Jay Bharat Associates - A ... vs State Of Gujarat

     C/SCA/16904/2016                                 ORDER DATED: 10/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16904 of 2016

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             JAY BHARAT ASSOCIATES - A PARTNERSHIP FIRM
                               Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
MS. ARCHITA PRAJAPATI, ADVOCATE FOR MR MP PRAJAPATI(677) for
the Petitioner(s) No. 1
MR. JAY TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 10/02/2023

                                ORAL ORDER

1 Heard Ms.Archita Prajapati, learned counsel appearing for Mr.M.P.Prajapati, learned counsel for the petitioner and Mr.Jay Trivedi, learned Assistant Government Pleader for the respondent - State.

2 Challenge in this petition is to the order dated 16.01.2016 / 01.02.2016, by which, the authorities under the Gujarat Stamps Act, have not entertained the application / appeal of the petitioner on the ground that it was filed beyond a period of 90 days.

C/SCA/16904/2016 ORDER DATED: 10/02/2023 3 Facts in brief would indicate that the petitioner firm sold the plot Nos. 65 and 93 forming part of Revenue Survey No. 93 paiki 1 and 93 paiki 2 at Dabholi, District :

Surat, to one Arunaben Surendrabhai Pandya and Ashwinbhai Nathalal Tapania and Rakeshbhai Nathalal Tapania. The documents placed before the Sub-Registrar, Katargam, Surat, came on 17.03.2015 and the documents were given numbers 6053 and 6056 respectively.

3.1 It is the case of the petitioner that instead of registering the documents, the respondent No.2 initiated proceedings under Sec. 58 of the Stamps Act, calling upon the petitioner to produce the Original Development Agreement and revenue records. The petitioner appeared before the authority and by virtue of the participation, order dated 16.09.2015 was passed.

3.2 It is the case of the petitioner that the order dated 16.09.2015 was communicated to the petitioner on Page 2 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 22.09.2015, hence in accordance with Sec.53 of the Act, after depositing the 25% of the amount on 18.12.2015, an appeal was preferred on 12.01.2016.

4 Ms.Prajapati, learned counsel for the petitioner, would submit that by several decisions of this Court, it has been set out that the date relevant for the purposes of computing limitation is the date on which the order is received. Admittedly, on the facts of the case as stated in the petition, the order was received on 22.09.2015, the amount of 25% was deposited on 18.12.2015 and limitation therefore has to be computed accordingly.

4.1 In support of her submissions, Ms.Prajapati, learned counsel for the petitioner, would rely on the decision in the case of Pratishtha Developers Pvt Ltd vs. State of Gujarat & Ors., reported in 2014 (3) GLR 2609. She would draw the Court's attention to para 6 thereof where by referring to the decision in the case of D.Saibaba vs. Bar Council of India, reported in AIR 2003 SC 2502, Page 3 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 the Court has observed that the expression "the date of the order would indicate the date on which the order is received". She also would rely on a decision in the case of Nitin N. Modi vs. State of Gujarat & Ors., rendered in Special Civil Application No. 12417 of 2013 decided on 08.08.2019 in context of this very provision i.e. Sec.53 of the Stamp Act. Para 15 is pressed into service to reiterate her submission that the date of receipt of the order would be relevant.

4.2 In addition, Ms.Prajapati, learned counsel, would also rely on a Notification dated 06.03.2016 issued by the competent authority which is a part of the amending Act, which indicates that a proviso was added to Sec.53 wherein, on the satisfaction of the Chief Controlling Revenue Authority that a person was prevented from filing an appeal for fresh reasons, he may be allowed to do so on payment of non refund amount of Rs.1,000/- for over 30 days of delay. She would therefore submit that if the petitioner was so permitted to pay the amounts as Page 4 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 stipulated therein, there was no reason for the Appellate Authority to reject the appeal on the ground of delay.

Alternatively it was her submission that even otherwise the original order of 16.09.2015 has been passed without affording an opportunity of hearing and on that ground alone, it deserves to be quashed and set aside.

5 Mr.Jay Trivedi, learned Assistant Government Pleader, would submit that no fault can be found with the order impugned in the petition. There is no provision under the Act especially Sec.53 to condone the delay. The Notification pressed into service by the petitioner is of 06.03.2016 whereas the order in question which was the subject matter of an appeal was prior thereto i.e. on 16.09.2015, the notification will not have retrospective effect.

6 Considering the submissions made by the learned counsels appearing for the respective parties and having perused the provisions of Sec.53 of the Gujarat Stamps Act, what is indicative is that a period of 90 days is Page 5 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 prescribed for filing an application. Even accepting the position of law as laid down by this Court in the decision in the case of Pratishtha Developers (supra) and Nitin Modi (supra), and accepting the counsel for the petitioners submission that the order was received on 22.09.2015, admittedly, the appeal was filed on 12.01.2016 beyond a period of 90 days.

7 Reliance placed on the Notification dated 06.03.2016 can also not be accepted in light of the fact that the notification amending the Act and adding the proviso to clause-A of sub-section 1 of Sec.53 cannot operate retrospectively to the orders passed prior to the notification. Even the Full Bench decision of this Court in the case of Jaimin Navin Doshi vs. State of Gujarat., rendered in Special Civil Application No. 12417 of 2013, decided on 11.08.2014, reported in 2015 (1) GLH 167 indicates that there is no power to condone the delay under the provision of Sec.53 of the Act. Paras 12 to 14 of the decision read as under:

C/SCA/16904/2016 ORDER DATED: 10/02/2023 "12. After the receiving of the copy of the order the petitioner preferred an application on 25th June 2013 before the respondent no. 2 for issuing challan of 25% of deficit stamp duty so as to prefer appeal before the appellate authority u/s. 53 of the Bombay Stamp Act but the respondent no. 2 refused to issue challan of 25% of deficit stamp duty merely under ground that the statutory period of filing appeal is expired.

13. The Full Bench of this Court in the judgment of Jayminbhai Navinbhai Doshi (supra) was answering the reference made by the Single Judge of this Court. The order of reference was made in this very matter along with cognate matter by common oral order dated 09-05-2014 and while answering such reference, the Full Bench has held as under: "13. In view of the above observations of the Supreme Court, where even the High Court's jurisdiction under the Act was found to be excluded by operation of section 35H of the Central Excise Act, by applying the same principle, it must be concluded that by providing no power of condonation under Section 53 and by giving power of condonation only to the limited extent to the proceedings under section 54(1A), the Legislature has made its intention clear that so far the present cases are concerned, the authority under Section 53(1) had no power of condonation. However, in the present cases, since the reference has also been made on the question as to the power of condonation of delay by High Court in exercise of the power conferred under Article 226 of the Constitution of India, we also propose to answer the said question.

14. It is now settled law that the Limitation Act Page 7 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 has no application to a proceeding under Article 226 of the Constitution and consequently, no period of limitation is prescribed either under the Limitation Act or in the Constitution of India for moving an application under Article 226 and thus, there is no scope of taking aid of Section 29(2) of the Limitation Act in a proceeding under Article 226 of the Constitution. 15. A person is entitled to move High Court under Article 226 of the Constitution when by the illegal action or in action on the part of a "State" within the meaning of Article 12 of the Constitution, any of his legal or fundamental rights is infringed. In the Special Civil Applications out of which the present References arise, the petitioners have alleged violation of their legal rights accrued by virtue of the provisions contained in the Act itself. In view of our finding that the Chief Controlling Revenue Authority exercising power under Section 53(1) of the Act has no power of condonation of delay in filing the application beyond the period mentioned therein, for the refusal on the part of the said authority to condone delay for want of jurisdiction, none of the legal rights of the petitioners have been infringed and thus, if the Chief Controlling Authority has no power of condonation, it necessarily follows that the High Court in exercise of power under Article 226 of the Constitution against the order of the Chief Controlling Revenue Authority cannot condone the delay when the Chief Controlling Revenue Authority did not possess such power and rightly refused to condone. Thus, by taking recourse to Section 29(2) of the Limitation Act, the High Court cannot condone such delay in the proceeding under Article 226 of the Constitution. 16. On consideration of the entire materials on record, we, thus, dispose of these Page 8 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 References by answering the question referred by the learned Single Judge in the negative.

16.1 The References are, thus, disposed of.

16.2 We may clarify here that apart from the questions referred to us, we have otherwise not gone into the merit of the original order passed by the competent authority. In some of the Special Civil Applications, we are informed, the original orders of the competent authority without taking recourse to Section 53 of the Act are the subject matters of challenge. It is needless to mention that those matters should be disposed of by the learned Single Judge in accordance with the law."

14. After the decision of the Full Bench, in one of the petitions, which was also part of the reference of Single Judge of this Court, an order is passed on 02-07-2015 in Special Civil Application No. 10441 of 2013 by construing the date of knowledge of the order to be the date of order from which the period of limitation is to be construed. In Para-13, it is held as under: "13. Upon perusal of the record, order passed by the authorities below namely, Deputy Collector, Stamp Duty Valuation, Bhavnagar, and Chief Controlling Revenue Authority who passed the order on 14.05.2013 and the decision relied on by the learned advocate for the petitioner and so submitted on the previous date of hearing i.e. on 25.06.2015, it is clear that in addition to the decision relied on the statutory provisions of the Land Acquisition Act, Indian Forest Act, and Section 48AA of the Advocates Act referred in the case of Pratishtha Developers Pvt Ltd (supra), the position of law of counting the period of 90 (Ninety) days which is for filing an appeal under Section 53(1) of the Gujarat Stamp Act, Page 9 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 is no more res integra, and the statutory period of 90 (Ninety) days to be counted from the date of receipt of the order by the recipient - an aggrieved person, who would like to prefer an appeal. In the facts of this case, at the cost of repetition, the petitioner received the order dated 03.08.2012 passed by the Deputy Collector, Stamp Duty Valuation, Bhavnagar, which was dispatched on 04.08.2012 by the office of the Deputy Collector, Stamp Duty Valuation, Bhavnagar and was admittedly received by the petitioner through Registered Post Acknowledgment Due on 08.08.2012, and an appeal was filed on 02.11.2012. Thus, the petitioner had preferred an appeal within the 86 (Eighty Six) days from the date of receipt of such order and the ratio of law decided by this Court in the case of Pratishtha Developers Pvt Ltd (Supra), if applied in the facts of this case, the appeal filed by the petitioner is to be held that it is filed within the 90 (Ninety) days, and therefore, stand taken by the respondent authority, namely, Chief Controlling Revenue Authority by impugned order and an additional affidavit filed on 01.07.2015 is not only illegal, but contrary to the law laid down by this Court as above. In spite of the declaration of law by this Court in exercise of powers under Article 226 of the Constitution of India in the case of Pratishtha Developers Pvt Ltd (supra) interpreting the words 'date of order' relying on the law laid down in the case of D. Saibaba v. Bar Council of India reported in AIR 2003 SC 2502, stand taken by the deponent in para 3 of the affidavit which is reproduced in the earlier part of the order reflects an attitude of defying the declaration of law on the very issue, and not to impose the cost as submitted by the learned Assistant Government Pleader would encourage such trend of the officers of the Page 10 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023 C/SCA/16904/2016 ORDER DATED: 10/02/2023 Government of Gujarat, and therefore, to avoid repeatation of such incident in future, I am of the opinion to impose the costs of Rs.2,500/(Rupees Two Thousand Five Hundred Only) on the deponent and the order impugned 03.08.2012 passed by Respondent No.4 Deputy Collector, Stamp Duty Valuation, Bhavnagar and impugned communication dated 14.05.2013 issued by Respondent No.2 Chief Controlling Revenue Authority, Gandhinagar are quashed and set aside with a direction that the said amount of Rs.2,500/ be deposited by the deponent - Deputy Collector, Stamp Duty Valuation, Bhavnagar with the Gujarat High Court Legal Services Committee within a week from the date of receipt of a copy of this order/ writ of this Court, failing which, appropriate action, in accordance with law, will be taken."

8 Once the authorities have found that there was an appeal which was filed admittedly beyond the period of limitation which cannot be condoned, the arguments of the learned counsel for the petitioner that the original order was passed in violation of principles of natural justice need not be gone into.

9 On this ground alone, the petition stands dismissed.

Notice, if any, stands discharged.

(BIREN VAISHNAV, J) BIMAL Page 11 of 11 Downloaded on : Mon Feb 13 20:57:25 IST 2023