SCA/1143/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1143 of 2008 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 ? ========================================================= MICRO-FLAT DATUMS PVT LTD - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MP PRAJAPATI for Petitioner. Mr.U.H.Oza,AGP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 29/01/2008 ORAL JUDGMENT 1. Rule. Learned AGP Mr. U.H.Oza waives service on behalf of the respondents. SCA/1143/2008 2/8 JUDGMENT 2. The Deputy Collector, Stamp Duty Valuation Organisation, Jilla Seva Sadan, Room no.215, Anand has passed the impugned order dated 9-3- 2007 against the present petitioner-firm calling upon the petitioner to pay deficit stamp duty including fine of Rs.250/-aggregating Rs.5,96,480/-against which the petitioner had preferred appeal before the appellate authority. 3. It was the case of the petitioner-firm that the petitioner had purchased the properties situated at plot no.27 and 28 of Vithal Udyognagar GIDC admeasuring about 4274 sq.mtrs. and 742.19 sq.mtrs According to the pettioner firm, the petitioner had executed a sale-deed on 18-11- 1998 and also paid the prevalent market price, however, the Sub- Registrar considered the transaction as “Binami assignment” and considered higher market value of Rs.59,98,300/- in respect of the property in question. Subsequently, two notices came to be issued by two different Deputy Collector of Stamps under Rule 4 which were in printed form by filling up gaps without signature but by affixing seal of the signature. According to the petitioner, the petitioner had replied SCA/1143/2008 3/8 JUDGMENT vide communications dated 28-2-2000 and 27-7- 2000, but the respondent authority had in a casual manner, without application mind, passed the impugned order which remained unnoticed through oversight. 4. Feeling aggrieved by and being dissatisfied with the said order, the petitioner preferred appeal along with delay condonation application. The respondent no.1-authority failed to exercise his discretion of condoning the delay and rejected the application of the petitioner whereby the appeal was not entertained. Hence, the present petition. 5. Learned Counsel for the petitioner contended that the respondent no.1-authority had erred in holding that the appeal is barred by limitation as the prescribed period was over. According to the learned Counsel, the respondent no.1- 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.1- appellate SCA/1143/2008 4/8 JUDGMENT authority 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 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 SCA/1143/2008 5/8 JUDGMENT 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 remained unnoticed through oversight and there is no deliberate delay. The delay that has been occasioned can therefore be said to be beyond the control of the petitioner. Even the impugned order appears to have been passed by the respondent no.2-authority after more than six years. This Court is, therefore, of the considered opinion that the respondent no.1- SCA/1143/2008 6/8 JUDGMENT appellate authority ought to have 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 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 SCA/1143/2008 7/8 JUDGMENT 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 passed by the respondent no.1-appellate authority is quashed and set aside. The matter is remanded to the respondent no.1-appellate authority. The respondent no.1-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.1-appellate authority shall take into consideration the decisions cited in this judgment while deciding the appeal of the present petitioner. Rule is SCA/1143/2008 8/8 JUDGMENT made absolute accordingly with no order as to costs. (M.D.Shah,J.) lee.