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2019 Supreme(Guj) 1139
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ALPESH Y. KOGJE, J.
Nitin N. Modi – Appellant
Versus
State of Gujarat and Ors. – Respondents
R/Special Civil Application No. 12417 of 2013
Decided On : 08-08-2019
Advocate Appeared:
For the Appellant : Balram D. Jain
For the Respondents: Dhawan Jayswal, AGP
Point of Law: . A person is entitled to move High Court under Article 226 of the Constitution when by the illegal action or in action on the part of a "State" within the meaning of Article 12 of the Constitution, any of his legal or fundamental rights is infringed
Headnote:
Bombay Stamp Act - Article 20 - Constitution of India Article-226 - Bombay Land Revenue Code 1879- Appeal - Non-entertainment of an appeal under the provisions of Bombay Stamp Act on the ground of delay in filing such an appeal -Power of condonation under Section 53 and by giving power of condonation only to the limited extent to the proceedings under section 54(1A), the Legislature has made its intention clear that so far the present cases are concerned, the authority under Section 53(1) had no power of condonation
Facts of the Case:
Petitioner purchased plot by registered sale deed – Deficient stamp duty payment -the respondent No. 2 issued a letter intimating the petitioner that the application dated 25/6/2013 can not be considered for issuance of 25% challan because it was filed after a delay of more than one year. That is why the petitioner could not file appeal u/s. 53 of the Bombay Stamp Act
Finding of the Court:
In the Special Civil Applications out of which the present References arise, the petitioners have alleged violation of their legal rights accrued by virtue of the provisions contained in the Act itself. In view of our finding that the Chief Controlling Revenue Authority exercising power under Section 53(1) of the Act has no power of condonation of delay in filing the application beyond the period mentioned therein, for the refusal on the part of the said authority to condone delay for want of jurisdiction, none of the legal rights of the petitioners have been infringed and thus, if the Chief Controlling Authority has no power of condonation, it necessarily follows that the High Court in exercise of power under Article 226 of the Constitution against the order of the Chief Controlling Revenue Authority cannot condone the delay when the Chief Controlling Revenue Authority did not possess such power and rightly refused to condone. Thus, by taking recourse to Section 29(2) of the Limitation Act, the High Court cannot condone such delay in the proceeding under Article 226 of the Constitution.
Result :Petition allowed
JUDGMENT :
Alpesh Y. Kogje, J.
1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state.
2. This petition is arising out of issue pertaining to the non-entertainment of an appeal under the provisions of Bombay Stamp Act on the ground of delay in filing such an appeal.
3. Learned Advocate for the petitioner submitted that the petitioner purchased a flat No. 901/A in Rudraksh Residency situated in the land bearing Revenue Survey No. 80/6 and T.P. Scheme No. 32, (Adajan) Final Plot No. 17 situated at Adajan, Surat. The said flat is purchased by registered sale deed on 11 Jan. 2008 and Rs. 12,03,031/- was paid as a full and final sale consideration. He submitted that the petitioner has paid stamp duty of Rs. 59000/- at the rate of 4.90% as per Article 20 of the Stamp Act and the Sub Registrar has registered the document being No. 325. Thereafter a notice was issued by the respondent No. 2 on 6/9/2010 and the petitioner also filed reply to the notice dated 5/11/2011, after receiving two additional notice dated 25/11/2010 and 30/9/2011. The respondent No. 2 without giving an opportunity of hearing to the petitioner straight way passed final order on 23/5/2012 and the said order was never communicated to the petitioner. On 11-06-2013 the respondent No. 2 issued final notice u/s. 152 with Rule 118 of the Bombay Land Revenue Code 1879. After receiving this notice the petitioner came to know that the respondent No. 2 has passed such order on 23 May 2012. On 20/6/2013 the petitioner approached the office of the respondent No. 2 to know whether infact such an order is passed by respondent No. 2 or not. After an inquiry the petitioner confirmed that the respondent No. 2 has passed the impugned order on 23 May 2012. On the same day the petitioner asked for true copy of the said order. The respondent No. 2 issue the true copy of the said order after receiving Rs. 10/-. Thereafter on 25/6/2013 the petitioner preferred an application for sanctioning 25% challan of deficit stamp duty to prefer appeal u/s. 53 of the Bombay Stamp Act. On 09/7/2013 the respondent No. 2 issued a letter intimating the petitioner that the application dated 25/6/2013 can not be considered for issuance of 25% challan because it was filed after a delay of more than one year. That is why the petitioner could not file appeal u/s. 53 of the Bombay Stamp Act.
4. As against this, learned AGP has relied upon the decision of Full Bench of this Court in the case of Jayminbhai Navinbhai Doshi & Ors. versus State of Gujarat & Ors. reported in 2015 (1) GLH 167 to contend that the High Court in the proceedings under Article-226 of the Constitution of India cannot condone the delay by taking recourse to Section-29(2) of the Limitation Act and has admittedly an appeal filed by the petitioner is beyond the period of limitation and filed after delay of two years and five months. The petition has to be dismissed on this very ground.
5. In rejoinder, learned Advocate for the petitioner submitted that even after the order of the Full Bench of this Court, an unreported order is passed in Special Civil Application No. 10441 of 2013 dated 02-07-2015, after considering the date of knowledge of the order to be date of order and permitted the appeal to proceed even after the period of 90 days. He also submitted that the Coordinate Bench of this Court has time and again, considering this aspect, set aside the order rejecting an appeal on the ground of delay and permitting the appeal to proceed.
6. Having heard the rival submissions of the parties and having perused the documents on record, Rule-7 of the Bombay Stamp (Determination of Market Value of Property) Rules, 1984, reads as under:
"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) o
