appeal on merits is, for the limited purpose set aside.
(b) delay, if any, caused in filing appeal is deemed to have been condoned in view of the above mentioned facts and the explanation tendered by the petitioners.
(c) in view of the peculiar facts and circumstances of the case any direction to pay any amount towards cost for condoning delay is not passed, particularly in view of the fact that the entire amount as quantified by the first adjudicating authority has already been paid by concerned party.
(d) the Appeal shall be considered and decided on its own merits by the competent authority, after hearing the petitioners 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) the competent authority shall inform the petitioners the date and time of hearing.
(f) the petitioners shall accordingly remain present and shall not make request for adjournment.
(g) if the petitioners' remain absent, then it will be open to the authority to proceed ex-parte and decide appeal on merits on the basis of material available on record and to pass appropriate reasoned and speaking order.
(h) all contentions available to the petitioners and the respondent are kept open.
(i) the competent authority shall decide the Appeal independently and on its own merits without being influenced by any order or observations.
(j) in view of the foregoing discussion and reason, the impugned orders 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 for decision on merits, provided the condition of pre-deposit is complied. The case is returned to the authority under Section 53 of the Act. The said authority shall, after hearing the petitioner, pass appropriate order on merits.
8. 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 after receipt of certified copy of this order.
With the aforesaid clarifications and directions, present petition is partly allowed. Rule is made absolute to the aforesaid extent. The petition accordingly stands disposed of.
(K.M.THAKER,J.) Suresh*