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2006 DIGILAW 302 (GUJ)

ARVIND BABULAL ADALJA v. STATE OF GUJARAT

2006-05-02

K.S.JHAVERI

body2006
K. S. JHAVERI, J. ( 1 ) IN all the above petitions a common question of law and facts are invoked and they are disposed of by the present common judgement ( 2 ) THE petitioners herein, in pursuance of purchase of properties, lodged necessary documents for registration in the office of the concerned Sub-Registrar, On perusal of documents, the Collector of stamps, alleged that the-valuation was not proper and therefore passed orders demanding payment towards alleged deficit stamp duty Feeling aggrieved by such orders the petitioners have filed appeal along with delay condonation applications. The competent authority refused to condone the delay and rejected the applications as a result of which the appeals were not entertained. Under these circumstances the petitioners have approached this Court by way of the aforesaid petitions ( 3 ) LEARNED Advocates appearing on behalf of the petitioner submitted that the respondent authority committed an error in holding that there is no provision for condonation of delay after 90 days and thereby not entertaining the petitioners application. It is farther submitted that there is an implied meaning under the proviso to section 32b of the Act that the authority can exercise the discretion in favour of the petitioners. It was further submitted that the petitioners have made out sufficient grounds for condonation of delay and the authority, after condoning the delay, ought to have decided the appeal on merits in the interest of justice. A contention was raised that the period of limitation is calculated from the date of issuance of notice/order and in most of the cases though the notice mentions a particular date, the same is dispatched after long lapse of time and such delay is also attributed to the petitioners therefore, the delay should have been counted only from the date of knowledge about the impugned order and not from the date of (tie alleged notice/order. ( 4 ) LEARNED AGP appearing for the state supported the order of the competent authority and submitted that after 90 days the authority has no power to condone the delay. According to the learned AGP, when the petitioners have not taken proper steps at the right time, the delay is not required to be condoned. ( 5 ) THE main question to be considered in these petitions is whether the authority ought to have condoned the delay in question or not. According to the learned AGP, when the petitioners have not taken proper steps at the right time, the delay is not required to be condoned. ( 5 ) THE main question to be considered in these petitions is whether the authority ought to have condoned the delay in question or not. ( 6 ) THERE is no dispute that the application is required to be filed within a period of 90 days from the date of the impugned order. If the application is not filed within that period then there would be a delay and if the authority refuses to entertain the application the aggrieved party would become remedyless. The delay may be caused due to various reasons and sometimes because of the reasons beyond the control of the aggrieved party. In such case if the application is not entertained on the sole ground of delay, it would certainly frustrate the administration of justice. . ( 7 ) IN this regard it would be profitable to refer to section 5 of The limitation Act, 1963 which 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, 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. "thus, in almost all the proceedings the statute provides for a provision of extension of prescribed period in certain cases. Under section 32a there is nothing to show that the discretion should not be exercised beyond the period of 90 days. When there is no absolute restriction it is always open to the concerned authority to look into the matter and if sufficient cause is shown, then such application can be entertained. If such discretion is not exercised, it may adversely affect the administration of justice. Apart from that in many cases, the notices and orders were served after much delay, in which case the aggrieved party would be at a loss if the application for condonation of delay is not entertained on the ground that the authority has power to do so. Apart from that in many cases, the notices and orders were served after much delay, in which case the aggrieved party would be at a loss if the application for condonation of delay is not entertained on the ground that the authority has power to do so. ( 8 ) THE proviso to section 32b reads as under"provided that where in any particular case the Authority is of the opinion that the deposit of the amount by the applicant will cause undue hardship to him, the Authority may, in its discretion, either unconditionally or subject to such conditions as it may think fit to impose, dispense with a part of the amount deposited so however that the part of the amount so dispensed with shall not exceed fifty per cent of the amount deposited or required to be deposited. "the said proviso to section 32b of the Act gives a discretion to the respondent authority to waive part of the pre-deposit, which clearly implies that the decision on the condonation of delay also could be taken by the respondent authority. ( 9 ) IN the present case there is an appeal provision against the order of the deputy Collector. When there is an appellate authority and there is a period of limitation, it is to be presumed that the authority is also vested with the discretion of condoning the delay caused in filing die appeal on showing sufficient cause for such delay. I am of the view that valuable rights of a litigant should not be curtailed on mere technicalities such as delay in filing appeal. Therefore when a statutory authority has been empowered to hear the appeal, the authority should take a practical view of the matter and denying the right of appeal on technical plea of limitation would not be in the interest of justice. ( 10 ) IT is by now well settled position in law that refusing to condone delay may result into meritorious matter being thrown out at the very threshold and cause of justice being defeated. In any case, if delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Ordinarily, delay should be condoned if sufficient cause is show. In any case, if delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Ordinarily, delay should be condoned if sufficient cause is show. This view is reiterated by the Apex court in the case of COLLECTOR, LAND acquisition ANANTNAG V/s. KATIJI, reported IN AIR 1987 SC 1353 . ( 11 ) FURTHER, in the a decision rendered in SCA NO. 4615 OF 2001 DATED 1st SEPTEMBER 2003 similar question has been examined by this Court and the petitioner was directed to approach the appellate authority to reconsider the decision with regard to condonation of delay. ( 12 ) THIS Court is, therefore, of the opinion that the concerned authority should have decided the application for condonation of delay and the appeal should have been heard on its merits. In view of the facts and circumstances, it would be in the interest of justice to condone the delay in these proceedings and to direct the appellate authority to consider the appeal on merits ( 13 ) ANOTHER aspect of die matter which requires consideration is that in most of die cases the authority has considered the period of limitation from the date of the order. In many cases it is pointed out that though the order has been passed on a particular date, the same has been dispatched much after the said date and yet the authority has computed the limitation from the date of the order. In my view, this would not be in the interest of the aggrieved party. If the order is passed on a particular date and the same has been dispatched at a later date, then it cannot be said that the limitation started from the date of the order. Limitation should start only when the order is served upon the concerned party or at least when the party has knowledge about the said order whichever is earlier. It is not out of place to state that if the view taken by the authority is allowed to prevail, then all the authorities will dispatch the orders after 90 days in which case the provision of appeal will be frustrated. ( 14 ) IN the premises aforesaid, the delay caused in filing the appeal before the appellate authority is condoned. ( 14 ) IN the premises aforesaid, the delay caused in filing the appeal before the appellate authority is condoned. The respondent authority is directed to accept and hear the appeal of the petitioners in accordance with law and shall dispose of the same as early as possible. While deciding the appeals the authority shall take into consideration the decisions in the case of GORVA VIBHAG COOP. HOUSING SOCI. ASSN VS. STATE, reported IN 1992 (1) 654, H. P. DAVE VS. SUB-REGISTRAR, RAJKOT, REPORTED IN 1994 (2)GLR 1223 AND SHAILESH J. VARIA vs. SUB-REGISTRAR, VADODARA, reported IN 1996 (3) GLR 783 . Rule is made absolute accordingly with no order as to costs.