Gujarat High Court
Shailesh Kantilal Karia Partner Of ... vs The Prant Officer Jamnagar Rural & on 9 May, 2014
Author: Anant S. Dave
Bench: Anant S. Dave
C/SCA/9080/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9080 of 2013
With
SPECIAL CIVIL APPLICATION NO. 9354 of 2013
With
SPECIAL CIVIL APPLICATION NO. 10441 of 2013
With
SPECIAL CIVIL APPLICATION NO. 11146 of 2013
With
SPECIAL CIVIL APPLICATION NO. 11147 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12147 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12167 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12417 of 2013
With
SPECIAL CIVIL APPLICATION NO. 12667 of 2013
With
SPECIAL CIVIL APPLICATION NO. 14881 of 2013
With
SPECIAL CIVIL APPLICATION NO. 14992 of 2013
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SHAILESH KANTILAL KARIA PARTNER OF PARTNERSHIP
FIRM....Petitioner(s)
Versus
THE PRANT OFFICER JAMNAGAR RURAL & 1....Respondent(s)
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Appearance:
MR HARESH N JOSHI, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 09/05/2014
Page 1 of 22
C/SCA/9080/2013 ORDER
COMMON ORAL ORDER
1. All these writ petitions are filed under Article 226 of the Constitution of India or under Articles 226 and 227 of the Constitution of India challenging the orders of the competent authority namely the Deputy Collector (Stamp Valuation) and passed in an Appeal / Application preferred by the Appellant before the Appellate Authority under Section 53 of the Bombay Stamp Act, 1958 (in short the 'Act, 1958').
2. In one of the writ petitions, being Special Civil Application No.9080/2013, the following prayers are made :-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting-aside the impugned order dated 25.03.2013 in Stamp/Appeal-
A-No.3/2013 passed by the respondent no.3 as well as order dated 29.09.2012 passed by the respondent no.2, in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to grant any other and further relief(s) as may be deemed just and proper in the interest of justice and fitness of things;"
In the above writ petition, the Appellate Authority in exercise of powers under Section Page 2 of 22 C/SCA/9080/2013 ORDER 53 of the Bombay Stamp Act, 1958 refused to condone the delay in filing the Appeal / Application as it was not filed within 90 days from the date of order passed by the competent authority.
The above matter is taken up as the lead matter in view of the common question of law to be considered by this Court.
3. In some of the writ petitions, the challenge is to the initial and basic order passed by the competent authority and in some of the writ petitions, the challenge is to the order passed by the Appellate Authority in not condoning the delay in preferring the Appeal / Application within prescribed time limit of 90 days from the date of passing of the order by the competent authority though sufficient cause was shown for such a delay and prayers are made accordingly. It is submitted that such orders impugned in the respective writ petitions deserve to be quashed and set aside by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India and / or to direct the appellant authority to condone the delay in exercise of powers under Section 53 of the Act, 1958 and hear it on merit.
Page 3 of 22 C/SCA/9080/2013 ORDER4. At the outset, upon a preliminary contention raised by learned Assistant Government Pleader Ms. Krina Calla appearing for the respondent - State about non-availability of provisions of considering the application for condoning delay beyond the prescribed time limit of 90 days from the date of passing the order by the competent authority, it is submitted that in view of the positive mandate of statute that unless such an application is presented within a period of 90 days from the date of order of the Collector, it shall not be entertained. It is submitted that neither the appellate authority nor even this Court in exercise of powers under Article 226 of the Constitution of India can condone the delay and / or issue any direction to the appellate authority to consider such an application preferred beyond the prescribed time limit of 90 days.
5. While arguing the above case at length, learned Counsel Mr. Vijay Nangesh appearing for the petitioner/s in Special Civil Application No.12147/2013 & 12167/2013 and learned Counsels appearing in other writ petitions have relied on the following decisions :-
● In the case of Integrated Proteins Pvt. Ltd.
v. Chief Controlling Revenue Authority Page 4 of 22 C/SCA/9080/2013 ORDER reported in 2007 (4) GLR 3217 whereby in the context of Section 32(B) of the Bombay Stamp Act, 1958 as it was in existence before it came to be deleted providing an appeal and it was held that there is no express exclusion of applicability of Section 5 of the Limitation Act, 1963 (in short 'the Act, 1963') and by virtue of Section 29(2) of the Act, 1963 the authority has to apply the provisions of the Act, 1963 and condone the delay by taking recourse to Section 5 of the Act, 1963.
● Another decision is about applicability of Section 14 of the Limitation Act to the provisions of the Bombay Stamp Act, 1958 and decision relied in the case of in 2012 1 GCD 476 and M/s. Consolidated Engineering Enterprises v. Principal Secretary, (Irrigation Department) and Ors. reported in AIR 2009 SC (Supplementary) 396, whereby the Apex Court considered the provisions of Section 34(3) and 43 of the Arbitration and Conciliation Act, 1996 vis-a-viz applicability of provisions of Section 14 of the Limitation Act, 1963, it was held that provisions of Section 14 of the Limitation Act would apply to Section 34 of the Arbitration and Conciliation Act, 1996.Page 5 of 22 C/SCA/9080/2013 ORDER
● In addition to the above, the judgment and order of the Division Bench in the case of Corporation Bank v. Jayshreeben D/O. P.F. Damodar Killakar W/o. Rajeshkumar J. and Ors. reported in 2013 (1) GLH 628 considered the provisions of Section 17 and 17(A) of the Sarfaesi Act, 2002 and taking into consideration Section 29(2) of the Act, 1963 it was held that provisions of Section 5 of the Act, 1963 would apply to the proceedings under Section 17(1) of the Sarfesi Act.
● Further, in the decision of City and Industrial Development Corporation v. Dosu Aardeshire Bhiwandiwala and Others reported in 2009 (1) SCC 168, with regard to the powers to be exercised under Article 226 of the Constitution of India, the Writ Court is duty bound to address to the factors / issues of sufficiency of materials for adjudication, suppression of facts or issues of availability of alternative remedy, delay latches and limitations, public policy and legality etc and Paragraph 30 of the above judgement says that the Writ Court has to exercise its discretion after considering the above parameters.
● In the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker reported in AIR Page 6 of 22 C/SCA/9080/2013 ORDER 1995 SC 2272, the Apex Court in the context of Section 18 about powers of Appellate Authority constituted under Section 18 and functioning as a Court but not as Persona Designata under the Kerala Buildings (Lease and Rent Control) Act, 1965 and applicability of Section 5 of the Act, 1963 for condoning the delay in filing the appeal.
6. Learned Counsel for the petitioners have also relied on some oral orders passed by the Division Bench of this Court and learned Single Judges directing the Appellate Authority to condone the delay in filing the application under Section 53 of the Act, 1958.
7. As against the above, learned Assistant Government Pleader Ms. Krina Calla has relied on the provisions of Sections 3 and 5 and Section 29(2) of the Limitation Act, 1963 and submitted that the appellate authority exercising powers under Section 53 of the Bombay Stamp Act, 1958 is neither a Court nor has the trappings of a Court and usage of "shall" in the language of proviso to sub- section 1 of Section 53 of the Bombay Stamp Act, 1958 reveal mandatory character of the provision and mandates that the Chief Controlling Revenue Authority shall not Page 7 of 22 C/SCA/9080/2013 ORDER entertain the Appeal / Application unless it is presented within a period of 90 days from the date of order of the Collector. Therefore, neither the appellate authority under Section 53 of the Act, 1958 nor even this Court exercising powers under Article 226 of the Constitution of India could condone the delay by passing orders / direction as prayed for.
8. Learned Assistant Government Pleader has also relied on Letters Patent Appeal No.2008/2009 dated 03.03.2010 followed in Letters Patent Appeal No.1199/2010 dated 14.05.2010 and Letters Patent Appeal No.1363/2010 dated 23.12.2010, the Division Bench taking a different view that the delay cannot be condoned.
9. Learned Assistant Government Pleader has further relied on the order dated 23.12.2010 passed in Letters Patent Appeal No.1363/2010 in Special Civil Application No.3500/2010 with Civil Application No.7702/2010. (Coram :
Hon'ble the Chief Justice Mr. S.J. Mukhopadhaya and Hon'ble Mr. Justice K.M. Thaker) which reads as under :-
"This appeal under Clause 15 of the Letters Patent is preferred against the order dated 23.4.2010 passed by Page 8 of 22 C/SCA/9080/2013 ORDER the learned Single Judge, rejecting the petition preferred by the petitioner challenging order dated 30.1.2002 passed by the respondent No.2 under Bombay Stamp Act.
Petitioner had purchased a property by executing sale-deed and got it registered on 30.11.2000 by paying stamp duty. Thereafter, notice under Rule 4 of the Bombay Stamp Act was issued which, as per respondents affidavit, was duly served on and received by the petitioner. After asking for time, the petitioner did not attend the hearing on 29.11.2001 despite the service of notice of hearing. Thus, on 30.1.2002, a final order was passed claiming deficit amount of stamp to the tune of Rs. 92,910/-. The appellant did not pay the amount nor did he file any appeal. He has, however, claimed that the said order was never served on the petitioner.
After the order was passed, a Japti notice (under Rule 118) issued by respondent No.4 on 10.11.2009.
Undisputedly, until then petitioner - appellant had not taken any step against the order passed by the competent authority on 30.1.2002.
Thereafter, on or around 24th November, 2009, petitioner -appellant preferred an application for obtaining certified copy of the order, which was duly supplied to the petitioner - appellant. Thereafter, petitioner moved an application asking for a copy of challan to file appeal/reference before the Chief Controlling Revenue Authority. The Page 9 of 22 C/SCA/9080/2013 ORDER respondents have claimed that it was only with a view to getting out of hurdle of expired period of limitation that the petitioner - appellant had made the application in November, 2009 after he received the Japti notice. It is also claimed by the respondents that even in response to the amnesty scheme petitioner had not come forward despite the Notice dated 20.8.2004.
At that stage, petitioner - appellant was informed that the appeal/reference cannot be entertained since prescribed period of limitation had already expired and that the presentation of the appeal/reference would be beyond the prescribed period of limitation.
Having received such response from the authority, the petitioner - appellant preferred aforesaid writ petition. The learned Single Judge took into consideration the contention raised by the petitioner - appellant that the final order was not received by the petitioner. It was claimed by the petitioner - appellant before the learned Single Judge that though the petitioner -
appellant had asked for an adjournment, straight-away the order was passed and a copy of the challan was never given to the petitioner. Having considered all contentions of the petitioner - appellant in light of the record of the proceedings, the learned Single Judge did not find merits in the allegations and the submissions. Hence, the petition came to be rejected.
It is noticed from the record that Page 10 of 22 C/SCA/9080/2013 ORDER respondent No.2 had filed an affidavit stating inter-alia that the notice dated 12th October, 2001 as contemplated under Rule 4 of the Bombay Stamps Act, was issued and petitioner had, by letter dated 25.10.2001, asked for time. As the petitioner did not remain present before the authority, again a notice was issued calling upon the petitioner to represent his case on 29.11.2001. As the petitioner did not turn up on 29.11.2001, also, the Deputy Collector Stamp Duty passed final order on 30.1.2002, which was sent to the petitioner. It has also been stated in the affidavit that only upon receipt of the Japti notice as contemplated under Rule 118, petitioner - appellant woke up from the slumber and sought to file appeal. The period of limitation for filing appeal/reference is prescribed and the authority is not competent to condone delay beyond the prescribed period of limitation. Therefore, the authority informed, vide letter dated 30.11.2009 to the petitioner - appellant that the appeal/reference which the petitioner proposes to file under the provisions of the Act has already become time-barred. In view of the statutory provision, the said view cannot be faulted. Before the learned Single Judge, the petitioner
- appellant challenged the original order dated 30.1.2002 along with the said letter dated 30.11.2009. The learned Single Judge rejected the petition on the ground that though petitioner was aware about the order passed on 30.1.2002, no action was taken till 24.11.2009 and then came out with challenge after 8 years, which cannot be condoned. It is the Page 11 of 22 C/SCA/9080/2013 ORDER said decision of the learned Single Judge which the appellant has assailed in the present appeal.
We have heard the appellant and perused the record.
Having regard to the aforesaid facts and circumstances and considering the fact that undisputedly the appellant had not filed a statutory appeal within the prescribed period and the revenue authority having not condoned the delay beyond the period prescribed, we are not inclined to entertain the appeal. In this regard reference may be made to erstwhile Section 32-B which, before it came to be deleted with effect from 1.4.2007 (the original order by the Deputy Collector, Stamp Duty was passed on 30.1.2002 i.e. much before the section was deleted) inter alia, provided that person aggrieved by the order under Section 32-A may present an application within 90 days from the date of the order and require the Collector to draw statement for reference to the Chief Controlling Revenue Authority, however, the petitioner appellant did not take any action at the relevant time. Then, as noted above, the said provision came to be deleted with effect from 1.4.2007. It was only thereafter that in November 2009 (i.e. two years after provision was deleted) the petitioner woke-up and attempted to make application. In this background reference also needs to be made to the first Proviso of Section 53(1), which reads thus:-
"53. Control of and statement of case to Chief Controlling Revenue Page 12 of 22 C/SCA/9080/2013 ORDER Authority:
(1) The powers exercised by a Collector under [Chapter III (except subsection (3) of Section 32A) Chapter IV and Chapter V] and under clause (a) of the first 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 sub-section (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 twenty-five 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."
It is in light of the said provision that by virtue of impugned communication dated 30.11.2009 that the authority has informed the petitioner-appellant that the application for proposed appeal/reference to the Chief Controlling Revenue Authority was already rendered time barred and the authority, in light of the language of the provision was not competent to condone delay. In this context, we may also refer to the order dated 3.3.2010 passed by the Division Bench in LPA No.2008 of 2009 by which the Division Bench rejected the LPA confirming the order passed by the learned Single Judge dismissing the petition wherein the order declining to entertain appeal/application for Page 13 of 22 C/SCA/9080/2013 ORDER reference after period of limitation was challenged. The said decision of the competent authority cannot be faulted with and the learned Single Judge rightly dismissed the petition. Present appeal being without merit fails and is rejected.
In view of the above, CA does not survive and the same is also rejected."
10. Reliance is also placed by the learned Assistant Government Pleader Ms. Krina Calla on the following decisions :-
● The decision of the Apex Court in the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited and Another reported in 2009 (5) SCC 791, in the context of interpretation of Section 35-H(1) of the Central Excise Act and the 2nd decision on the same line in the case of Chhatisgarh State Electricity Board v. Central Electricity Regulatory Commission and Others reported in 2010 (5) SCC 23.
● The decision in the case of Union of India v. Popular Construction Co. reported in 2010 8 SCC 470 is about applicability of Section 5 of the Limitation Act in the context of Section 34(3) of the Arbitration and Conciliation Act, 1996.Page 14 of 22 C/SCA/9080/2013 ORDER
● Oral order dated 14.05.2010 in Letters Patent Appeal No.1199/2008, oral order dated 03.03.2010 in Letters Patent Appeal No.2008/2009, reported decision of the High Court in the case of Nileshbhai Navinchandra Chatt v. State of Gujarat and Others reported in 2012 3 GLH 2695 (Coram : K.M. Thaker, J.) and in the case of M.V. Lodhiya v. Chief Controlling Revenue Authority reported in 2010 (3) GLH 303 (Coram : H.K. Rathod, J.) about non-existence of provisions for condoning the delay in filing the Appeal under Section 53 of the Act and that the authority has no power to condone the delay under Section 53 of the Act but the High Court in exercise of powers under Article 226 of the Constitution of India can condone the delay.
● The decision in the case of M.V. Lodhiya (supra) is about the Collector and the Chief Controlling Revenue Authority both are not the Court but are Persona Designata and therefore, such Persona Designata have no jurisdiction and power to condone the delay and entertain the appeal beyond the period of satisfaction in the Court.
● In the decision Mahesh Harilal Khamar, Ahmedabad v. B.N. Naransimhan and Others Page 15 of 22 C/SCA/9080/2013 ORDER reported in 1982 GLH 700 in the context of interpretation of sub-section 5 of Section 27 of the Gujarat Agricultural Produce Market Act, 1963 it was held that the appellate authority therein has power to condone the delay.
In addition to the above, the following judgments are brought to the notice of this Court.
● The decision in the case of M/s. Bharat Barrel & Drum Mfg. Co. Ltd. & Anr. vs. The Employees State Insurance Corporation reported in 1971 2 SCC 860 - in the case of considering the period of limitation and that the grievance of the aggrieved party is also to be considered.
● The decision in the case of State of Karnataka v. Laxuman reported in 2005 8 SCC 709 - in the context of provisions of Section 18 of the Land Acquisition Act and powers conferred upon the authority for calling the reference to be made within three years from the expiry of 90 days after filing of an application for making reference, wherein it was held that provisions of Section 5 of the Limitation Act was not applicable.
Page 16 of 22 C/SCA/9080/2013 ORDERIn addition to the above, contentions are also raised about duty cast upon the Court to ignore technicality and take a liberal view and not to deviate the case of justice and parties are not to be left without any remedy.
11. In view of the above, it is necessary to produce the relevant provisions of the Act, 1958 i.e. Bombay Stamp Act, 1958 and relevant provisions of the Act, 1963.
Section 53 of the Bombay Stamp Act, 1958 reads as under :-
"53. Control of and statement of case to Chief Controlling Revenue Authority :
(1) The powers exercisable by a 1 2 Collector under [Chapter III [deleted Act] Chapter IV and Chapter V] and under clause (a) of the first proviso to section 27 shall in all cases be subject to the control of the Chief Controlling Revenue Authority.
3[Provided that the Chief Controlling Revenue Authority shall not entertain an application made by a person under sub-section (1) unless
(a) such application is presented 4[within period of ninty days] from the date of order of the Collector.
(b) such person deposits twenty-five per cent of the amount of duty or as the case may be, amount of difference of duty payable by him in respect of Page 17 of 22 C/SCA/9080/2013 ORDER subject matter of the instrument for which application has been made.
(2) If] any Collector, acting under section 31, 5[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."
Section 3 of the Limitation Act, 1963 reads as under :-
3. Bar of limitation. - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act -
(a) a suit is instituted -
(i) in an ordinary case, when the plaint is presence to the proper officer;
(ii) in the case of pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a Page 18 of 22 C/SCA/9080/2013 ORDER separate suit and shall be deemed to have been instituted -
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
Section 5 of the Limitation Act, 1963 reads as under :-
"5. Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
Section 29 of the Limitation Act, 1963 reads as under :-
"29. Savings. - (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and Page 19 of 22 C/SCA/9080/2013 ORDER for the purpose of determining any period of limitation prescribed of any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend."
12. A perusal of the decisions as above relied by learned Counsels appearing for the parties makes it abundantly clear that two different views of the learned Single Judge as well as the Division Bench of this Court appear on record and in the first set of decisions relied on by learned Counsel for the petitioners, it is either observed, held and/or directed that the delay in filing an application under Section 53 of the Act, 1958 be condoned upon showing sufficient cause and another set of decisions relied by learned Assistant Government Pleader Ms. Krina Calla, wherein it is held that no such direction can be given and in absence of specific provisions Page 20 of 22 C/SCA/9080/2013 ORDER of applicability of Section 5 of the Limitation Act, 1963, no such direction or order can be passed for condoning the delay in such a case, even this Court exercising powers under Article 226 of the Constitution of India also cannot direct the appellate authority to condone the delay under Section 53 of the Bombay Stamp Act, 1958.
13. In the aforesaid circumstances, I am convinced about apparent conflict of ratio decindi in the above two sets of cases as relied by learned Counsels appearing for the petitioners and learned Assistant Government Pleader for the respondent - State.
14. Hence, the following question arise for consideration by the Larger Bench as required under Rule 5 and Rule 6 of the Gujarat High Court Rules, 1993 as the case may be and the matter may be placed before the Hon'ble Chief Justice for order accordingly.
15. The question of law that is to be considered by the Larger Bench is as under :-
"In absence of specific exclusion of applicability of Limitation Act, 1963 [Act, 1963] in Bombay Stamp Act, 1958 [Act, 1958] whether delay in filing appeal / application under Section 53 of the Act, 1958 beyond Page 21 of 22 C/SCA/9080/2013 ORDER the prescribed time limit of within 90 days from the date of passing the order by the Collector / competent authority could be condoned by the Chief Controlling Revenue Authority / Appellate Authority or the High Court exercising powers under Article 226 of the Constitution of India, as the case may be by taking recourse to Sections 3, 5 and 29 of the Act, 1963?"
16. In view of the above, the Registry is directed to place these matters before the Hon'ble The Chief Justice at the earliest.
Sd/-
(ANANT S. DAVE, J.) CAROLINE Page 22 of 22