SCA/651620/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6516 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= KANUBHAI LALLUBHAI PATEL & 3 - Petitioners Versus VADODARA MUNICIPAL CORPORATION & 3 - Respondents ================================================= Appearance : MR RD RAVAL for Petitioners : 1 - 4. DS AFF.NOT FILED (N) for Respondents : 1 -3. MR PRANAV G DESAI for Respondent : 1, MR KRUNAL D PANDYA, LD. AGP for Respondent: 4 ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/11/2008 ORAL JUDGMENT 1. Heard learned counsel for the petitioner. RULE. Shri Pranav Desai and Shri Krunal D Pandya waives service of notice of rule for respondent no.1 and 4 respectively. With the consent of the counsels for the parties the matter is taken up for final hearing. SCA/651620/2008 2/4 JUDGMENT 2. Shri Raval, learned counsel for the petitioners submitted that the Corporation being a statutory body in the first instance ought to have paid the amount of the certificates without waiting, as the said Corporation is under duty to obey Court's order unless it is challenged. The order where under the certificates were originally issued is sought to be challenged only after lapse of time and pendency of such challenge would not in any way militate against realising the claim adjudicated upon by the competent forum resulted into issuance of recovery certificates. 3. Shri Desai, learned counsel appearing for the Corporation submitted that the original award was ex parte and therefore appropriate application under Rule 26-A has already been preferred on 13/5/2008 and therefore, the payment could be deferred against said certificates and there is already notice issued by the concerned Court for seeking reply from the workmen as to why the delay occurred in preferring this application may not be condoned. At the same time Shri Desai could not point out any stay order issued by the Court staying the ex parte award. In short there exists no stay as on date and recovery certificates could be implemented. 4. This Court is of the considered view that the pendency of restoration application without any stay order would certainly not militate against enforcing the recovery, especially in the present case though the liberty was granted to prefer restoration application by this Court to the Corporation way back on 6/7/2007 in a petition SCA/651620/2008 3/4 JUDGMENT preferred by them nothing was done and as per the statement of Shri Raval the restoration application came to be filed only on 13/5/2008 after receiving advance copy / information of filing of this petition. 5. At this stage Shri Desai submits that as the contentions of the respondent Corporation are not in any way prejudiced, he may instruct the Corporation to abide by the award without prejudice to its right & contentions for restoring the original proceedings. 6. In view of this statement made by Shri Desai, this Court is of the view that the following directions are required to be issued in the interest of justice: (a) The Corporation is given 30 days time for complying with the award in question, failing which the Respondent No. 4 shall take appropriate action for recovering the dues mentioned in the certificates without being influenced by the fact that the certificates are against the Corporation. (b) Expeditious recovery should be effected after the period of 30 days and same shall be finished in accordance with law without any avoidable wastage of time. (c) These directions would not in any way prejudice the Corporation's rights & legal contentions available to them for restoring the application and the Court before which the restoration application is pending shall decide SCA/651620/2008 4/4 JUDGMENT the same on its own merits & in accordance with law and all contentions are open to both the sides; and the same shall be without being influenced by the fact that the amount of award is being paid. As Shri Raval has volunteered that the petitioners shall file an undertaking before this Court within a week from today that if the certificates amounts are paid then the same will be subject to outcome of the restoration application and in case any further orders are passed by the competent Court, then, it will be even refunded also. 7. In view of this, the petition is disposed of with the aforesaid directions. Rule made absolute to the aforesaid extent. However, no order as to cost. [ S.R. BRAHMBHATT, J ] /vgn