Chandubhai Arjanbhai Kothiya vs Mamlatdar, Rajkot Taluka
2021 Latest Caselaw 10242 Guj

       C/SCA/10829/2021                              ORDER DATED: 02/08/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10829 of 2021

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                          CHANDUBHAI ARJANBHAI KOTHIYA
                                     Versus
                            MAMLATDAR, RAJKOT TALUKA
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Appearance:
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                 Date : 02/08/2021
                                  ORAL ORDER

1. Heard learned Advocate Mr. H.J. Karathiya for the petitioner and learned AGP Mr. Ishan Joshi for the respondent.

2. By way of this petition, the petitioner seeks to challenge a notice dated 26.07.2021, whereby the petitioner has been asked to vacate the land in question, failing which, appropriate proceedings to remove him would be undertaken.

3. Learned Advocate Mr. Karathiya for the petitioner has submitted that the petitioner has been using the property in question since last 20 years and whereas the petitioner has also been granted electricity connection on the land in question and whereas it is submitted that the petitioner is doing business on the concerned land and therefore, the respondent authority ought to have granted appropriate chance of hearing to the petitioner. It is further submitted that the notice in question suffers from vice of non- application of mind since the notice impugned does not mention under which provisions of law the same has been issued.

4. Learned Advocate Mr. Karathiya has relied upon the decision of the

C/SCA/10829/2021 ORDER DATED: 02/08/2021

Supreme Court in case of Automotive Tyre Manufacturers Association V. Designated Authority reported in (2011) 2 SCC 258, more particularly Para 58, whereby the Supreme Court has inter alia stated that reasonable opportunity of being heard is required when an order has adverse civil consequences.

5. For better appreciation of the contentions of learned Advocate Mr. Karathiya, Para 58 of the above referred judgment is reproduced hereinbelow :

"58. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. (See: Union of India Vs. Col. J.N. Sinha & Anr., (1970) 2 SCC 458.)."

6. Learned Advocate Mr. Karathiya has also relied upon the decision of the Supreme Court in case of Aarti V. Aruna Gautam reported in 2015 (1) ApexCJ (SC) 97, whereby the Supreme Court has inter alia observed that the person in peaceful possession is entitled to retain his possession and even

C/SCA/10829/2021 ORDER DATED: 02/08/2021

rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. For better appreciation, Para 5 of the said decision relied upon by the learned Advocate Mr. Karathiya is reproduced hereinbelow :

"5. Time and again, it has been held and, in particular, in Rame Gowda (Dead) by L. Rs. Vs. M. Varadappa Naidu (Dead) by Lrs. and another, [2004(1) RCR (Civil) 519 : (2004) 1 SCC 769 (Para

8)], that the person in peaceful possession is entitled to retain his possession and even a rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. It has also been held in Rame Gowda (supra) that "If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law...." On the face of principle, the proposition that Section 6 of the Act is attracted only if a person is dispossessed of property of which he is legal owner is plainly incorrect. That apart, in the exercise of revisional jurisdiction, the High Court would be primarily concerned with the legality/propriety of the exercise of jurisdiction and cannot and ought not to have appreciated the evidence adduced by the parties which is within the purview and domain of the learned trial Court or an appellate Court. In this regard, the provisions of Section 6(3) of the Act, which specifically bars an appeal from any order or decree passed under Section 6 has to be specifically noted."

7. Learned Advocate Mr. Karathiya has therefore requested this Court to quash the impugned notice and direct the respondent authority to provide an opportunity of hearing to the present petitioner.

8. As against the same, learned AGP Mr. Joshi has submitted that principles of natural justice cannot be placed in a strait-jacket formula and whereas the same has to be considered on case to case basis. Learned AGP has further submitted that if the petitioner had any grievance to make, he could as well approach concerned authority before directly coming to this Court. Learned APP has therefore submitted that this Court may not interfere with the present petition at this stage.

C/SCA/10829/2021 ORDER DATED: 02/08/2021

9. Heard learned Advocates for the parties and perused the record.

10. At the outset, it is required to be noted that petitioner has not stated about any legal right of the present petitioner which would be violated on account of the impugned notice. The notice inter alia states that the petitioner is allegedly occupying the land belonging to the Government whereupon he has made illegal construction and whereas the notice requires the petitioner to vacate the said property in question. The documents annexed with the petition inter alia show that the petitioner is allegedly occupying a shed which has been constructed on the land in question and doing some industrial activity. The petitioner, in the considered opinion of this Court, has not made out any case as to what was the legal right of the petitioner to have either entered the land or remain on the land in question.

11. The question whether the petitioner is occupying the land in question or whether the petitioner has constructed any building thereupon etc., would have to be taken into consideration only if the petitioner would be able to show any legal right of the petitioner to occupy the land in question. Perusal of the petition reveals that there is not even shred of semblance in the petition whereby the petitioner has produced any material as to how he is occupying the land in question. In its entirety, it appears that the petitioner is trying to gain some acceptability to use the land in question on account of the impugned notice. At this stage, this Court bereft of details would not be able to adjudicate whether the petitioner is actually occupying the land in question or whether the notice is legal or proper, more particularly since the assertion of the petitioner that he is occupying the land as an encroacher, yet he is entitled to adherence of principles of natural justice by the respondent authority cannot be countenanced.

12. Moreover, it is not the case here where the petitioner is a helpless person occupying Government land for the purpose of providing shelter to himself and his family, rather from the documents it appears that the petitioner without any legal right whatsoever is occupying the Government land which allegedly has a construction in which the petitioner is doing some industrial activity.

13. As regards the judgments relied upon by the present petitioner, the

C/SCA/10829/2021 ORDER DATED: 02/08/2021

observations which are relied upon by the petitioner from the decision of the Automotive Tyre Manufacturers Association (Supra) would be relevant. The Supreme Court in the Para relied upon by the petitioner has also clearly observed "...It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application. Undoubtedly, there can be exceptions to the said doctrine...". In the considered opinion of this Court since the petitioner has not stated about any legal right whatsoever whereby the petitioner in entitled to occupy the land in question, this Court is clear that the observations of the Supreme Court referred to hereinabove that there can be exceptions to the doctrine of natural justice would be applicable in this case. Furthermore, insofar as the judgment of Aarti (supra), it clearly appears that the applicant therein had originally approached the Civil Court with a Civil Suit praying for decree under the Specific Relief Act, 1963 and whereas the observations made by the Supreme Court need to be considered from the said context. Under such circumstances, in the opinion of this Court, the observations of the Supreme Court being made in the context of a Civil Suit may not be available to the present petitioner to be relied upon in the instant case.

14. From the pleadings it also appears that the petitioner is trying to make out a case for adverse possession before this Court. It is observed that the petitioner may or may not be able to make out a case of adverse possession against the respondent Government, but at the same time this Court is very clear that this Court is not the competent Court to adjudicate upon such disputes.

15. In view of the observations and findings hereinabove, in the considered opinion of this Court, the present petition is meritless and hence rejected.

(NIKHIL S. KARIEL,J) BDSONGARA