SCA/25130/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25130 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= M/S HINDUSTAN PETROFIL & AGRO CHEMICALS - Petitioner(s) Versus THE STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR HRIDAY BUCH for Petitioner(s) : 1, Mr.L.R.Pujari, AGP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 29/01/2008 ORAL JUDGMENT 1. Rule. Learned AGP Mr.L.R.Pujari, waives service on behalf of the respondents. 2. The Deputy Collector, Stamp Duty Valuation SCA/25130/2007 2/8 JUDGMENT Organisation,New Multistoreyed Bldg, 5th Floor, Collectorate Valsad has passed the impugned order dated 30-9-2000 against the present petitioner-firm calling upon the petitioner to pay deficit stamp duty including fine of Rs.250/-aggregating Rs.61,070 for shed and Rs.54,598/-for plot towards deficit stamp duty including fine of Rs.250/- against which the petitioner had preferred appeals before the appellate authority. 3. It was the case of the petitioner-firm that the petitioner had purchased Industrial Plot no.CIB- 2426 in Vapi Notified Industrial Estate admeasuring about 704.00 sqmtrs as well as the shed of C-1 B-type admeasuring about 234 sq.mtrs. According to the petitioner firm, the petitioner had executed two conveyance deeds being Conveyance no.1053 (for plot) and Conveyance no.1054(for shed) and also paid the prevalent market price of Rs.1,74,000/- for plot and Rs.24,500/-towards stamp duty while for the shed the petitioner paid Rs.2 lacs market value and stamp duty of Rs.20,000/- and thereafter with permission from original land owner the plot as well as the shed was transferred to the name of the petitioner. However, the Deputy Collector, Valsad after issuing notices to the petitioner passed the impugned order dated 30-9- 2000 as stated above. 4. Feeling aggrieved by and being dissatisfied with the said order, the petitioner preferred two appeals bearing no.174/2001 and 184/2001 and SCA/25130/2007 3/8 JUDGMENT were presented before the respondent no.3 on 21- 3-2001 for forwarding the same to the respondent no.2. Both these appeals came to be allowed and were remanded back to respondent no.3 holding that the impugned orders were passed in violation of the principles of natural justice and directing the respondent no.3 to consider the case afresh after giving proper opportunity to the petitioner. Thereafter, the respondent no.3, after hearing both the sides accepted the case of the petitioner so far as market value of the plot is concerned and released the deed of conveyance after registering the same, however, so far as the valuation of the shed is concerned, the respondent no.3 passed an order dated 27-12-2001 whereby he maintained his earlier order as well as the valuation fixed by him. According to the petitioner, the said order was sent to the petitioner with insufficient address and that the petitioner came to know about the order only when the attachment notice dated 18th October, 2003 was issued and that too at the old residential address. It is the case of the petitioner that thereafter on 3-1-2003 the petitioner again filed appeal and presented the same before the respondent no.3 so as to forward the same to the respondent no.2, however, the respondent no.3 by an order dated 5/9-10-2066 refused to forward the appeal to the respondent no.2. Hence, the present petition. 5. Learned Counsel for the petitioner contended SCA/25130/2007 4/8 JUDGMENT that the respondent no.3-authority had erred in not forwarding the appeal of the petitioner to the respondent no.2 as the respondent no.2 refused to accept the same and register the same as an appeal on the ground that the appeal is barred by limitation as the prescribed period was over. According to the learned Counsel, the respondent no.2- appellate authority is vested with the powers to exercise discretion and condone the delay even after the expiry of the prescribed period in genuine cases. 6. As against that the learned AGP supported the order passed by the respondent no.3 had rightly not forwarded the appeal of the petitioner to the respondent no.2 by contending that the petitioner ought to have acted promptly and that the authority has no power to condone the delay after 90 days. 7. The only question that falls for my determination in this petition is whether the authority ought to have condoned the delay in question or not. 8. Delay can be caused on account of various reasons and sometimes for reasons beyond the control of the aggrieved party. The Court should however take care to see (i) whether the refusal to condone the delay is likely to defeat a meritorious matter and the cause of justice (ii) the approach of the Court should not be highly technical, (iii) the Court should prefer substantial justice when a substantial justice verus other technical considerations are pitted SCA/25130/2007 5/8 JUDGMENT against each other and (iv) there should be a non-deliberate delay element on the party of the aggrieved party. 9. Sec.5 of the Limitation Act, 1963 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.” 10.Thus, it is clear that the statute provides extension of prescribed period in certain cases. Under Section 32A of the Act, there is nothing to show that the Court is prevented from exercising the discretion beyond the period of 90 days. This being the position, there is no absolute restriction, and the Court can entertain an appeal even beyond the period prescribed in deserving cases. 11.In the instant case, the petitioner has clearly stated that the order in question was served at the old addres and was received by the SCA/25130/2007 6/8 JUDGMENT petitioner only in April, 2007 and there is no deliberate delay on the part of the petitioner. The delay that has been occasioned can therefore be said to be beyond the control of the petitioner. This Court is, therefore, of the considered opinion that the respondent no.2- appellate authority ought to have accepted the appeal of the petitioner and condoned the delay and that would at the most result in the decision of the appeal on merits. In this connection, See – (i) Integrated Proteins Pvt.Ltd. vs. Chief Controlling Revenue Authority, reported in [2007] 15 G.H.J. (143) relevant portion at para-4 of the judgment which reads as follows: “4.........If there is no express exclusion of applicability of sections 4 to 24 of the Limitation Act, 1963, the same are applicable for condonation of delay in an appeal preferred before appellate authority under Sec.32-B of the Bombay Stamps Act, 1958. The appellate authority ought to consider the delay condonation application as per sections 4 to 24 of the Act of 1963 SCA/25130/2007 7/8 JUDGMENT whenever any appeal is preferred under section 32 of the Act of 1958. Looking to the provisions of the Act of 1958, there is no provision for exclusion of applicability of sections 4 to 24 of the Act of 1963. Hence, as per sub-section (2) of section 29 of the Act of 1963, sections 4 to 24 of the Act of 1963 shall be applicable even to appeals preferred under Section 32-B of the Bombay Stamps Act, 1958. This aspect of the matter has also not been properly appreciated by the appellate authority.” 12. Having regard to the facts and circumstances of the present case, therefore, interest of justice would be better served if the delay in this proceeding is condoned and the appellate authority is directed to consider the appeal on merits. 13. For the foregoing reasons,the delay caused in filing the appeal before the appellate authority is condoned. The order 5/9-10-2006 passed by the respondent no.3- authority is quashed and set aside. The SCA/25130/2007 8/8 JUDGMENT matter is remanded to the respondent no.2- appellate authority. The respondent no.2- appellate authority is directed to accept and hear the appeal of the petitioner in accordance with law and shall dispose of the same as early as possible. The respondent no.2-appellate authority shall take into consideration the decisions cited in this judgment while deciding the appeal of the present petitioner. Rule is made absolute accordingly with no order as to costs. (M.D.Shah,J.) lee.