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Judgment
Rajesh H. Shukla, J.—The present Misc. Civil Application has been filed by the applicant for restoration of the order passed in Special Civil Application No. 7605 of 1990 dated 17.4.2000 on the grounds stated in the application. Heard learned advocate Shri Nimish Kapadia for the applicant. He submitted that the applicant is an industrial co-operative society having 284 members and 284 industrial sheds who had filed the aforesaid petition challenging the order of the Collector passed in purported exercise of powers under sec. 211 of the Bombay Land Revenue Code. He submitted that the said order came to be passed after a gross delay of 8 years which was upheld by the Special Secretary, Revenue Department, and therefore the aforesaid Special Civil Application No. 7605 of 1990 was filed and the status-quo was granted.
Learned advocate Shri Kapadia submitted that since the matter was pending for final hearing, the petitioners were not in regular contact. He further stated that the learned advocate was also engaged and they could not get necessary information and thereafter when the letter dated 27.3.2010 at Annexure-A was sent to the learned advocate seeking further development of the matter, no reply was received and subsequently it was found that the matter came to be dismissed. In fact, another learned advocate was instructed to make inquiry with regard to the matter and it came to be noticed that it has been dismissed for non-prosecution and non-appearance of the learned advocate.
Learned advocate Shri Kapadia submitted that for the default of the advocate the party need not suffer as it is also a fact that the proceedings in the court take time, the parties may not remain in constant touch with the advocate and due to communication gap, such order came to be passed.
Learned advocate Shri Kapadia submitted that on merits the petitioners have a good case as 218 industrial units are functioning on the same land and there are a number of workers working in the industrial units and all the units owned and managed earn their livelihood and also in turn provide employment to the workers. He submitted that N.A. permission was also granted in 1976 and even the ULC proceedings were dropped against the original owner and zoning certificate was issued by SUDA that the land in question falls in industrial zone. He therefore submitted that if the matter is decided on merits, it will be in the interest of justice and therefore the order may be recalled.
Learned AGP Shri Bharat Vyas however referred to the affidavit-in-reply and tried to submit about the attitude and the lethargy. He has submitted that it cannot be believed that for years persons like the petitioners who claim that there are number of industrial units and it is a society of such industrial units and no one could remain in touch with the lawyer for years together resulting in such an order. He submitted that assuming that the lawyer was not contacted or did not respond, it could have been inquired and therefore the explanation cannot be said to be sufficient for recalling the order after such long lapse of time. He has referred to and relied upon the judgment of the Hon''ble Apex Court reported in : (2002) 10 SCC 703 and also the judgment reported in Warlu Vs. Gangotribai and another, and submitted that the order may not be recalled after lapse of such long time. Alternatively, it was submitted that it may be allowed with costs.
In view of these rival submissions, it is required to be considered whether the present application can be entertained for restoration of the main matter with the aspects of delay in restoration.
As could be seen from the averments in the application as well as the rival submissions, the petitioner is a co-operative society having 284 members of industrial units employing hundreds of persons. The issue with regard to the land and purported exercise of power under the Code is required to be decided with the background of facts stated therein. Therefore, it is desirable that the petitioner is provided an opportunity of contesting on merits rather than throwing the petition out for non-prosecution. At the same time, it also reflects about the conduct of the petitioner that though it is a society of industrial units whose owners are either individuals or partnerships and are businessmen and not rustic villagers are not able to get in touch with the lawyer. Assuming that the lawyer has not responded they ought to have taken proper steps. Similarly, even if the litigation in the court takes time and therefore normally they are not expected to remain in touch very regularly, but still they cannot afford to be indifferent and oblivious of the pending proceedings which they have filed. Therefore, had the petitioner been careful and vigilant at least periodically they could have ascertained the status of the matter which would not have then resulted in dismissal for non-prosecution or in any case it would have come to their notice immediately for taking suitable steps. Therefore, considering the aspect of delay and alto the interest of the petitioners and all concerned, it requires a balanced approach. It is well accepted that for the default of the lawyer the party need not suffer. Further, the underlying purpose of the judicial system is to do justice on merits rather on technicalities. Therefore, even if the petitioners have been at fault, it cannot be a ground to shut the door for the petitioners for having redressed their grievance on merits.
The Hon''ble Apex Court has made the observations which also requires to be considered while considering the aspect of delay that parties may not be expected to remain in constant touch considering the long delay and the time spent in the court before the matter could be taken up.
Therefore, the interest of justice would be served if the present Misc. Civil Application for restoration is allowed subject to heavy costs. The members of the petitioner society are 284 and therefore it would be proper that the cost is imposed in a manner that everybody is made to be aware about the attitude.
The present application is therefore allowed subject to payment of cost as Rs. 3,00,000/- to be deposited before the Registry of this Court by way of bankers'' cheque/draft. Out of this, half of the amount shall be given to the Legal Services Authority and half the amount may be contributed towards the Advocates'' Library. Special Civil Application No. 7605 of 1990 is ordered to be restored to file for deciding on merits. Rule is made absolute. It is clarified that the amount as stated above shall be deposited within a period of one month. Thereafter only the Registry will restore the matter to file. In case the amount is not deposited, the main matter may not be restored and the Registry is directed to place this Misc. Civil Application with the Special Civil Application No. 7605 of 1990 before this court for appropriate orders.