The Sahyog Samudayik Kheti ... vs Deputy Mamlatdar (Revenue), ...
2023 Latest Caselaw 578 Guj

     C/SCA/22926/2022                            ORDER DATED: 18/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 22926 of 2022
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         THE SAHYOG SAMUDAYIK KHETI SAHKARI MANDALI LTD.
                            Versus
               DEPUTY MAMLATDAR (REVENUE), PATADI
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Appearance:
MR SUNIL S JOSHI(2925) for the Petitioner(s) No. 1
for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
NOTICE UNSERVED for the Respondent(s) No. 5.1,5.2,5.3,5.4,5.5
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 18/01/2023
                   ORAL ORDER

1. Draft amendment is allowed in terms of the draft. The same shall be carried out forthwith.

2. Learned advocate Mr.Kadri, has submitted that he has instructions to appear on behalf of the respondent No.5.1. Registry to accept his Vakalatnama, as and when the same is filed.

3. Rule. Learned advocates appear and waive service of notice of rule on behalf of the respective respondents.

4. Since a short issue is involved in the present writ petition, the same is taken up for hearing and is finally decided today.

5. By this writ petition, the petitioner has assailed the order dated 03.12.2021 passed by the respondent No.3 in the appeal filed by the petitioner.

6. At the outset, learned advocate Mr.Joshi, has submitted that the impugned order travels beyond the show-cause notice

C/SCA/22926/2022 ORDER DATED: 18/01/2023

dated 06.08.2021, which was issued to the petitioner - Mandali calling upon to make their submissions with regard to the delay in the appeal, which has been preferred by the State, however instead of deciding the issue with regard to the delay, the appeal has been decided on merits. He has submitted that thus the impugned order may be set aside and the matter may be remanded.

7. Per contra, learned AGP Mr.Kanara, has submitted that in fact, the impugned order is innocuous order and the petitioner- Mandali is only asked to give the individual details of each members of holding the land and accordingly, if such details are supplied, the Mamlatdar is supposed to pass necessary orders.

8. I have heard the learned advocates for the respective parties.

9. This Court has perused the show-cause notice dated 06.08.2021, the same has been issued by the Deputy Collector, Patdi to the present petitioner - Mandali as well as the members mentioned therein calling upon to remain present on 26.08.2021 in order to deal with the aspects of delay in preferring the appeal by the State authorities. The petitioner- Mandali appeared before the concerned authorities, however, by the impugned order dated 03.12.2021, the Deputy Collector, Patdi had decided the entire matter on merits and ordered the Mamlatdar to decide the case denovo.

C/SCA/22926/2022 ORDER DATED: 18/01/2023

10. In the considered opinion of this Court, the Deputy Collector could not have decided the appeal on merits in wake of the fact that the petitioner was called upon to make its submissions on delay in preferring the appeal. The petitioner - Mandali has accordingly relied upon various Supreme Court judgments in its reply contending that while deciding the aspect of delay, the authority is not required to examine the matter on merits. In view of the aforesaid specific contention being raised the Deputy Collector could not have ventured into the aspects of merits as well as facts and decide the appeal by a reasoned order without deciding the issue of delay.

11. Under the circumstances, the impugned order is hereby quashed and set aside. The matter is remanded to the Deputy Collector, Patdi, to first pass appropriate orders on the aspect of delay. It will be open for the petitioner- Mandali to take all the available contentions with regard to the delay. In case, the Deputy Collector is of the opinion that the delay is required to be condoned, further opportunity shall be granted to the petitioner to present their case on merits.

12. With these observations, the writ petition stands disposed of. Rule is made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) MB/ 71