Atul Pannalal Shah v. The State Of Maharashtra And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10539 OF 2017 Atul Pannalal Shah } Petitioner versus The State of Maharashtra } and Ors.

} Respondents Mr. P. C. Joshi with Mr. Piyush N. Shah for the petitioner.

Mr. V. A. Sonpal with Mr. B. V. SamantAGP for the respondents. CORAM :- S. C. DHARMADHIKARI & SMT. BHARATI H. DANGRE, JJ.

DATE :- JANUARY 16, 2018 P.C. :- 1.

On 6th December, 2017, on this writ petition, this court passed the following order:- "1 Heard the learned counsel for the petitioner and the learned AGP for the respondents. It appears that as per office noting, the deficit court fee has been paid by the petitioner. Our attention is invited to the orders passed by the First Appellate Authority and the Second Appellate Authority. It is pointed out that except for the last paragraph, the orders are word to word same. Therefore, a contention is raised that the Second Appellate Authority has failed to perform its duty.

We have perused the order of the First Appellate Authority dated 11th July 2013 (Exhibit H-1) and the order of the Second Appellate Authority dated 29th December 2014 (Exhibit K). In the order of the Second Appellate Authority, up to paragraph 5, the facts are reproduced. Paragraph 1 reproduced grounds of appeal in the Second Appeal. We find that paragraphs 6 to 9 of the

said order of the Second Appellate Authority is verbatim the same as paragraphs 8 to 11 of the order of the First Appellate Authority. Only difference in paragraph 11 of the order of the First Appellate Authority and the paragraph 9 of the Second Appellate Authority is what is stated in the last part of paragraph 11.

Thus, prima facie, it is very clear that the Second Appellate Authority has failed to perform its duty. Considering the nature of the controversy, this petition deserves to be disposed of finally at the stage of admission. For that purpose, the petition shall be listed on 19th December 2017, high upon board. There will be adinterim relief in terms of prayer clause(c)." 2.

We brought this order to the notice of Mr. Sonpal learned Special Counsel appearing for the Revenue and he fairly concedes that the second appellate authority's order is not in accordance with law and it has failed to perform its duty as a fact finding authority.

3.

In the light of this fair statement of Mr. Sonpal, we allow this writ petition. We quash and set aside all orders passed by the second appellate authority. We restore the appeal back to the second appellate authority for a decision afresh on merits and in accordance with law without being influenced by any finding in the earlier orders.

4.

The second appellate authority shall now hear the appeal and dispose it of as expeditiously as possible and in any event, within a period of two months from today. The ad-interim order

passed by this court on 6th December, 2017 shall continue during the pendency of the appeal and for a period of two months after the order of the second appellate authority is duly communicated to the petitioner and in the event it is adverse to him. While allowing the writ petition and disposing it of in the above terms, we clarify that all contentions of the petitioner are kept open. We have not expressed any opinion on either contentions. (SMT. BHARATI H. DANGRE, J.) (S.C.DHARMADHIKARI, J.)