Petitioner challenged an order granting stay to Collector's judgment without hearing him or recording reasons, citing improper procedure and authority.
The order dated 4th February 2013 deemed ad-interim; petitioner heard on merits; Commissioner to give reasons before disposing of stay petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 1214 OF 2013
Kashinath S/o Appasaheb Kale, Age : 54 Years, Occu. : Agril., R/o Kashti, Tq. Shrigonda, Dist. Ahmednagar.
... PETITIONER
V E R S U S
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( The copy of respondent Nos.1 to 6 to be served through the Government Pleader at High Court of Bombay, Bench at Aurangabad. ) 7. Sudhir S/o Balchandra Kulkarni, Age : 48 Years, Occu. : Business, R/o. Kashti, Tq. Shrigonda, Dist. Ahmednagar. 8. Satish S/o Balchandra Kulkarni, Age : 45 Years, Occu. : Business, R/o. Kashti, Tq. Shrigonda, Dist. Ahmednagar. ... RESPONDENTS ----Mr. Abasaheb D. Shinde, Advocate for the Petitioner. Mrs. S.D.Shelke, AGP for Respondent Nos.1 to 6. Mr. Abhijit S. More, Advocate for Respondent No.7.
CORAM : S.V.GANGAPURWALA, J. DATE : 02nd April, 2013.
ORAL JUDGMENT:
1 Rule. 2 Rule made returnable forthwith. With the consent of the parties, taken up for final hearing.
3 The Petitioner assails the order dated 4th February, 2013 passed by the Additional Commissioner, Nashik thereby granting stay to the judgment and order passed by the Additional Collector.
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4 Mr. Shinde, learned counsel submits that in spite of the fact that caveat was filed by the Petitioner, the Commissioner granted stay. The said stay has been granted till the decision of the appeal. The Petitioner is not heard and still the stay has been granted till the decision of the appeal. The effect of the stay granted would be negating the order passed by the Additional Collector.
5 Mr. More, learned counsel submits that after verifying the caveat register and after having been satisfied that there is no caveat, the Commissioner has passed the said order. No illegality has been committed in passing the said order. The Additional Commissioner had taken into consideration the merits of the matter and has granted stay.
6 With the assistance of the learned counsel, I have gone through the order. Perusal of the order, it is manifest that the same is an unreasoned one. Prima-facie case has not been considered by the Additional Commissioner while passing the impugned order. The Commissioner was passing the order without issuing notice to the Petitioner. In such a case, the Commissioner could not have passed an order of stay till the disposal of appeal. If the Commissioner is satisfied that the Appellant has a prima-facie case, then at the most, the Commissioner can pass an ad-interim order and not an interim order till the disposal of the appeal. In many cases, I have observed this fact that the Commissioner without hearing the other party, are passing orders of stay till the disposal of the appeal.
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7 Vide order dated 12th February, 2013, while issuing notice to the Respondents, I have observed as under:
8 In light of the above, I pass the following order:
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[ S.V.GANGAPURWALA, J. ]
ndm
3 issues framed by the court
Whether an order granting stay without hearing the petitioner and without recording reasons constitutes a proper exercise of jurisdiction?
Whether the Commissioner was authorised to grant an interim stay order till disposal of an appeal without considering the prima-facie case.
Whether the order dated 4th February 2013 amounting to a stay must be deemed as ad-interim till disposal of the stay petition?
2 provisions across 1 enactments
Kashinath S/o Appasaheb Kale
The State of Maharashtra
The Additional Commissioner, Nashik Division
The Additional Collector, Ahmednagar
The Sub Divisional Officer, Karjat Division
The Tahsildar, Shrigonda
S.V.GANGAPURWALA,J.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
