Disposed

Sima Paresh Gandhi and Ors. v. the State of Maharashtra and Others

Bombay HC24 Sept 2019CA/6476/2019

Case brief

AI extract

What is this about?

The High Court directed the Revenue Commissioner to decide pending appeals filed by petitioners against a Collector's order within two weeks and restrained the Collector from executing a recovery notice until the appeals are finally disposed of by the Commissioner.

What did the court decide?

Directed Commissioner to decide appeals within two weeks; execution of Collector's notice deferred till October 24, 2019.

Sima Paresh Gandhi and Ors. Vs the State of… — Writ and Judicial Review | Bombay HC (2019)

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5121.19wp+

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 11754 OF 2019

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1. Luniya Munot & Co.,
A duly Registered Partnership Firm,
Having its office at Ahmednagar,
Through it's Partner,
Shri Rasik Zumbarlal Luniya,
Age: 71 years, Occ.:Business,
R/o Anand Rushiji Marg,
Near Manik-nagar, Ahmednagar.

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2. Shri Rasik Zumbarlal Luniya, Age: 71 years, Occ:Business, R/o Anand Rushiji Marg, Near Manik-nagar, Ahmednagar PETITIONERS

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VERSUS

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1. The State of Maharashtra Through: The Secretary, Revenue and Forest Deptt, Mantralaya, Mumbai-32.

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2. The Commissioner, Revenue Division, Nasik

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3. The Collector, Ahmednagar, Dist:Ahmednagar RESPONDENTS

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WITH

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WRIT PETITION NO. 5121 OF 2019

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`1.`	`Sima Paresh Gandhi` `Age: 43 years`
`2.`	`Shilpa Sharad Mutha` `Age: 46 years`
`3.`	`Nirmal Sharad Mutha` `Age : 41 years`
`4.`	`Smt.Mangala Sharad Mutha` `Age: 68 years,` `Through her GPA Shri Ashok Bansilal Mutha,` `Age 72Yrs, Occ.Agri & Business.`
	`Occ.of all above: Agriculture and Business` `All R/o 83, Maniknagar, Nagar-Pune Road,` `Ahmednagar` `PETITIONERS` `VERSUS`
`1.`	`The State of Maharashtra` `Through: The Secretary,` `Revenue and Forest Deptt,` `Mantralaya, Mumbai-32.`
`2.`	`The Commissioner,` `Revenue Division, Nasik`
`3.`	`The Collector, Ahmednagar,` `Dist:Ahmednagar` `RESPONDENTS`
	`WITH`
	`CIVIL APPLICATION (St) NO.30500 OF 2019` `IN` `WRIT PETITION NO. 11754 OF 2019`
`Rah`	`ul S/o Ganesh Pawar` `APPLICANT`

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VERSUS

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Luniya Munot & Co. & Ors.

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RESPONDENTS

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WITH

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CIVIL APPLICATION (St) NO.30501 OF 2019 IN

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WRIT PETITION NO. 11754 OF 2019

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Hasan S/o Babu Zarekari

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APPLICANT

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VERSUS

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The State of Maharashtra & Ors.

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RESPONDENTS

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WITH CIVIL APPLICATION NO.6476 OF 2019 IN

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WRIT PETITION NO. 5121 OF 2019

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Sima Paresh Gandhi & Ors.

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APPLICANTS

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VERSUS

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The State of Maharashtra & Ors.

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RESPONDENTS

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WITH CIVIL APPLICATION NO. 6477 OF 2019 IN

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WRIT PETITION NO. 5121 OF 2019

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Rahul S/o Ganesh Pawar

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APPLICANT

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VERSUS

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Sima Paresh Gandhi & Ors.

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RESPONDENTS

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Mr R.R.Mantri, Advocate for the petitioners;
Mr K.S.Patil, AGP for respondent/State;

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Mr N.V.Gaware, Advocate h/f Mr S.P.Salgare, Advocate for
intervenor in CA (St.) No.30500/2019 & CA No.6477/2019
Mr R.N.Dhorde,Senior Counsel i/b Mr V.R.Dhorde, Advocate
for intervenor in CA (St.) No.30501/2019 & CA
No.6476/2019;

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CORAM : PRASANNA B. VARALE & AVINASH G. GHAROTE,JJ.

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DATED :24th SEPTEMBER,2019

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ORAL ORDER:

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All civil applications seeking intervention are

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allowed.

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2.These petitions have an identical prayer,

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namely, early decision of appeals/applications filed
before the Commissioner. Both these petitions are taken

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up together for hearing/disposal with consent of the
parties.

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3. In Writ Petition No. 11754 of 2019, the basic

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prayer is prayer clause (B) and the same reads thus:

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"B. Issue writ of certiorari or appropriate
order and call for the record of Watap Case No.
80/2019 from Collector, Ahmednagar, and appeal
no.383 and 384, both of 2019, from Commissioner,
Nasik, and be further pleased to direct him to
consider stay applications and be further
pleased to allow the stay application in appeals
no. 383/2019 and 384/2019 till decision of said
appeal."

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Whereas, in Writ Petition No. 5121 of 2019, the

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petitioner seeks a specific direction against the
Commissioner, Nashik Division, Nashik to hear and decide
the application for interim order in Appeal No.244 of
2019. Prayer clause (C) in Writ Petition No. 11754 of
2019 is grant of stay to the order passed by the
Collector dated 18th September, 2019 and prayer clause
(C) in Writ Petition No. 5121 of 2019 is for grant of
stay in terms of prayer made in stay applications before
the Commissioner.

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4.The present matter has a checkered history of
litigation which was initiated nearly before 5 decades.
It may not be necessary for us to refer to that checkered
history and same would serve no purpose except making
the order of this Court a lengthy one. The core issue is
of an order passed by the Collector, Ahmednagar on 21st
February, 2019 whereby, the Collector proceeded to
distribute the property as per the decree passed by the
competent Civil Court dated 24th September, 1963 and on
the backdrop of order passed by the learned single Judge
of this Court dated 27th March, 2018 in Writ Petition No.

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276 of 2008. Being aggrieved by the order of the
Collector, the petitioners in the respective petitions,
namely, Shri Rasik Zumbarlal Luniya, a partner of Luniya
Munot & Co., as well as Smt. Sima Paresh Gandhi, Shilpa
Sharad Mutha, Nirmal Sharad Mutha and Smt. Mangala Sharad
Mutha preferred appeals before the Commissioner. The
appeal filed on behalf of Rasik Zumbarlal Luniya for
Luniya Munot & Co., along with another person Rajendra

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Shantilal Munot was presented before the Commissioner on
or about 22nd May, 2019. Mr. Rasik Zumbarlal Luniya also
presented separate appeal before Commissioner in his
personal capacity and that appeal bears No. 383 of 2019.

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5.Similarly, petitioner No.4 Smt. Mangala Sharad
Mutha in Writ Petition No. 5121 of 2019 alongwith Sharad
Mansukhlal Mutha presented Appeal bearing No. 244 of 2019
before the Commissioner on 18th March, 2019. The
appellant Sharad Mutha in Appeal No. 244 of 2019 expired
during pendency of the appeal on 25th March, 2019. In
Appeal No. 244 of 2019, on the very date of filing of the
appeal, application for stay was also filed and

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repeated requests were made to the authority i.e the
Commisioner either to take the appeal for hearing
expeditioiusly or to pass appropriate orders on the stay
applications. The copies of the applications are placed
on record in Writ Petition No. 11754 of 2019 and these
applications are dated 19th September, 2019 and 21st

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September, 2019. Copy of the application dated 17th
September, 2019 with prayer for interim order placed on
record shows that there is a reference of earlier request

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for passing order on stay applications and dates are
mentioned in the applications as 18th March, 2019, 22nd
April 2019, 30th April, 2019, 13th May, 2019, 23rd July,
2019 and 20th August, 2019.

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6. This very application shows that the

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Commissioner has fixed the date of hearing as 10th
October, 2019. It is then stated that in spite of
repeated requests by the applicants/appellants, the
learned Commissioner is not proceeding to pass

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appropriate orders on the stay applications.

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7. It was the submission of Mr Mantri, learned

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Counsel for the petitioners that on one hand the
petitioners/appellants are time and again making request
to the Commissioner so as to pass appropriate orders on

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stay applications to take up appeals for hearing and on
the other hand, a notice came to be issued by the
District Collector dated 18th September, 2019, whereby,
it is informed that the authorities would proceed for
recovery of possession and the notice also indicated of
assistance of police force for coercive recovery.

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8. Thus, it was the submission of Mr Mantri,
learned Counsel for the petitioners that there was no
other way left for the petitioners but to approach this
Court by filing these petitions with the prayer seeking
direction to the Commissioner either to pass appropriate
orders on the stay applications or to decide the appeals
expeditiously. He then submitted that, in this fact
situation petitioners be protected by directing the
Collector not to proceed with the notice dated 18th
September, 2019 till stay applications are decided by the
Commissioner.

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9.Mr Dhorde, learned Senior Counsel and Mr Gaware,
learned Counsel for intervenors in chorus vehemently
submitted before this court that the only purpose of
these petitioners to approach this Court is to protract
and prolong the proceedings. It was the submission of
learned Counsels that though the Writ Petition No. 5121
of 2019 was filed in the month of April 2019, the
petitioners were just interested in keeping the petition
pending in this Court without circulating them and now,
the petitioners are in a hurry to seek directions for
early decision of the appeals only when notice is issued
for possession so as to give effect to the decree of the
competent Civil Court and conclude the proceeding.

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10.Mr Dhorde, Senior Counsel in his detailed

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submissions invited our attention to the order passed by
learned single Judge of this Court, and so also order
passed by the Division Bench of this Court and
vehemently submitted that if an interim order is passed

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by this Court as prayed by the petitioners, there is
every apprehension that the appeal may prolong for
further period on one or another ground and this delay
would put the applicants to serious prejudice.

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11.Considering the fact that the order passed by
the Collector is the subject matter of an appeal
presented before the Commissioner, the Commissioner has
not applied his mind to the merits of the proceedings.
Though the stay applications were filed by the parties
and repeated requests were made, no orders are passed on
the stay applications and there is certainly a reasonable
apprehension in the mind of these petitioners that if the
steps are taken in pursuance to the notice of Collector
dated 18th September, 2019, the entire purpose of filing
the appeals before the Commissioner would be nothing but
a futile exercise. At the cost of repetition, we may say
that the Commissioner at this stage has not even applied
his mind either to the facts of appeal or merits of the
appeal.

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12.Mr Dhorde, learned Senior Counsel vehemently

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submitted that there is no reason for the Commissioner to
hear these appeals as there is a detailed order passed by
the learned single Judge of this Court and learned single
Judge only permitted the judgment debtors and decree
holders to be heard and these petitioners who are only
either assignees or transferees of the properties need
not to be heard by the Commissioner.

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13.Though it was vehement submission of Mr Dhorde,

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learned Senior Counsel that it may not be necessary for
the Commissioner to hear these petitioners, we are unable
to accept his submissions.

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14.In the order passed by single Judge and more

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particularly in Para-38, clause (e), in Writ Petition No.
276 of 2008 on 27th March, 2018, the learned single Judge
though observed that the Collector would consider the

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contentions of the decree holder and the judgment debtors
before carrying out equitable partition, it cannot be
stretched to submit that the petitioners who are either
transferee or assignees of the properties have no right
at all of hearing in the appeals presented by themselves
before the Commissioner raising grievance against the
order passed by the Collector which was for the
distribution of property on the backdrop of the decree as
well as the order passed by the learned single Judge on
27th March, 2018, in Writ Petition No. 276 of 2008.

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15. Mr Mantri, learned Counsel submits that apart

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from the appeals as filed by the petitioner in these two
petitions, several other appeals are filed and pending
before the Commissioner against the same order of the
Collector. List of the appeals is submitted by Mr
Mantri, learned Counsel for the petitioners. This list

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is taken on record and marked 'X' for identification. It

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is brought to the notice of this Court that not only the

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appeals presented by the petitioners are posted for
hearing on 10th October, 2019, but all appeals against
the order of the Collector dated 21st February, 2019 are

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posted for hearing on 10th October, 2019. Mr Gaware,
learned Counsel submits that it is possible that apart
from this enlisted appeals, there are other appeals being
filed.

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16.This situation can be taken care of by directing
the Commissioner to decide the appeals filed by the
petitioners, appeals enlisted in the list submitted to
this Court and marked 'X' and the appeals which are
presented before the Commissioner till today, within two
weeks from 10th October, 2019, by giving an opportunity
of hearing to the parties of appeals presented before the

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Commissioner. We further make it clear that the
Commissioner Nasik, Division Nasik, will decide the
appeals on their own merits strictly in consonance with
the judgment in Civil Suit No. 13 of 1956 and as modified

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by the High Court in First Appeal Nos. 78 of 1958 and 79
of 1958 and the consequent orders passed therein, as well
as order passed by the Honourable Apex Court in Civil
Application Nos. 3586 of 2010 and 6345 of 2011 dated 2nd
August, 2017.

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17. Needless to state that the parties to the appeal
would assist the Commissioner to decide the appeals
within stipulated time frame of two weeks from 10th
October, 2019, as directed by this Court without fail and
if any attempt is made to cause lingering of the appeals,
the Commissioner shall not entertain such an attempt.
The execution of the order dated 18th September, 2019
passed by Collector be deferred till decision of the
Commissioner in the appeals as directed by this Court
within stipulated period, i.e. till 24th October, 2019.

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18.With these directions, both the petitions are
disposed of.

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19. Learned AGP to inform the order of this Court to

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the Collector, Ahmednagar as well as the Commissioner,

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Nasik Division, Nasik.

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[AVINASH G. GHAROTE,J.] [PRASANNA B. VARALE,J.]

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Tupe

Sima Paresh Gandhi and Ors. v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sima Paresh Gandhi and Ors. v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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