Gujarat High Court
Badaraj Viramji vs State Of Gujarat & 2 on 10 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1824/1999 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1824 of 1999
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BADARAJ VIRAMJI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
ADVOCATE NOTICE UNSERVED for the Petitioner(s) No. 1
MR D. P. KINARIWALA, ADVOCATE for the Petitioner(s) No. 1
NOTICE NOT RECD BACK for the Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 10/04/2017
ORAL ORDER
1. When the petition is called out up for hearing, no one is present, except learned AGP.
2. Though no one is present, having regard to the fact that the petition is pending 1999, the Court examined the record.
3. On scrutiny of the record, it is noticed that this petition was earlier allowed vide judgment dated 15.3.2001. In the said decision dated Page 1 of 8 HC-NIC Page 1 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER 15.3.2001, the Court had observed, inter alia, that:
"11. It would also be not out of place to note that the decision in Special Civil Application No.7878/96 was carried in appeal before the Division Bench of this court in Letters Patent Appeal and the Division Bench after considering the merits was pleased to dismiss the said Letters Patent Appeal being Letters Patent Appeal No.626/97 by virtue of judgment dated 24.8.2000. In Special Civil Application No.7878/96 as well as in Special Civil Application No.10776/98 the entry under challenge was Entry No.809 which is also under challenge in this matter.
12. There is nothing worth name to distinguish the present case from the cases decided in the aforesaid matters and therefore the result of the present petition also must be the same as in the earlier matters.
13. For the foregoing reasons, the petition is allowed. The impugned order passed by the District Collector, Ahmedabad in LB\Review Case No.7/98 on 29/1/1999 at annexure "A" is hereby quashed and set aside. Rule is made absolute with no order as to costs."
4. It appears that after the petition was disposed of vide judgment dated 15.3.2001, it came to the notice that the sole petitioner had died before the petition came to be allowed.
5. Thereafter the State preferred an appeal against the judgment dated 15.3.2001 which was registered as Letters Patent Appeal No.805 of 2003. The appeal was filed after period of limitation, therefore, the application seeking condonation of delay was filed. In the said Civil Application No.9432 of 2001, the Court Page 2 of 8 HC-NIC Page 2 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER passed below quoted order:
"Against the impugned judgment and order dated 15.3.2001 passed by the learned Single Judge of this court (Coram :
A.L.Dave, J.) allowing Special Civil Application No.1824 of 1999 filed by the respondentsoriginal petitioner, the appellants have filed the above appeal before this court, which is barred by period of limitation of 47 days. For condoning the delay of 47 days this application is filed. On 31.8.2001 notice was ordered to be issued to the other side on this application, but the same has returned unserved with endorsement that sole opponentoriginal petitionerBadarji Viramji expired on 13.2.2000. However, it is pointed out by learned AGP, Mr.Sood that in fact he expired on 13.2.2001 and not on 13.2.2000. Be that as it may. It is clear that prior to passing of the order by the learned Single Judge on 15.3.2001 respondent has expired. In that view of the matter, the applicants have to first approach the learned Single Judge by way of appropriate application as the learned Single Judge has allowed the petition in favour of a dead person. In view of the above, learned AGP, Mr.Sood seeks permission to withdraw application for condonation of delay, main Letters Patent Appeal, Civil Application for stay and Civil Application for bringing legal heirs on record. Accordingly, permission is granted and application for condonation of delay, main Letters Patent Appeal, Civil Application for stay and Civil Application for bringing legal heirs on record stand dismissed as withdrawn."
6. It appears that subsequently, the matter was remanded to learned single Judge. After the matter was remanded to the learned single Judge, the State filed an application condonation of delay in taking an application for leave to implead the heirs. The said application came to be allowed vide order dated 3.7.2015, which reads thus:
"This is an application for condonation of delay of 1810 days caused in filing Misc. Civil Application. Considering the averments made in this application and considering the fact that the application was filed in the year 2005 when the State came to know that the petition was allowed after the petitioner had passed away, this application is allowed Page 3 of 8 HC-NIC Page 3 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER and delay caused in filing Misc. Civil Application (Stamp) No.2415 of 2005 is condoned. Aforesaid Misc. Civil Application be numbered and listed for hearing along with main matter on 6th July 2015."
7. It appears that the applicant had also preferred Misc. Civil Application (Stamp) No.2415 of 2005 with a request to recall the judgment dated 15.3.2001 on the ground that the order was passed after the sole petitioner died and the heirs of the sole petitioner were not impleaded in the proceedings. The Court condoned the delay vide order dated 3.7.2015.
8. Thereafter, Misc. Civil Application (Stamp) No.2415 of 2015 was registered as Misc. Civil Application No.1835 of 2015. This Court passed below quoted order on 22.12.2016 in the said Misc. Civil Application No.1835 of 2015:
"1. Heard learned AGP Mr.Venugopal Patel for the applicant State. None is present for learned Advocate Mr.J.K.Gandi for Respondent Nos.1.1, 1.2, 1.4 and 1.5. Respondent nos.1.3 and 1.6 have already been deleted.
2. Present Misc. Civil Application has been filed by the applicantState for recalling of the order dated 15.03.2001 passed by the Coordinate Bench in Special Civil Application No.1824 of 1999 on the ground that the sole petitioner of the petition had already expired, when the said order was passed by the Coordinate Bench.
3. It appears that the applicantState had preferred Letters Patent Appeal No.805/2003 alongwith Civil Application for bringing the heirs of the deceased sole petitioner on record alongwith Civil Application for Page 4 of 8 HC-NIC Page 4 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER condonation of delay. However, Division Bench was of the view that the applicantState would have to first approach the Single Bench by way of appropriate application, as the Single Bench had allowed the petition in favour of the dead person. Hence, the present Misc. Civil Application has been filed.
4. In view of the above, present Special Civil Application No.1824 of 1999 having been disposed vide order dated 15.03.2001 when the sole petitioner had already expired, the said order deserves to be recalled. Accordingly, the order dated 15.03.2001 is recalled. The petition is directed to be heard afresh on merits.
5. Accordingly, Present Misc. Civil Application is allowed."
9. After the said order dated 22.12.2016, the petition came to be listed for hearing on different dates, however, no one appeared for the petitioner. The record does not reflect that the heirs of the petitioner have been impleaded as party to the proceedings or not.
10. However, office put up remark in the cause list which is reflected in the Court's order dated 3.4.2017, which reads thus:
"So far as this petition is concerned, today's cause list reflects below quoted remarks:
NOTICE NOT RECD BACK 1 adv. Notice ADVOCATE NOTICE UNSERVED 1 to pet no.1 MR. D.P. KINARIWALA 1 unserved as expired.
GOVERNMENT PLEADER 2 NOTICE SERVED BY DS 1,3 In view of the said remarks, as a last chance, proceedings are deferred until 10.4.2017 with clarification that if the hearing is not attended, the Court will be constrained to pass appropriate order."Page 5 of 8
HC-NIC Page 5 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER
11. After the said order, the petition is listed in Today's Cause List for Final Hearing.
12. At this stage, Mr.Kinariwala, who originally represented the petitioner, appeared and submitted that under instructions he has returned the papers before long time and he does not have any idea about the facts of the case or any instructions from the heirs of the petitioner. He pleads no instruction and no authority to represent petitioner / his heirs.
13. Having regard to above mentioned facts, there is no option but to dismiss the petition on ground of nonprosecution because in the petition which is pending since 1999, any steps to implead the heirs of original sole petitioner have not been taken.
14. Even when the petition came to be allowed by judgment dated 15.3.2001, the petitioner had already died and the said judgment came to be passed after the sole petitioner died and without Page 6 of 8 HC-NIC Page 6 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER the amendment in the petition impleading the heirs of the petitioner.
15. The appeal against the judgment came to be partly allowed by the Court and the matter came to be remanded to the learned single Judge with clarification that the steps to seek condonation of delay and steps to implead the heirs of the petitioner may be taken and the petition can thereafter be heard on merits.
16. In an application filed by the State, above mentioned orders came to be passed by the Court, however, subsequently, no one has come forward to join the proceedings.
17. It appears that the petitioner has either abandoned the proceedings or the cause to prosecute the petition does not survive.
18. Be that as it may. The fact remains that the petition is not being prosecuted by the petitioner or the petitioner's heirs / legal representatives.
Page 7 of 8 HC-NIC Page 7 of 8 Created On Mon Aug 14 01:02:07 IST 2017 C/SCA/1824/1999 ORDER
19. In this view of the matter, following order is passed:
The petition is dismissed on ground of non prosecution with clarification that if the heirs / legal representatives of the petitioner are still interested in prosecuting the petition on merits, then they may file appropriate application within reasonable time after receipt of the certified copy of this order.
Copy of this order shall be forwarded to the address mentioned in the cause title of the petition. In addition to regular mode of service through office, the order shall also be forwarded to the said address through Registered Speed Post.
(K.M.THAKER, J.) Bharat Page 8 of 8 HC-NIC Page 8 of 8 Created On Mon Aug 14 01:02:07 IST 2017