(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. With the consent of learned counsel appearing for the parties, we have taken up this appeal for final hearing today itself.
2. By way of this appeal under Clause 15 of the Letters Patent, the original - respondent No.3 has challenged the judgment dated 23.2.2010 passed by the learned Single Judge in Special Civil Application No.3214 of 2009 whereby the learned Single Judge has allowed the petition and quashed the orders passed by the authorities below.
3. It appears from the record that, at the initial stage, the notice was issued. Pursuant to the notice, the appellant who was respondent No.3 in the writ petition, though served, did not appear before the learned Single Judge. While issuing notice, ad-interim relief was granted which continued till disposal of the petition.
4. From the said judgment, it appears that, at the admission stage, the original petitioner requested the learned Single Judge to delete respondent No.3 by making a statement that he had no interest in the land in question since he had sold the land in question to the petitioner. After accepting the request, the learned Single Judge issued `Rule' and heard the matter on the same day for final disposal. The learned AGP appeared for respondents No.1 and 2. The learned Single Judge, relying upon two decisions, allowed the petition and quashed the impugned orders passed by the authorities below.
5. We have heard learned counsel Mr.Vikram Thakor for the appellant i.e. original respondent No.3 who came to be deleted in the proceedings before the learned Single Judge and learned counsel Mr.Mehul Sharad Shah for the respondent No.1 and learned AGP Ms.Jirga Jhaveri for the respondents No.2 and 3. We are of the opinion that the disputed land was sold by the present appellant to the original petitioner and, therefore, he was interested in the land, and therefore, was proper and necessary party in the matter. Though, at the time of admission stage, the appellant might not have appeared through the lawyer or filed affidavit-in-reply, but, while disposing of the matter finally, he was required to be heard which has not been done in the present case. The issuance of 'Rule' in the writ petition presupposes that the matter requires consideration and, therefore, before allowing the same, all parties and particularly who is affected party must be heard.
6. For the aforesaid reasons, and without entering into the merits of the case, the appeal is allowed. The impugned judgment dated 23.2.2010 passed by the learned Single Judge is set aside. The matter is remanded to the learned Single Judge to decide the matter afresh after hearing the concerned parties.
7. Learned counsel Mr.Vikram Thakor for the appellant submits that he shall file affidavit-in-reply to the Special Civil Application, as early as possible, on or before 15th June, 2012. The original petitioner is at liberty to file affidavit-in-rejoinder thereafter. The parties are also permitted to file additional affidavit for the effective adjudication of the writ petition.
8. Since from the date of notice, ad-interim relief was granted in favour of the petitioner, it would be desirable that the parties are directed to maintain status-quo till final hearing of Special Civil Application.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top