Hemendra Mathradas Kothari Of ... vs State Of Maharashtra, Collector ...
2003 Latest Caselaw 121 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. V.P. Malvankar, Assistant Government Pleader appearing on behalf of Respondent Nos. 1 to 3 waives service of rule. Mr. A.A. Kumbhakoni appears and waives service of rule of behalf of Respondent No. 4. In the facts and circumstances, the matter is taken up for final hearing.

2. This Petition is filed for quashing and setting aside the order dated 16th March, 2002 passed by the State Government, Respondent No. 1 herein.

3. The learned counsel for the Petitioners contended that in an earlier Petition being, Writ Petition No. 5020 of 1991, the Division Bench of this Court while allowing the Petition, issued three direction. By Directions 1 and 2, the matter was remitted to the competent authority to decide the same in accordance with law. Those questions related to the jurisdiction of the competent authority, i.e. Collector under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as "the Act"). The third direction related to exemption from the operation of the Act and framing of scheme for weaker section. For that, the competent authority was not the Collector, but the State Government, and therefore, a direction was issued to the State Government to consider the same and to take an appropriate decision.

4. In pursuance of the above directions, an order was passed by the Collector on Direction Nos. 1 and 2. Being aggrieved by the order of the Collector, the Petitioner approached the State Government by filing a revision petition. The contention of the learned counsel for the Petitioners was that though hearing was held on 12th October, 2001, further hearing was fixed on 15th March, 2002. Unfortunately, the learned senior advocate for the Petitioners was not available on that day. Hence, an application was made for adjournment of the matter. The case was, however, decided on 16th March, 2002 and that order is impugned in the present Petition.

5. Learned counsel for the Petitioners contended that on two grounds, the order deserves to be quashed and set aside. Firstly, when the hearing was fixed on 15th March, 2002 and a prayer for adjournment was made, no order could have been passed without giving an opportunity of hearing to the Petitioners. The revision petition was in connection with two directions issued by this Court and the order passed by the Collector, the competent authority under the Act. Secondly, regarding Direction No. 3 of the High Court, an independent decision was required to be taken only by the State Government. That matter, hence, could not have been taken up along with the hearing of the revision petition. It was, therefore, submitted that the Petition deserves to be allowed by directing the State Government to decide the question of exemption under the Act in accordance with law. It was also stated that independent orders were required to be passed by the State Government in revision petition against the order passed by the competent authority, i.e. Collector and an order relating to exemption under Section 20(1) of the Act.

6. The learned Assistant Government Pleader submitted that effective hearing was over on 12th October, 2001. On that day, the learned counsel for the Petitioners was present. 15th March, 2002 was not fixed for further hearing. It was only for certain clarifications. Hence, presence or absence of the Petitioners or their counsel was immaterial, and the order dated 16th March, 2002 cannot be held to be illegal or contrary to law on that count.

7. The learned counsel for Respondent No. 4 supported the stand taken by the Government. He submitted that even on merits, the order passed by the competent authority is in accordance with law and even if this Court is of the view that the Petitioners were not heard, they may be given an opportunity before this Court to convince as to how the orders are illegal.

8. In our opinion, on the first ground the Petition deserves to be allowed. It is, therefore, not necessary to express any opinion on other questions or on merits. So far as 15th March, 2002 is concerned, the order impugned in the petition states that final hearing was fixed on 15th March, 2002. Thus, it was not merely a formal meeting as contended by the Assistant Government Pleader. Looking to the notice dated 8th March, 2002 also it is clear that the Petitioners were asked to appear on 15th March, 200. It was further stated specifically that if they would not remain present, appropriate decision would be taken by the Government. Even otherwise, the proceedings were quasi judicial in nature. In such proceedings ordinarily there cannot be such 'formal' meeting. In any case, when a decision was to be taken, in our opinion, the State Government ought to have afforded an opportunity to the Petitioners and thereafter passed on order.

9. For the aforesaid reasons, the Petition deserves to be allowed and is accordingly allowed. The order dated 16th March, 2002 is set aside. So far as two directions in respect of which decision has been taken by the State Government, the same is set aside. The State Government will pass an appropriate order after affording an opportunity of hearing to the Petitioners.

10. Regarding direction No. 3, which relates to exemption of land and scheme for weaker section, it is open to the learned counsel for the Petitioners to contend that it is an independent proceeding and hence an appropriate decision should be taken separately. It is equally open to Respondent No. 4 to contend that it is part and parcel of the proceedings under the Act and, hence, can be decided with the revision. Considering all objections, the State Government is at liberty to take appropriate decision.

11. Since the matter pertains to Urban Land (Ceiling & Regulation) Act. 1976 and as the excess land has been allotted to Respondent No. 4 it would be in the interest of justice if we direct the State Government to take appropriate decision expeditiously. Initially, on February 10, 2003, parties will remain present before the State Government. It is open to Respondent No. 4 also to remain present. On that day, date of hearing will be fixed by the State Government. It is expected that the State Government will decide the matter as expeditiously as possible, preferably by 31st March, 2003.

12. Before parting with the matter, we may state that we are not expressing any opinion on the merits and as the matter will come up for hearing, the State Government will decide it on its merits. We may not be understood to have stated as to whether the findings recorded by the competent authority or by the State Government are correct or incorrect and it is open to the parties to put their views and the State Government will decide on the basis of material on record.

Rule is accordingly made absolute with no order as to costs.