Union of India v. Noor Mohd Shaikh Alias Noor Mohd Ibrahim Shaikh Decd Thru Lhrs and Ors.

Bombay HC3 Dec 2024WP/17641/2024

Case brief

AI extract

What is this about?

Writ petition maintainability/disposal: Central Railway authorities challenge District Judge-3 Panvel order (01.01.2024) refusing delay condonation for First Appeal against 2019 possession/removal-of-third-railway-line judgment; Bombay HC disposes petition with liberty to file Second Appeal and six-week extension of no-coercion protection.

What did the court decide?

Writ petition disposed of: Petitioners given liberty to file appropriate proceedings (Second Appeal) challenging the refusal of delay condonation; no-coercive-action protection (from order dated 19.01.2024) extended for six weeks; fresh delay condonation application to be considered in view of Respondents' non-opposition, with advance service on Respondents. ¶¶73

Union of India vs Noor Mohd Shaikh Alias Noor Mohd… — Writ and Judicial Review | Bombay HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Maintainability of the present writ petition challenging the Appellate Court's order refusing condonation of delay in filing the First Appeal (including the order-versus-decree character of such a refusal and availability of alternate remedies such as a Second Appeal under Section 100 CPC). +1 more

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Court's answer

The scope of the inquiry in respect of the grievance raised in the petition concerns the correctness of the order refusing the delay condonation application; the writ petition was accordingly disposed of on that limited issue.

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Ratio / Principle

Whether the land has been acquired or not can only be considered when the First Appeal is heard or the suit is heard, if the judgment debtor succeeds in the relevant proceedings; the writ petition was not the forum for deciding that contention.

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Key takeaways

Petitioners are at liberty to file appropriate proceedings (Second Appeal) challenging the order refusing delay condonation passed by the Appellate Court, and were granted time to obtain certified copies.ratio¶¶67
The protection granted by this Court on 19.01.2024 that no coercive action shall be taken against the Petitioners as a consequence of dismissal of CMA No. 67 of 2023 is extended for a period of six weeks from 03.12.2024.ratio¶¶72

Detailed headnote1 paragraphs

Bombay High Court (S. M. Modak, J.; oral judgment dated 03.12.2024) disposed of Civil Writ Petition No. 17641 of 2024 filed by Union of India and Central Railway functionaries (petitioners/defendants/judgment debtors) against the order dated 01.01.2024 of the District Judge-3, Panvel, refusing to condone the delay in filing the First Appeal against the trial judgment dated 17.01.2019 of the 2nd Joint CJJD, Panvel, which had directed the defendants to hand over possession of certain premises by removing the third railway line. Holding that the inquiry before it was confined to the correctness of the refusal of delay condonation, and that the question whether the land had been acquired could be examined only when the First Appeal or the suit was heard, the Court granted the petitioners liberty to file a Second Appeal, extended for six weeks the protection (emanating from the order dated 19.01.2024 of Milind N. Jadhav, J.) against coercive action consequent upon dismissal of CMA No. 67 of 2023, and recorded the respondents' counsel's undertaking not to oppose a fresh delay condonation application, with advance service of such proceedings on the respondents. The maintainability debate (order versus decree; reliance by respondents' counsel on Devidas Ganpati Kale, 2023 SCC Online Bom 1319, on Section 100 CPC) was not resolved by this Court, which left the issue to be raised before the Court dealing with the Second Appeal.

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2024:BHC-AS:49087

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P3- WP 17641 of 2024.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL WRIT PETITION NO. 17641 OF 2024

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Union of India (Through Secretary Central Railway New Delhi)

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General Manager, Indian Railway, Railway Bhavan, New Delhi

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General Manager, Central Railway, CST, Mumbai

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Divisional Engineer (LM) DRM (Labour), office Third floor, Annex Building, above Reservation Office, Mumbai Division, Central Railway CST, Mumbai. ...Petitioners

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vs.

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Noor Mohd. Shaikh @ Noor Mohd. Ibrahim Shaikh (deceased)

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1/1. Sultana Noor Mohd. Shaikh Age – Adult, Occupation – Nil

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Shabbir Ibrahim Shekh (deceased) 2/1. Ashabi Shabbir Shekh Age- Adult, Occupation – Nil

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1/7

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Seema

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P3- WP 17641 of 2024.doc

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2/2. Farzana Ajij Vahab

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Age – Adult, Occupation – Nil.

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2/3. Samee Shabbir Shekh

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Age – Adult, Occupation – Nil.

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2/4 Munnejar Shabbir Shekh

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Age – Adult, Occupation – Nil

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Jabbir Ibrahim Shekh

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Age – Adult, Occupation – Business

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All r/o. Gundge, Tal. Karjat, Dist. Raigad

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...Respondents

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***** Mr. R. P. Ojha Advocate for the Petitioners Mr. Rohit Joshi Advocate for the Respondents ***** CORAM : S. M. MODAK, J. DATE : 03^rd DECEMBER 2024

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:- ORAL JUDGMENT

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Not on board. Matter is mentioned by way of Praecipe moved on behalf of the Respondents/Plaintiffs/decree holders considering the limited issue involved. It is taken on board. It is about maintainability of the present petition. Heard finally by consent on that issue.

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I have heard learned Advocate Mr. Joshi for Respondents/

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Plaintiffs/decree holders and learned Advocate Shri Ojha for the

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Seema

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P3- WP 17641 of 2024.doc

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Petitioners/Defendants / judgment debtors.

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The order which is challenged in this petition was passed by the Court of the District Judge-3, Panvel, District Raigad on 01.01.2024. The Appellate Court refused to condone the delay caused in filing the First appeal ,(at page no. 179 of the compilation tendered by learned Advocate Mr. Joshi). In fact Defendants were directed by the trial Court to hand over the possession of certain premises by removing 3rd railway line. This judgment was passed on 17/01/2019 by the Court of 02^nd Jt. CJJD Panvel, (at page no. 98 of the said compilation).

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In delay condonation application the judgment debtors have tried to explain the delay caused in preferring an appeal. However, they could not find favour from the Appellate Court. According to them, the delay was properly explained. The said decision is challenged by . way of this petition

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On 19.01.2024, this Court (Coram :- Milind N. Jadhav, J.) has restrained the decree holders from taking any coercive action against the Petitioners (as a consequence of dismissal of delay condonation application). In the said order, appearance of the Respondent was shown. There is some grievance raised by learned Advocate Mr. Joshi

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Seema

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P3- WP 17641 of 2024.doc

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for the Respondents. Court is not expressing any opinion about this grievance.

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Urgent circulation is sought because it is contention on behalf of the Respondents that under the garb of ‘no coercive action’, the Railways started with the construction on the site and this is also pleaded in their affidavit-in-reply. Further objection about . maintainability of the writ petition is also taken in affidavit-in-reply

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Learned Advocate Mr. Joshi relied upon the observations made by the Division Bench in case of Devidas Ganpati Kale (died) Through

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his Lrs Bhagwan Devidas Kale and Others Vs. Sow. Munirbi Mahebub Karanje 1 at page no. 206. According to him, there was divergence of opinion about maintainability of the second appeal (when the delay condonation is refused pending first appeal), whether such order is order or decree. The Division Bench observed “this is decree and hence

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it is challengable under provisions of Section 100 of the Civil Procedure Code” (para no. 26 of the said judgment).

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Learned Advocate Shri Ojha submitted that the scope of the writ petition is vast and even the order refusing the condonation of delay

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1 2023 SCC Online Bom 1319

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Seema

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P3- WP 17641 of 2024.doc

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can be challenged by way of writ petition. He invited my attention to the observations made by this Court in the order dated 23.02.2024 (Coram :- Milind N. Jadhav, J.) in para no. 5, it was observed

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“If Petitioners are in position to show that land of Respondents

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has been acquired, case of the Petitioners will be considered, failing which appropriate orders shall be passed considering that though this Writ Petition is filed under Article 227, it does ingrain the attributes and provisions of Article 226 of the Constitution of India and this Court can pass appropriate directions in the interest of justice.”

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According to learned Advocate Mr. Ojha there are several judgments of the Hon’ble Supreme Court wherein the writ petition under Section 227 was held maintainable even though alternate remedy is available.

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Be that it may, this Court feels that scope of the inquiry in respect of grievance raised in this petition are concerning the correctness of the order refusing delay condonation application. This Court feels that whether land has been acquired or not can only be considered when the first appeal will be heard or suit will be heard, if

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Seema

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P3- WP 17641 of 2024.doc

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judgment debtor succeeds in the relevant proceedings.

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On this background learned Advocate Shri Ojha for the Petitioners seeks liberty to file Second appeal and requested for grant of eight weeks time to file it because he requires time to obtain certified copy of the documents and he has requested for continuation of ‘no coercive order’ passed by this Court earlier.

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It is opposed by learned Advocate Mr. Joshi and he submitted, let

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there be observations that if the Petitioner will go on with the construction they will not claim equity. He further submitted with all fairness that he will not oppose the delay caused in Second appeal in view of the pendency of the writ petition.

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This Court feels that this issue can be raised before the Court

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who will be dealing with Second appeal. Certainly some time needs to be given to the Petitioners to obtain certified copies.

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In vies of that following order is passed :-

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ORDER

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(i) Petitioners are at liberty to file appropriate proceedings challenging the order refusing delay condonation passed by the Appellate Court.

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Seema

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P3- WP 17641 of 2024.doc

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(ii) The protection granted by this Court on 19/01/2024 that no

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coercive action shall be taken against the Petitioners as a consequence of dismissal of CMA No. 67 of 2023 is extended for period of six weeks from today.

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