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2017 DIGILAW 264 (ALL)

VIPIN GUPTA v. STATE OF U. P.

2017-01-19

K.J.THAKER, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Writ petition having been restored to its original number vide order of date passed on Restoration Application No. 394556 of 2016, as requested by learned counsel for parties, we proceed to decide writ petition since a very short point is involved herein. 2. Heard Sri Satyender Kumar Singh, learned counsel for petitioner and learned Standing Counsel and perused the record. 3. Writ petition has been filed for a direction in the nature of certiorari quashing impugned recovery citation dated 29.11.2013 issued by Tehsildar, Ghaziabad, District Ghaziabad and order dated 23.10.2013 passed by Chief Judicial Magistrate, Ghaziabad in Tax Appeal No. 2879/2013. 4. Against imposition of house tax by competent authority in Nagar Palika Parishad, Loni, District Ghaziabad, petitioner preferred Tax Appeal No. 2879 of 2013 before Chief Judicial Magistrate, Ghaziabad, designated Appellate Court. Petitioner also filed stay application requesting Appellate Court to restrain execution of assessment made by Assessing Authority. The application came up for hearing before Appellate Court at the time of admission of appeal but Appellate Court found that there was no justification to grant ex parte stay order. Having said so, Appellate Authority rejected stay application itself instead of proceeding to issue notice to other side and thereafter decide stay application after giving opportunity to both sides. It is in these circumstances, petitioner has come to this Court challenging aforesaid order dated 23.10.2013 passed by Appellate Court rejecting stay application of petitioner and consequential recovery proceedings initiated by Nagar Palika Parishad by issuing recovery certificate dated 13.9.2013, pursuant whereto, citation dated 29.11.2013 has been issued by Tehsildar, Ghaziabad for recovery of Rs. 4,24,178/- plus recovery charges. 5. Learned counsel for petitioner submitted, if Appellate Court found no ground for passing ex parte interim order, it was incumbent upon it to issue notice to other side but it could not have rejected stay application at that stage itself. He contended that Appellate Court in passing impugned order has shown complete non-application of mind. 6. When confronted, learned counsel for respondents could not make any substantial argument to support the order passed by Appellate Authority. 7. In our view, this writ petition deserves to succeed inasmuch as order dated 23.10.2013 passed by Chief Judicial Magistrate, Ghaziabad in the capacity of Appellate Court is patently illegal and shows total non-application of mind on its part. 6. When confronted, learned counsel for respondents could not make any substantial argument to support the order passed by Appellate Authority. 7. In our view, this writ petition deserves to succeed inasmuch as order dated 23.10.2013 passed by Chief Judicial Magistrate, Ghaziabad in the capacity of Appellate Court is patently illegal and shows total non-application of mind on its part. Mere fact that no ground existed to pass ex parte interim order does not mean that stay application itself deserves to be rejected for the reason that the Court concerned can hear stay application after issuing notice to other side and giving opportunity of hearing to both the parties. A stay application cannot be rejected only on the ground that no reason for ex parte stay order exists. This is something unheard and we find it difficult to restrain us from making observations against Appellate Authority that it has shown a complete lack of judicial understanding and functioning of Court in such a simple and small matter. 8. Stay application can be rejected if no ground for passing stay order is made out but not on the ground that there did not exist any ground for ‘ex parte interim order’. Two things are totally different. Appellate Authority, in our, view, lack judicial competence in dealing with such small matters and this aspect deserves to be looked into by Court on administrative side also. 9. Writ petition is allowed to the extent that order dated 23.10.2013 passed by Chief Judicial Magistrate, Ghaziabad is hereby set aside. It is directed to consider stay application after hearing respondents also and pass a reasoned order within two months from the date of production of certified copy of this order. 10. Since the appeal is pending since 2013 and we are now in 2017, we find also expedient in directing Appellate Court to decide Tax Appeal itself expeditiously subject to other business of Court.