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SCA/2837/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2837 of 2010
===================================
LALITBHAI
POPATBHAI SORATHIYA - Petitioner
Versus
DEPUTY
COLLECTOR & 2 - Respondents
===================================
Appearance
:
MR
RAJESH K SHAH for Petitioner.
MR RASHESH RINDANI, AGP for
Respondent No. 3.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 08/04/2010
ORAL ORDER
The
petitioner has filed this petition under Article 226 of the
Constitution of India praying for quashing and setting aside the
decision taken by the respondent No.1 not to entertain the appeal of
the petitioner and communication dated 15.02.2010 of the Deputy
Collector, Stamp Duty, Rajkot. The petitioner has also prayed for
the direction to the respondent authorities not to take coercive
step in pursuance of the notice dated 05.01.2010 issued under Rule
118 of the Bombay Land Revenue Rules.
This
Court has issued notice on 02.03.2010. Pursuant to the notice, Mr.
Rashesh Rindani, learned Assistant Government Pleader appears and
affidavit-in-reply is filed on behalf of the respondents. Along
with the reply, several documents are placed on record. The
petitioner has also filed rejoinder.
Heard
Mr. Rajesh K. Shah, learned advocate appearing for the petitioner
and Mr. Rashesh Rindani, learned Assistant Government Pleader
appearing for the respondents.
The
short point involved in this petition is that the notices as well as
the final order passed by the respondent No.1 on 28.05.2002 were not
received by the petitioner. They came to know about this order only
when the notice dated 05.01.2010 was issued by the Deputy Collector
and thereafter, the petitioner made an application on 08.02.2010
asking for the Challan for the purpose of filing appeal against the
order of the Deputy Collector. The said application was rejected by
the Deputy Collector on 15.02.2010 on the ground that appeal is to
be filed within 60/90 days and since that period is over, the
request cannot be accepted. The petitioner thereafter filed the
present petition before this Court.
In
the affidavit-in-reply, xerox copy from the dispatch register is
produced wherein it is clearly stated that notice was issued by
ordinary post. Even the order was also issued under the ordinary
post. Mr. R. K. Shah, learned advocate appearing for the petitioner
relied on the provisions contained in Rule 7 (4) of the Bombay Stamp
(Department of Market Value of Property) Rules, 1984 which says that
the notice or order to the person concerned must be sent by Regd.
Post with acknowledgement. Admittedly, neither the notice nor the
order was served by Regd. Post. He has, therefore, submitted that
there was no service at all and even if it is assumed that the
notice was sent, it was not by Regd. Post and hence, there is no
valid service of the notice or order.
Considering
the above submissions of the petitioner, the Court is of the view
that the petitioner has rightly challenged the action of the
respondents before this Court. Hence, in the interest of justice,
the petitioner deserves to have an opportunity of challenging the
order of the Deputy Collector before the Chief Controlling Revenue
Authority. The request made by the petitioner was earlier rejected
which is improper and hence, the said communication dated 15.02.2010
is hereby quashed and set aside and the petitioner is permitted to
challenge the order dated 28.05.2002 of the Deputy Collector before
the Chief Controlling Revenue Authority by way of appeal. For this
purpose, the petitioner is liable to make payment of requisite
amount before his appeal is entertained on merits. However, the
action is now to be challenged after more than 8 years. The
petitioner is directed to deposit 50% of the deficit stamp duty by
way of deposit for the purpose of consideration of his appeal on
merits. Accordingly, the petitioner is hereby permitted to file an
appeal before the Chief Controlling Revenue Authority along with the
deposit of 50% of the stamp duty and on furnishing such appeal, the
Chief Controlling Revenue Authority is hereby directed to decide the
said appeal in accordance with law. Since more than 8 years have
already been passed, the petitioner shall file such appeal within 15
days from today and the Chief Controlling Revenue Authority shall
decide the said appeal, without raising the issue regarding
limitation, within six months from the date of receipt of such
appeal.
With
this direction and observation, this petition is accordingly
disposed of without any order as to costs.
Sd/-
[K. A. PUJ, J.]
Savariya
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