Important Point – Period should be so construed as to save limitation rather than oust appellant on ground of pedantic calculation of 90 days period.

RULE. Learned Assistant Government Pleader Ms. Jyoti Bhatt waives service of rule on behalf of the respondents.

1.1 In the facts and circumstances of the case and with consent and request of learned advocates appearing for the parties, the petition was taken up for final consideration.

2. By filing this petition under Article 226 of the Constitution, the petitioner has prayed to set aside order dated 31.01.2015 passed by respondent No.1– Chief Revenue Controlling Authority and further to direct the said authority to decide appeal of the petitioner preferred under Section 53(1) of the Gujarat Stamp Act, 1958 on merits. By the impugned order, respondent No.1 authority has refused to entertain the appeal on the ground the same was not filed within the prescribed period of limitation.

3. The appeal before respondent No.1 authority was directed against order dated 04.08.2014 passed by respondent No.2 Deputy Collector, Stamp Duty Valuation Department, Nadiad, who by his order, required the petitioner to pay deficit stamp duty to the tune of Rs.4,42,115/in respect of sale deed dated 05.04.2010. Under the said sale deed, vendors/owners Shri Dahyabhai Ravjibhai Patel, Navinbhai Ravjibhai Patel and Prafulbhai Ravjibhai Patel sold their agricultural land to one Dharmavirsinh Gangasinh Rajpurohit for a consideration of Rs.7,95,000/. The said sale deed was executed on 05.04.2010. It appears that on 02.07.2009, the said land owners had executed power of attorney in favour of the petitioner in respect of the said land made subject matter of the said sale deed.

3.1 The Deputy Collector passed order on 04.08.2014. It is the case of the petitioner that the order was dispatched by Registered AD Post on 05.08.2014 and the same was received by the petitioner on 06.08.2014. The aggrieved petitioner preferred appeal before respondent No.1 fulfilling the condition of deposit of 25% amount of the deficit stamp duty as required under Section 53(1) for preferring the appeal. According to the appellate authority respondent No.1, the appeal was presented on 05.11.2014, therefore the same was beyond the period of 90 days from the date of the order of the Deputy Collector, hence not entertainable.

4. Heard learned advocate Mr. J. A. Adeshra for the petitioner and learned AGP for the respondent authorities.

5. Section 53 of the Act under which appeal lies against the order of the Collector before the Chief Controlling Authority reads as under,

”53. Control of and statement of case to Chief Controlling Revenue Authority.(1) The powers exercisable by a Collector under Chapter III, Chapter IV and Chapter V and under clause (a) of the second 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 subsection (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 twentyfive 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.

(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.”

5.1 According to the above provisions, period of 90 days from the date of order of Collector is prescribed for preferring the appeal. Further condition is deposit of 25% of the amount of duty payable in respect of subject matter of the instrument for which the application is made