SCA/1940/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1940 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 ? ========================================================= HIGHSPIN (GUJARAT) PRIVATE LTD - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS AMRITA AJMERA for Petitioner. Mr.U.H.Oza, AGP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 01/02/2008 ORAL JUDGMENT 1. Rule. Learned AGP Mr. U.H.Oza waives service on behalf of the respondents. 2. By way of the present petition, the petitioner SCA/1940/2008 2/7 JUDGMENT has challenged the legality and validity of the order dated 3-6-2003 passed by the respondent no.3-Depuuty Collector, Stamp Duty Valuation Organisation, Surendranagar as well as the order dt.11-10-2007 passed by the respondent no.2-Chief Controlling Revenue Authority and Superintendent of Stamps, Gandhinagar, rejecting the appeal of the petitioner on the ground of delay. 3. Heard the learned Advocates for both the sides. 4. Learned Advocate for the petitioner has contended that the respondent no.2-Deputy Collector, Stamp Duty Valuation Organisation has not furnished the basis on which the higher market value of the property has been determined by him in the notice, and therefore, the impugned order is thoroughly a non speaking order. The learned Counsel next contended that the property in question was purchased during public auction before the Court of Civil Judge (S.D.), Surendranagar on 23-8-1990 and the stamp duty as ordered by the learned Tribunal was also paid, and thereafter, after 12 years the proceedings are initiated by the respondent no.3-Deputy Collector. According to the learned Counsel, the respondent no.3 SCA/1940/2008 3/7 JUDGMENT had determined the market value of the property in question at Rs.22,00,000/- and ordered payment of deficit stamp duty of Rs.1,36,600/- and fine of Rs.500/- merely on conjectures and surmises without assigning any reason whatsoever. According to the learned Counsel the impugned order suffers from the vice of non compliance of sub-rule 2 of Rule 4 of the Rules. The learned Counsel also contended that the respondent no.3-Deputy Collector has also failed to follow the procedure as also the guidelines provided in Rules 4 and 8 of the Bombay Stamp (Determination of Market Value of Property Rules 1984. The learned Counsel finally contended that the appellate authority has also not properly appreciated the provisions of the Limitation Act, 1963 while refusing to condone the delay and rejecting the appeal on the ground of delay. 5. As against that, the learned AGP supported the order passed by the respondent no.2- appellate 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 as provided under Sec.32B of the Bombay Stamps Act,1958. SCA/1940/2008 4/7 JUDGMENT 6. The question that now remains to be considered in this petition is whether the authority ought to have condoned the delay in question or not. 7. 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. 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 SCA/1940/2008 5/7 JUDGMENT 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.” 8. 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 period even beyond the period prescribed in deserving cases. 9. 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 notice appears to have been issued by the respondent no.2-authority after more than 12 years. This Court is, therefore, of the view that the respondent no.2-appellate authority ought to have condoned the delay and that would at SCA/1940/2008 6/7 JUDGMENT 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 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 SCA/1940/2008 7/7 JUDGMENT authority.” 13. In light of what is discussed hereinabove, the impugned order passed by the appellate authority rejecting the appeal on the ground of delay suffers from the vice of non application of mind. Hence, the delay in filing the appeal is hereby condoned.In the interest of justice matter deserves to be remanded to the appellate authority. 13.In the result, the order passed by the respondent no.2-appellate authority dated 11-10-2007 is hereby quashed and set aside. The matter is remanded to the respondent no.2-the Chief Controlling Revenue authority and Superintendent of Stamps, Stamp Duty Valuation Organization, Sector 13, “KH” Road, Gandhinagar who will after giving opportunity of hearing to the petitioner decide the same on merits and in accordance with law keeping in mind the decision cited hereinabove. Rule is made absolute accordingly with no order as to costs. (M.D.Shah.J.)