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SCA/967720/2008 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9677 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
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 ?
=========================================================
VIKRAM
KANTILAL DESAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
UMANG K CHOKSI for Petitioner(s) : 1,
MR LR
PUJARI, AGP for Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 25/07/2008
ORAL
JUDGMENT
Rule.
The learned AGP waives notice of rule.
In
the present petition, the challenge of the petitioner is against the
order passed by the Deputy Collector as well as the Appellate
Authority, whereby the Appellate Authority has dismissed the appeal
on the ground that the same is presented after period of limitation
as if it has no power to condone the delay.
This
Court would have considered the matter on the aspect as to whether
approach on the apart of the Appellate Authority was justified on
the face of the judgement of this Court, having taken the view that
it has power to condone the delay by applying Section 5 of the
Limitation Act. However, learned Asst. Government Pleader appearing
that the matter may be remanded to the Deputy Collector as if the
appeal is allowed, and Deputy Collector shall decide the matter
afresh. He only submitted that the petitioner may appear before the
Deputy Collector within two weeks from today.
In
view of the above declaration made on behalf of the State
Government, the impugned order passed by the Deputy Collector for
assessment of the stamp duty as well as the order of Appellate
Authority for rejection of the appeal on the ground of limitation
are quashed and set aside with the direction that the matter shall
stand restored to the Deputy Collector.
The
petitioner shall appear before the Deputy Collector within two weeks
from today. The Deputy Collector shall decide the matter in
accordance with law after giving opportunity of hearing to the
petitioner and shall pass the order.
It
is hardly required to be stated that until a fresh order is passed
by the Deputy Collector, there shall be no further recovery. The
amount deposited, if any, by the petitioner pending the appeal,
shall remain as the deposit and shall be subject to the final order
which may be passed by the Deputy Collector inasmuch as if there is
no assessment of the additional stamp duty, the amount shall be
refunded to the petitioner and if there is assessment, the amount
may be adjusted in accordance with law, without prejudice to the
rights and contentions of the petitioner to prefer an appeal, as
may be permissible in law.
The
petition is allowed to the aforesaid extent. Rule made absolute
accordingly. No order as to cost. D.S.
(JAYANT PATEL, J.)
*bjoy
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