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Judgment
Honourable Smt. Justice Abhilasha Kumari
This petition, under Articles 226 and 227 of the Constitution of India, has been preferred with the following prayers:
(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order and/or directions in the nature of mandamus, quashing and setting aside the impugned order dated 20.9.2012 passed by the Respondent no. 1 in Revision Petition No.MVV/HKP/ST/149/2012 as being absolutely illegal, unlawful, contrary to the principles of natural justice, contrary to the facts and evidence on record, contrary to the settled principles of law, equity and justice.
(B) Pending admission hearing and till final disposal of the present petition, Your Lordships may be pleased to grant stay of operation and implementation of the impugned order dated 20.9.2012 passed by the Respondent no. 1 in Revision Petition No. and further be pleased to direct the Respondent no. 1 to hear the petitioner''s Advocate and pass a fresh order on the stay application after affording an opportunity of hearing to the petitioner''s Advocate, in the interest of justice.
(C) Your Lordships may be pleased to pass such other and/or further orders as may be deemed fit, just and proper in the interest of justice.
The grievance of the petitioner is that the impugned order dated 20.09.2012, has been passed by the Secretary (Appeals), in Revision Application No.MVV/HKP/ST/149/2012, without hearing the petitioner who had filed a Caveat.
Heard Mr. N.D. Nanavaty, learned Senior Advocate, with Mr. D.K. Puj, learned advocate for the petitioner, Ms. Nisha M. Thakore, learned Assistant Government Pleader for respondents Nos. 1 and 2, and Mr. R.S. Sanjanwala, learned Senior Advocate with Mr. Dilip L. Kanojiya, learned advocate for respondents Nos. 3 to 5.
It is submitted by Mr. N.D. Nanavaty, learned Senior Advocate for the petitioner that the petitioner had filed a Caveat in Revision Application No.MVV/HKP/ST/149/2012 preferred by respondents Nos. 3 to 5, and on 06.09.2012, a notice was dispatched by the Registry of the Secretary (Appeals) for the hearing of the revision application which was to take place on 20.09.2012. However, the notice has not been received by the petitioner, but has been served upon the advocate of the petitioner on 21.09.2012. It is further contended that the impugned order has been passed on 20.09.2012 without hearing the Caveator.
On the other hand, Mr. R.S. Sanjanwala, learned Senior Advocate for respondents Nos. 3 to 5, submits that the notice has been served upon respondents Nos. 3 to 5, who also reside in Surat, as does the petitioner, who is the Power of Attorney holder, therefore, it is difficult to believe that the notice was not received by the petitioner.
Ms. Nisha M. Thakore, learned Assistant Government Pleader, has produced the original record and the Dispatch Register as per order dated 11.12.2012, of this Court. A perusal thereof indicates that a notice has been dispatched to the petitioner who is the Power of Attorney holder. However, the receipt thereof has been disputed by learned Senior Advocate for the petitioner.
Without going into the aspect whether notices were received in time, or not, it is evident that on 20.09.2012, when the hearing of the revision application took place, the impugned order has been passed without granting the petitioner an opportunity of hearing. It was open to the Secretary (Appeals) to have granted another date to ensure the presence of the Caveator as, as per Section 148A of the Code of Civil Procedure, 1908 ("the Code" for short), the Caveator ought to be heard before any order is passed, especially an order granting status-quo. However, the Secretary (Appeals) has proceeded to grant the order of status-quo on the very first day without granting an opportunity of hearing to the petitioner. Even otherwise, the tone and tenor of the impugned order reveals that there has been no application of mind before passing the impugned order. The order merely records that, as the Caveator is not present, status-quo be maintained qua the order of the Collector dated 06.08.2012, that is impugned before him in the revision application. It does not appear from a perusal of the impugned order that the Secretary (Appeals) has considered whether a prima-facie case is made out, or whether the balance of convenience and irreparable loss have been taken into consideration.
Even otherwise, in the view of this Court, if the Caveator was not present on the first date of hearing, another opportunity of hearing could have been granted, otherwise, the very purpose of filing a Caveat is frustrated and the provisions of Section 148A of the Code would be rendered redundant.
For the above reasons, and without going into the merits of the case, the following order is passed:
(i) The impugned order dated 20.09.2012, passed by the Secretary (Appeals) in Revision Application No.MVV/HKP/ST/149/2012, is quashed and set aside.
(ii) The parties shall appear before the Secretary (Appeals) for fresh hearing on 19.12.2012.
(iii) On that date, or on any further date, to be fixed by the Secretary (Appeals), the parties shall be heard and an order passed, in accordance with law.
It is made clear that the position as it obtained on 19.09.2012 regarding the revenue entries in question, shall be maintained by the parties till the Secretary (Appeals) passes an order after hearing the parties.
The petition is disposed of, in the above terms.
The record and proceedings are returned to the learned Assistant Government Pleader. Direct Service of this order, today, is permitted.