Gujarat High Court
Sanjaybhai Jaikishanbhai Patel vs Chief Controlling Revenue Authority & on 13 June, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/517/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 517 of 2017
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SANJAYBHAI JAIKISHANBHAI PATEL,....Petitioner(s)
Versus
CHIEF CONTROLLING REVENUE AUTHORITY & 1....Respondent(s)
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Appearance:
MR. JAIMIN R DAVE, ADVOCATE for the Petitioner(s) No. 1
MR AD OZA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 13/06/2017
ORAL ORDER
Considering the short issue involved in the petition, it is required to be disposed of at admission stage.
2. The petition arises under the Gujarat Stamp Act, 1958 (for short the Act) and it concerns Survey No.77, Block No.75/A at Village Kosmada, Tal. Kamrej, Dist: Surat. The said property was conveyed to the petitioner alongwith one Shri Manishbhai Navinchandra Patel for Rs.2.20 Crore on 1319/03/2013. The stamp duty in the sum of Rs.12,32,500/ was paid on the said transaction by the parties to the saledeed. It may be stated here that the conveyance was done in 2013 and inadvertently in the petition, the transactions Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER are stated to have been occurred in the year 2016.
3. On 09/11/2015, petitioner received a notice alleging contravention of Section 17 of the Gujarat Stamps Act, 1958. This was replied to by the petitioner by raising various objections on 09/12/2015. The objections came to be rejected by order dated 26/02/2016. The petitioner received the said order on 18/03/2016.
4. Aggrieved, petitioner filed an appeal with the 1st respondent. It was the case of the petitioner that he was under an impression that the proposed appeal was within the period of limitation. However, an explanation was sought from him as regards delay of two days in preferring the appeal. The explanation was furnished by the petitioner inter alia stating that the appeal was within the limitation as the period of limitation would run from date of communication of the order to him i.e. 18/03/2016. The said contention did not find favour with the respondent No.1 and thus impugned order came to be passed declining to entertain the appeal.
5. Learned Counsel for the petitioner has invited the attention of this Court to first proviso to Section 53 of the Act to submit that the period of limitation would in fact operate only from the date of the communication of the impugned order to him. It was contended that the impugned order was communicated to the petitioner on 18/03/2016 and thus the appeal Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER could be filed within a period of 90 days from the said date and the petitioner in fact had filed an appeal on 26/05/2016. It is thus contended that the appeal was filed within 90 days from the date of the communication of the order to the petitioner and the respondent No.1 has committed an error in dismissing the appeal on the ground of limitation. In support of the above contention, learned counsel for the petitioner relied upon the following authorities:
1. Collector of Central Excise, Madras v. M. M. Rubber and Co., AIR 1991SC 2141.
2. Ladha Enterprise v. State of Gujarat & Ors.
(2015) 2 GLR 339.
6. Per contra, learned AGP would submit that having regard to the clear language used in Section 53 of the Act, the the period of limitation would commence from the date of passing of the order and not from the date of its communication to the petitioner. She thus contended that the appeal having been filed beyond the period of limitation; in absence of the explanation for delay was rightly dismissed by the respondent No.1. Learned AGP in response to the query put by this Court to her pointed out that the order in question was communicated to the petitioner on 18/03/2016.
7. Having considered the rival contentions, a reference to Section 53 of the Act would be appropriate at this stage thus:
Page 3 of 9HC-NIC Page 3 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER "53. Control of and statement of case to Chief Controlling Revenue Authority:
(1) The powers exercisable by a Collector under Chapter III except sub section (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 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."
8. It can thus be noticed that there is a bar against entertaining the appeal if filed beyond the period of 90 days from the date of the order of the Collector. The expression "date of the order of the Collector" would give an impression as if the period of limitation would commence from the moment the order is signed by him. However, if the decision in Collector of Central Excise, Madras v. M. M. Rubber and Co., (supra) is taken into consideration, it seems that the Supreme Court was confronted with the Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER almost similar factual situation and it was held in paragraph No.9, 10 and 13 thus:
"9. The words "from the date of decision or order"
used with reference to the limitation for filing an appeal or revision under certain statutory provisions had come up for consider ation in a number of cases. We may state that the ratio of the decisions uniformly is that in the case of a person aggrieved filing the appeal or revision, it shall mean the date of communication of the decision or order appealed against. However, we may note a few leading cases on this aspect.
10. Under section 25 of the Madras Boundary Act, 1860 the starting point of limitation for appeal byway of suit al lowed by that section was the passing of the Survey Offi cer's decision and in two of the earliest cases, namely, Annamalai Chetti v. Col. J.G. Cloete, [1883] ILR 6 Mad. 189 and Sesharnrna v. Sankara, [1889] ILR 12 Mad. 1, it was held that the decision was passed when it was communicated to the parties. In The Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu Guru, ILR 34 Madras 151, construing a similar provision in the Survey and Boundary Act, 1897 the same High Court held that a decision cannot properly be said to be passed until it is in some way pro nounced or published under such circumstances the parties affected by it have a reasonable opporunity of knowing what it contains. "Till then though it may be written out, signed and dated, it is nothing but a decision which the officer intends to pass. It is not passed so long it is open to him to tear off what he has written and write something else." In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisi tion Officer & Anr., [1962] 1 SCR 676 construing the proviso to Section 18 of the Land Acquisition Act which prescribed for applications seeking reference to the Court, a time limit of six weeks of the receipt the notice from the Col lector under Section 12(2) or within six months from the date of the Collector's award whichever first expires, this Court held that the six months period will have to be calcu lated from the date of communication of the award. In Asstt. Transport Commissioner (Administration) U.P. & Ors. v. Sri Nand Singh, [1981] 1 SCR 131 construing the provision of Section Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER 15 of the U.P. Motor Vehicle Taxation Act, it was held that for an aggrieved party the limitation will run from the date when the order was communicated to him.
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13. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. Therefore Courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him on the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains, The knowledge of the party 870 affected by Such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set. This is based upon, as observed by Rajamanner, CJ in Muthia Chettiar v. CIT, supra "a salutary and just principle". The application' of this rule so far as the aggrieved party is concerned is not dependant on the provisions of the particu lar statute, but it is so under the general law."
9. Similarly, this Court in Ladha Enterprise v. State of Gujarat & Ors., (Supra) has held in paragraph No.11 thus:
"11. The term from the date of order of the Collector mentioned in clause (a) of Section 53(1) of the Act has been interpreted by this Court (Coram: K.M.Thaker,J) in the judgment delivered in Special civil Application No.8679 of 2012 Ramjibhai Shambhubhai Koradia versus State of Gujarat, in the following terms:
15.4 However, if the order is passed some time after the hearing is over and when the order is not passed or it is not pronounced in presence of the concerned party, then the concerned party would not be aware about the details of the Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER decision-order and/or about the date on which the adjudicating authority passed the order.
15.5 Consequently, in the cases where the order is passed sometime after the hearing gets concluded and it is not passed or not pronounced in presence of the concerned party or his representative, the concerned party may not be able to file application within 90 days 'from the date of oder' as the concerned party will come to know that any order is passed only when the concerned party is informed the date of the order and the decision of the first adjudicating authority or when copy of the order is served to him.
15.6 Therefore, the phrase ... from the date of the order... has to be construed keeping in focus the said fact.
15.7 The actual date of the order can be considered and taken into account as the relevant date only if the order is passed or if it is pronounced in presence of the concerned party or his representative and the concerned party or his representative is aware about the date of the order and the decision of the authority.
15.8 When the order is not passed or pronounced in presence of the petitioner or his representative and when the petitioner is not aware about and/or informed about the order, period of delay should not be calculated-
considered from the date of the order.
15.9 Otherwise, the purpose and object of the said section would become otiose and would be rendered ineffective.
15.10 So as to make the provision under Section 53 of the Act meaningful and effective in real sense and if it has to serve its real purpose and object, then the relevant date for the purpose of determining and calculating the period of limitation in those cases where the order is not passed or if the order is not pronounced in Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER presence of the concerned party or his representative should be the date of the service of order to the concerned party.
16. Therefore, the competent authority under Section 53 of the Act should not, mechanically and without further consideration, take the date of the order as relevant date unless it is apparent and evident from the record that the concerned party was aware about or informed about the order and decision of the authority or that the order was passed or pronounced in presence of the concerned party.
16.1 In other cases, i.e. the cases where order is not passed or is not pronounced in presence of concerned party or his representative, it is obligatory for the competent authority under Section 53 to ascertain the date of service of order to the concerned party and to determine and calculate the period of limitation from the relevant date, i.e. the date of service/knowledge of the order to the concerned party.
16.2 Otherwise, the spirit and purpose of the said provision would stand frustrated.
(emphasis supplied)
10. In view of the above settled legal position, it is required to be held that it is not the date of the order which would be relevant for the purpose of Section 53 of the Act, but it is the date of its communication. Thus, clearly, the respondent No.1 has erred in taking a contrary view and dismissing the appeal filed by the petitioner only on the ground of limitation. The impugned order therefore cannot be sustained. It is required to be quashed and set aside. Accordingly, the impugned order is quashed and set aside and the case is required to be remanded on the file of the respondent No.1 for its re Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Aug 12 11:09:31 IST 2017 C/SCA/517/2017 ORDER consideration; without taking any objection regarding limitation. Accordingly remanded. It is clarified that the appeal would be entertained by the respondent No.1 only on compliance of the other requirements of Section 53 of the Act. Learned Counsel for the petitioner states that the deposit of the amount as indicated in Section 53 of the Act shall be made by the petitioner before prosecuting the appeal.
11. In light of the above observations, the petition is allowed with no order as to costs.
(G.R.UDHWANI, J.) sompura Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Aug 12 11:09:31 IST 2017