Gujarat High Court
Gujarat Housing Board vs Roshaniben Vipinchandra Bhatt Now ... on 10 September, 2014
Author: Jayant Patel
Bench: Jayant Patel, C.L. Soni
C/LPA/1404/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1404 of 2013
In SPECIAL CIVIL APPLICATION NO. 13483 of 2010
With
CIVIL APPLICATION NO. 12713 of 2013
With
LETTERS PATENT APPEAL NO. 1408 of 2013
In
CIVIL APPLICATION NO. 4931 of 2012
With
CIVIL APPLICATION NO. 12717 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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GUJARAT HOUSING BOARD....Appellant(s)
Page 1 of 10
C/LPA/1404/2013 CAV JUDGMENT
Versus
ROSHANIBEN VIPINCHANDRA BHATT NOW ROSHANIBEN A PATEL &
3....Respondent(s)
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Appearance:
Ms. Renu Singh for MR YN RAVANI, ADVOCATE for the Appellant(s) No. 1
Mr. P.P. Banaji, AGP for the Respondent(s) No. 3 - 4
MR DP VORA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE C.L. SONI
Date : /10/09/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE C.L.SONI)
1. These appeals under clause 15 of the Letters Patent since directed against the orders passed in one and same petition being Special Civil Application No. 13483 of 2010. they are heard and decided together by this common judgment.
2. Both appeals are filed by original respondent No.2. Letters Patent Appeal No. 1408 of 2013 is filed against the order dated 8.3.2013 passed in Civil Application No. 4931 of 2012 which was preferred by the original petitioner. Letters Patent Appeal No. 1404 of 2013 is filed against the final final order dated 1.4.2013 passed in the Special Civil Application.
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3. The Special Civil Application was preferred for the following prayers:
"28.A) This Hon'ble Court may be pleased to issue a writ of mandamus or any other writ, order of direction in the nature of mandamus be issued against the respondent No.4 directing him to release and pay the pension and pensionary benefits with interest to the petitioner as fixed by the Director, Pension and Provident Fund in his letter dated 3.12.2007 (Annexure-A) addressed to respondent No.4 and the facts narrated in letter dated 3.1.208 (Annexure-B) of petitioner addressed to respondent No.4 and in paragraph 5,12,13,14 and para 24.5 of the memo of petition.
B) This Hon'ble Court be pleased to grant any such other and further reliefs as this Hon'ble Court deems just and proper in the facts and circumstances of the case.
C) To award cost of this petition.".
4. The learned Single Judge passed following order dated 20.10.2010 in the main petition:
"Heard learned advocate Mr. Vora for the petitioner. Learned advocate for the petitioner invited attention of the Court to Annexure-A (Pension Authority Letter dated 7th December 2007). Despite this letter in hand, the petitioner is hanging in the air to receive the pension.
Learned AGP Mr. Pathak wants time. The matter is kept on 28th October 2010. By that date, the authorities are expected to see that the pension is received by the petitioner. A copy of Page 3 of 10 C/LPA/1404/2013 CAV JUDGMENT this order be made available to the learned AGP for its onward communication for compliance."
5. Thereafter, Civil Application No.4931 of 2012 [Civil Application (Stamp Number) No. 4846 of 2012] was preferred by the original petition on 3.4.2012 for following prayers:
"3(A) That this C.A. be placed before the appropriate Court for clarification of oral order passed on 20.10.2010 (Annexure-"K") clarifying that word 'pension' also includes 'pensionary benefits' as requested in concluding part of para 2 above.
(B) ....."
6. While dealing with the said Civil application, the learned Single Judge issued following directions and order in para 8 to 12 on 8.3.2013:
"8. In view of the aforesaid discussion the Court is of the opinion that the following directions will meet the ends of justice.
(i) Respondent no.4-District Treasury Officer should release full pensionary benefits to the applicant as provident fund, gratuity as per PPO Order, Annexure 'A' (page 46 of the petition). Total pensionary benefits which have remained unpaid be paid to the petitioner with interest at the rate of 9% per annum from 01.09.2007 till date of payment to the applicant.
(ii) The applicant is held eligible by the Hon'ble the Supreme Court by its order dated 14.12.1994 for allotment of Gujarat Housing Board Tenement No.42/1 in 'L' Colony on hire purchase basis, the same be handed over to the applicant for which pensionary benefits were not paid by the respondents.
The applicant is declared to be owner of the said quarter from 01.04.1980 and hence the house rent deducted from salary of the applicant from 01.04.1980 to 31.08.2007 be refunded to the applicant or be adjusted towards the amount required to be paid to her towards (cost of Gujarat Housing Board Tenement L/42/1).
(iii) Possession of tenement No.42/1 be handed over to the Page 4 of 10 C/LPA/1404/2013 CAV JUDGMENT applicant within two months from the date of receipt of this order on the basis of hire, purchase scheme.
9. Notice issued by the authorities for recovery of house rent from the applicant- petitioner to the tune of Rs.7,28,235/- on the basis of unauthorized occupation of tenement No.42/1 is quashed and set aside, but as the applicant - petitioner was required to deposit 10% of the said amount which the applicant has deposited in 10 equal installments, the said amount be refunded to the applicant with interest of 9% per annum within two months from the date of receipt of a copy of this order.
10. Taking into consideration the fact that widow lady is made to approach this Court repeatedly it is deemed proper that if not full costs, of fighting litigation against the mighty Government, at least as a token amount a sum of Rs.25,000/- (Rupees twenty five thousand only) is ordered to be paid to the applicant- petitioner by way of cost of litigation.
11. At the request of the learned advocate for the applicant petitioner it is clarified that all the contentions raised by the Government in the affidavit filed on 07.01.2012 (by Executive Engineer, City R&B Division, Ahmedabad) and 11.01.2013 (by Gujarat Housing Board) stand rejected. The application is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
12. In light of the aforesaid directions issued in the Civil Application, the grievance of the petitioner in the petition stands redressed. As and when the Special Civil Application is placed before the learned Single Judge as per the roster, the same will be disposed of accordingly."
7. Thereafter, when the main Special Civil Application was taken up for hearing, learned Single Judge passed following final order on 1.4.2013 and disposed of the petition in terms of the order made on above referred Civil Application.
"9. In view of the said direction and in light of the joint submission by learned advocate for the petitioner, respondent No.2 and learned AGP, present petition is disposed of in terms of the direction passed by the Court in the order dated 8.3.2013 in Civil Application No.4931 of 2012 in Special Civil Application No. 13483 of 2010. Page 5 of 10 C/LPA/1404/2013 CAV JUDGMENT The parties will abide by the said direction. Ordered accordingly."
8. We have heard learned advocates for the parties.
9. Learned Advocate Ms. Renu Singh appearing for learned Advocate Mr. Yogesh N. Ravani for the appellants Gujarat Housing Board - original respondent No.2 submitted that the main petition was preferred for direction to release the pension benefit wherein initially learned Single Judge made order dated 20.10.2010 for granting request for time and recording that by the next date, the original petitioner would receive the pension. Ms. Renu Singh submitted that Civil Application No. 4931 of 2013 was then filed just for clarification in the order dated 20.10.2010 to read word 'pension' includes 'pensionary benefits'. Ms. Renu Singh submitted that even if such application was to be allowed, at the best, clarification as prayed could have been permitted in the order dated 20.10.2010 so as to read word "pension" in the said order to include "pensionary benefits" but in no circumstances, directions and order contained in para 8 to 12 of the order dated 8.3.2013 could have been issued by the learned Single
10. Ms. Renu Singh submitted that based on such interim order, learned Single Judge could not have passed further final order in the main petition. Ms. Renu Singh submitted that the learned Single Judge has exceeded in his jurisdiction in passing the impugned orders Page 6 of 10 C/LPA/1404/2013 CAV JUDGMENT and therefore, impugned orders are required to be quashed and set aside.
11. As against the above arguments, learned Advocate Mr. D.P. Vora appearing for respondent No.1-original petitioner submitted that since the question of allotment of house to the husband of respondent No.1 was an incidental issue in connection with the withholding of pensionary benefits to the petitioner, the learned Single Judge deemed it proper to pass the directions and the orders in Civil Application No. 4931 of 2012 to meet the ends of justice and to avoid multiplicity of the litigation.
12. Mr. Vora submitted that it is not correct to say that the issue about the allotment of the house to the husband of respondent No.1 had not arisen for the decision of the Court. Mr. Vora submitted that in the prayer clause of the petition, respondent no.1 prayed to grant relief even in connection with the letter at Annexure - B dated 3.1.2008 (12.8.2008) wherein respondent No.1 had pointed out that the pension benefits available to the respondent no.1 were wrongly withheld on the ground of allotment of the house. Mr. Vora submitted that since the respondent no.1 was entitled to pension benefits, learned Single Judge while finally disposing of the petition, after quoting the interim order, has recorded that the petition was disposed of in terms of the interim order and thus committed no error in passing the impugned final order.
Page 7 of 10 C/LPA/1404/2013 CAV JUDGMENT
13. Having heard the learned advocates for the parties and having considered the nature of relief prayed in the petition as also in civil application, it appears that the main petition was filed seeking direction to release payment of pension and pensionary benefits with interest to the respondent no.1 - original petitioner. In the prayer clause, letter at Annexure-B with the main petition is referred. Letter referred at Annexure-A is for pension from the office of Director of Pension. Perusing the said letter at Annexure-B, it appears that the same was addressed by the respondent no.1 to the District Treasury Officer requesting to release the pension benefits as per the communication of the Director of Pension and Provident Fund. It is pointed out in the said letter that the pension benefits of the petitioner could not have been withheld on the ground that the issue about the allotment of house was pending before the Court. Such was the ground stated by the respondent No.1 in her letter for requesting the District Treasury Officer to release the pension benefits to her. However, such could not be said to be in any manner the request for allotment of the house. Therefore, what clearly appears from the prayer clause of the main petition is that the petition was only for the release of pensionary benefits to respondent no.1. Even if such petition was to be allowed, the learned Single Judge at the best could have issued the final direction for release of pension to respondent no.1. But no direction or orders beyond the scope of the petition could have been issued either by way of final order or in civil Page 8 of 10 C/LPA/1404/2013 CAV JUDGMENT application.
14. So far as the pension benefits are concerned, it is pointed out that the pension benefits have already been made available to respondent no.1.However, other directions issued vide order dated 8.3.2013 in Civil Application No. 4931 of 2012 are not only beyond the prayer made in civil application but also beyond the scope of the petition. The learned Single Judge has thus exceeded in his jurisdiction while issuing the above said directions contained in paragraph 8 to 10 of the order dated 8.3.2013 and passing final order in terms of the interim order except the directions as regards release of the pension benefits.
15. We find that when the civil application seeking clarification in the order dated 20.10.2010 was filed to read the word "pension" as "pensionary benefits", no order beyond clarification sought or at the best in connection with pension could have been made. Instead, the order made in the civil application has traveled much beyond the scope of the prayer made therein. Such order, therefore, cannot stand in the eye of law.
16. Similarly, if such order in the civil application could not have been made beyond the scope of the prayer made therein, the same could not have been made final while finally disposing of the petition except grant of prayer for release of pensionary benefits to Page 9 of 10 C/LPA/1404/2013 CAV JUDGMENT respondent no.1. Thus, even the final order made by the learned Single Judge in the main petition in terms of the order made in the civil application cannot stand scrutiny of law except the order as regards release of pensionary benefits to respondent no.1.
17. For the reasons stated above, the appeals are allowed. Impugned order dated 8.3.2013 passed in Civil Application No. 4931 of 2012 is quashed and set aside and the impugned final order dated 1.4.2013 passed by the learned Single Judge in the main petition is also quashed and set aside except the direction for release of pension benefits to respondent no.1. The main petition shall be treated to have been allowed only to the extent of payment of pensionary benefits to respondent no.1 which respondent no.1 has already received. Appeals are disposed of accordingly.
18. In view of the orders passed in the appeals, above said civil applications would not survive. Hence the civil applications are disposed of as not surviving.
(JAYANT PATEL, J.) (C.L.SONI, J.) anvyas Page 10 of 10