Shree Bharat Saraswati Mandir ... vs State Of Gujarat
2022 Latest Caselaw 9774 Guj

     C/SCA/5996/2016                           ORDER DATED: 02/12/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5996 of 2016

                                With
             R/SPECIAL CIVIL APPLICATION NO. 3102 of 2018
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     SHREE BHARAT SARASWATI MANDIR SANSAD - SHARDA GRAM
                           Versus
                 STATE OF GUJARAT & 5 other(s)
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Appearance:
MR NILESH PANDYA FOR MR HARESH H PATEL for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                           Date : 02/12/2022
                            ORAL ORDER

ORDER IN SPECIAL CIVIL APPLICATION NO.5996 OF 2016

1. The present writ petition is filed praying for the

following reliefs:

"(A) This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and call for R&P of land Case No.372 of 2016 from the Collector, Junagadh and after perusing the same, be pleased to quash and set aside the judgment and order, dated 01.03.2016, passed by the collector, Junagadh in Land Case No.372 of 2016.

(B) This Hon'ble Court be pleased to issue a writ of mandamus

C/SCA/5996/2016 ORDER DATED: 02/12/2022

or any other appropriate writ, order or direction, directing the respondent Nos.1 to 5 to consider afresh the application for extension of lease agreement for a further period of 99 years in the peculiar facts and circumstances of the case and for that purpose, necessary procedure may be followed by the respondent Nos.1 to 5.

(C) Pending admission, hearing and final disposal of th9s petition, this Hon'ble Court be pleased to stay the execution, implementation and operation of the judgment and order, dated 01.03.2016, passed by the collector Junagadh in Land Case No.372 of 2016.

(D) Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondent Nos.1 to 5 herein, their agents and servants from taking the possession as per the impugned judgment and order, dated 01.03.2016, passed by the Collector, Junagadh with regard to land in question which is in possession of the petitioner as on date and further be pleased to direct the respondents to maintain the status quo with regard to land in question.

(E) Any other and further reliefs as deemed just and proper looking to the facts of this case, may kindly be granted in favour of the petitioners, in the interest of justice."

2. It is submitted by Mr.Nilesh Pandya, learned advocate

appearing for Mr.Haresh Patel, learned advocate for the

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petitioner that the land was allotted to the petitioner in the

year 1949 for a period of 99 years. It is submitted that

thereafter, the petitioner has started school and college on

the said land which is providing education to the students

belonging to the rural areas. It is submitted that the lease of

the lands so allotted to the petitioner was going to expire in

the year 2001, and therefore, the petitioner herein applied

for extension of the lease period for a further period of 99

years to respondent No.2-Collector, Junagadh.

3. It is further submitted by the learned advocate for the

petitioner that since no decision was taken on such

application for extension of lease, a reminder letter was

given to the respondent-Collector on 18.02.2000. It is

further submitted that the petitioner thereafter again made

a representation on 12.02.2005 for extension of lease period

to the Mamlatdar, Mangrol. Thereafter, in the year 2008, the

Collector, Junagadh raised certain queries with respect to

the renewal of lease to which, the petitioner herein gave a

detailed reply. It is submitted by the learned advocate for

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the petitioner that on 01.03.2016, the Collector passed an

order observing that with respect to renewal of certain land,

the DLR was requested to put up necessary measurement.

4. It is further submitted by the learned advocate for the

petitioner that for the first time after a period of 8 years, the

Collector, Junagadh issued show cause notice on

17.11.2008 to the petitioner with regard to extension of

lease period. The petitioner gave a detailed reply to the said

show cause notice on 15.12.2008. It is submitted that by

impugned order dated 01.03.2016 in Land Case No.372 of

2016, the Collector, Junagadh after a period of 8 years

passed an impugned order without affording any hearing to

the petitioner, despite the fact that the petitioner was

pursuing the renewal of the lease deed since making of the

application for renewal dated 18.02.2000.

5. It is further submitted by the learned advocate for the

petitioner that a bare perusal of the impugned order shows

that no hearing has been afforded and neither any of the

C/SCA/5996/2016 ORDER DATED: 02/12/2022

contentions are recorded with respect to the extension of

lease. It is further submitted that the impugned order be set

aside and that the petitioner be given a fresh hearing for

renewal of the lease deed since the year 1949 and running

school and college for the children.

6. Per contra, Ms.Jyoti Bhatt, learned AGP submits that

even if no hearing is afforded, the impugned order is well

reasoned and passed on the basis of the records. She

submits that the show cause notice was issued on

17.11.2008 and hearing was given on 15.12.2008 and

thereafter the impugned order has been passed.

7. Heard learned advocates for the respective parties and

perused the documents on record.

8. It is not disputed that he petitioner was running school

and college for rural children and is in possession of the

land in question, since the year 1949. The lease was

supposed to expire in the year 2001, and therefore, the

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petitioner had made an application for extension of lease

within time on 18th February, 2000. It is seen from the

record that the show cause notice was issued first time on

17.11.2008 and the hearing was also afforded on

15.12.2008. It is seen that the impugned order is passed

after a period of almost 8 years on 01.3.2016.

9. It is now well settled by the catena of decisions of the

Hon'ble Supreme Court that "audi alteram partem" rule

which, in essence enforces the equality clause in Article 14

of the Constitution of India is applicable not only to quasi-

judicial orders but to administrative orders as well unless

the application of the rule has been expressly excluded by

the Act or Regulation or Rule. It is by now well settled that

without affording opportunity of being heard no order

adverse to a person should be passed. Principles of natural

justice, therefore, require that before taking action against

the citizen, he must have right to be heard. The said

requirement is to be followed. In the present case, the

hearing of objection and the passing of the impugned order

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are separated by a period of 8 years which itself defeats the

principles of natural justice.

10. In the peculiar facts and circumstances of the case, it

is necessary that the petitioner be heard afresh and

thereafter, an appropriate order be passed since the

impugned order is passed after a period of 8 years.

Accordingly, the impugned order is set aside.

11. The petitioner is directed to appear before the Collector

on 28th December, 2022. The Collector, Junagadh, is

directed to give a hearing to the petitioner and thereafter,

decide the extension of the lease afresh within a period of

four weeks.

12. It is made clear that this Court has not gone into the

merits of the case and has not expressed any opinion on the

merits. The application for extension of lease shall be

decided by the Collector on its own merits in accordance

with law. The petitioner is at liberty to produce additional

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documents at the time of hearing.

13. In view of the above observations, the present writ

petition stands disposed of. Rule is made absolute to the

aforesaid extent.

ORDER IN SPECIAL CIVIL APPLICATION NO.3102 OF 2018

In view of the disposal of Special Civil Application

No.5996 of 2016, the present writ petition does not survive

at this stage and accordingly disposed of. Notice is

discharged.

(ANIRUDDHA P. MAYEE, J.) ALI