Patel Ishverlal Devji v. STATE — 1996 DIGILAW 345 (GUJ)

A. N. DIVECHA, J. ( 1 ) RULE. Service of Rule is waived by learned Assistant Government pleader Shri T. H. Sompura for the respondents on instructions from respondent No. 2 and the official from the office of respondent No. 4 who are stated to be present in the courtroom with necessary records. By consent of the learned Lawyers appearing for the parties, this petition is taken up for its hearing and disposal today. ( 2 ) THE order passed by the Additional Registrar (Appeals) of Co-operative Societies at Gandhinagar on 30th January 1996 in Appeal No. 76 of 1996 is under challenge in this petition under Art. 226 of the Constitution of India. ( 3 ) THE facts giving rise to this petition move in a narrow compass. One parcel of land bearing survey No. 222 situated at village Dediya (the disputed land for convenience) was granted by the Deputy Collector at Nakhatrana some time in 1966 to one Co- operative society in the name and style of Dediya Harijan Samuhik Khet Sahkari Mandali Limited (the Society for convenience ). It appears that the affairs of the Society did not run a smooth course. It appears to have gone in liquidation and the Liquidator came to be appointed. He is impleaded as respondent No. 2 herein. ( 4 ) IT appears that, thereafter, the Collector of Bhuj was required to pass one order on 4th April 1991 directing sale of the disputed land by public auction subject to certain terms and conditions mentioned therein. Thereupon, the Deputy Collector at Bhuj fixed the upset price at the rate of Rs. 350/- per acre by the order passed on 31st December 1990. Thereafter, a public advertisement for auction sale of the disputed land was given and it appeared in two newspapers, namely kutch Mitra and gujarat Samachar on 1st june 1993. The auction was to be held on 18th June 1993. It was held on that day. The bid made by the petitioners was accepted. The one-fourth amount of their bid was also accepted from them. It appears that, thereafter, the District Registrar at Bhuj (respondent no. 3 herein) gave directions to respondent No. 2 not to confirm the sale in favour of the petitioners. Thereupon, respondent No. 2 communicated to the petitioners on 25th June 1993 the decision of respondent No. 3. The one-fourth amount of their bid was also accepted from them. It appears that, thereafter, the District Registrar at Bhuj (respondent no. 3 herein) gave directions to respondent No. 2 not to confirm the sale in favour of the petitioners. Thereupon, respondent No. 2 communicated to the petitioners on 25th June 1993 the decision of respondent No. 3. A copy of the aforesaid communication of 25th june 1993 is at Annexure-B to this petition. It appears that the petitioners thereupon approached the Deputy Collector at Bhuj by way of appeal against the order of the district Registrar. It was registered as Appeal No. 14 of 1993 under Sec. 203 of the bombay Land Revenue Code, 1879 (the Code for brief ). By the order passed by the deputy Collector at Bhuj on 13th June 1995 in the aforesaid appeal, it was dismissed on the ground that it was not maintainable against the order of the District Registrar. Its copy is at Annexure-C to this petition. It appears that the petitioners thereupon moved the collector of Bhuj by way of further appeal. The memo of appeal was returned by the collector of Bhuj by one communication issued some time in November 1995 informing the petitioner that appeal against the order of the District Registrar lies to the Additional registrar at Gandhinagar. Its copy is at Annexure-D to this petition. It appears that the petitioners thereupon approached the State Government (respondent No. 1 herein) in revision presumably under Sec. 211 of the Code. By one communication of 7th December 1995 written on behalf of respondent No. 1, the petitioners were informed that an appeal against the order of the District Registrar would lie to the Additional Registrar at gandhinagar and the memo of revision was therefore returned. Its copy is at Annexure-E to this petition. The petitioners thereupon carried the matter before the Additional registrar (Appeals) at Gandhinagar (respondent No. 4 herein ). It came to be registered as appeal No. 76 of 1996. It may be mentioned at this stage that at no point of time a copy of the order passed by respondent No. 3 was given to the petitioners. His decision was intimated to the petitioners by the communication at Annexure-B to this petition. The petitioners therefore could not annexe the order of respondent No. 3 along with the memo of appeal. His decision was intimated to the petitioners by the communication at Annexure-B to this petition. The petitioners therefore could not annexe the order of respondent No. 3 along with the memo of appeal. Strangely enough, by his order passed on 30th January 1996 in the aforesaid appeal, respondent No. 4 dismissed the appeal mainly on the ground that the impugned order was not annexed with the memo of appeal. The aggrieved petitioners have thereupon approached this court by means of this petition under Art. 226 of the constitution of India for redressal of their grievances against the decision of the District registrar not to confirm the auction sale in favour of the petitioners. ( 5 ) IT is strange and surprising that a copy of the decision of respondent No. 3 refusing to confirm the sale in favour of the present petitioners was never given to them. It cannot be gainsaid that it is the bounden duty of the authority to communicate and to send a copy of the order to the party or parties against whom such adverse order is passed, more particularly when it is passed behind his or their back. The concerned party remains blissfully ignorant as to under what circumstances such adverse decision against him is taken by the concerned authority. ( 6 ) LEARNED Assistant Government Pleader Shri Sompura for the respondents has urged that the decision of respondent No. 3 not to sanction the auction sale in favour of the petitioners was communicated to respondent No. 2 by means of an inter-department communication and its copy could not have been given to the petitioners. Learned assistant Government Pleader Shri Sompura has further submitted that the petitioners never applied for its copy. ( 7 ) IT cannot be gainsaid that non-confirmation of the auction sale in favour of the petitioners would obviously affect them. It is not necessary to decide at this stage whether the action of respondent No. 3 in refusing to confirm the auction sale in favour of the petitioners was administrative or quasi-judicial. It was certainly not an order in any judicial proceeding. If it was an order in any judicial proceeding, the petitioners as parties therein might have been required to apply for its certified copy. It was certainly not an order in any judicial proceeding. If it was an order in any judicial proceeding, the petitioners as parties therein might have been required to apply for its certified copy. When the order is however administrative or quasi-judicial in nature affecting the rights of the concerned parties, its copy has to be furnished to the parties affected. I do not think an application for the purpose would be necessary, more particularly when such an order is passed behind the back of the affected parties. It is not in dispute that the petitioners were never heard by respondent No. 3 before deciding not to confirm the auction sale in their favour. It therefore became his bounden duty to address the communication in question to the petitioners or in any case to supply its copy to them or their representative, if any, among them. ( 8 ) THE approach of respondent No. 4 also cannot be strictly upheld in law. Technically he might be right that he did not have an opportunity to look at the order passed by respondent No. 3 against which an appeal was preferred. Respondent No. 4 as an appellate authority could have called upon the petitioners to produce its copy rather than technically dismissing the appeal. As transpiring from what has been submitted by learned Assistant Government Pleader Shri Sompura for the respondents, respondent no. 3 might not have supplied a copy of the petitioners even if it was applied for as it was stated to be an inter-departmental communication. As an appellate authority, I think respondent No. 4 would enjoy sufficient powers to call for the record of the authority whose order was appealed against if he did not think it fit to call upon the petitioners to produce its copy. Instead of pursuing either course, respondent No. 4 adopted such hyper- technical approach of dismissing the appeal mainly on the ground that a copy of the order appealed against was not produced. That approach on the part of respondent No. 4 is too technical to be countenanced and to be upheld in law. ( 9 ) A litigant knocks the door of the appellate authority empowered to hear appeal under some statute with a view to seeking redressal of the grievances against some action or order passed by the authority subordinate to such appellate authority. ( 9 ) A litigant knocks the door of the appellate authority empowered to hear appeal under some statute with a view to seeking redressal of the grievances against some action or order passed by the authority subordinate to such appellate authority. It is true that there might be procedural rules in that regard. It is however a settled principle of law that procedural law is a handmaid of justice; it is designed to subserve and not to subvert interests of justice. No binding ruling is needed in support of this first principle of law. A reference may however be made to the binding ruling of the Supreme Court in the case of Jai Jal Ram Manoharlal vs. National Building Material Supply, Gurgaon reported in AIR 1969 Supreme Court at page 1267. It has clearly been held therein that rules of procedure are a handmaid of justice in the context of the relevant procedural provisions contained in the Code of Civil Procedure, 1908. By analogy, the aforesaid dictum of law would be applicable to the relvant provisions contained in all Rules of procedure. It is unfortunate that respondent No. 4 has acted exactly to the contrary. Even at the cost of repetition, I reiterate that the right course to have been adopted by respondent No. 4 was either to call upon the petitioners to produce a copy of the order appealed against or to call for the records from respondent No. 3 to do justice between the parties. The appeal of the petitioners could not have been dismissed on such a technical ground. ( 10 ) HOWEVER, with a view to seeing that the matter is expedited, at my instance learned Assistant Government Pleader Shri Sompura for the respondents has supplied to the learned Advocate for the petitioners a xerox copy of the decision of respondent No. 3 directing respondent No. 2 herein not to sanction the auction sale in favour of the petitioners. I think this should enable the petitioners to produce it before respondent No. 4. It is not in dispute that the decision of respondent No. 3 not to sanction the auction sale in favour of the petitioners is appealable to respondent No. 4 under Sec. 153 of the gujarat Co-operative Societies Act, 1961. I think this should enable the petitioners to produce it before respondent No. 4. It is not in dispute that the decision of respondent No. 3 not to sanction the auction sale in favour of the petitioners is appealable to respondent No. 4 under Sec. 153 of the gujarat Co-operative Societies Act, 1961. ( 11 ) IN view of my aforesaid discussion, I am of the opinion that the order passed by respondent No. 4 at Annexure-F to this petition cannot be sustained in law. It has to be quashed and set aside. The matter will have to be remanded to respondent No. 4 for restoration of the proceeding to file and for his fresh decision according to law. It will be open to the petitioners to produce a xerox copy of the decision of respondent No. 3 supplied to them at my instance by learned Assistant Government Pleader Shri Sompura for the respondents before respondent No. 4 in response to the Notice of hearing of their appeal. Such production will be deemed to have supplied the deficiency in that regard. ( 12 ) IN the result, this petition is accepted. The order passed by the Additional registrar (Appeals) at Gandhinagar (respondent No. 4 herein) on 30th January 1996 in appeal No. 76 of 1996 at Annexure-F to this petition is quashed and set aside. The matter is remanded to respondent No. 4 herein for restoration of the appeal proceeding to file and for his fresh decision according to law in the light of this judgment of mine. Since the matter is old, respondent No. 4 is directed to decide the fate of the restored appeal as expeditiously as possible preferably by 31st October 1996. In the meantime, it will be desirable to maintain status quo with respect to the disputed land. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. .