S.P. Bharucha, J.
1. This writ petition impugns an order passed by the Chief. Controlling Revenue Authority, Bombay, under Section 25 of the Bombay Court-fees Act, 1959, levying a penalty upon the petitioner.
2. On October 28, 1977 one Keshav Balkrishna Joshi died at Bombay. The petitioner is his widow. The late Keshav left a will dated April 15, 1970 where-under the petitioner is the universal legatee. On November 16, 1978 the petitioner filed in this Court a petition for letters of administration, with the will annexed, of the estate of the late Keshav. The estate was shown to include an immovable property at Shivaji Park, Bombay. The petitioner valued the immovable property at Rs. 60,289.00. The valuation was based upon the report of Messrs. Vinayak K. Tharthare and partners, Architects. The total estate was valued at Rs. 65,118.23 and Rs. 2,536.00 was paid as court-fee thereon. On May 7, 1980 letters of administration, with the will annexed, were granted to the petitioner.
3. On October 6, 1982 the Superintendent of Stamps wrote to the Prothonotary & Senior Master stating that it had been found that the valuation of the immovable property was Rs. 1,27,567.00 according to a valuation made by the Assistant Director of Town Planning, Bombay, and that there had, therefore, been an under valuation by Rs. 67,278.00. The letter required the Prothonotary to amend the grant and to direct the petitioner to forward it to the stamp office determining the additional Court-fee. A copy of the letter and the Valuation report were sent to the petitioner. On October 19, 1982 the petitioner's attorneys wrote to the Superintendent of Stamps stating that the petitioner, without prejudice to her rights and contentions, accepted the valuation of the Assistant Director of Town Planning and was willing to pay the deficit in court-fee. The letter stated that there had been no intention of fraud or to delay payment. It asked that the additional duty be determined. On December 21. 1982 the Chief Controlling Revenue Authority, Bombay, addressed a notice to the petitioner's attorney calling upon the petitioner to show cause why penalty should not be imposed upon her under Section 25 of five times 'the entire Court-fee, which works out to Rs. 17,865/-.' On January 19, 1983 the petitioner's attorneys showed cause on behalf of the petitioner. They set out the facts and reiterated that the petitioner had not the slightest intention of committing fraud or of delaying payment of Court-fee; the immovable property had been valued by an architect specifically for the purposes of obtaining letters of administration and, pursuant to that valuation, the value had been shown at Rs. 60,289.00.
4. A personal hearing was given when counsel appeared on behalf of the petitioner.
5. On April 27, 1983 the Chief Controlling Revenue Authority, Bombay passed the impugned order. The first four paragraphs thereof set out the facts. In the fifth paragraph counsel's contentions are summarised, viz., that the petitioner had relied upon the Valuation report prepared by a professional architect and was justified in assuming its correctness. There had been no intention to defraud. There had been a difference between the two valuations by reason of the method adopted in fixing the valuation of the owner-occupied portion of the immovable property. The sixth paragraph of the order contains the reasoning of the Chief Controlling Revenue Authority and reads thus :
Since the under valuation was not challenged within the prescribed period of one month, it can naturally be construed that the party accepts the under valuation. They also accept that a low court fee has been paid in this case before the issue of grant and provision of Section 25 of the Court Fees Act, 1959 has been attracted.
6. In view of this reasoning the Chief Controlling Revenue Authority, purporting to 'take a lenient view, 'imposed' a penalty to the extent of five times the deficit court-fee, i.e.. Rs. 3,572,65 X 5 = Rs. 17,863.25':
Section 25 reads thus :
Where any person on applying for probate or letters of administration has estimated the estate of the deceased to be of less value than the same has afterwards proved to be, and has in consequence paid too low a court-fee thereon, the Chief Controlling Revenue Authority for the local area in which the probate or letters has or have been granted may, on the value of the estate of the deceased being verified by affidavit as affirmation, cause the probate or letters of administration to be duly stamped on payment of the full court-fee which ought to have been originally paid thereon in respect of such value and of the further penalty, if the probate or letters is or are produced within one year from the date of the grant, of five times, or if it or they, is or art produced after one year from such date, of twenty times, such proper Court-fee, without any deduction of the court-fee originally paid on such probate or letters: Provided that, if the application be made within six months after the ascertainment of the true value of the estate, and the discovery that too low a Court-fee was at first paid in consequence of a mistake or of its not being known at the time that some particular part of the estate belonged to the deceased, and without any intention of fraud or to delay the payment of the proper court-fee, the said Authority may remit the said penalty, and cause the probate or letters to be duly stamped on payment only of the sum wanting to make up the fee which should have been at first paid thereon.
7. The proviso is of much importance. The words 'the said Authority may remit the said penalty' therein must in the context be read as 'the said Authority shall remit the said penalty'. He shall remit the penalty if (i) an application is made within six months after the ascertainment of the true value of the estate, and (ii) he is satisfied that the short payment of court-fee was made (a) in consequence of a mistake, or (b) in consequence of its not being known at the time that some particular part of the estate belonged to the deceased, (c) without any intention of fraud, and (d) without any intention of delaying the payment of the proper court-fee. To all these aspects the Authority is bound to apply his mind and show that he has done so in a speaking order.
8. In the instant case the chief controlling revenue authority has not applied his mind to counsel's contention that the petitioner had based the original valuation on an architect's report and had not been improperly motivated. It was a contention of very great substance. Instead, the Authority had, it would appear, inferred that, because the petitioner had accepted the higher valuation, she had all along known that the original valuation was an under valuation, made either to defraud or delay. The inference is unjustified in view of the petitioner's architects' report and her attorneys' letter which stated that the higher valuation was accepted by her without prejudice to her rights and contentions.
9. Acceptance of the higher valuation does not necessarily mean that the original valuation was a deliberate under valuation made with the intention to defraud or delay. The reason for acceptance could as well be the fact that it would require some expenditure to contest the higher valuation in this Court under Section 28 and the assessee might well prefer to pay what is found to be the deficit.
10. In this view of the matter, the impugned order is set aside. Mr. Kotwal does not press for costs.