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M/S. Gold Resorts And Hotel Pvt. Ltd. v/s Ramkrishna Janardhan Bhat Alias Shri Ramkrishna Janardhan Pinge

    Stamp Number Main No. 3000 of 2013 & Writ Petition No. 718 of 2013

    Decided On, 27 November 2013

    At, In the High Court of Bombay at Goa


    For the Petitioner: S.G. Dessai, Senior Advocate with Shivan Dessai, Advocate. For the Respondent: Sudesh Usgaonkar, Advocate.

Judgment Text

Oral Judgment:

Heard. Mr. Dessai, learned Senior Counsel appearing on behalf of the petitioner and Mr. Usgaonkar, learned Counsel appearing on behalf of the respondent.

2. Registry to register the STM No. 3000/2013 as Writ Petition, forthwith.

3. Rule. Rule is made returnable forthwith. Learned Counsel appearing on behalf of the respondent waives service of notice. By consent, heard forthwith.

4. By this writ petition, the petitioner has mainly sought the following reliefs:

'a) Grant of writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction to quash and set aside the impugned order dated 03/10/2013 passed by the Learned Additional President of the Administrative Tribunal, Goa at Panaji and dismiss the application for stay bearing Misc. application No. 226/2013 in LRA No. 49/2013;

b) Stay the operation and effect of the impugned order dated 03/10/2013 and direct the Learned Additional President to return the records and proceedings of the partition case no. LRC/Part/228/2011/1179 to the concerned Dy. Collector, pending the hearing and final disposal of the present petition.'

5. The petitioner had applied to the Deputy Collector and Sub-Divisional Officer, Canacona ('D.C. & S.D.O., for short) for partition of the property acquired by it by way of three sale deeds having total area of 28,00,000/- square metres from Survey No. 328/1 of village Loliem and partition proceedings were registered under No. LRC/Part/228/2011/1179. After hearing the objections filed by the concerned parties including the respondent, the learned D.C. & S.D.O., by order dated 25/07/2013, granted the request of the petitioner for partition of the said property. The respondent approached the Administrative Tribunal, Panaji by means of an appeal being L.R.A. No. 49/2013 along with an application for stay bearing M.C.A. No. 226/2013 dated 03/10/2013. In this Miscellaneous Application, the prayer was that pending the hearing and disposal of the appeal, the impugned order passed by the Deputy Collector in above proceedings No. LRC/PART/228/2011/1179 dated 25/07/2013 be stayed.

6. By impugned order dated 03/10/2013 passed in the said Miscellaneous Application, the Additional President of the Administrative Tribunal, upon hearing only the learned Advocate for the appellant and allegedly perusing the record and the copy of the plaint before the Court of Civil Judge, Senior Division, Margao, observed that the sale deed which is under challenge in has resulted in partition proceedings after mutation and therefore, there appears a nexus with the suit and the proceedings before Trial Court. The Additional President of the Administrative Tribunal held that in case the proceedings pursuant to the impugned order are not stayed, it may amount to fragmentation of the property. Hence, he granted the prayer made in the said application and called for the records and proceedings from the D.C. & S.D.O.

7. Upon perusal of the relevant material and consideration of the submissions made by the learned Counsel for the respective parties, it is found that admittedly, the impugned order was passed on the basis of unproven and unsubstantiated submissions and most importantly without hearing the opposite parties, which included the petitioner. The said application for stay of the partition proceedings has been granted in toto without giving any prior notice to the petitioner to show cause as to why the said application should not be granted which prevented it from presenting its case and making submissions against the said application. It is seen that directly, the notice in the appeal has been given. Such an order is in violation of the established principles of natural justice which require that a party, which is likely to be aggrieved, must be given a reasonable and sufficient opportunity to be heard before any adverse order is made. The principle of fundamental justice and equity in legal system which is 'Audi alteram partem' has been violated.

8. In the circumstances above, the impugned order is patently unreasonable, unsustainable and without any legal sanctity, liable to be quashed and set aside.

9. In the result, the Writ Petition is partly allowed.

(a) The impugned order dated 03/10/2013 passed by the Additional President of the Administrative Tribunal in M.C.A. No. 226/2013 in L.R.A. No. 49/2013 is quashed and set aside.

(b) The records and proceedings of the case No. LRC/Part/228/2011/1179, shall be sent back to the Court of D.C. & S.D.O.

(c) The Additional President of the Administrative Tribunal shal

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l dispose of the said M.C.A. No. 226/2013, by hearing the petitioner and the respondent herein, in accordance with law, expeditiously, and in any case, within a period of three months from today. (d) For the purpose of said M.C.A. No. 226/2013, the above parties shall appear before the Additional President of the Administrative Tribunal on 12/12/2013 at 10.30 a.m. 10. Rule is made absolute in the aforesaid terms, with no order as to costs. 11. Writ Petition stands disposed of, accordingly.