Dismissed

Shri. Ibrahim Bepari v. Director of Urban Development and 3 Ors.

Bombay HC7 Feb 2014WP/11/2014

Case brief

AI extract

What is this about?

The Court dismissed a writ petition regarding the maintainability of a review application for an order changing trade nature from mutton to chicken. The respondent was directed to dispose of the case within eight weeks, considering preliminary objections afresh, and communicate any adverse order before implementation.

What did the court decide?

Respondent to dispose of case within 8 weeks, consider maintainability afresh without influence of previous order, and communicate adverse order before implementation.

Shri. Ibrahim Bepari Vs Director of Urban… — Writ and Judicial Review | Bombay HC (2014)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 11 OF 2014

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SHRI. IBRAHIM BEPARI ... Petitioner Versus DIRECTOR OF URBAN DEVELOPMENT AND 3 ORS., ... Respondents

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Mr. Sarvesh Dinker Kamat Malyeker, Advocate for the petitioner. Mr. P. Phaldessai, Additional Government Advocate for Respondent No.1. Mr. S.D. Padiyar, Advocate for Respondent no.2. Mr. R. Rao, Advocate for Respondent no.3. Mr. Ashwin D. Bhobe, Advocate for Respondent No.4.

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Coram:U. V. BAKRE, J.

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Date:7th February, 2014

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P.C.:

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Heard Mr. Kamat Malyeker, learned Counsel for the petitioner, Mr. Phaldessai, learned Additional Government Advocate for respondent No.1, Mr. Padiyar, learned Counsel for respondent no.2, Mr. Rao, learned Counsel for Respondent no.3 and Mr. Bhobe, learned Counsel for respondent No.4.

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By order dated 05/09/2013, the respondent no.1 directed the respondent no.2 to enter into a fresh agreement with the petitioner and permitted change of nature of trade from sale of mutton to sale of chicken and directed the respondent no.2 to incorporate in the new agreement the nature of the trade, to be more specific, as sale of chicken as permissible in law.

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Against the order dated 05/09/2013, the respondent no.4 filed an Appeal before the Administrative Tribunal and at the same time filed

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an application dated 23/10/2013 before the respondent no.1 for reconsideration/ review of the order dated 05/09/2013. The petitioner filed preliminary objections dated 21/11/2013 and also a reply on merits.

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By impugned Order dated 16/12/2013,the respondent no.1 has expressed a prima facie opinion that this is a fit case for exercise of suo motu powers of review of the said Order dated 05/09/2013.

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It is pertinent to note that in reply to the application dated 23/10/2013 filed by the respondent no.4, for reconsideration/ review of the order dated 05/09/2013, the petitioner had filed preliminary objection regarding maintainability of the review application inter alia alleging that the same order has also been challenged before the Administrative Tribunal and this fact has been suppressed. It is seen that in the order dated 16/12/2013 the respondent no.1 has specifically mentioned that the petitioner has questioned the maintainability of the Review. The respondent no.1 has held that under the Provisions of Section 305 of the Goa Municipality Act, he can either on his own motion or on an application of any party interested can review any order passed or any sanction or approval given under the Act and pass such order in reference thereto as he thinks fit. This position, as above, has been disputed by the learned Counsel for the petitioner. The learned Counsel for the petitioner is of the view that review is not maintainable.

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What has been further observed by the respondent no.1 in the impugned order is merely a prima facie opinion that the direction in

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order dated 05/09/2013 for change of trade is an error on the face of record which justifies review of decision/ order of the Authority dated 05/09/2013. Therefore, it is clear that the observations made by the respondent no.1 are of a prima facie nature. No final decision has yet been taken.

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Though in the petition, the petitioner has alleged malafides against the respondent no.1, however the learned Counsel for the petitioner has made a statement that he is not pressing for the said allegations.

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In the circumstances above, I am of the view that the respondent no.1 can be directed to dispose of the matter finally by considering the preliminary objections raised by the petitioner on the maintainability of the review application afresh and also on other grounds raised by him in his reply on merits and without being influenced by the prima facie observations made in the impugned Order. The learned Counsel for the parties are agreeable for the above.

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In view of the above, the writ petition is dismissed, however with following observations:

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(i) The respondent no.1 shall dispose of the said Case No. 17/2013-DMA/2752 expeditiously and in any case within a period of 8 (eight) weeks from the date of receipt of this order.

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(ii) The respondent no.1 shall take into consideration and decide in the same order the preliminary objections on maintainability of the review as raised by the petitioner afresh as also on all objections

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raised by the petitioner in his reply on merits, without being influences by any observations made in the order dated 16/12/2013. (iii) All the contentions of all the parties are kept open.

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(iv) In the event of any adverse order being passed against the petitioner, the same shall be communicated to the petitioner and the same shall not be implemented for a period of 15 (fifteen) days from the date of communication.

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U. V. BAKRE, J.

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Shri. Ibrahim Bepari v. Director of Urban Development and 3 Ors.

Case brief

What is this about?

What did the court decide?

Shri. Ibrahim Bepari v. Director of Urban Development and 3 Ors.

Case brief

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What did the court decide?

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