Gujarat High Court
Hashmukhbhai vs Chief on 22 September, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/10912/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10912 of 2010
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HASHMUKHBHAI
SHANTIBHAI LODHIYA - Petitioner(s)
Versus
CHIEF
CONTROLLING REVENUE AUTHORITY & 2 - Respondent(s)
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Appearance
:
MR
SANDEEP N BHATT for
Petitioner(s) : 1,
None for Respondent(s) : 1 - 2.
MS JIRGA
ZAVERI AGP for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 22/09/2010
ORAL
ORDER
Heard learned advocate Mr. AR Patel with learned advocate Mr. SN Bhatt on behalf of petitioner, learned AGP Ms. Jirga Zaveri appearing for respondent state authority.
In this matter, Dy. Collector has passed an order on 31/1/2002 after giving notice dated 21/1/2001 but petitioner has not remained present. Therefore, in absence of petitioner, Dy. Collector Stamp duty has passed an ex parte order on 31/1/2002. The petitioner has deposited 12? amount before Appellate authority dated 6/6/2002 page 39 Annexure C, for which considering financial hardship permission has been given by Appellate authority to deposit Rs. 13,824/- before Dy. Collector Rajkot.
Thereafter, appeal was preferred on 18/6/2002 by petitioner, which has not been entertained by Appellate authority on the ground that appeal preferred by petitioner is beyond period of limitation of 60 days, for that, communication has been made by Dy. Collector to petitioner by letter dated 1/5/2006 which letter has been received by petitioner, even though, on 28/6/2020 an application was made by petitioner to Dy. Collector to supply copy of order passed by the Appellate authority. On being demand made by petitioner, copy of earlier communication dated 1/5/2006 supply to petitioner dated 30/6/2010, where endorsement has been made that earlier also this letter has been served to petitioner. Now on being demand made by petitioner, copy of such letter has been supplied to petitioner. This being an undisputed fact which was found from record, appeal which was preferred by petitioner beyond period of 60 days from date of order 31/1/2002 because appeal was preferred on 18/6/2002. Therefore, Appellate authority has rightly rejected appeal and not entertained the same because it is beyond a period of limitation.
The Appellate authority has no power to condone delay in filing appeal beyond sixty days and there is no provision is made under section 32(B) to entertain appeal by Appellate authority beyond period of limitation.
This aspect has been examined by this Court in detailed in case of Maganlal V. Lodhiya Vs. Chief Controlling Revenue Authority in SCA no. 10643/2010 decided on 15/9/2010, wherein this Court has held that Appellate authority Chief Controlling Revenue Authority has no jurisdiction or having power to condone delay beyond period of 60 days from date of order passed by Dy. Collector and Limitation Act is not applicable because Chief Controlling Revenue authority is being persona designata. Therefore, provisions of Limitation Act is not applicable. That aspect has been examined in detailed in aforesaid decision where this Court has considered two aspect, one is that petition is filed by petitioner after a period of four years from date of communication dated 1/5/2006. There is no averment made in present petition by petitioner that aforesaid communication dated 1/5/2006 is not received by petitioner. The petitioner has not explained delay in filing present petition after a period of four years and no specific cause is shown by petitioner in filing petition challenging order dated 1/5/2006 after a period of four years. The second aspect has been considered that whether Appellate authority has power to condone delay if appeal is not preferred within 60 days from date of order passed by Dy. Collector or not? This Court has considered recent decision of Apex Court being unreported decision in case of Om Prakash Vs. Ashwani Kumar Bassi in Special Civil Leave Petition (Civil) no. 24430 of 2008 decided on 27/8/2010 delivered by Honourable Mr. Justice Altamas Kabir and Honourable Mr. Justice A. K. Patnaik. Therefore, relevant discussion made in para 15 to 17 in above referred order passed by this Court dated 15/9/2010 is quoted as under:
15. Learned AGP Mr.Patel also relied upon one recent decision in a similar circumstances where contest the application is available to opposite party must have to be filed within specific time as prescribed in statute, beyond that, Authority has no power or jurisdiction to condone even 1(One) day delay and in such circumstances, provision of Limitation Act is not applicable and question of condoning delay does not arise. For that, he relied upon judgment of Om Prakash Vs. Ashwani Kumar Bassi being unreported judgment in Special Civil Leave Petition (Civil) No.24430 of 2008 decided on 27.08.2010 delivered by Hon'ble Mr.Justice Altamas Kabir and Hon'ble Mr.Justice A.K.Patnaik Relevant discussion made by Hon'ble Apex Court after considering fact and submissions made by respective advocates are in Para 12, 13, 14, 15, 16 and 17, which are quoted as under:-
12.
From the materials on record it is clear that the application for leave to contest the application under Section 13-B of the 1949 Act has to be made within 15 days from the date of service of the summons. In this case, the application for leave to contest the application was made one day after the said period had expired. The issue for consideration before us is whether the Rent Controller was right in rejecting the application on the ground that he had no jurisdiction to condone the delay under the Act. The matter was considered at length by the High Court, which, as indicated hereinabove, came to the conclusion that Section 18-A of the 1949 Act would have an over- riding effect on all other laws inconsistent therewith and that Sub-Section (8) of Section 18-A of the 1949 Act and Section 17 of the Presidency Small Causes Courts Act, 1882, were not attracted to the facts of the case.
13. The views expressed by the High Court also formed the subject matter of the decision in Prithipal Singh's case (supra), though in the context of the Delhi Rent Control Act, 1958, and the rules framed thereunder. This Court was of the view that Section 25-B of the Delhi Rent Control Act was a complete Code by itself and other provisions could not, therefore, be brought into play in such proceedings. In the instant case, the same principle would apply having regard to the fact that the Rent Controller had not been conferred with power under Order 9 Rule 13 C.P.C. to recall an ex-parte order passed earlier.
14. Apart from the above is the view taken by this Court in Prakash H.Jain vs. Marie Fernandes [(2003) 8 SCC 431], where it was specifically held that since the Competent Authority under Section 40 of the Maharashtra Rent Control Act, 1999, was not a court but a statutory authority with no power to condone the delay in filing an affidavit and application for leave to contest, the Competent Authority had no other option but to pass an order of eviction in the manner envisaged under the Act.
15. The decision in Mukri Gopalan's case (supra) relied upon by Mr. Ujjal Singh is distinguishable from the facts of this case. In the facts of the said case, it was the District Judges who were discharging the functions of the Appellate Authority and being a Court, it was held that the District Judge, functioning as the Appellate Authority, was a Court and not persona designata and was, therefore, entitled to resort to Section 5 of the Limitation Act. That is not so in the instant case where the Rent Controller appointed by the State Government is a member of the Punjab Civil Services and, therefore, a persona designata who would not be entitled to apply the provisions of Section 5 of the Limitation Act, 1963, as in the other case. The decision in Gaya Prasad Kar's case (supra) is also of little help to the Petitioner since under the West Bengal Premises Tenancy Act, 1956, powers have been vested in the Rent Controller to extend the time for making deposits of arrears of rent, which would make the provisions of the Limitation Act applicable in such specific instances.
16. The instant case stands on a different footing and, in our view, is covered by the decision of this Court in Gaya Prasad Kar's case (supra), wherein it was held that the Competent Authority had no other option but to pass an order of eviction since it had no power to condone the delay in filing an application for leave to contest.
17. Section 13-B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with and dependent on him or her. The right has been limited to one application only during the life time of the owner. Section 18-A(2) of the aforesaid Act provides that after an application under Section 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.
16. I have considered submissions, made by both learned advocates and I have also considered decisions relied upon by learned AGP Mr.Patel in this case. Undisputably, appeal was preferred by petitioner, beyond a period of 60 days as order was passed on 31.01.2002, therefore, question is whether in absence of specific provisions for condoning delay, Chief Controlling Revenue Authority being Appellate Authority has power to extend a period of filing appeal or whether he is having power to condone delay, which is not preferred within specified time. Deputy Collector and Chief Controlling Revenue Authority, both are persona designata having power to determine valuation of property in case if proper stamp duty is not paid or not properly affixed on various documents which requires to be affixed as per Bombay Stamp Act. Therefore, Deputy Collector and Chief Controlling Revenue Authority are not a Court, but, both are persona designata Authority and in such circumstances, if before, persona designata Authority requires to file an appeal in, specific time limit is prescribed under statutory provision of Act, but, if appeal is preferred beyond a period of limitation, then, such persona designata has no jurisdiction and in such circumstances Limitation Act cannot be made applicable, because, there is no provision made available by legislation in the Bombay Stamp Act to condone delay or entertain appeal beyond period of specified time limit.
17. Therefore, according to my opinion, order which has been passed by respondent Authority on 10.05.2006, not entertaining appeal preferred by petitioner, which has been filed undisputably after 60 days is legal and valid and therefore, no interference is required by this Court as it has been rightly decided by Appellate Authority Chief Controlling Revenue Authority that it has no jurisdiction and power to entertain appeal beyond limitation of 60 days. No interference of this Court while exercising power under article 226/227 of Constitution of India is required, therefore, present petition is dismissed having no substance, on both grounds, one is, petition is preferred after four years, challenging order passed on 10.05.2006, without giving any explanation or without establishing sufficient cause of delay as well as respondent has rightly not entertained appeal which is filed beyond specified period prescribed in Act for which Chief Controlling Revenue Authority has no power and jurisdiction to condone delay under Section 32(B) of Bombay Stamp Act. Therefore, present petition is not having substance and same is dismissed.
No order as to costs.
In aforesaid decision, this Court has also considered other decision which was discussed by this Court. Therefore, this Court has not given elaborate reasons for rejecting present petition, but whatever reasons have been given by this Court in aforesaid decision dated 15/9/2010 same reasonings are made applicable to facts of present petition for dismissing present petition.
In view of above observation made by this Court as referred above, present petition is also required to be dismissed accordingly. Therefore, same is dismissed.
(H.K.RATHOD, J) asma Top