On 28.02.2012, this court had to pass an order with specific observation with regard to unholy haste on the part of the authority in passing the impugned order, therefore, the court while issuing notice on 28.02.2012 and making it returnable on 12.03.2012 called upon the respondents, especially the respondent no. 3 to file an affidavit in response to the averments made in the petition and non-filing of the affidavit, it was clarified in the very order that, it would amount to accepting the submissions and averments made in the petition and court, therefore, would pass appropriate order by way of interim relief.
Despite this order, unfortunately on the returnable date i.e. on 12.03.2012, no affidavit is filed and today also, when the matter is called out, learned AGP has submitted that no affidavit could be filed.
Now when the court has put the authorities to sufficient notice with regard to the averments made in the petition and court's prima-facie view, it was bounden duty cast upon the respondents to file affidavit in reply. From the record, it appears that notice was served upon the respondents with an order on 03.03.2012 itself. Today, learned AGP is not in a position to explain as to under what circumstances and for what reasons the affidavit has not been filed.
The basic principles of pleadings would rather persuade the learned advocate or litigant to understand the repercussion of non-filing of affidavit, which would amount to accepting the averments made in the petition. When the court has specifically called upon the respondents to file an affidavit, it is the duty of respondents to file an affidavit before the returnable date, The inaction or inertia could be evinced by not filing the affidavit for helping the petitioner on extraneous ground. There exists no plausible explanation to explain the conduct on the part of authority. In this situation, therefore, this court is of the considered view that petition is required to be admitted and appropriate relief is required to be granted.
This petitioner has chequered history in the sense that the petitioner had to file a petition on earlier occasion being Special Civil Application No. 16161 of 2011, in which, this court (Coram: Abhilasha Kumari, J.) has passed an order dated 23.12.2011, which is placed on record from page nos. 60 to 70 Annexure F. Learned advocate for petitioner relied upon the decision in case of Inderpreet Singh Kahlon & Ors. Vs. State of Punjab & Ors. reported in AIR 2006 SC 2571, and laid emphasis on paras 76 and 77, which reads as under:-
"Para-76.
It is, thus, furthermore, beyond any body's comprehension as to why action had to be taken in undue haste.
Para-77:
We do not intend to suggest that in any emergency it was not permissible but we have not been shown that any such emergent situation existed. It was in any event necessary for the State to show as to how the records moved so as to satisfy the conscience of the court that there had been proper and due application of mind on the part of the concerned authorities. An action taken in undue haste may be held to be malafide. (see Bahadursinh Lakhubhai Gohil V. Jagdishbhai M. Kamalia and others, (2004) 2 SCC 65."
Learned advocate for the petitioner submitted that when unholy haste is evinced by respondents or authority, it would amount to smack of malafide exercise of powers.
In view of aforesaid facts and circumstances of the case and an order dated 28.02.2012 passed by this court, this court is of the considered view that Rule is required to be issue, hence, Rule. Interim relief in terms of para-19(c) is granted on condition that petitioner shall file an undertaking before this court indicating that property and vehicles mentioned in para-3 as (A) to (D) would not be alienated in any manner and they would not be kept/employed in any unauthorized activities and not be taken outside State of Gujarat and would be made available as and when required under the court's order. The said undertaking be filed within one week from today and thereafter, the vehicles and properties mentioned in para-3 will be released and before that, the vehicles and properties mentioned at para-3 are not to be released. This order will be operative only on furnishing the undertaking with a copy to other side. Direct service permitted.
(S.R.BRAHMBHATT, J.) pallav Top