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SCA/2982520/2007 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 29825 of 2007
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 ?
=========================================================
BHIKHABHAI
NARJIBHAI PATEL - Petitioner(s)
Versus
DEPUTY
COLLECTOR & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AM PAREKH for
Petitioner(s) : 1,
MR LR PUJARI, AGP for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 25/07/2008
ORAL
JUDGMENT
Rule.
Mr.Pujari, learned AGP waives notice of rule for respondent State.
In
this 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, Mr.Pujari, learned AGP appearing for the
respondent State Authorities stated 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 submitted that the
petitioner concerned 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 concerned 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 concerned 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 petitioners concerned and if there is
assessment, the amount may be adjusted in accordance with law,
without prejudice to the rights and contentions of the concerned
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.
25.7.2008 (Jayant
Patel, J.)
vinod
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