Meghalaya High Court
Shri. Abdul Batin vs G.H.A.D.C on 16 August, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
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WRIT APPEAL NO. 32 OF 2017
Shri Abdul Batin V. Garo Hills Autonomous District Council & Ors
THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
WRIT APPEAL NO. 32 OF 2017 Shri Abdul Batin Versus Garo Hills Autonomous District Council and Others Date of Order :: 16.08.2017 HON'BLE THE CHIEF JUSTICE SHRI DINESH MAHESHWARI HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri B. Deb, for the appellant.
Shri S. Dey, for the respondents No. 1 and 2.
Shri K. Paul, for respondent No. 3BY THE COURT: (per Hon'ble the Chief Justice) (Oral) This intra court appeal is directed against the order dated 07.06.2017 as passed by a learned Single Judge of this Court in WP (C) No.395 of 2016.
The respondent No.3 preferred the writ petition aforesaid while stating the grievance against the orders passed by the respondent No.1 Garo Hills Autonomous District Council [„GHADC‟] removing him from the office of Gaonbura of Nanirchar and Beparipara village and appointing the present appellant in his place. The writ petitioner (respondent No.3 herein) alleged that the action of the respondents was in absolute violation and disregard of the rules/procedures governing the succession and appointment of Gaonbura. In the said writ petition, the GHADC and its Executive Member, I/C Land Revenue, arrayed as respondents No.1 and 2, were duly represented by the counsel and hence, process was ordered to be issued in relation to the unrepresented respondent in the petition i.e., the present appellant. 2
WRIT APPEAL NO. 32 OF 2017 Shri Abdul Batin V. Garo Hills Autonomous District Council & Ors The record shows that in the first place, notice for the present appellant was sent in the writ petition on 07.03.2017 from Shillong under postal receipt No.D RE469428024IN. However, the said postal article was not served and there was no report of service. Then, by the order dated 05.05.2017, the learned Single Judge permitted fresh steps for service on the present appellant.
In compliance of the aforesaid order dated 05.05.2017, fresh notices were issued and were sent from Shillong to the postal address of the appellant at Tura, under postal receipt No.C RE469383328IN on 09.05.2017. Thereafter, on 31.05.2017, an affidavit was filed by the writ petitioner stating completion of service on the respondent No.3 i.e., the present appellant. The learned Single Judge proceeded on such affidavit of service and assumed that the respondent No.3 of the writ petition had been served. The learned Single Judge noted that none had appeared on behalf of the respondent No.3 (present appellant). Thereafter, when the matter was taken up on 07.06.2017, the learned Single Judge noticed the concession on the part of the learned counsel appearing for the respondents No.1 and 2 that they were ready to hold fresh election. In view of the submissions so made, the learned Single Judge allowed the writ petition while setting aside the orders impugned and while directing that fresh election shall be held within a month from the date of receipt of the order.
Seeking to question the order aforesaid, the respondent No.3 of the writ petition has preferred this intra court appeal with the basic submissions that the order impugned was passed without service of notice on him and without giving him an opportunity of hearing.
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WRIT APPEAL NO. 32 OF 2017 Shri Abdul Batin V. Garo Hills Autonomous District Council & Ors This matter was taken up for consideration on 05.07.2017 and after taking note of all the facts and circumstances and the record of the case, we found it prima facie clear that the article meant for the petitioner was not delivered at his postal address at Tura but, in fact, it was delivered back at Shillong, GPO, the place of its origin; and it was returned with the postal endorsement of "not found". Though after noticing such endorsement, in the first place, learned counsel for the writ petitioner (respondent No. 3) conceded about the facts that the article was indeed not delivered to the appellant and hence, he was not served, but then, made a submission that if the appellant was not having the knowledge about the writ petition, how did he at all come in possession of the papers related with the writ petition that have been filed with the paper book of this appeal.
Having regard to the circumstances of the case, even while expressing prima facie opinion, we extended an opportunity to the writ petitioner (respondent No. 3) to file specific affidavit as regards the issues concerning service and adjourned the mater for four weeks, while staying the operation of the order impugned and while observing as under:
"On perusal of the record, we have noticed that the postal article containing notices for the present appellant was sent from Shillong under postal receipt No.C RE469383328IN on 09.05.2017 but ultimately, the said article was returned unserved with the postal endorsement that the addressee was "not found"; and was delivered in the office of the Deputy Registrar of this Court on 24.05.2017. The writ petitioner, however, chose to file an affidavit in the writ petition suggesting that the respondent No.3 (the appellant) had been served while annexing the copies of the consignments-tracking report from the Postal Department. It was on the basis of the said affidavit that the service was taken as sufficient.
However, a bare look at the said consignment-tracking report makes it absolutely clear that the article booked from Shillong, GPO on 09.05.2017 was ultimately delivered back to Shillong, GPO on 24.05.2017. The article was never delivered to the addressee at Tura. In fact, the original article with the postal endorsement is available in Part IV record of the writ petition. When confronted with the position that the affidavit of service was not correct on material particulars because the postal article had not been delivered at Tura, though learned counsel, for the writ petitioner (respondent No.3 herein), in the first place, after looking in to the record, conceded on the fact that the said article was indeed not delivered to the appellant. However, when we made observations that in the totality of circumstances, prima facie, it appears that the appellant was not served 4 WRIT APPEAL NO. 32 OF 2017 Shri Abdul Batin V. Garo Hills Autonomous District Council & Ors with the writ petition and the order was passed against his interest without hearing him and hence, the matter deserves to be restored to the file of the learned Single Judge but while imposing cost on the writ petitioner (respondent No.3 herein) for filing incorrect affidavit, the learned counsel attempted to submit that even if the said article was not delivered, the appellant was having the knowledge about the writ petition because with the present appeal, the photostat of petition as also documents have been filed and the appellant has not disclosed as to how he came in possession thereof.
Prima facie, we are not impressed with the submissions aforesaid because, the record, as standing, definitely shows that the postal article, on the basis whereof service was taken as sufficient, was never delivered to the appellant and in fact, had returned unserved. This fact is very much available in the consignment-tracking report also. However, before taking a final decision in the matter, we deem it just and proper to extend an opportunity to the writ petitioner (respondent No.3 herein) to file a specific affidavit as regards the issues concerning service.
Though we would have considered disposing of this appeal at this stage itself but, for the opportunity being extended to the respondent No.3, it appears appropriate to take up this appeal for final disposal only after a specific affidavit from the respondent No.3.
It has been pointed out that in pursuance to the order impugned, the respondent-GHADC has notified fresh elections, which would effectively result in displacing the appellant, though this matter remains pending for hearing in this Court. In the totally of circumstances, we find it just and proper that the operation of the impugned order be stayed and the status of appellant, as existing before passing the impugned order be restored. Accordingly, MC (WA) No.25 of 2017 stands disposed of with the order that the operation and effect of the impugned order dated 07.06.2017 shall remain stayed until final disposal of this appeal and the appellant shall continue to hold the office of Gaonbura of Nanirchar and Beparipara village. However, the appellant shall not enter into financial arrangements and shall only look after the day to day affairs as Gaonbura.
This appeal be listed for admission and hearing after four weeks."
Learned counsel Shri K. Paul appearing for the respondent No. 3 (writ petitioner), today, frankly submits that even the objections as were suggested before the Court on the last occasion could not be pressed in service because he has verified from the record that the appellant indeed obtained the copies from the writ record after moving appropriate application in the Registry. Shri K. Paul further frankly submits that in the given facts and circumstances, he cannot defend the order impugned and in fact, the affidavit of service as filed on behalf of writ petitioner (respondent No. 3) was obviously, incorrect on material facts but such a mistake was not intentional and occurred for not minutely examining the contents of the article tracking report.
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WRIT APPEAL NO. 32 OF 2017 Shri Abdul Batin V. Garo Hills Autonomous District Council & Ors Learned counsel for the appellant Shri B. Deb also frankly submits that in view of the forthright submissions made on behalf of the respondent No. 3, he would not be pressing for any costs in this matter.
For what has been discussed and found hereinabove, it is but clear that the writ petition was decided while assuming the service on the present appellant although, in fact, he had not been served; and the order impugned, directly affecting the legal rights of the appellant could not have been passed without extending him another opportunity of hearing.
In the aforesaid view of the matter, this appeal is allowed; the impugned order dated 07.06.2017 as passed in WP(C) No. 395 of 2016 is set aside; the said writ petition is restored for reconsideration of the learned Single Judge while extending an opportunity of counter affidavit to the present appellant.
Office shall restore the writ petition to its number and place it for consideration before the learned Single Judge. The parties through their respective counsel shall stand at notice to appear before the learned Single Judge on 04.09.2017.
Having regard to the circumstances, the parties are left to bear their own costs of this appeal.
JUDGE CHIEF JUSTICE
Sylvana
Item No. 6