Rukhiben Hirabhai Desai vs State Of Gujarat
2021 Latest Caselaw 18330 Guj

     C/SCA/14605/2021                                  ORDER DATED: 13/12/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14605 of 2021

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                              RUKHIBEN HIRABHAI DESAI
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR TATTVAM K PATEL(5455) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
NOTICE UNSERVED(8) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                  Date : 13/12/2021

                                   ORAL ORDER

1. By way of this petition the petitioner has challenged the order dated 23.08.2021 passed below stay application in Revision Application No.TEN / BA/ 102 / 2020 passed by the Gujarat Revenue Tribunal.

2. Since the challenge in this petition is to the interim order passed by the Gujarat Revenue Tribunal in Revision Application, with consent of learned advocates for the parties, matter is taken for final hearing.

3. Learned Advocate Mr.Tatvam Patel for the petitioner submits that while rejecting the application for stay preferred by the present petitioner vide order dated 23.08.2021, the Gujarat Revenue Tribunal has not assigned any reason. He draws attention of this Court to the second part of the order impugned in this petition wherein it is specifically mentioned that the Gujarat

C/SCA/14605/2021 ORDER DATED: 13/12/2021

Revenue Tribunal has considered oral arguments, the stay application as well as revision application and the evidence produced by the petitioner along with the revision application preferred by the petitioner before it, however, merely by making reference of the aforesaid application and without assigning any reason or without recording any of the submission made by the petitioner before the Gujarat Revenue Tribunal, the Gujarat Revenue Tribunal proceeded to decide the stay application of the petitioner and vide order dated 23.08.2021 rejected the stay application preferred by the petitioner.

3.1 Mr.Patel submits that once the Gujarat Revenue Tribunal has recorded in the order that he has heard the petitioner and has considered oral arguments, stay application as well as the evidence produced by the petitioner along with the revision application, therefore the authority is bound to consider the same and to pass speaking order by discussing the same while granting or refusing the interim relief in favour of the petitioner. In the instant case, learned advocate Mr.Patel submits that the Gujarat Revenue Tribunal has not done the same and though the order runs into two pages, virtually it is unreasoned order in view of arguments advanced by the petitioner.

3.2 Mr.Patel relies upon the orders passed by this Court i.e. (i) order dated 26.11.2021 passed in Special Civil

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Application No.15142 of 2021 and (ii) order dated 01.12.2021 passed in Special Civil Application No.14640 of 2021 and submits that since in similar set of facts on the ground that the Gujarat Revenue Tribunal did not incorporate submissions made by the applicant while hearing stay application preferred by the petitioners of those petitions and failed to assign any reason while rejecting the interim relief application for stay, this Court has quashed and set aside the orders refusing the interim relief in favour of those applicants and remanded the matter back for consideration of stay application of the applicants afresh. Relying upon these two orders, referred above, Mr.Patel prays that same orders be passed in this petition as well.

4. Learned Assistant Government Pleader Mr.Jainil Parikh was provided with the copies of the orders passed in Special Civil Application No.15142 of 2021 dated 26.11.2021 and in Special Civil Application No.14640 of 2021 dated 01.12.2021, however, on going through the aforesaid two orders learned Assistant Government Pleader could not point out that these orders were passed in different set of facts or in different circumstances and, therefore, those orders are not applicable in the facts of the present case.

5. In view of the above, without entering into the merits and considering the fact that this Court in aforesaid two petitions as well as the coordinate Bench of

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this Court in Special Civil Application No.8272 of 2021 on 16.09.2021, under similar set of facts, passed the order whereby unreasoned order passed by the Gujarat Revenue Tribunal on application for stay was quashed and set aside and the matter was remanded back to learned Gujarat Revenue Tribunal for considering stay application preferred by the applicant afresh, it would be in the interest of justice to pass similar order on the same lines since the order impugned in the present petition appears to be an unreasoned order. In fact, in Special Civil Application No.14640 of 2021 in an order dated 01.12.2021 this Court, in paras:5 to 7, observed as under:

"5. In view of the aforesaid undisputed facts as well as in view of the fact that in a similar set of facts, the Coordinate Bench of this Court disposed of the Special Civil Application No.8272 of 2021 vide order dated 16.09.2021, was pleased to quash the un-reasoned order passed by the learned Gujarat Revenue Tribunal by relying upon the judgment of the Hon'ble Supreme Court in the case of Birwati Chauhdary and Others vs. State of Haryana and others reported in (2018) 9 SCC

458. Paragraphs no.6 of the order dated 16.09.2021 in Special Civil Application No.8272 of 2021 which was observed as under:

"6. Having heard learned advocates appearing for the parties and having gone through the order in question, it is self-

explanatory that one line order dated 11.2.2021, communicated vide communication dated 16.2.2021, reflecting on page 47 is not sustainable since the reasons are part of compliance of principles of natural justice. Emphasize of the reasons in every exercise of discretion either it is administrative or quasi judicial or judicial is

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well-explained by catena of decisions of Hon'ble the Apex Court and has emphasized that every order must be well supported by reasons and as such, on this count alone, the Court is of the opinion that the impugned order is unsustainable. To arrive at this conclusion, the Court is well supported by the decision of Hon'ble Apex Court in the case of Birwati Chaudhary and others Vs. State of Haryana and others reported in (2018) 9 SCC 458, in which since Hon'ble the Apex Court having found that interim order was not supported by reasons, the matter was remanded for fresh consideration. The relevant observations contained in para 6, 7, 8 and 9 are quoted hereunder: -

6. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and remand the case to the High Court to decide the ad- interim prayer made by the appellants (writ petitioners) afresh or / and consider disposing of the writ petition itself, as the case may be, in accordance with law.

7. The reason to remand the case has occasioned due to the fact that firstly, no adequate reason is given in the impugned order for not granting stay; and secondly; the reason given does not in itself justify the rejection having regard to the nature of controversy involved in the writ petition.

8. In short, justifiable reason (s) to support either the grant or rejection need(s) to be stated keeping in view the facts and the law applicable to the controversy involved. It is not so found in the impugned order and hence the order of remand is called for to decide the matter afresh in accordance with law.

9. In view of the foregoing discussion, the appeal succeeds and is accordingly

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allowed. Impugned order is set aside and the case is remanded to the High Court to decide the issue afresh on merits strictly in accordance with law without being influenced by any of our observations made above, which we have refrained to make having formed an opinion to remand the case to the High Court for the reasons mentioned above."

6. Relying upon the order dated 16.9.2021 passed in Special Civil Application No.8272 of 2021 this Court also had taken similar view and passed order dated 26.11.2021 in Special Civil Application No.15142 of 2021 on similar lines.

7. In view of the aforesaid undisputed facts, this Court is of the opinion that impugned order is not sustainable in the eye of law. Accordingly, the same deserves to be quashed and set aside.""

6. In view of the above, present petition also is required to be treated similarly and hence following order is passed.

6.1 Impugned order dated 23.08.2021 passed below stay application in Revision Application No.TEN / BA/ 102 / 2020 since un-reasoned is hereby quashed and set aside and as a consequent thereof, respondent No.1 is directed to re-hear the interim relief issue of the petitioner and after extending appropriate opportunity, a decision shall be taken afresh by assigning reasons.

6.2 It is made clear that this Court is not expressing any opinion as to whether interim relief to be granted or not and same shall be independently decided by the authority

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concerned;

6.3 this exercise of passing a fresh order on the issue of interim relief is directed to be concluded within a period of twelve weeks from the date of receipt of the copy of writ of this order.

Direct service permitted.

(NIRZAR S. DESAI,J) MISHRA AMIT V.