The petitioner has filed this petition under Article-226 of the Constitution of India, praying for quashing and setting aside the impugned order dated 28.1.2002, passed by the Deputy Collector and also the communication dated 05.04.2006. Whereby, the petitioner's appeal was dismissed by the Chief Controlling Revenue Authority only on the ground of limitation. The petitioner has also prayed for the direction to the Chief Controlling Revenue Authority to decide the petitioner's appeal afresh on merits.
This Court has issued notice for final disposal on 31.3.2010. pursuant to the notice, an affidavit-in-reply is filed on behalf of the respondent no.2.
Heard Mr. S.N. Bhatt, learned advocate appearing for the petitioner and Mr. Rashesh Rindani learned Assistant Government Pleader appearing on behalf of the respondents.
It is the case of the petitioner that the petitioner has purchased property of plot no.22/c of non agricultural land of Survey no.235/1,254,258/3 and 258/4 of Rajkot, by registered Sale Deed, executed on 23.10.2000 by paying requisite Stamp Duty. The respondent no.2 has issued notice on 8.11.2001 for determination of market value of property. The petitioner represented himself on the date of hearing. The final order came to be passed on 28.1.2002. It is the case of the petitioner that because of the change of address, the said order was not received by the petitioner and only on inquiry, it was found that the order was passed on 28.1.2002. Hence, the petitioner applied for certified copy, which was supplied to the petitioner on or around 17.9.2002. The petitioner thereafter, preferred appeal before the Chief Controlling Revenue Authority on 16.10.2002 and 25% of the deficit amount of Stamp Duty was paid by the petitioner. However, the said appeal came to be dismissed by communication dated 5.4.2006, which was never received by the petitioner.
Mr.
S.N. Bhatt, learned advocate appearing for the petitioner has submitted that though the appeal was filed within the prescribed period of limitation, as the impugned order was received by the petitioner only on 17.9.2002 and the appeal was filed on 16.10.2002, however, the said appeal was dismissed on the ground of limitation and the said dismissal order was also not served on the petitioner, as there is no outward number mentioned in the said order. It is, therefore, submitted that the communication dated 5.4.2006, is required to be quashed and set aside and the Chief Controlling Revenue Authority may be directed to decide the petitioner's appeal on merits.
Mr.
Rashesh Rindani the learned AGP, on the other hand, has submitted that appeal preferred by the petitioner was dismissed in the year 2006 and the petition is filed on 2010. The Court, therefore, should not entertain the present petition. He has further submitted that even the appeal preferred against the Original Order, was also not filed in time, as the order is of 28.1.2002 and the appeal was filed on 16.10.2002. Thus, the Chief Controlling Revenue Authority has decided the appeal on the ground of limitation. Therefore, he has submitted that no interference is called for, while exercising writ jurisdiction of this Court under Article-226 of the Constitution of India.
Having heard the learned advocates appearing for the parties and having considered the rival submissions as well as impugned order and communication, the court is of the view that the appeal seems to have been filed in time by the petitioner as there is no proof with regard to service of the order and the petitioner has received the certified copy of the order of the Deputy Collector on or around September, 2002 and the appeal was filed on 16 October, 2002. The Chief Controlling Revenue Authority should have, therefore, entertained the said appeal on merits instead of dismissing the same on the ground of limitation. Even otherwise, there is dispute with regard to the service of the communication dated 5.4.2006, as admittedly there is no outward number mentioned in the said communication nor there is any proof of service of the said order. Even otherwise the said order was served on the different address where the petitioner was not staying. The petitioner has specifically mentioned in the Appeal Memo and new address was given. The communication was not sent on his new address.
Considering the above facts, the court is of the view that the Chief Controlling Revenue Authority was not justified in dismissing the petitioner's appeal on the ground of limitation. The said appeal should have been decided on merits. In the above view of the matter, the communication dated 5.4.2006 is hereby quashed and set aside with a direction to the Chief Controlling Revenue Authority to decide the petitioner's appeal filed against the final order, on merits and in accordance with law, after giving an opportunity of being heard.
With this direction this petition is accordingly allowed to the above extent, without any order as to costs.
(K.A.
PUJ, J.) Pankaj Top