Gujarat High Court
Gangaben Hirjibhai Patel vs Superintendent Of Stamps And Inspector ... on 27 November, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/3613/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3613 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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GANGABEN HIRJIBHAI PATEL....Petitioner(s)
Versus
SUPERINTENDENT OF STAMPS AND INSPECTOR GENERAL OF
REGISTRATION & 2....Respondent(s)
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Appearance:
MR. CHETAN V KAPADIA, ADVOCATE for the Petitioner(s) No. 1
VIRAL K SHAH, ADVOCATE for the Petitioner(s) No. 1
MS JYOTI BHATT, LD. AGP for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/11/2015
ORAL JUDGMENT
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HC-NIC Page 1 of 9 Created On Thu Dec 03 00:22:45 IST 2015 C/SCA/3613/2014 JUDGMENT Rule. Learned Assistant Government Pleader Ms.Jyoti Bhatt waives service of notice 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 for the parties, the petition is taken up for final consideration.
2. The petitioner has prayed for setting aside of order dated 08th October, 2013 passed by Deputy Collector, Stamp Valuation, Surat, as well as orders dated 23rd January, 2014 and 05th February, 2014 which are passed by Chief Controlling Revenue Authority.
2.1 By aforesaid order dated 08th October, 2013, respondent authority ordered to pay additional stamp duty of Rs.18,680/- being the aggregate amount of additional stamp duty of Rs.17,930/- and Rs.250/- towards penalty in respect of Sale Deed No.2339 dated 15th March, 1985 being the order passed under Section 32 of the Gujarat Stamp Act, 1958. The second order dated 23rd January, 2014 is the order under Section 53(1) passed by Chief Controlling Revenue Authority, whereby the appeal of the petitioner against the aforementioned order dated 08th October, 2013 was not accepted on the ground that the same was beyond the period of 90 days. It appears that the petitioner filed a review application against the said order dated 23rd January, 2014 which came to be rejected by Chief Controlling Authority being the order dated 05th February, 2014.
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3. Outlining the bare facts, the petitioner
purchased property bearing sub plot No.21 in plot
No.10A admeasuring 53.53 Sq. Meters in Survey Nos.52 and 53 situated at Village Karjan, Taluka Choryasi, District Surat, from one Nitinkumar Modi on 07.02.1985 for a total consideration of Rs.09,499/-. A sale deed dated 07.02.1985 was executed and the same was presented before the Sub Registrar of Assurances, Surat III, for registration. The Deed was registered on 15.03.1985. It appears that the case was referred to, as per the say of the petitioner behind his back, to the Deputy Collector, Stamp Duty Valuation Department-respondent No.2 herein. The said authority directed the petitioner to pay the deficit stamp duty of Rs.18,680/- inclusive of penalty of Rs.250/- by order dated 08th October, 2013.
3.1 The aforesaid order passed by the Deputy Collector, Stamp Duty, came to be challenged by the petitioner before respondent No.l by filing appeal under Section 53(1). The appeal was dismissed as per order dated 23rd January, 2014 and the review application filed thereagainst was also rejected on 05th February, 2014, which was on the ground that the appeal was presented beyond the period of limitation of 90 days.
4. Heard learned advocate Mr.Viral K. Shah for the petitioner and learned Assistant Government Pleader for the respondent authorities. The respondents filed affidavit-in-reply and defended the Page 3 of 9 HC-NIC Page 3 of 9 Created On Thu Dec 03 00:22:45 IST 2015 C/SCA/3613/2014 JUDGMENT action as legal inter alia contending that the appeal was beyond the period of limitation and the same was filed after 92 days.
5. In the present case, the Deputy Collector passed order on 08th October, 2013 determining the market value. It is an admitted position that at the time of passing of order the petitioner was not present and the order was dispatched to the petitioner on 08th October, 2013 by Registered Post A.D. The same was received by the petitioner on 10th October, 2013.
5.1 Section 53 of the Act provides for appeal before the Chief Controlling Authority against the order of Collector. While filing the appeal, the aggrieved appellant is required to pay 25% of the deficit stamp duty. It is averred by the petitioner and not in dispute that the petitioner deposited Rs.04,483/- being 25% of the deficit stamp duty demanded by the Deputy Collector and Rs.100/- towards fees for preferring appeal by way of Challan No.743. The appeal was preferred on 06th January, 2014.
5.2 Looking at provision of Section 53, it 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 sub-section (1) unless (a) such application is presented [within a period of ninety days] from the date of order of the Collector.
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(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.
(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."
5.3 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 before the Chief Controlling Revenue Authority.
5.4 Rule 7 of Bombay Stamp (Determination of Market Value of Property) Rules, 1984 provides for manner of service of notice under Rule 4. This Rule becomes relevant with reference to date of dispatch of the order by the Collector to the petitioner, mentioned above. The relevant part of Rule 7, in particular sub rule (4), reads thus, "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, & & &
(a) & & &
(b) & & &
(2) In the case of any firm, & & &
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(a) & & &
(b) & & &
(3) In the case of a family & & &
(4) In the case of any individual person, the notice or order shall be served, --
(a) by delivering or tendering the notice or order to the person concerned or to his advocate or authorized agent ; or
(b) by delivering or tendering the notice or order to some adult member of the family; or
(c) by sending the notice or order to the person concerned by registered post with acknowledgment due;
or
(d) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned."
5.5 This Court in judgment dated 30th March, 2015 in Ritaben Kamleshbhai Mehta through power of attorney holder Devang Kamleshbhai Mehta Vs State of Gujarat being Special Civil Application No.5422 of 2015 and cognate petitions, dealt with similar controversy and considered the question as to how the words from the date of order occurring in Section 53 should be construed purposefully. The Court observed and held as under, "11. On examination of section 53 it comes out that the legislature has not conferred to the competent authority power to condone delay. The said aspect is settled by virtue of the decision by full bench in the case between Jayminbhai N. Doshit vs. State of Gujarat (AIR 2014 GUJARAT 220).
11.1 However the said decision cannot be read and construed to derive or usurp the power to restrict rather artificially curtail - the time limit allowed by the Act for filing revision application under section 53. 11.2 If the said provision is construed in the manner adopted by the authority, then it will frustrate the object of the Act and the intention of the legislature.
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12. True it is that the section employs the words from the date of order, however the said words are not to be construed in such a manner so as to reject, mechanically and without scrutiny, all applications which might have been filed after 90 days from the date when the order is passed / signed but before expiry of 90 days from the date when the order passed by first adjudicating authority is served and before it is communicated to the concerned and affected person.
16.2 A provision conferring statutory right and thereby providing a remedy against the order by adjudicating authority, either in form of appeal or revision application, should be construed to make the remedy effective and meaningful and cannot be interpreted and enforced in a manner which will curtail the scope of remedy and may virtually render it ornamental or truncated than what the legislature actually provided for.
16.3 The remedy of appeal or revision can be availed only if (and when) the person has knowledge about the order / decision (i.e. what, actually, is the decision and the reasons for the conclusion and decision by the authority) and not in absence of such knowledge."
17.2 When the person is not even aware that some decision is taken and order is passed and / or when the person is not aware about the actual decision i.e. contents of the order, he cannot effectively and meaningfully avail the remedy provided under the Act. Unless the person has the knowledge about the order the provisions / remedy will be meaningless. Therefore, the said provision i.e. Section 53 of the Act and more particularly the expression from the date of the order must be construed to make the provision and the remedy effective and meaningful and not in a manner which would restrict the period of said remedy's availability i.e. the period for which the remedy would be effectively available to the concerned and affected person.
19.1 The said view and decision of the authority ignores that for real, practical and actual operation of Section 53 of the Act, relevant factor is knowledge about the order. Therefore the relevant date for finding the answer to the question viz. whether the application (revision) is filed before expiry of prescribed period of limitation (i.e. 90 days) or not, would be the date on which the order is served / communicated to the concerned person.
22.1 What emerges, on conjoint reading of the observations by Honble Apex Court, is that for an order to become effective and operational, the order and Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu Dec 03 00:22:45 IST 2015 C/SCA/3613/2014 JUDGMENT decision should be informed to the concerned person and he should be aware about the decision of the authority and also about the direction. As observed by Honble Apex Court an authority may pass and sign an order and such order may be retained on file without communicating and forwarding it to the concerned person. The knowledge that an order is passed as well as knowledge about the actual decision and effect of the decision are imperative for calculating and enforcing the limitation prescribed (for filing application under Section 53 of the Act) by the Act."
5.6 The ratio of the above decision was followed in Yatin Natwarlal Bhatt Vs Chief Controlling Revenue Authorities and others being Special Civil Application No.6352 of 2015 decided on 28th July, 2015 wherein the facts akin to the present one were obtained as recorded in paragraph 6 of the said decision.
"6. Coming back to the facts of the present case and the relevant dates, which are already noted in paragraph 5 above, the Deputy Collector passed order on 27.06.2014 which was actually dispatched to the petitioner on 30.06.2014 and the petitioner received the order on 02.07.2014. The date of receipt of the order is the date of the knowledge. The limitation period of 90 days for the purpose of Section 53(1) of the Act is required to be calculated from the date of knowledge of the order, that is, from 02.07.2014. The ratio of decision in Ritaben Kamleshbhai Mehta (supra) squarely applies. The view taken by the Appellate Authority in his order dated 22.01.2015 that the appeal of the petitioner was beyond the period of limitation is evidently erroneous. The same fails to sustain."
6. As in the instant case, the order of Deputy Collector dated 08th October, 2013 was actually received by the petitioner on 10th October, 2013, the petitioner came to actually know about the order only on 10th October, 2013, which being the date of the actual receipt of the order and therefore date of knowledge, period of 90 days for the purpose of limitation would be required to be counted Page 8 of 9 HC-NIC Page 8 of 9 Created On Thu Dec 03 00:22:45 IST 2015 C/SCA/3613/2014 JUDGMENT accordingly, that is from the date of receipt of the order. The aforesaid decisions squarely apply.
7. As a result, the impugned orders dated 23rd January, 2014 passed by respondent No.1 not accepting the appeal and order dated 05th February, 2014 rejecting the review application, both are required to be set aside and they are hereby set aside. It is held that the appeal of the petitioner is liable to be treated within limitation of 90 days from the date of knowledge of the order of the Deputy Collector. As the petitioner has already complied with the condition of deposit of 25% amount of the deficit stamp duty, the appellate authority shall proceed to decide the appeal against the order dated 08th October, 2013 of the Deputy Collector and Stamp Duty Valuation Department, Division II, Surat-respondent No.2 herein, in accordance with law and merits and complete the exercise of deciding the appeal expeditiously. Rule is made absolute in the above terms.
Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu Dec 03 00:22:45 IST 2015