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2009 DIGILAW 86 (BOM)

ADARSH MATSYA SAHAKARI SANSTHA MARYADIT, YAVATMAL v. GOVERNMENT OF MAHARASHTRA, DEPARTMENT OF AGRICULTURE, ANIMAL HUSBANDRY, DAIRY DEVELOPMENT AND FISHERIES DEVELOPMENT, MUMBAI

2009-01-19

S.R.DONGAONKAR

body2009
JUDGMENT :- Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the order passed by the Minister of State, dated 2-92008, in the proceedings of delay condonation, instituted by respondent No.5. 3. The Respondent No. 5 has preferred the Revision Application No. 5/2006, wherein there was some delay. The respondent No.5, therefore, preferred an application for condonation of delay. The same was allowed in pursuance to the impugned order. The reasons recorded in support of the order are mentioned thus "Application was placed for hearing three times, however, none appeared for the respondent i.e. present petitioner and when on 2-7-2008 hearing was taken, the respondent No.5 was present, whereas petitioner was absent. Therefore, the said application was allowed." 4. While challenging this order, the learned counsel for the petitioner submitted that there was no notice of hearing dated 2-7-2008 to the petitioner. In fact, on earlier occasion, he had attended, but, the matter was adjourned without giving any next date. According to him, at the time of such hearing, fresh notices are issued and served through the concerned Assistant Registrar, Co-operative Societies. However, for the hearing dated 2-7-2008, no notice was served. As such, according to him, the impugned order was passed without giving proper opportunity of hearing and making submissions and therefore, it contravened the principles of natural justice. Therefore, he submitted that the said order be Petitioner, quashed and set aside and the matter be remitted back for fresh disposal in accordance with law within stipulated time. 5. As against this, learned Assistant Government Pleader for respondent Nos. 1 to 4 has supported the order of the Hon'ble Minister of State. According to him, the petitioner was absent on 2-7-2008 when the matter was heard and therefore, the said order was rightly passed. 6. Learned counsel for respondent No.5 while supporting the impugned order, submitted that the respondent has filed the documents showing the presence of the parties before the Hon'ble Minister on 11-6-2008 and 2-7-2008. He also submitted that the office copy of the notice of hearing dated 2-7-2008 has also been filed on record. 6. Learned counsel for respondent No.5 while supporting the impugned order, submitted that the respondent has filed the documents showing the presence of the parties before the Hon'ble Minister on 11-6-2008 and 2-7-2008. He also submitted that the office copy of the notice of hearing dated 2-7-2008 has also been filed on record. All these documents, according to him, cumulatively show that the petitioner was noticed of the hearing dated 2-7-2008 and therefore, when he was absent, the impugned order was rightly passed. 7. I have given my anxious consideration to the submissions made by the parties. I have also perused the documents on record. The documents filed by respondent No.5 show that on 11-6-2008, the counsel had appeared for the petitioner therein i.e. respondent No. 5 and the president of respondent No. 5 Society was also present along with the Co-operative Officer. The document Annexure R-5-B which is in respect of the parties who were present on 2-7-2008, only shows that president and secretary of respondent No.5 society were only present. It does show that the petitioner was absent. The office copy of the notice also does not show that the petitioner was actually served and he was asked to remain present on 2-7-2008 by that notice. 8. One of the office copy of the notice which seems to have been filed on record is for hearing dated 11-6-2008. There appears no Roznama; as such of the proceedings of the application for delay condonation. The documents filed by respondent No.5 only shows as to who were present on 11-6-2008. It by no means shows that the next date of hearing that was given was 2-7-2008. I have already pointed out above that the attendant sheet of 2-7 -2008 does not show or refer the presence of the petitioner. In absence of proof of service of notice of the hearing dated 2-7-2008, it will have to be presumed that the petitioner was not served with the notice of hearing dated 2-7-2008. 9. There is nothing on record to suggest that the petitioner was any time heard prior to 2-7-2008 on the issue of condonation of delay. In these circumstances, it is apparent that proper opportunity of hearing was not given to the petitioner and therefore, the order of Hon'ble Minister of State dated 2-72008 suffers from lack of principles of natural justice. 10. In these circumstances, it is apparent that proper opportunity of hearing was not given to the petitioner and therefore, the order of Hon'ble Minister of State dated 2-72008 suffers from lack of principles of natural justice. 10. In these circumstances, the said order needs to be quashed and set aside. Ordered accordingly. However, the matter is remitted back to the Hon'ble Minister for granting opportunity of hearing to both sides, on any fixed date with a due notice of the said date atleast 7 days prior to such date. The parties may be at liberty to make submissions in writing. The matter may be disposed of afresh on merits after considering those submissions, if any, on merits. Rule made absolute in above terms. No order as to costs. 11. It is difficult to part with the matter without expressing that it is desirable to start a practice of maintaining Rozanama/order-sheet of such quasi judicial proceedings which may record the presence of the parties, who are present, what actionlhearing etc., has taken place on that date and what is next date given and preferably to obtain signatures of parties or their representatives on such Rozanama instead of senrling notices of each hearing in which case there is normally no follow ups to know whether in fact notice is served or not, is undertaken. In case such notices are required to be issued, there should be reasonable breathing period of about 7 to 10 days from the date of service of notice on the party concerned and the date of hearing fixed, so that it would not be impossible for them to attend the hearing in time, which would be in consonance with the principles of Natural Justice. Copy of this judgment may be sent to the Chief Secretary, Mantralaya, Mumbai. Order accordingly.