SCA/8697/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8697 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 ? ========================================================= RATNABAI NIRMALBHAI AHIR - Petitioner(s) Versus DEPUTY COLLECTOR & 2 - Respondent(s) ========================================================= Appearance : MR SANDEEP N BHATT for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MS BHAVIKA KOTECHA, AGP for Respondent(s) : 3, DS AFF.NOT FILED (N) for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 28/07/2008 ORAL JUDGMENT
Rule.
Ms. Bhavika Kotecha learned AGP waives notice of rule.
In
the 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
in the respective petition 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 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 concerned petitioners 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.
(JAYANT PATEL, J.)
Suresh*