(1) Heard Mr.Kirtidev R. Dave, learned advocate for the petitioner, Ms.Asmita Patel, learned Assistant Government Pleader for respondent No.1, Mr.H.S.Munshaw, learned advocate for respondent No.2, and Mr.B.Y.Mankad, learned advocate for respondent No.3.
(2) By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged order dated 17.12.2011 passed by respondent No.1-Special Secretary (Appeals), Revenue Department, in MVV/BKHP/KACHCHH/11/2011 whereby respondent No.1 has granted interim relief against the order dated 03.10.2011 passed by District Development Officer, Kachchh.
(3) This Court (Coram: Abhilasha Kumari, J) vide order dated 02.03.2012 has passed the following order:
"Heard Mr.Kirtidev R. Dave, learned advocate for the petitioner. It is submitted by him that as per record available with the petitioner that has been appended to the petition, notice dated 25.10.2011, for hearing the application for grant of interim stay on 09.11.2011, filed by respondent No.3 along with the Revision Application, was sent by registered parcel on 05.11.2011. That the petitioner received the said notice on 14.11.2011, that is, after the date of hearing as specified in the notice. The petitioner wrote a letter to respondent No.1 on 24.11.2011, stating that he had received the notice for the hearing on 09.11.2011, only on 14.11.2011, after the date of the said hearing; therefore, another date be fixed and an opportunity of hearing be granted to the petitioner. The letter dated 24.11.2011 of the petitioner has been received by respondent No.1 on 28.11.2011, as per the endorsement made on the margin of the said communication by the office of respondent No.1. It is contended that without verifying whether the notice has been received by the petitioner, respondent No.1 proceeded with the hearing on 09.11.2011, without granting an opportunity of hearing to the petitioner, and by considering the communication dated 24.11.2011 sent by the petitioner, as written submissions. It is contended that by the impugned order dated 17.12.2011, a stay order has been granted in favour of respondent No.3, without hearing the petitioner.
Notice for final disposal, returnable on 20.03.2012.
Status-quo, as it exists today, shall be maintained by the parties, till then.
In addition to the normal mode of service, Direct Service is also permitted."
(4) Thus, the order impugned in the present petition is stayed and the authorities are directed to maintain status-quo as on 02.03.2012.
(5) Mr.Dave, learned advocate for the petitioner, has pointed out that a notice dated 25.10.2011 for grant of interim relief on 09.11.2011 has sent by Registered Post A.D. on 05.11.2011 and the said notice is received by the petitioner on 14.11.2011 i.e. after the date of hearing fixed by respondent No.1 as per the aforesaid notice. It was further pointed out that the said fact was also brought to the notice of respondent No.1, however, without any verification and without granting any opportunity of being heard to the petitioner merely by considering the written statement filed by the petitioner order impugned dated 17.12.2011 is passed.
(6) As against this Mr.Mankad, learned advocate for respondent No.3, has relied upon the affidavit dated 14.07.2012 tendered today and has contended that the contention that the petitioner is not heard is not true and it can be culled out from the order impugned that the written submissions given by the petitioner has been considered by respondent No.1 while passing the impugned order dated 17.12.2011.
(7) Considering the submissions made and on going through the order impugned it is true that respondent No.1 while passing the impugned order has considered the written submission, however, no opportunity of being heard is granted to the petitioner. From the averments made in the petition and as per the photocopies of the envelops which are part of the petition at Annexure-F it transpires that the contention raised by the petitioner that the notice was received by the petitioner after the actual date of hearing before respondent No.1. Hence, interest of justice would be served if the order impugned dated 17.12.2011 passed by respondent No.1 is quashed and set aside and respondent No.1 is hereby directed to hear the parties and decide the application for stay filed by respondent No.3 herein afresh, after giving opportunity of being heard to the petitioner and respondent No.3 and other authorities.
(8) It is however made clear that the order impugned is quashed and set aside on the sole ground that opportunity of being heard was not given to the petitioner, who was the respondent in the revision application. Respondent No.1 is further directed to fix the hearing of the stay application as expeditiously as possible and dispose of the same after granting re-hearing, as aforesaid directions, but not later than 31.08.2012. It is also further made clear that respondent No.1 shall decide the same on its own merits without being influenced that the the order impugned in the present petition is quashed and the matter is remanded.
(9) With these observations, the petition stands disposed of accordingly. Parties to bear their own cost.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Top