Gujarat High Court
Gujarat Industrial Development ... vs Gujarat Akruti Tcg Bio-Tech ... on 18 October, 2022
Bench: Umesh A. Trivedi
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20198 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 20033 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION
Versus
GUJARAT AKRUTI TCG BIO-TECH LIMITED
======================================
Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1,2
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1,2
MR SALIL M THAKORE(5821) for the Respondent(s) No. 1
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C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 18/10/2022
ORAL JUDGMENT
[1.0] Both these petitions under Article 227 of the
Constitution of India arise out of the order passed below
Exhs.13 and 14 whereby an application made by the
petitioners seeking restraint order against respondent -
original applicant before the appellate Court proceeding with
the hearing of the stay application prior to an application of
condonation of delay be heard as also an application made
requesting to grant time of four weeks to file Appeal before
higher forum against the order passed below Exh.13, which
came to be though granted but with the conditional order
directing the petitioners to maintain status-quo of the disputed
property as referred in paragraph 6(B)(i) and (ii) of the
application, Exh. 1 by both the parties for the aforesaid period,
in Civil Miscellaneous Application No.105 of 2022 filed before
the District Judge, Gandhinagar.
[2.0] As such, respondent herein entered into an
agreement with the petitioners on 07.02.2008 whereby
5,30,000 sq meters of land for phase II project situated at
GIDC, Savli on licence for development of industrial park on
payment of total amount of Rs.16,95,55,500/-, including cost of
land, water, power supply and general infrastructure cost etc,
possession of the said land was given to the respondent herein
on 08.02.2008. Vide corrigendum dated 09.11.2008, the plot
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
size was reduced to 5,08,548.07 sq meters. As such, allotment
of the land pursuant to an agreement on payment of amount,
as aforesaid, is not in dispute in these petitions, and therefore,
no further details are necessary for the decision of these
petitions.
[2.1] However, show cause notice under Section 4(1) of
the Gujarat Public Premises (Eviction of Unauthorized
Occupants) Act, 1972 (hereinafter referred to as 'GPP Act')
came to be issued against the respondent herein calling upon
it to show cause why an order of eviction should not be made
on the grounds mentioned in the show cause notice. After the
respondent was served with the notice and tendered reply, the
petitioners made an order dated 18.07.2022 under Section
5(1) of the 'GPP Act' ordering eviction of the respondent
holding it to be unathorized occupant of the said premises
directing it to vacate the premises on or before 23.08.2022
and handover possession to the DEE, GIDC, Savli, without fail.
The said order of eviction is claimed to have been served upon
the respondent herein on 22.07.2022 whereas the petitioners
have failed to show any date on which the said order came to
be served upon the respondent herein. Though nothing much
turns on it, it has relevance, if the petitioners initiate any
action further under the provisions of the 'GPP Act'.
[2.2] Since the order made under Section 5(1) of the
'GPP Act' by the petitioners is appealable within the time
prescribed under Section 9 of the 'GPP Act', the respondent
herein failed to file Appeal within time prescribed therein, and
therefore, alongwith the Appeal memo, stay application and
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
application for condonation of delay of 14 days combining the
prayer for stay of the impugned order came to be filed by the
respondent herein before the District Court, Gandhinagar on
20.08.2022. On the delay application, notice came to be
issued, which was made returnable on 22.08.2022, which
came to be served to the petitioners on 22.08.2022. However,
the learned advocate, who appeared on behalf of the
petitioners, vide Exh.4 application requested the Court to grant
time as no reply could be prepared and it was to be prepared
after obtaining certain necessary details from the petitioners.
However, learned advocate representing the petitioners before
the District Judge assured the respondent herein as also the
Court that till the next adjourned date, they will maintain
status-quo in respect of the property involved in the Appeal,
though it has not been reflected in the application for
adjournment filed on behalf of the petitioners but
endorsement by the respondent herein reflects the said
assurance, which is confirmed by the Court while passing an
order granting adjournment, which reads as under:
"As advocate Mr. Binniwale has agreed with the
endorsement, time be granted up to 30.08.2022"
[2.3] The fact remains that despite service of notice in
delay condonation application, petitioners sought for time,
which was granted by the Court on their assurance that till the
next date of hearing, they would maintain status-quo in
respect of the property involved in the Appeal. On
30.08.2022, the petitioners filed written reply to the
application for condonation of delay preferred by the
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
respondent herein and served a copy to the respondent also.
On receipt of the reply objecting to the condonation of delay,
the respondent herein vide application Exh.6 declared its
intention to file counter affidavit to the reply, which may
consume some time and in the meanwhile a strong
apprehension was shown in an application, Exh.6 that if the
assurance, which was given by the learned advocate for the
petitioners, is not extended further, they are likely to take
possession of the property involved in the Appeal, and
therefore, requested that till the hearing of the delay
condonation application as also main Appeal, a direction to
the petitioners is required to maintain status-quo in respect of
the property involved in Appeal or else the petitioners may
make all attempts of the respondent herein worthless and they
may make the Appeal even infructuous. Learned advocate for
the petitioners herein, who appeared for them before the
District Judge, endorsed the said application that the said
statement was till today i.e. 30.08.2022 as they were on
caveat and wanted to file reply and since they have already
filed their reply and are ready to argue the application and
since the respondent herein is asking for time, learned
advocate was unable to continue that statement and
specifically stated that the said statement of endorsement
comes to an end on that day. However, the said case was
adjourned on 03.09.2022. In the meanwhile, on 31.08.2022,
being Ganesh Chaturthi holiday, respondent herein received
notice through whatsapp on mobile of Mr. Bharat Shah,
Assistant Vice President of the respondent herein under Sub
Section (2) of Section 5 of the 'GPP Act' whereby the
competent Officer passed an order under Sub Section (2) of
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
Section 5 of the 'GPP Act' that as 30 days have passed from
the date of service of the eviction order under section 5(1) of
the 'GPP Act' and the respondent failed to comply with the
order, the competent Officer and Regional Manager appointed
and authorized Deputy Executive Engineer / Project Manager
(Recovery) of GIDC to take possession of the said premises on
02.09.2022 between 11:00 a.m. to 6:00 p.m. Though that
order is claimed to have been sent by RPAD, it was sent on the
whatsapp number of the Officer, as aforesaid, and Registered
A.D. and order through RPAD was received by the respondent
on 05.08.2022.
[2.4] That compelled the respondent herein to apply vide
Exh.7 to the District Judge to take up the case on board as they
had already reflected their apprehension even while seeking
time and the case was adjourned on 03.09.2022. The copy of
the said application requesting the Court to take up the case
on board was served to the learned advocate for the
petitioners but approaching the Court, by the whole day
exercise for the purpose, consumed lot of time and it could be
tendered at the closing hours of the Court only and it kept the
hearing on 01.09.2022. Thus, the hearing was fixed on the
next day i.e. 02.09.2022. On 01.09.2022, an application Exh.8
was also filed by the respondent serving copy to the learned
advocate representing the petitioners there who endorsed for
time to file reply and the Court kept it for reply and hearing on
02.09.2022. By the said application, Exh.8 the respondent
herein requested to pass an order directing the petitioners
herein to maintain the status-quo of the property involved in
Appeal so as not to frustrate the attempts made by the
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
petitioners and to have the decision on merit from the Court
concerned. The petitioners herein vide their reply by Exh.9 to
the application, Exhs.7 and 8, as aforesaid, objected to the
hearing of the stay application on the ground that until the
delay is condoned, there is no question of advancing the date
or granting any status-quo order or passing any order thereon.
On that day, i.e. 02.09.2022 vide Exh.10 transfer pursis,
learned advocate representing the petitioners there declared
that the learned advocate Mr. Chinmay Gandhi is authorized to
argue and address the Court on behalf of the petitioners
herein. Though nothing much turns on it, vide Exh.11, a list of
documents was produced before the Court producing copy of
the panchnama dated 02.09.2022, photographs dated
02.09.2022 claiming that possession of the premises is already
taken over by the petitioners. Not only that vide Exh.12
application, learned advocate for the petitioners representing
them before the District Court filed pursis declaring that
possession of the property in issue i.e. plot number mentioned
therein has been taken over by the competent authority
pursuant to the order dated 01.09.2022 under Sub Section (2)
of Section 5 of the 'GPP Act'. Though by an endorsement,
respondent herein disputed about taking over the possession
of the premises, as claimed, fact remains that before Court can
undertake hearing of any proceedings, may be the delay
condonation application, stay application or an Appeal, the
petitioners herein, who sought for an adjournment on the
ground that they were on a caveat and they want to file reply,
they made a statement that status-quo in respect of the
property shall be maintained, raised their hands from such
statement and have an audacity to declare before the Court
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
that possession is already taken over, and therefore, Appeal
filed by the respondent herein has become infructuous. Again
vide application Exh.13, learned advocate for the petitioners
herein before the District Court prayed therein to restrain the
respondent herein from proceeding with the hearing of the
stay application prior to the application of condonation of delay
being heard and decided, which was also endorsed by the
learned advocate for the respondent herein to the effect that
while praying for condonation of delay, they have a right to ask
for the prayer of injunction also, which is already prayed in it.
However, after hearing the parties, vide order dated
02.09.2022 passed below Exh.13, the application Exh.13 came
to be rejected. Immediately thereafter Exh.14 also came to be
filed by the learned advocate representing the petitioners
before the District Judge that they intend to challenge the
order passed below Exh.13 before the High Court, and
therefore, prayed for stay of the order passed below Exh.13 for
a period of four weeks. However, though the learned District
Judge granted time to the petitioners herein but imposed a
specific condition to maintain status-quo of the disputed
property as referred in paragraph 6(B) (i) and (ii) of the
application Exh.1 by both the parties for the aforesaid period,
as mentioned in it.
[2.5] Both these orders passed below Exhs.13 and 14 are
under challenge by way of aforesaid two petitions.
[3.0] Heard Mr. Chinmay Gandhi, learned advocate for
the petitioners. According to his submission, before the delay
condonation application is heard, the court is not empowered
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
to pass any order in the nature of stay /injunction. He has
further submitted that if that is so, before delay condonation
application is heard and decided, stay application, as
requested by the respondent, could not have been heard prior
thereto. Though no provision under which such request can be
made is even orally submitted, learned advocate for the
petitioners failed to show any precedent that in no case before
hearing and determining the application for condonation of
delay, no stay or injunction can be granted.
[3.1] He has further submitted that though Court granted
time to challenge the order passed below Exh.13, the Court
has granted status-quo of the disputed property as referred in
paragraph 6(B) (i) and (ii) of the application Exh.1, which is a
non speaking order. He has further submitted that it is
absolutely an unreasoned order, why Court had to, while
granting adjournment, grant status-quo, as aforesaid.
According to his submission, the learned Judge had no
jurisdiction to grant status-quo, as aforesaid, that too, in an
application for adjournment filed by the present petitioners.
He has further voiced the grievance that without hearing stay
application, no such order could have been passed in an
application seeking adjournment, which was granted.
[3.2] Mr. Gandhi, learned advocate for the petitioners,
with his usual vehemence, at his top of voice, submitted that
since an order under Sub Section (2) of section 5 of the 'GPP
Act' is already made and implemented, Appeal itself had
become infructuous, and therefore, no stay order could have
been granted by the Court below. He has further submitted
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
that in an application filed by the petitioners for adjournment,
there cannot be any stay /status-quo granted in favour of the
other side. It is fundamental basic violation of principle of
natural justice.
[3.3] He has further submitted that the impugned order
suffers from basic error as though panchnama dated
02.09.2022 alongwith photographs and an averment to the
effect that possession is already taken over of the premises in
question is made, even Court did not bother to look into it, and
therefore, according to his submission, these petitions are
required to be entertained by quashing and setting aside the
orders passed below Exhs.13 and also 14 directing the Court
below to hear the delay condonation application first and
thereafter the stay application. He has further submitted that
there is no prayer in the application Exh.14 for staying any
proceeding, and therefore, there cannot be an order of stay in
favour of the respondent herein. He has further submitted that
on that very day the Court did not permit the parties to argue
the case or hear the same on merit, and therefore also, the
order is without jurisdiction, more particularly, when it was
disclosed to the Court that the possession of the property is
already taken over. Despite that, the Court passed the
conditional order while granting adjournment directing status-
quo in respect of the property as referred to in paragraph 6(B)
(i) and (ii) of Exh.1 application. Referring to Section 9 of the
'GPP Act', it is submitted that Appeal against an order passed
by the competent Officer under Section 5 or Section 7 should
be filed within 15 days from the date when it is passed it.
While justifying an order appointing Officer to get the
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
possession of the premises under Sub Section (2) of Section 5
of the 'GPP Act', it is submitted that it has been done after 30
days, i.e., after Appeal period is over. He has further
submitted that under Section 8 of the 'GPP Act', the competent
Officer is empowered having same powers as are vested in
Civil Court under the Code of Civil Procedure, 1908, and
therefore, it can be elevated to the status of a judicial order,
which should not have been lightly interfered with, that too,
granting status-quo in respect of the property, as aforesaid, in
an application seeking adjournment by the petitioners in
favour of the respondent.
[3.4] Drawing attention of the Court to Section 17 of the
'GPP Act', it is submitted that the action of the competent
Officer and other authority is protected under the said
provision from suit, prosecution or other legal proceedings,
which is in good faith or intended to be done in pursuance of
the 'GPP Act'.
[3.5] In support of the aforesaid submission, learned
advocate for the petitioners has relied on a decision of this
Court dated 16.04.1996 in the case of Rakesh Karsanbhai
Vs. Kamuben w/o Vihaji Budhaji herself and guardian of
2 Ors rendered in Civil Revision Application No.272 of
1996 for a proposition that while dismissing the Appeal
preferred by a party, without assigning any reason, to grant
injunction restraining the other party from transferring or
alienating the suit land cannot be granted. For the very said
proposition while dismissing Exh.5 application /confirming that
order passed below Exh.5 application, no direction in the
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
nature of intimation to the Court as well as the plaintiff, if
pending the suit, the defendants therein transferred the suit
property in any manner whatsoever could be passed. He has
also relied on the decision of this Court in the case of Prakash
Vs. Ramchandra Brahmbhatt Vs. Thakor Lalsinh Ramtuji
rendered in Special Civil Application No.4362 of 2017
dated 15.11.2021 for a proposition that newly added
defendant, who purchased the property prior to grant of any
interim injunction, which was not even contested by the
existing defendant in the suit, when he moved an application
Exh.23 for vacating the injunction, Court could not have
granted counter injunction against him.
[3.5] The aforesaid decisions are cited to support his
assertion that in an application, Exh.14 seeking adjournment,
which was granted, the Court was not authorized to pass any
order of injunction therein.
[3.6] He has further relied on the decision in the case of
Municipal Corporation of Ahmedabad through the
Municipal Commissioner Vs. Voltas Limited and etc.
reported in 1995 (1) GLH 549, decision of the Supreme Court
in the case of Ram Kala Devi (Smt) Vs. Manager, Punjab
National Bank, Shamshabad and Others reported in
(1998) 9 SCC 558 as also in the case of Gagandeep
Pratishtan Pvt. Ltd. and Others Vs. Mechano and
Another reported in (2002) 1 SCC 475 for the proposition to
contend that even administrative delay was not considered to
be a ground to condone the same as also even a strong case
on merit does not require consideration while determining
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
application for condonation of delay and without considering
preliminary objection as to delay and maintainability of Appeal,
the Appeal could not have been disposed of and Court could
not have passed an order to appoint receiver having pressed
into service.
[3.7] He has relied on the decision of this Court in the
case of Petro Polyols Ltd. & Ors. Vs. Regional Manager,
Gujarat Industrial Development Corporation, Surat
reported in 2013 (1) GLR 518 again for the proposition that
sufficient cause must be shown praying for condonation of
delay and when wrong forum was selected as a result of
conscious decision and if equities are changed, in such
circumstances, delay cannot be condoned. However, all these
aforesaid decisions relied on by the learned advocate for the
petitioners are of no help to them on the issues involved in
these petitions.
[3.8] On the aforesaid submissions and the precedents
cited at the bar by the learned advocate for the petitioners, he
has requested that these petitions be admitted and allowed
quashing and setting aside the order of injunction in the form
of status-quo in respect of property as referred to in paragraph
6(B)(i) and (ii) of the application Exh.1 granted against them
while granting adjournment to challenge the order passed
below Exh.13 whereby their request to hear the delay
application first before proceeding to hear the injunction
application came to be rejected.
[4.0] As against that, Mr. Salil Thakore, learned advocate
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for the respondent herein, submitted that even prior to passing
of the final order under Section 5 (1) of the 'GPP Act', caveat
application came to be filed not only in the Civil Court, Savli
but before this Court on 11.07.2022 and 12.07.2022 whereas
the order came to be passed on 18.07.2022, which shows their
pre determined mind to frustrate all attempts which are
statutorily provided to be invoked. He has further submitted
that the order made under Section 5(1) of the 'GPP Act' dated
18.07.2022 came to be served upon the respondent on
22.07.2022. However, vide communication dated 29.07.2022
the respondent herein filed interim reply - representation to
the petitioners so as to convince them about their high handed
action. At any rate, the Appeal has come to be filed on
20.08.2022 with an application for stay as also an application
praying for condonation of 14 days delay caused in preferring
the said Appeal, including the prayer for stay of the impugned
order in that very delay condonation application.
[4.1] He has further submitted that when notice came to
be issued in a delay condonation application making it
returnable on 22.08.2022, the petitioners, who claim to have
appeared on a caveat sought for time. If they would not have
volunteered to assure that status-quo in respect of the
property involved in the Appeal is maintained, the Court would
have proceeded to even dispose of the delay application on
that very day or grant of stay itself. According to his
submission, the statutory Corporation like the petitioners have
played a mischief which should not be permitted seeking time
on one hand with a view to file and object delay of 14 days
caused in preferring Appeal despite claiming that they are on a
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caveat, they assured to maintain status-quo till the next date
of hearing in respect of the property in question. They should
not be permitted to resile therefrom when to their reply
respondent asked for short accommodation to file rejoinder.
Not only that, according to his submission, not extending such
assurance by the petitioners, they have passed an order
appointing an Officer to get the respondent evicted and
possession is taken over of the property in question, though he
disputes it, despite pendency of the proceedings and they
were served with the copy thereof even within 30 days of
service of the order made under Section 5(1) of the 'GPP Act'.
According to his submission, if the party refuses or fails to
comply with the order of eviction within 30 days of the date of
service under Sub-Section (1) of Section 5 of the 'GPP Act',
then only an order under Sub-Section (2) of Section 5 of the
'GPP Act' can be passed.
[4.2] He has further submitted that on 22.07.2022 the
said order passed under Section 5(1) of the 'GPP Act' came to
be served and before 30 days are over, Appeal alongwith stay
application and delay condonation application came to be filed
on 20.08.2022 and petitioners were served with the notice and
copy thereof, which was made returnable on 22.08.2022, and
therefore, according to the submission, it cannot be said that
the respondent has either refused or failed to comply with the
order when that order itself is under challenge before the
competent Court by way of statutory Appeal provided under
'GPP Act', and therefore, according to his submission, passing
of an order under Section 5(2) of the 'GPP Act' is nothing but
an attempt to overreach the Court proceedings, which should
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
not be lightly viewed. He has further submitted that when the
statutory Appeal though provides 15 days limitation but at the
same time empowers the Court to condone the delay for
entertaining the Appeal even after expiry of the said period of
15 days without any further limit, it very clearly indicates that
once it is known to the authority that Appeal is preferred may
be in delay, they should not have passed an order under
Section 5(2) of the 'GPP Act' nor they could have high
handedly and unilaterally claimed to have taken over the
position submitting that the Appeal has become infructuous.
He has further submitted that while considering the statutory
Appeal, Courts are not powerless and it can direct even
position ante to be maintained while hearing and if convinced
allowing the Appeal, and therefore, it can never be successfully
argued that since possession is taken over, Appeal has become
infructuous, and therefore, he has submitted that the
petitioners labouring under impression that once possession is
taken over of the premises, Appeal becomes infructuous is
devoid of any merits.
[4.3] He has further submitted that it is not expected of
even common litigant, high standard of behaviour is expected
from Officers of a statutory Corporation when they are
empowered to act under the 'GPP Act' to declare any one
unauthorized occupant and take over the possession of that
premises for which party is declared to be unauthorized
occupant.
[4.4] He has further submitted that once the matter is
kept by the Court on 03.09.2022 on a request made by the
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
learned advocate for the respondent, there was no need to
make any order under Sub Section (2) of Section 5 of the 'GPP
Act' and that too, serve the same through whatsapp to the
Officer of the respondent wherein the order reflects that it is
sent through RPAD, which was served on 05.09.2022 i.e. much
after the order under Exhs.13 and 14 is passed by the Court
concerned. He has further submitted that the Court has
attempted to strike the balance between the competing claims
of the parties before it so as to determine the Appeal on merit,
including the delay condonation application by genuine
apprehension being established of making their attempts
infructuous by granting status-quo in respect of the property
referred to in paragraph 6(B) (i) and (ii) while granting
adjournment to challenge the order passed below Exh.13 to
the petitioners, and therefore, according to his submission,
while exercising jurisdiction under Article 227 of the
Constitution of India, such actions of the petitioners should not
be encouraged and the discretion exercised by the Court below
should not be interfered with.
[4.5] In support of his submission, he has relied on the
decision of this Court in the case of Mooman Jafferali Aliji
Maknojiya Vs. Shia Imami Ismaili Momin Jamat Samaj
reported in AIROnline 2021 Guj 2027 to submit that pending
hearing delay application passing of an interim order or
continuing the same is not unknown to the law. Referring to
paragraph 81 therein, it is submitted that while issuing rule in
the delay condonation application as also leave to appeal,
Court granted /continued the ad-interim protection, which was
granted earlier. Referring to the decision of this Court in the
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
case of Umaben Bhavin Patel Vs. Dinesh Vitthalbhai
Chauhan rendered in Civil Application No.1 of 2018 in
Filing/Letters Patent Appeal No.207 of 2018 in Special
Civil Application No.12002 of 2001 referring to paragraph
15 that even pending leave to appeal, Court granted status-
quo, which was continued while leave was granted till final
disposal of the Letters Patent Appeal, which was not even
numbered at that time. Referring to the powers of this Court
while exercising jurisdiction under Article 227 of the
Constitution of India, Mr. Thakore, learned advocate for the
respondent relied on decision of the Madras High Court in the
case of Jet Airways (India) Ltd. Chennai Vs. Jet Airways
Thozhilaiar Sangam (represented by its Secretary) and
Ors. reported in 2000 (4) LLN 261 as also of the Supreme
Court in the case of Laxmikant Revchand Bhojwani and
Another Vs. Pratapsing Mohansingh Pardeshi reported
(1995) 6 SCC 576 as also decision of the Bombay High Court
in the case of Bhagwan s/o Ganpatrao Godsay Vs.
Kachrulal s/o Bastimal Samdariya rendered in 1987 SCC
OnLine Bom 32. referring paragraph 41 as also 50 submitted
that even Rule 3A of Order XLI of 'the Code' despite using word
'shall' has been interpreted to be directory and permissive with
a further submission that if right of Appeal is part of a special
enactment intended to serve the special cases arise under that
Act, there is a basic rule of interpretation that general
legislation must give way to special legislation. It is further
submitted, relying on the decision that since special legislation
in the form of 'GPP Act' does not create the prohibition similar
to the one contained in Order XLI Rule 3A of 'the Code' such
prohibition has no application to the cases under the 'GPP
C/SCA/20198/2022 JUDGMENT DATED: 18/10/2022
Act'. At any rate, according to his submission, use of word
'shall' in Rule 3A of Order XLI of the 'the Code' is permissive
and not mandatory as held by the Bombay High Court.
Therefore, according to his submission, despite learned
advocate for the petitioners did not refer to Order XLI Rule 3A
of 'the Code', which prohibits though apparently grant of an
order of stay of execution of a decree against which the Appeal
is proposed to be filed so long as delay condonation application
is pending is of no use for the reason that is not held to be
mandatory by the Bombay High Court as also it cannot be
invoked while exercising jurisdiction of Appeal under the
special enactment like the 'GPP Act'.
[4.6] On the aforesaid submissions and the precedents
relied on by the learned advocate for the respondent, with his
assertive vehemence, submitted that not only these petitions
are required to be dismissed for the adamant attitude of the
petitioners, they may be suitably dealt with by this Court
taking stock of the situation, which has arisen in these cases.
[4.7] In short, it is submitted that these petitions are
required to be rejected with exemplary cost.
[5.0] Having heard learned advocates for the appearing
parties as also going through the impugned orders, the
documents annexed with the petition as also the compilation
produced by the learned advocate for the respondent herein
with a copy furnished to the learned advocate for the
petitioners, it is clear that very very unfair attempts are made
by the petitioners with a view to overreach the process of
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Court depriving the litigant of a statutory Appeal provided
under the special statute being determined in accordance with
law, prima facie, it appears to be out of frustration before
order of eviction being dealt with and quashed on merit or
confirmed.
[5.1] The very unfair and unethical approach of the
learned advocate, who represented the petitioners in
appellate Court reflected when he wanted to file reply on the
ground that since he was on a caveat there was statement to
maintain status-quo till the next date of hearing as he wanted
to file reply despite service of notice of delay condonation
application. If the learned advocate for the petitioners in the
Court below labouring under impression that he was on a
caveat, he should be ready with the case, if at all he wanted to
object the delay, that too, of meager 14 days. When he
wanted to file reply, he had made a statement that status-quo
in respect of the property involved in Appeal would be
maintained and as soon as he filed the reply, he raised his
hands from continuing such statement when respondent
herein asked for time to file rejoinder, pressurizing the Court to
immediately hear the delay condonation application or else no
statement would be continued by him. Such unethical
approach of the learned advocate representing the petitioner
in the appellate Court has to be viewed very seriously. At any
rate, the Court concerned was not powerless to put its foot
down when such approach is being reflected not only in the
conduct of an advocate of the petitioners but when the
petitioners themselves have come out with a plea that Appeal
has become infructuous when possession is claimed to have
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been taken over pursuant to an order made under Section 5(2)
of the 'GPP Act'.
[5.2] Though the Court may be hard pressed not to grant
any stay or not able to hear that application on the very day,
when hearing of the same was kept within two days, taking
disadvantage of the situation by the petitioners, which is
petitioner no.1 - Corporation, which is manned by persons in
flesh and blood, not only made order under misconception,
made an order under Section 5(2) of the 'GPP Act', but
hurriedly took over the possession of the premises, as claimed
by them, stating Appeal to become infructuous. The persons
at the helms of affairs of petitioner no.1 - Corporation have an
audacity not only to take over the possession when Appeal is
already filed, they were served and it was known to them that
their order is already under challenge by way of statutory
Appeal, they should not have attempted to overreach the
process of Court under a spacious plea that since there was no
stay granted by the Court they are within their rights.
[5.3] I am refraining myself from examining the order
passed under Sections 5(1) as also 5(2) of the 'GPP Act'.
Suffice it to say that the exercise of powers under Sub-Section
(2) of Section 5 of the 'GPP Act' is uncalled for labouring under
an impression that since 30 days is passed form the order
made under Sub-Section (1) of Section 5 of the 'GPP Act' on
the ground that the respondent has failed to comply with the
order. When a person has invoked statutory remedy available
under the statute, no one can presume that he failed to
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comply with the order when he has invoked the appellate
jurisdiction of the Court, may be in delay. When Section 9 of
the 'GPP Act' provides entertaining an Appeal even filed
beyond 15 days as prescribed under Clause (a) of Sub-Section
2 of Section 9 of the 'GPP Act', without there being any further
limit, it does not empower, that too, within less than 30 days of
the service of notice to make an order under Sub Section (2) of
Section 5 of the 'GPP Act'. Though, nowhere petitioners have
claimed that this order is served to the respondent on a
particular date and therefore 30 days are over from that date
even from the date where the respondent claimed that he was
served with the order within 30 days he has also preferred
Appeal, may be in delay, invoking statutory Appeal,
respondent cannot be said to have failed or refused to comply
with the order of eviction, that too, within 30 days of the order
passed under Section 5(1) of the 'GPP Act'.
[5.4] When an Officer of the petitioner - Corporation, who
is authorized under the 'GPP Act' to act as competent Officer
high moral standards of him to appreciate law and facts are
expected from him. As such, taking undue advantage of a
situation and pending hearing of delay condonation application
claimed to have taken over possession of the property by
passing an order as aforesaid under Section 5(2) of the 'GPP
Act', which is not even in accordance there with, and
shamelessly submitted before the Court that the Appeal has
become infructuous. Such an attitude or ego of a person at
the helms of affairs of the Corporation has to be curbed with
iron hands. Though such an action may not be contemptuous
but it is certainly condemnable and should be dealt with heavy
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hand. It is a misconception in the mind of the petitioners and
his advocate that once possession of the property is taken
over, the Appeal would become infructuous. The Court is not
powerless, it can pass even mandatory orders setting right the
wrong undone even directing returning back the possession.
[5.5] No one can, even in absence of any stay order by
the Court, frustrate or attempt to frustrate the statutory right
of Appeal, which can be entertained by the appellate Court
even in delay on the Court being satisfied. Once it is made
known to the petitioners that Appeal is already preferred
though may be in delay of 14 days, they should have refrained
from passing an order under Sub-Section (2) of Section 5 of the
'GPP Act' claiming possession being taken over pursuant to an
order of eviction. Normally no litigant, apart form the statutory
Corporation, as a litigant can think of frustrating or sabotaging
any statutory Appeal by their action /conduct only on the
ground that since there was no stay granted by the Court they
can frustrate the statutory Appeal and say that it has become
infructuous, and therefore, the learned advocate for the
respondent is well within his right to contend that since they
have already preferred an Appeal may be in delay they cannot
be said to have refused or failed to comply with the order of
eviction made under Sub Section (1) of Section 5 of the 'GPP
Act', and therefore, it will never empower the petitioners to
pass any order under Sub Section (2) of Section 5 of the 'GPP
Act'. Taking over all view of the matter, passing an order
under Section 5(2) of the 'GPP Act', after notice is served from
the Court, of an Appeal, as also delay condonation application,
time sought by the petitioners and assures to maintain
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status-quo till the next date of hearing so as to enable them to
file reply and thereafter raising their hands from such
assurance, only with a view to overreach the orders of the
Court that may be passed thereafter cannot be permitted to be
done.
[5.6] Coming to the contention that since delay is yet not
condoned, Court cannot pass any order of stay without citing
any provision by the learned advocate requires to be rejected
outright for the reason that Order XLI Rule 3A, more
particularly, Rule 3A of Order XLI of 'the Code' refers about the
Court shall not make an order of stay of execution of the
decree against which Appeal is proposed to be filed, it cannot
stay the execution of a decree till an order for delay
condonation is passed. However, the said provision has been
interpreted by the Bombay High in the case of Bhagwan s/o
Ganpatrao Godsay (Supra) Court and held to be permissive
and not mandatory in the case referred to by the learned
advocate for the respondent. At any rate, since there is no
decree and Appeal against order passed under special statute
is preferred, such provision can never be pressed into service,
which is held to be directory even by the Bombay High Court
and with the said view, I am in full agreement thereof. In the
aforesaid decision, more particularly, in paragraph nos.41 and
42 thereof, wherein it is held that the permissive or directory
use of the words 'shall' fully confirms to this legislative intent.
If construed as mandatory, the Appeal may become
infructuous thereby destroying regulatory content of Rule 3A of
'the Code' for then there is nothing left to regulate.
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[5.7] Order XLI of 'the Code' prescribes Appeals from
original decrees. When any proceeding is initiated under the
'GPP Act' by the competent Officer, it cannot be said that any
decree is passed, and therefore, when an Appeal is preferred
as provided under the statute where under the authority
exercise its jurisdiction, no such prohibition, though it is held to
be permissive or directory can be pressed into service
debarring the Court from entertaining even delay condonation
application granting stay or hearing the stay application before
delay is condoned. At any rate, once power to grant stay,
pending hearing of delay condonation application is
acknowledged, even if its passed on an application filed by the
other side, it is with a view to do substantial justice between
the parties and cannot be found fault with under any
circumstances. On one hand, the petitioners pressurized the
Court to hear the application for condonation of delay without
their statement being continued, more particularly, when to
their reply respondent wanted to file rejoinder to it, hard
pressing Court to either hear the main application or not to
pass any order of stay, is nothing but a high handed action on
behalf of the petitioners. The said action is taken, raising their
hands from continuing their own statement, only with a view to
frustrate the appellate proceedings pending before the
appellate forum as provided under the 'GPP Act'. Such an
audacity of the litigant percolated to its representative to say
that when possession is already taken over, Appeal has
become infructuous. The tyranny of such litigant should not be
tolerated to frustrate the statutory right of Appeal to an
aggrieved person. Courts are neither powerless nor silent
spectator to such high handed action of the statutory
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Corporation. Even after condonation of delay while
determining stay application, Court can pass mandatory
injunction or injunction ante also. Therefore, the petitioners
may not remain under influence of their belief that Appeal has
become infructuous. They are not to be permitted to
overreach the judicial process or judicial remedies provided
under the statute to be invoked by a litigant.
[5.8] The argument that the order impugned are non
speaking order or unreasoned order is required to be rejected
outright as while granting adjournment, Court has taken note
of subsequent events that took place after notice is issued and
served to the petitioners and filing of applications vide
different exhibits by both the sides. Considering the hardship,
as such, the Court was within its power granted stay /injunction
even in application for adjournment filed by the petitioners.
[5.9] For the actions of the petitioners, attempted to
overreach the process of Court has to be dealt with in the
manner as viewed by this Court as back in the year 1983 in
the case of Bhupatlal Govindji Vs. Bhanumati Dayalal
reported in 1983 (2) GLR 1137, more particularly, paragraph
8 thereof holding therein:
".....An appeal is a continuation of the suit and if any one
takes advantage of the Court's procedure and changes
the situation to the material disadvantage of the other
side, in the meantime and if ultimately, the action which
facilitated the commission of the act on the part of the
person is held unauthorised, the Court should put the
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party in the position in which it would have been, before
that vacuum or interregnum created by the procedural
delays. In a situation like this because of some
development, which may be due to legal technicalities
the proper and only course left open to the plaintiff was
to seek suitable amendment of the plaint and to seek
relief of possession, but this sort of mandatory injunction
coupled with delivery of possession could not be granted
by the Court of its own without any formal prayer. The
argument, no doubt is to be considered with concern, but
whenever it appears to the Court of law that the party is
shrewd enough to overreach the legal process, the Court
should put its foot down and see that shrewdness does
not stands rewarded. In other words, if necessary, the
clock should made to move back in order to restore the
legal position, which would have continued, had that
party not taken the benefit of that intervening period"
[5.10] As stated hereinabove, the provisions made under
Rule 3A of Order XLI of 'the Code' is held to be directory by the
decision of the Bombay High Court referred to hereinabove,
which is the provision based on which, without citing it,
submitted that without condoning delay in preferring appeal,
no order of stay could have been granted by the Court, and
therefore, the order impugned is in excess of jurisdiction, that
too, in an adjournment application filed by the petitioners
herein, cannot be accepted. The order impugned before the
appellate Court passed by the petitioners is under a special
statute and it cannot be termed as a decree even. Not only
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that, despite such provision even while challenging the decree,
the Courts have granted stay even prior to the delay
condonation application or prior to grant of leave to Appeal,
and therefore, its exercise is not unknown despite the said
provision in 'the Code'. However, when there is an order
passed under a special statute by an authority and an Appeal
is provided before a judicial authority under the very same
statute, no such restriction as imposed under the aforesaid
provisions of 'the Code', which is not even mandatory can be
pressed into service. Once power to grant stay is traced,
whether it is passed in an application praying for stay or an
application for an adjournment, that too, filed by the other
side, it can never be said that the Court has exceeded its
jurisdiction. There is one more reason to support the said
conclusion when a party is trying to overreach the process of
Court willingly and deliberately after knowing that an Appeal is
preferred against its own order, even order lacking in
jurisdiction, can also be validated by this Court while exercising
power under Article 227 of the Constitution of India.
[5.11] Another submission that no hearing of the stay
application was conducted and despite that in an adjournment
application prayed for by the petitioners, status-quo as
mentioned therein is granted by the Court, which is not
permissible is required to be rejected outright. As such, within
two days when notice was issued in a delay condonation
application where the petitioners sought for time to file reply
and made a statement to maintain status-quo till the next date
of hearing, even if their advocate withdraws from such a
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statement, Court should have granted that stay or continued
that stay, the error, which is corrected by the Court by
granting the same while allowing the adjournment application
of the petitioners, I see nothing wrong in that order passed
even in an application for adjournment filed by the petitioners.
For such an order, it can never be argued, under the
circumstances aforesaid, that it is in violation of basic
principles of natural justice.
[5.12] One another contention raised that even the
impugned order passed below Exh.14 is without jurisdiction,
more particularly, when it was disclosed to the Court that the
possession is already taken over and Appeal has become
infructuous, is required to be rejected outright as soon as such
statement is made overreaching the Courts proceedings at
that moment Court should have curbed it with heavy hand by
granting mandatory injunction restraining the situation even if
it is claimed that possession is already taken over pursuant to
an order of eviction, which was already challenged before the
appellate forum and within the knowledge of the petitioners.
Such an attitude of the litigant, that too, by the statutory
Corporation, which is manned by persons in flesh and blood
should be dealt with iron hand.
[5.13] As observed earlier, even before 30 days are over
to the service of an order passed under Section 5(1) of the
'GPP Act', an Appeal, though in delay, came to be filed and was
known to the petitioner no.2 when he was also a party to the
proceeding in delay condonation application as also Appeal, he
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could not have exercised powers under Sub Section (2) of
Section 5 of the 'GPP Act' under a misconception that person
has refused or failed to comply with the order of eviction
passed under Section 5(1) of the 'GPP Act'. Once a party
challenges the order and it is before the Court, it can never be
presumed by petitioner no.2 that the party has failed to
comply the order, when he knew about the Appeal challenging
his own order passed under Section 5(1) of the 'GPP Act' to
exercise powers under Section 5(2) of the 'GPP Act'. There is
one more reason that he should have stayed his hands off from
passing any further order under Section 5(2) of the 'GPP Act'
as despite limitation provided for under Section 9 of the 'GPP
Act' is 15 days, even beyond 15 days Appeal can be preferred
and the Court can on satisfaction that the appellant was
prevented from sufficient cause in filing Appeal in time, it can
be entertained, petitioner no.2 could have restrained himself
or waited for at least reasonable time even if no Appeal is
preferred with delay condonation application. Whereas in the
present case, not only Appeal with delay condonation
application was preferred with delay application and notice
was issued by the Court and he was served with the notice
thereof. Such an adamant attitude of such Officers reflects
the statutory Corporation not in a good face.
[5.14] No power under Section 5(2) of the 'GPP Act' should
be exercised simply because it is lawful for him i.e. petitioner
no.2 to exercise the same, more particularly, when his own
order under Section 5(1) of the 'GPP Act' is open to challenge
and it is challenged already before competent judicial authority
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by way of Appeal under the 'GPP Act' itself.
[5.15] Sub Section (3) of Section 9 of the 'GPP Act'
specifically empowers the appellate Officer who shall be the
District Judge to stay the enforcement of the order appealed
against for such period and such conditions as he deems fit.
That provision very specifically provides that once Appeal is
preferred, may be in delay, to exercise such power. Even if
that power is exercised, perceiving that not only the
petitioners has frustrated the Appeal itself but further
attempting to frustrate it by giving such an application for
adjournment when his application to defer the hearing of stay
application till the delay condonation application is determined
came to be rejected. When the respondent herein by
application Exhs. 6, 8 etc. made grievance that they may
frustrate even the Appeal requesting the Court to advance the
date, in such circumstances and when copies thereof were
served to the advocate representing the petitioners even the
advocate representing the petitioners, before that appellate
forum was obliged to inform his clients that such applications
are filed, even if he has not informed him, even if he has not
that obligation it was not open for petitioner no.2 to exercise
the jurisdiction under Section 5(2) of the 'GPP Act'.
[5.16] The argument that the competent Officer is
elevated or rather clothed with the power of the Civil Court,
perhaps has led petitioner no.2 to act as a super Court than
even the appellate Court. If Section 8 of the 'GPP Act' is looked
into, the competent Officer while exercising jurisdiction under
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the 'GPP Act' for the purpose of holding an inquiry under that
Act is having the same powers as are vested in the Civil court
under 'the Code' when trying a suit in respect of the following
matter only as prescribed being:
8(a) summoning and enforcing the attendance of
any person, and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) any other matter, which may be prescribed.
[5.17] Though not shown to the Court, any other matters,
which are already prescribed, he is empowered to have that
power of a Court for these limited aspects as hereinabove.
Even if he is presumed to have acted as a Court he should
have restrained himself more, when his own order is under
challenge before the appellate forum, which is none other than
judicial Officer to the rank of District Judge.
[5.18] The decisions relied on by the learned advocate for
the petitioners have no such extra ordinary facts as this case
has, which are stated hereinabove and those cases were
determined on its own facts between the parties, and
therefore, those decisions are of no help to the petitioners. As
held hereinabove, even the appellate authority while
exercising jurisdiction under the 'GPP Act' i.e. special Act is
empowered to stay the order under challenge even if the
proceedings before it is filed beyond the period of limitation as
provisions of Order XLI Rule 3A of 'the Code' is held to be not
mandatory, and therefore, when Court perceives further
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attempt not only frustrating but delaying the hearing before it,
when it pass an order even in an application for adjournment
preferred by the petitioners, which came to be granted with a
condition to maintain status-quo, as stated therein, I see no
reason to interfere with the same, while exercising jurisdiction
under Article 227 of the Constitution of India.
[6.0] I would be failing in my duty if no exemplary cost is
ordered to be paid by petitioner no.2 herein, who has tried to
overreach the process of Court. However, I refrain myself from
awarding exemplary cost but these petitions are rejected with
cost of Rs.5000/- to be paid to the Gujarat State Legal Serviecs
Authority, that too, to be paid by petitioner no.2 herein from
his personal pocket. These petitions are hereby rejected
having no substances in it.
[6.1] The request for stay of this order is refused as there
is no need to stay it in view of the reasons assigned
hereinabvoe.
(UMESH A. TRIVEDI, J.)
siji
