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SCA/949/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 949 of 2009
=========================================
VIMAL
CHITRANJAN POTDAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
MR UMANG K
CHOKSI for Petitioner(s) : 1,
Mr. Amit Patel
Asstt. GOVERNMENT PLEADER for Respondent(s) : 1,
None for
Respondent(s) : 2 - 3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 04/02/2009
ORAL
ORDER
1. Rule.
Mr. Amit Patel learned Assistant Government Pleader waives service of
rule on behalf of the State.
2. The
petitioner has filed this petition under Article 226 and 227 of the
Constitution of India praying for quashing and setting aside the
order dated 4th December 2003 and another order dated April 2006
passed by respondent No. 3 i.e the Collector of stamp/Deputy
Collector in respect of sale deed No. 1818 /2002.
3. Heard
Mr. Umang Choksi learned advocate appearing for the petitioner and
Mr. Amit Patel learned Assistant Government Pleader appearing for
the respondent State.
4. It
is the case of the petitioner that the sale deed was executed on 11th
July 2002 before the Sub Registrar Paldi, Ahmedabad and thereafter
respondent No. 3 issued printed notice in response to which the
petitioner has filed his reply. However, without considering the
reply and without supplying any material, the order was passed on
4th December 2002 which was received by the petitioner late and after
receipt of the said order the appeal was filed on 1st March 2005
after depositing the amount of 25% on 17th February 2004. Since the
petitioner has not heard in the matter till 20th January 2009 the
petitioner enquired with the respondent authority and the
petitioner was informed that the appeal was sent back by respondent
No. 2 to the respondent No. 3. The petitioner thereafter received
the order on 23rd January 2009 it was a cyclostyled order and it was
simply stated in the said order that the application was not filed
within time and hence, no action was taken thereby. Mr Choksi has
therefore submitted that it was not a speaking order and the same
authority cannot decide its appeal.
5. Mr.
Amit Patel learned Assistant Government Pleader appearing for the
respondent has submitted that the order of April 2006 is challenged
in 2009 before this Court and hence, the petition should not be
entertained.
6. Having
heard the learned advocates appearing for the parties and having
considered the facts and circumstances of the case as well as the
documents produced on record, the Court is of the view that the
order dated April 2006 is received by the petitioner only on 23rd
January 2009 and the present petition is filed on February 2009.
Thus, it cannot be said that the petition is not filed within time.
Since, the order passed by respondent No. 3 is a non-speaking order
and he has no authority to pass such order as under the provisions
of the Act once an application is filed the same has to be forwarded
to the Chief Controller of revenue authority who is competent to
decide the said application under the law.
7. In
the above view of the matter the order dated 11th September 2006
passed by respondent No. 3 is hereby quashed and set aside and the
matter is remanded to him with a direction to make a reference to the
Chief Controller of Revenue Authority to decide the said reference
in accordance with law. The Chief Controller will decide the same in
three months from the date of receipt of the certified copy/writ.
8. Subject
to the aforesaid direction and observation this petition stands
disposed of. Direct service is permitted.
(K.A.Puj,J.)
mary//
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