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2014 DIGILAW 400 (GUJ)

Mohanji Mansangji Thakor v. State of Gujarat

2014-03-19

R.D.KOTHARI, RAVI R.TRIPATHI

body2014
JUDGMENT RAVI R. TRIPATHI, J. 1. The appellant-original petitioner Mohanji Mansangji Thakor is before this Court being aggrieved by judgment and order dated 18.10.2013, whereby the learned Single Judge dismissed the petition, finding the same to be without any merit. 2. Learned Advocate Mr. Dipak B. Patel for the appellant-original petitioner invited attention of the Court to the facts of the case. The facts of the case are set out in the order passed by the Secretary (Appeals), Revenue Department in order dated 06.08.2013, a copy of which is produced at Annexure-D, page No. 21 of the memo of petition. 2.1 The controversy involved in the matter is that the Collector passed an order to regulate the so called encroachment of the petitioner on payment of Rs. 3,25,120/-by order dated 23.05.2001. The petitioner felt that this amount is excessive and therefore, he requested that the decision be reconsidered and if found fit, the amount be reduced. This application was rejected by the Collector by order dated 10.07.2001 and asked the petitioner to deposit this amount within 15 days. The petitioner being aggrieved, he again approached the Collector to reconsider the amount ordered to be deposited. The Collector informed the petitioner saying that if at all the petitioner is aggrieved by that order (order directing the petitioner to deposit Rs. 3,25,120/-), he can get his grievance redressed by filing appeal. It is this appeal which is considered by the Secretary (Appeals), Revenue Department who rejected the same by order dated 06.08.2013, which was the subject matter of petition before this Court. 3. On careful perusal of the order, this Court is of the opinion that the Secretary (Appeals), Revenue Department has not focused his attention to the aspect as to why this amount can be said to be non-excessive. The Secretary (Appeals), Revenue Department has reiterated the facts set out hereinabove and has then said that, no case is found to interfere with the order of the Collector and the application of the appellant-original petitioner is rejected. The Secretary (Appeals), Revenue Department has reiterated the facts set out hereinabove and has then said that, no case is found to interfere with the order of the Collector and the application of the appellant-original petitioner is rejected. 3.1 It is a settled position of law that when appellate authority is approached by a person who is aggrieved by the order passed by the authority below, the appellate authority is supposed to take into consideration all relevant aspects of the case and then give reasons as to why the appellate authority has found that the order passed by the authority below is just and proper. 4. Yesterday when the matter was heard, learned Advocate for the appellant-original petitioner was asked to give a copy of the appeal memo along with petition to learned AGP to enable him to take instructions after perusing the papers. 5. On perusal of papers, learned AGP Mr. Rindani is not able to point out as to what factors the Secretary (Appeals), Revenue Department has taken into consideration to hold that amount asked to be deposited of Rs. 3,25,120/- is 'just' and reasonable. 6. In this view of the matter, this Court is of the opinion that the appeal is required to be allowed, the judgment and order passed by the learned Single Judge is required to be quashed and set aside along with the order passed by the Secretary (Appeals), Revenue Department, which is found to be non-speaking order and a clear case of non-application of mind and the matter is required to be remanded to the Secretary (Appeals), Revenue Department. 7. Admit. 8. At the request of learned Advocate Mr. Dipak B. Patel for the appellant-original petitioner, to which learned AGP Mr. Rindani has no objection, the appeal is taken up for hearing and final disposal. 9. Having gone through order dated 06.08.2013, which is communicated to the appellant-original petitioner on 07.08.2013, the same is quashed and set aside. The appeal is allowed. The petition is allowed. The matter is remanded to the Secretary (Appeals), Revenue Department to decide the same afresh. 9.1 It will be in fitness of things if the Secretary (Appeals), Revenue Department focuses his attention on the aspect of excessive/non-excessiveness of amount of Rs. 3,25,120/-. The appeal is allowed. The petition is allowed. The matter is remanded to the Secretary (Appeals), Revenue Department to decide the same afresh. 9.1 It will be in fitness of things if the Secretary (Appeals), Revenue Department focuses his attention on the aspect of excessive/non-excessiveness of amount of Rs. 3,25,120/-. In the event, the Secretary (Appeals), Revenue Department finds that the amount is excessive, he may decide as to what will be the just and reasonable amount to be paid by the appellant-original petitioner, or else he should set out reasons for holding that the amount is not excessive. Direct service is permitted.