Gujarat High Court
State Of Gujarat vs Amidhara Developers Pvt Ltd on 9 March, 2022
Bench: A.J.Desai
C/CA/1093/2021 ORDER DATED: 09/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1093 of 2021
In
F/LETTERS PATENT APPEAL NO. 13100 of 2021
With
F/LETTERS PATENT APPEAL NO. 13100 of 2021
In
SPECIAL CIVIL APPLICATION NO. 16243 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
F/LETTERS PATENT APPEAL NO. 13100 of 2021
In
SPECIAL CIVIL APPLICATION NO. 16243 of 2013
With
CIVIL APPLICATION NO. 2 of 2021
(FOR PRODUCTION OF ADDITIONAL EVIDENCES)
In
F/LETTERS PATENT APPEAL NO. 13100 of 2021
In
SPECIAL CIVIL APPLICATION NO. 16243 of 2013
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STATE OF GUJARAT
Versus
AMIDHARA DEVELOPERS PVT LTD
================================================================
Appearance:
MS SHRUTI PATHAK, AGP for the Applicant(s) No. 1,2,3
ADITYA A CHOKSI(7835) for the Respondent(s) No. 1
MR AJAYKUMAR CHOKSI(1853) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 09/03/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present application under Section 5 of the
Limitation Act, the State of Gujarat through Finance
Department as well as Sales Tax Officer, Morbi and also
Mamlatdar, Morbi, have prayed to condone the delay of 1583
days in preferring Letters Patent Appeal under Clause - 15 of
C/CA/1093/2021 ORDER DATED: 09/03/2022
the Letters Patent against oral order dated 14.10.2015 passed
by the learned Single Judge in Special Civil Application No.
16243 of 2013.
2. In response to notice issued by this Court, the respondents
have appeared and filed affidavit-in-reply on 26.08.2021.
3. The applicants - State authorities have filed affidavit-in-
rejoinder / further affidavit and have tried to explain the
delay caused in filing the appeal in detail and requested to
condone the delay.
4. Ms. Shruti Pathak, learned Assistant Government Pleader, by
taking us through the reasons, which are described in
affidavit in rejoinder dated 11.02.2022, has tried to explain
the reasons for not filing the appeal within prescribed period
of limitation. By taking us through the application as well as
Para - 7 of the affidavit in rejoinder / further affidavit, she
would submit that the financial department was in constant
touch with Morbi Unit and since the property in question is
located in Taluka and District Morbi. She would submit that
after receiving the opinion of the Government Pleader to
challenge the decision of learned Single Judge in the year
2015, a proposal was forwarded on 17.10.2016 to the
Finance Department. The Finance Department raised query,
vide communication dated 16.12.2016, and ultimately,
having received all the papers on 24.01.2019, appeal has
been filed during the pandemic.
5. Ms. Shruti Pathak, learned AGP, would further submit that
there would be huge financial loss to the State authority, if
the delay is not condoned and in such circumstances,
C/CA/1093/2021 ORDER DATED: 09/03/2022
lethargy shown on the part of the applicants may be
pardoned and delay may be condoned and appeal may be
heard on merits. In support of her submission, learned AGP
has relied upon the decisions in case of Nagaland Vs Lipok
AO & Ors. reported in (2005) 3 SCC 752 as well as in case of
G. Ramegowda, Major V. Spl. Land Acquisition Officer
reported in (1988) 2 SCC 142 and would submit that delay
may be condoned.
6. On the other hand, Mr. Aditya Chokshi, learned advocate for
the respondent No.1, has vehemently opposed this
application. He would submit that learned Single Judge
rendered the decision on 14.10.2015, whereas, the Letters
Patent Appeal is filed on 08.06.2021. He would further
submit that in the application, the applicants have tried to
explain sufficient reasons for filing the appeal at belated
stage, which were not plausible and therefore, further
affidavit has been filed to justify the reasons for condonation
of delay having no material produced on record. Though
certain communications have been referred in the affidavit,
not a single such communication is produced on record. He
would further submit that the State authority should have
filed the appeal within a reasonable time, even, the same
could have considered to condone the delay as the same is
filed within a reasonable time. However, in the present case,
the appeal has been filed almost after a period of six years
and eight months though those days, which have been not
considered, might be of pandemic, which began in March,
2020. He would further submit that subsequent to order
passed by learned Single Judge, appropriate entries were
mutated in the revenue record, and thereafter, the property
C/CA/1093/2021 ORDER DATED: 09/03/2022
was developed by putting a scheme of 48 plots and out of 48
plots, 36 plots have already been sold by a registered sale
deed in a span of six years. He would further submit that
those persons, to whom, the plots have been sold, are
bonafide purchasers and therefore, in such circumstances,
huge delay occurred in filing the appeal may not be
condoned. In support of his case, he has relied upon the
decision of the Hon'ble Supreme Court in case of Post Master
General and Others Vs. Living Media India Limited and
Another reported in (2012) 3 SCC 563, more particularly,
Para - 27 to 30 of the said decision.
7. We have heard learned advocates appearing for the
respective parties. Initially, In Para - 2 of the application, the
reasons for filing the appeal at belated stage has been
referred is as under:
"2. The delay has occurred because of following reasons:
14.10.2015 - The judgment case to be delivered.
10.12.2015 - The concerned Assistant Government pleader
gave the opinion.
17.10.2016 - The department has made a proposal to
challenge the judgment. The said proposal was forwarded
to the Government to challenge the said judgment dated
14.10.2015.
12.06.2019 - The Government has granted sanction /
approval for challenging the impugned judgment / order
passed by this Hon'ble High Court in Special Civil
Application No. 16243 of 2013.
18.06.2019 - Department has forwarded the papers to the
Government Pleader office for preparing Letters Patent
Appeal challenging the said impugned judgment.
C/CA/1093/2021 ORDER DATED: 09/03/2022
19.06.2019 - The office of the Government Pleader office
allotted the matters to the concerned Assistant Government
Pleader for drafting.
The concerned Assistant Government Pleader has called for
discussion with relevant case papers for drafting of appeal.
Thereafter due to Covid - 19 Pandemic the Sales Tax officer
had provided certain other papers at the belated stage,
which were relevant to be taken into consideration, hence,
the application was duly drafted, due to Covid - 19
pandemic there has been a lapse and delay in drafting the
said Letters Patent Appeal as there was a delay in providing
the details by the Sales Tax Officer which let to filing the
Letters Patent Appeal at a belated stage.
8. From the aforesaid chronology, it appears that the decision
was delivered by learned Single Judge on 14.10.2015 and
immediately, the concerned Assistant Government Pleader,
vide communication dated 10.12.2015, had opined to
challenge the said decision passed by learned Single Judge.
On 17.10.2016 the concerned department has made a
proposal to challenge the decision; however, no action has
been taken by the applicants. From the aforesaid paragraph,
there is no explanation at all as to what steps the applicants
have taken from October, 2015 to 12.06.2019; however, the
concerned authorities have tried to explain by filing further
affidavit and have referred that some communications were
going on between main office to the unit at Morbi; however,
not a single communication is produced on record and there
is no explanation as to what type of communications were
ensued between main office to the unit at Morbi. After
receiving the last communication in the year 2019, the
C/CA/1093/2021 ORDER DATED: 09/03/2022
applicants did not file the appeal for almost two years, even
not filed upto 2020 i.e. prior to pandemic of Covid - 19 and
the matter remained pending for almost two years and the
appeal came to be filed on 08.06.2021. Hence, we are not
satisfied with the reasons explaining in the further affidavit.
9. Apart from the above facts, it has been brought to the notice
of this Court by respondent No. 1 that the property is
developed by respondent No. 1 by putting a scheme of 48
plots and out of 48 plots, 36 plots have already been sold to
the individuals, who became the bonafide purchasers by
executing the registered sale deed during the period of six
years. In such circumstances, we are of the opinion that the
application has been filed at belated stage and the applicants
have not provided sufficient reasons. The decisions relied
upon by Ms. Shruti Pathak, learned AGP, is not helpful to
condone the huge and inordinate delay of 1583 days. The
decision of the Hon'ble Supreme Court in case of Post Master
General and Others (Supra) squarely applies to present case.
Hence we are of the opinion that there is no sufficient cause
shown by the applicants to condone huge and inordinate
delay caused in preferring the appeal. Hence, present
application stands disposed of as dismissed. Notice
discharged.
(A.J.DESAI, J)
(ANIRUDDHA P. MAYEE, J.)
*F.S. KAZI.....
