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SCA/4054/2010 6/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4054 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
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 ?
=========================================================
MAHADEV
ENTERPRISE - Petitioner(s)
Versus
DEPUTY
COLLECTOR - Respondent(s)
=========================================================
Appearance
:
MR
MM SAIYED for
Petitioner(s) : 1,
MS MANISHA NARSINGHANI, Assistant Government
Pleader for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date : 18/06/2010
ORAL JUDGMENT
The petitioner has filed
this petition under Article-226 of the Constitution of India praying
for quashing and setting aside the impugned order dated 26.5.2006
passed by the Dy. Collector, Stamp Duty Valuation Department,
Bharuch.
This Court has issued
notice on 7.4.2010. The Court has also asked the respondent to
clarify as to whether order dated 26.5.2006 produced at Annexure-B
at page-17 has been served on the petitioner and if it is served,
necessary proof thereof, be produced on the record of this petition.
Pursuant to the said
order affidavit-in-reply is filed by the Dy. Collector on 18.5.2010.
It is inter alia stated in the said affidavit that the first notice
was issued to the petitioner on 16.2.2006 and, thereafter, another
notice was sent to the petitioner on 22.3.2006 through Registered
Post A.D. Since the petitioner did not remain present the order was
passed on 26.5.2006. It is further stated that since the petitioner
did not pay duty as per order dated 26.5.2006 another notice under
the Amnesty Scheme 2007 was sent to the petitioner on 22.9.2007
whereby it was made clear that if the petitioner pays the duty
between 1.9.2007 to 31.10.2007 the petitioner would not be liable to
pay interest on the duty. Since the petitioner did not pay the
deficit stamp duty, on 12.3.2008 Boja, Entry was made by the
Mamlatdar. While looking at the entire affidavit-in-reply filed by
the Dy. Collector, it is nowhere mentioned as to on which date the
order was served on the petitioner. The question raised by the
Court was, therefore, not answered by the respondent.
Mr.M.M.Saiyed, learned
advocate appearing for the petitioner submits that the order was not
received by the petitioner and unless and until the said order is
received the petitioner would not be in a position to challenge the
said order either before the Appellate Authority or before this
Court. He has further submitted that the petitioner has applied for
the certified copy of the order only in March, 2010 and on receipt
of the said order petition was filed before this Court on 25.3.2010.
He has further submitted that the impugned order passed by the
authority is non-speaking and is cyclostyle order and as per the
settled legal position the said order is non est at law. He has,
therefore, submitted that the petition may be allowed and the
impugned order may be quashed and matter may be remanded back to the
Dy. Collector for deciding the whole matter afresh after giving an
opportunity of being heard to the petitioner.
Ms.Manisha Narsinghani,
learned Assistant Government Pleader, on the other hand, has
submitted that as per affidavit-in-reply filed by the Dy. Collector,
several particulars were given to the petitioner. Even after
passing of the order notices were issued and still the petitioner
has not taken any action. Even Boja Entry was effected in 2008 still
the petitioner has not bothered to ask for certified copy of the
order and only in 2010 the petitioner has made an application and,
thereafter, present petition is filed. She has, therefore,
submitted that the petition is not entertainable either on the
ground of delay and latches or even on the ground of alternative
remedy available to the petitioner. She has, therefore, submitted
that the petition deserves to be dismissed.
Having heard learned
advocate appearing for the petitioner and learned Assistant
Government Pleader appearing for the respondent and having gone
through the contents of the petition as well as documents and
affidavit-in-reply the Court is of the view that it is an admitted
position that there is no evidence produced on record of this
petition when the impugned order was served on the petitioner. It
is true that subsequently notices were issued and Boja Entry was
made. However, at that point of time also the impugned order was not
served on the petitioner. The petitioner got the order only in 2010
when he made an application for certified copy and, thereafter,
present petition is filed. There is also no dispute about the fact
that the impugned order is an appealable order and there is
efficacious remedy available to the petitioner. The petitioner can
challenge this order before the Chief Controlling Revenue Authority
after making payment of 25% of the deficit stamp duty. If the Appeal
and/or Revision is not filed in time it is open for the petitioner
to make an application for condonation of delay alongwith Appeal
which shall be considered in accordance with law.
In the above view of the
matter, without going into merits of the matter the Court hereby
disposes of this petition reserving liberty to the petitioner to
file Appeal and/or Revision against the impugned order before the
Chief Controlling Revenue Authority alongwith delay condonation
application explaining the circumstances causing such delay. If such
an Appeal and/or Revision is filed alongwith delay condonation
application within a period of 15 days from today the same shall be
considered by the authority in accordance with law on their own
merits.
Subject to the aforesaid
directions and observations this petition is accordingly disposed
off. Rule is made absolute to the above extent without any order as
to costs. Direct service is permitted.
(K. A. PUJ, J.)
kks
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