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SCA/635/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 635 of 2010
=========================================================
VISHALKUMAR
MAHASUKHLAL SHAH - Petitioner(s)
Versus
DEPUTY
COLLECTOR (STAMP DUTY) & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SL VAISHYA for
Petitioner(s) : 1,
NOTICE NOT RECD BACK for Respondent(s) : 1 -
3.
MR JK SHAH, ASST GOVERNMENT PLEADER for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/02/2010
ORAL
ORDER
1. Rule.
Mr. J.K. Shah, learned AGP waives service of rule on behalf of
respondents.
2.
The petitioner has prayed to quash and set aside the notice dated
07.08.2009 passed by the respondent no. 1 in connection with order
dated 30.07.2003 passed by the respondent no. 1.
3. It
is the case of the petitioner that the petitioner challenged the
order passed by the respondent no. 1 authority herein dated
30.07.2003 demanding stamp duty under Article 43 of the Stamp Act of
Rs. 140210/- and penalty of Rs. 250/- from the petitioner before the
respondent no. 2 authority. However, while the appeal was pending
the respondent no. 1 issued notice dated 07.08.2009 to the
petitioner. Hence the present petition.
4. Heard
the learned counsel for the respective parties. It appears that the
appeal of the petitioner was not registered due to delay and the same
was not decided. When the statutory authority has been empowered to
hear the appeal against the order of the Deputy Collector, it is
required to be noted that the higher authority is required to
consider the decision of the lower authority on merits in order to
give substantial justice to the parties if there are any error on the
part of the lower authorities.
5. In
the case of Collector, Land Acquisition, Anantnag Vs. Katiji,
reported in AIR 1987 SC 1353 it is held that refusing to
condone delay can result in a meritorious matter being thrown out at
the very threshold and cause of justice being defeated. Under the
circumstances, the respondent authority ought to have waited for the
competent authority to consider the appeal on merits, however subject
to the petitioner depositing cost for the delay. There is no dispute
in the aspect of delay as is admitted by learned advocate for the
petitioner and he has agreed to pay cost for the same.
6. In
the premises aforesaid, the impugned notice for recovery passed by
respondent no. 1 dated 07.08.2009 is hereby quashed and set aside.
The delay caused in filing the appeal is condoned. The matter is
remanded to the respondent no. 2 who shall pass fresh orders on
merits, as early as possible, after hearing the petitioner and on
payment of cost of Rs. 2500/-. The petition stands disposed of
accordingly. Rule is made absolute to the aforesaid extent with no
order as to costs. Direct service is permitted.
(K.S.
JHAVERI, J.)
Divya//
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