C/SCA/2998/2023 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2998 of 2023
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KISHANBHAI NATHUBHAI FOFANDI & 6 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR RC KAKKAD(389) for the Petitioner(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 2
MS KRUSHITA DAVE, AGP for the Respondent(s) No. 1 and 2
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/03/2023
ORAL ORDER
1. Draft amendment is allowed. Amendment to be carried out forthwith.
2. Rule. Learned AGP Ms.Krushita Dave waives service of notice of rule for respondent nos.1 and 2 and learned advocate Mr.Deepak Sanchela waives service of notice for respondent no.3.
3. Heard learned advocate Mr.Kakkad for the petitioner, learned AGP Ms.Krushita Dave for respondent nos.1 and 2 and learned advocate Mr.Deepak Sanchela for respondent no.3.
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C/SCA/2998/2023 ORDER DATED: 23/03/2023
4. Learned advocate Mr.Kakkad has submitted that the present petition is filed being aggrieved and dissatisfied with the order passed on 19.2.2022 by the rd learned 3 Additional District Judge, Gir Somnath vide Exh.12 in CMA No.DC/28/2020, whereby the learned District Judge rejected the application at Exh.1 under Section 5 of the Limitation Act filed by the petitioner for the condonation of delay in filing the appeal preferred under Section 70(4) of the Gujarat Municipalities Act, 1963 (`the Act' for short) with cost.
5. It is the case of the petitioners that the petitioners were elected members of the Veraval Patan Joint Municipality. The Regional Director of Municipality, Rajkot had initiated proceedings under the provisions of the Act and issued show cause notice under Section 70(2) of the Act, whereby the petitioner and others were called upon to show cause why the financial liability of Rs.10,55,966.69 paise be fastened upon them in view of the various resolutions dated 25.1.2022 passed in the interest of their brother and party and thereby caused loss of above mentioned amount to the municipality.
6. The petitioners have filed reply to the show Page 2 of 6 Downloaded on : Fri Mar 24 20:45:59 IST 2023 C/SCA/2998/2023 ORDER DATED: 23/03/2023 cause notice dated 7.11.2006. However, the petitioners submit that without giving any opportunity of personal hearing to lead the evidence of the witnesses to the petitioners and others, the Regional Director of Municipality, Rajkot vide order dated 23.5.2008 passed the order and thereby held that the petitioners and other members are responsible for loss of nagarpalika and ordered recovery of Rs.10,07,958/- from 21 members including the petitioner.
7. Being aggrieved and dissatisfied with the impugned order passed by the Regional Director of Municipality, the petitioners have preferred CMA No.29 of 2018 before the District Court, Gir Somnath, in which the learned District Judge, vide order dated 14.12.2018, quashed and set aside the order dated 23.5.2008 passed by the Regional Director of Municipalities and remanded back the matter to the Regional Director of Municipalities with a direction to give opportunity of hearing to the petitioners and others. The Regional Commissioner of Municipalities, Bhavnagar had passed ex-parte order on 15.1.2020 though application was given by the petitioners for adjourning the matter as the Page 3 of 6 Downloaded on : Fri Mar 24 20:45:59 IST 2023 C/SCA/2998/2023 ORDER DATED: 23/03/2023 learned advocate for the petitioners was suffering from Chikungunya and was not in a position to attend the proceedings. By the said order, it was held that the petitioners and others were responsible for the loss of municipality and directed to recover Rs.47,998/- from each petitioner in all 17 persons whose names are mentioned in the order.
8. It is submitted that thereafter, the petitioners have preferred CMA No.28 of 2020 on 26.9.2020 under the provisions of Section 70(4) of the Act before the District Court, Gir Somnath, whereby the petitioners have explained the cause of delay that as the courts were closed during the month of March and April 2020 due to covid which continued thereafter also and therefore the petitioners could not file application before 26.9.2020. Even then, the said application came to be rejected and the delay was not condoned and therefore this petition is filed.
9. In this regard, learned advocate Mr.Kakkad has also relied on the decision of the Apex Court in suo motu proceedings being Suo Motu Writ Petition (Civil) No.3 of 2020, whereby the Apex Court has directed to Page 4 of 6 Downloaded on : Fri Mar 24 20:45:59 IST 2023 C/SCA/2998/2023 ORDER DATED: 23/03/2023 consider the period of exemption from the period of limitation for the period from March, 2020 to February, 2022 and considering this aspect there is a delay of 29 days which is required to be condoned.
10. Learned AGP Ms.Dave and learned advocate Mr.Sanchela appearing for the respondents have supported the impugned judgment and order passed by the learned trial Court.
11. I have considered the rival submissions and the reasoning given by the learned trial Court. It is seems that the learned trial Court has taken hypertechnical view while deciding the application for condonation of delay, more particularly, by not considering the peculiar situation prevailing due to the pandemic covid-19 during that period.
12. Considering the judgment of the Apex Court in the case of AIR 1987 SC 1353 in the case of Collector, Land Acquisition, Anantnag and another V/s Mst.Katiji and Others reported in AIR 1987 SC 1353, the Court should not take pedantic approach of the matter and should not take hypertechnical approach and proceedings Page 5 of 6 Downloaded on : Fri Mar 24 20:45:59 IST 2023 C/SCA/2998/2023 ORDER DATED: 23/03/2023 of the parties and ultimately should be decided on merits, I am of the opinion that the learned trial Court has not considered the settled position of law and has committed error while rejecting the application for condonation of delay and therefore the impugned order is required to be quashed and set aside.
13. Accordingly, this petition is allowed. The rd impugned order passed on 19.2.2022 by the learned 3 Additional District Judge, Gir Somnath vide Exh.12 in CMA No.DC/28/2020, whereby the learned District Judge rejected the application at Exh.1 is quashed and set aside and the delay caused in filing the appeal is condoned. The learned lower appellate Court is directed to register the appeal and decide the same on merits, as expeditiously as possible preferably on or before 31.12.2023. Rule is made absolute. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 6 of 6 Downloaded on : Fri Mar 24 20:45:59 IST 2023