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CA/1608/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 1608 of 2011
In
FIRST
APPEAL No. 313 of 2011
=========================================================
STATE
OF GUJARAT & 1 - Petitioner(s)
Versus
AAGAKHAN
SULTANKHAN PATHAN - Respondent(s)
=========================================================
Appearance
:
MS
MOXA THAKKAR, ASST.GOVERNMENT PLEADER
for
Petitioner(s) : 1 - 2.
SERVED BY AFFIX.-(R) for Respondent(s) :
1,
MR AJ SHASTRI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 03/05/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present application is for interim injunction pending the first
appeal against the execution and implementation of the judgment and
decree passed by the lower Court pending the first appeal.
We
have heard Ms.Thakkar, ld.AGP for the applicants – appellants
and Mr.Shastri, ld.counsel for the opponent.
Since
there are various questions arising for consideration, the appeal
has been admitted. It was submitted by the learned counsel for the
opponent Mr.Shastri that it is a money decree and in normal
circumstance, the State may be directed to deposit the amount,
irrespective of the fact that whether the Court permits withdrawal
of the said amount or not, and he submitted that, therefore, the
conditional stay may be granted.
Whereas
the ld.AGP for the applicants contended that the compensation
awarded is for unusual thing, inasmuch as on account of the rioting,
the loss of income is assessed by the Court, and it has been given
for a long period of about six years, and it was submitted that the
loss of income is never conceived
under the tortuous law to be paid by the State and so far as the
damage caused to the property of original plaintiff –
respondent herein is concerned, State has paid the damages. It was
submitted that compensation of Rs.150000/- has been paid to the riot
victim by the State for the residential house and compensation of
Rs.30000/- has also been paid for the damage to the hotel as found
by the learned Judge. It was submitted that this being
extra-ordinary case, no condition may be imposed for stay against
the execution and implementation of the judgment and decree of the
trial Court.
It
is true that the case arouse on account of the communal riot in
Gujarat state and more particularly Godhra, but the principles
considered by the trial Court, and may be required to be considered
in the present appeal by this Court, is the liability on the part of
the State to create safe atmosphere to the citizens, so that a
person may be in a position to take care of his property and the
regular activity. The question may be required to be examined as to
whether the State can be held liable, if it has failed to maintain
the safety of the citizens, more particularly in riot cases. We find
that such larger question can be concluded at the final hearing
stage of the appeal. But so far as the present application for
interim injunction is concerned, one cannot get away from the
applicability of the principles of money decree, unless this Court
finds that the exercise of power by the lower Court is ex-facie in
such a manner, which deserves to be stayed unconditionally. It
prima-facie appears that the approach on the part of the Court to
fasten the liability upon the State cannot be said to be wholly
without jurisdiction, but at the same time, in assessment of such
liability, it appears that ex-facie error has been committed by the
lower Court inasmuch as the assessment of damage is considered from
the date of the incident of riot till December 2006 i.e. roughly for
a period of about 5 years. It can hardly be accepted that after the
incident of riot for a period of about 5 years, there was no
normalcy in the atmosphere because of which the plaintiff could not
have re-started the hotel business. If the matter is considered on
account of the atmosphere of fear due to riot, at the most, such
period may extend to 3 to 6 months, because after the incident was
over and after a reasonable period of 3 to 6 months, the normal
atmosphere prevailed. No case has come on record that such unsafe
atmosphere continued for the period thereafter or in any case upto
December 2006. Under these circumstances, the approach on the part
of the lower Court to assess the damages from the date of the
incident upto December 2006 is ex-facie erroneous. In our
prima-facie view, at the most such quantum of loss of business could
be for the period of 3 to 6 months. Since we are at the stage of
interim application, even if at best the matter is considered, it
can be 6 months. The learned Judge has assessed the damages of loss
of business at Rs.250/- per day and monthly it would come to
Rs.7500/- and for a period of 6 months, it would come to Rs.45000/-
plus it is found by the learned Judge that so far as the loss of
fridge, deep-fridge, air-conditioner, television, crockery, grocery
etc. is concerned, the plaintiff has suffered the loss of
Rs.40000/-, total would be come to Rs.85000/-. Further, the learned
Judge while giving finding on issue No.3, has recorded that the
amount of Rs.30000/- has been paid towards the loss caused to the
plaintiff by the State. Therefore, if the said amount is deducted,
the net figure would come to Rs.55000/-. Hence, considering the
facts and circumstances, it appears to us that the condition to
deposit the amount deserves to be imposed to the extent of
Rs.55000/-, as against the total decretal amount of Rs.4 Lacs.
Hence,
by interim order, it is directed that there shall be stay against
the execution and implementation of the judgment and decree of the
trial Court, on condition that the applicants deposit the amount of
Rs.55000/- within period of 8 weeks from today.
The
application is disposed of accordingly. Rule is made absolute.
It
is observed that aforesaid observations are made by us in order to
consider the question as to the condition to be imposed while
granting stay or not. However, the rights and contentions of both
the parties at the time of final hearing of the appeal shall remain
open.
(JAYANT
PATEL, J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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