Gujarat High Court
Kishanbhai Nathubhai Fofandi vs State Of Gujarat on 23 March, 2023
Bench: Sandeep N. Bhatt
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.
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
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
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
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
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
