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LPA/532/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 532 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1489 of 2010
With
CIVIL
APPLICATION No. 3059 of 2010
In
LETTERS PATENT APPEAL No. 532 of 2010
=========================================
RAJENDRA
CHHAGANLAL VAYA - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR
UMANG K CHOKSI for
Appellant(s) : 1,
MR AJ DESAI, AGP for Respondent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 03/05/2010
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
Learned
single Judge dismissed the writ petition on the ground of delay. In
the present appeal, the appellant submits that in fact there was no
delay on the part of the appellant.
We
have heard the counsel appearing on behalf of the appellant and the
respondent State.
From
the record, it appears that sale deed No.3545 was registered on 24th
July 2001. After about two years, the Deputy Collector, Stamp Duty,
by order dated 10th April 2003, directed the appellant to
deposit the deficit stamp duty under section 32A of the Bombay Stamp
Act, 1958. Under section 32-B, an aggrieved person could have
preferred appeal within 60 days from the date of such oder after
depositing the statutory amount of 25% of the stamp duty. In case of
hardship, a person is entitled to waiver of 50% of the statutory
amount and such power of waiver is with the competent authority.
In
the present case, it will be evident that the appellant with an
intention to file appeal asked for waiver of 50% of the statutory
amount and the same was entertained by the Competent Authority, who
by order dated 24th June 2003 waived 50% of the amount and
permitted the appellant to deposit 12.5% of the stamp duty and
directed to prefer appeal within 15 days. The appellant, thereafter,
within two days deposited the amount and by third day preferred
appeal along with the receipt showing deposit of the statutory
amount.
We
have noticed that 60 days is the period of limitation for preferring
appeal under section 32B of the Act. Under the very same provision,
while statutory amount of 25% of the determined amount is required
to be deposited, the Competent Authority has been empowered to waive
the same upto 50%. Thus it will be evident that filing of the
appeal is depending on the order, if any, passed by the Competent
Authority in the petition for waiver of payment of part of statutory
amount. Such being the provision, if the matter remains pending
with the Competent Authority to pass order of waiver under proviso
to section 32-B of the Act, such period of pendency cannot be counted
for determining the period of limitation.
As
in the present case, application for waiver under proviso to section
32B was entertained by the Competent Authority and the appellant has
preferred appeal within the period prescribed under the said order,
the respondents cannot dismiss the appeal on the ground of
limitation.
For
the reasons aforesaid, order dated 23rd February 2010
passed by the learned Single Judge and the appellate order dated
7th April 2006 and the order dated 1st
February 2010 passed by the 2nd respondent are set aside
and the matter is remitted to the Appellate Authority to decide the
case on merit after notice and hearing the parties preferably
within three months. Both the appeal and CA stand disposed of with
the aforesaid directions. No costs.
(S.J.Mukhopadhaya, C.J.)
(Akil
Kureshi, J.)
(vjn)
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