Jobanputra Dhaneshbhai Bharatbhai vs State Of Gujarat
2025 Latest Caselaw 6289 Guj

Gujarat High Court

Jobanputra Dhaneshbhai Bharatbhai vs State Of Gujarat on 4 September, 2025

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                              C/SCA/875/2025                                            ORDER DATED: 04/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 875 of 2025

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                                          JOBANPUTRA DHANESHBHAI BHARATBHAI
                                                         Versus
                                                STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR. BK. RAJ(3794) for the Petitioner(s) No. 1
                       MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1,2
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                          CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                                                        Date : 04/09/2025

                                                             ORAL ORDER

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged order dated 12th July, 2024 passed by Chief Controlling Revenue Authority (CCRA) as well as order dated 03 rd October, 2012 passed by Deputy Collector (Stamps), by which CCRA has dismissed the appeal of the petitioner against the order passed by the Deputy Collector (Stamps) on the ground of delay.

2. Short facts of the case are as under.

2.1 Father of the petitioner viz. Bharatbhai Jobanputra purchased property being No.SDV-B-4 of Pooja Kiran Apartment admeasuring about 46.45 sq.

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mtrs. Situated at Plot No.3 of Final Plot No.177 of T.P. Scheme No.9 at Surat, by way of registered sale deed on 20th June, 2008.

2.2 Upon the audit objection being raised by the office of the Accountant General, Ahmedabad for the transaction of the year 2008 in the office of Sub-Registrar, Athwa, Surat, sale deed dated 20th June, 2008 being numbered 10248 of the father of the petitioner was sent to the office of Deputy Collector, Stamp Duty Valuation, for the deficit stamp duty.

2.3 Accordingly, notices dated 06th September, 2010, 26th October, 2010 and 23rd November, 2010 were issued by the Deputy Collector, Stamp Duty Valuation and were served upon father of the petitioner. Father of the petitioner did not attend the hearings and not filed any reply and/or submissions pursuant to the aforesaid notices and thereby, the Deputy Collector, Stamp Duty Valuation, Surat vide order dated 03rd October, 2012 directed the father of the petitioner to pay deficit stamp duty of Rs.04,66,050/- plus Rs.10,000/- towards penalty.

2.4 Thereafter, father of the petitioner who was looking after the management of the property, died on 13th March, 2023.

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2.5 So as to get the name mutated, the petitioner has made an application for the same and at that time, it has come to the notice of the petitioner that charge has been created over the property for recovery of the deficit stamp duty amount.

2.6 Thereafter, petitioner has approached CCRA on 02nd July, 2024 by way of an appeal along with an application for condonation of delay of 4290 days. The said appeal was rejected by CCRA vide order dated 12th July, 2024 on the ground of delay.

3. Being aggrieved and dissatisfied with the aforesaid, petitioner has approached this Court by way of present petition under Articles 226 and 227 of the Constitution of India for appropriate writ, order or direction.

4. Heard learned advocate Mr.B.K. Raj for the petitioner and Learned Assistant Government Pleader Mr.Venugopal Patel for the respondent - State and its authorities.

5. Since the issue involved in this petition is narrow in compass, at the request of learned advocates appearing for the respective parties, the petition is taken up for final

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hearing.

5.1 Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Venugopal Patel waives service of notice of Rule on behalf of the respondents.

6. Learned advocate Mr.B.K. Raj for the petitioner, while assailing the impugned orders, mainly submitted as under.

6.1 Learned advocate for the petitioner submitted that the order passed by the CCRA is not tenable in eye of law being most hyper- technical. According to learned advocate, rejection of appeal on the ground of delay is against the principles of substantial justice. Learned advocate further submitted that meritorious case of the petitioner could not have been thrown out on the basis of procedural technicalities. He, therefore, requested this Court to quash and set aside the impugned orders.

6.2 Learned advocate for the petitioner submitted that the order passed in the year 2012 came to the knowledge of the petitioner only when he approached for mutation of succession entry on account of death of his father in the year 2023. According to learned advocate, petitioner was not

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in knowledge of any order passed by the authority and thereby, delay occurred while approaching CCRA is bona fide and thereby same ought to have been condoned by CCRA and ought to have decided the appeal of the petitioner on merits, rather thrown out on technicalities.

6.3 Learned advocate for the petitioner further submitted that there was sufficient and reasonable cause pleaded before CCRA so as to condone the delay. However, CCRA dismissed the application for condonation of delay having adopted hyper-technical view.

6.4 To substantiate the aforesaid contention, learned advocate for the petitioner, during the course of the hearing, pressed into service decisions of the Apex Court in the cases of Benedict Denis Kinny v. Tulip Brain Miranda [(2021) 12 SCC 780], Dharnidhar Mishra (D) v. State of Bihar [(2024) 10 SCC 605] and Bano Saiyed Parwaz v. Chief Controlling Revenue Authority [(2025) 2 SCC 201].

6.5 By making above submissions, learned advocate for the petitioner requested this Court to allow the petition as prayed for.

7. Per contra, Learned Assistant Government

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Pleader Mr.Venugopal Patel, while supporting the impugned orders, has made the following submissions.

7.1 Learned Assistant Government Pleader, at the outset, vehemently opposed the present petition inter alia contending that the orders impugned are perfectly justified and that while passing the same, there is no violation of any provisions of law and thereby, the same may not be interfered with by this Court under Articles 226 and 227 of the Constitution of India.

7.2 Learned Assistant Government Pleader further submitted that the petitioner preferred appeal before the CCRA against the order of Deputy Collector almost after 12 years. Learned Assistant Government Pleader further submitted that it is not that the appeal is preferred after inordinate delay but as such no sufficient and reasonable cause was espoused so as to justify the condonation of delay. According to Learned Assistant Government Pleader, even otherwise, as per the provisions of the Bombay Stamp Act, CCRA could not have condoned the delay beyond the period prescribed in the statute. The power to condone delay by CCRA is limited and thereby beyond that period CCRA cannot condone the delay.

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7.3 To substantiate the said contention, learned Assistant Government Pleader relied on the decision of the Full Bench of this Court in case of Jayminbhai Navinbhai Doshi v. State of Gujarat [2015 (1) GLH 167].

7.4 Learned Assistant Government Pleader submitted that the order passed by the Deputy Collector, Stamp Duty Valuation during the lifespan of father of the petitioner, however father of the petitioner never cooperated in the said proceedings and not attended the hearings. Not only that, even the said order was never challenged by father of the petitioner during his lifespan. Learned Assistant Government Pleader submitted that as such the charge was created on the property and thereby it cannot be assumed that father of the petitioner was not aware with regard to the order passed by the Deputy Collector, Stamp Duty Valuation and thus, in a way, order passed by the Deputy Collector was accepted by father of the petitioner. Under the circumstances, petitioner being heir, cannot have any right to challenge the same as the said right was already been not availed by father of the petitioner during his lifespan. Learned Assistant Government Pleader submitted that, therefore, the petition deserves to be dismissed.

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7.5 By making above submissions, Learned Assistant Government Pleader requested this Court to dismiss the petition.

8. I have heard learned advocates for the respective parties and have gone through the materials produced on record. No other and/or further submissions have been canvassed by learned advocates for the respective parties.

9. Considering the submissions made by learned advocates for the respective parties and after having gone through the materials produced on record, the short question that falls for consideration of this Court is whether delay in filing appeal/application under Section 53 of the Act, 1958 beyond the prescribed time limit of 90 days from the order passed by the Collector/competent authority could be condoned by CCRA or High Court exercising powers under Article 226 of the Constitution of India?

10. As such, the aforesaid question is no more res integra. Full Bench of this Court in the case of Jayminbhai Navinbhai Doshi (supra) has already decided the aforesaid question in negative. Relevant paras of the said judgment are quoted hereunder.

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"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 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 inaction 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

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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."

10.1 Keeping in mind the aforesaid ratio, if the basic facts of the case are considered, admittedly, father of the petitioner was given ample opportunity of hearing in the proceedings before the Deputy Collector, Stamp Duty Valuation. Father of the petitioner did not cooperate in the proceedings by not appearing and/or not submitting any reply therein. Though the charge was created on the property for recovery of the deficit stamp duty, father of the petitioner, during his lifespan, has never bothered to challenge the said order of the Deputy Collector. Meaning thereby, the right which was accrued in favour of father of the petitioner to challenge the order of the Deputy Collector before CCRA was never exercised and in a way, waived off. The appeal preferred by the petitioner is admittedly after a period of 12 years, that too after death of his father. Thereby, it cannot give any right in favour of the petitioner which was though available to his

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father, but not exercised.

10.2 Even during the course of hearing, learned advocate for the petitioner has not made any submission as to legality and validity of the order passed by the Deputy Collector nor any pleadings and/or ground raised that how the order dated 03rd October, 2012 passed by the Deputy Collector is illegal. Thus, in absence of any such pleadings and/or ground raised, it would not be possible for this Court to go into the legality and validity of the order passed by the Deputy Collector.

11. The decisions cited by learned advocate for the petitioner are altogether on a different set of facts and thereby the same are not applicable to the facts of the present case. Hence, those judgments are of no help to the petitioner.

12. In view of the aforesaid overall consideration of the matter, petition lacks merit and thereby deserves to be dismissed and is accordingly dismissed.

(NIRAL R. MEHTA,J) ANUP