Khas Gopalan And Ganotiyaoni ... vs Deputy Collector, Barvala
2022 Latest Caselaw 679 Guj

      C/SCA/1011/2022                                ORDER DATED: 20/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 1011 of 2022
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     KHAS GOPALAN AND GANOTIYAONI KHETI NI SAHAKARI MANDALI
                           LIMITED
                            Versus
                  DEPUTY COLLECTOR, BARVALA
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Appearance:
MR BS PATEL SR.ADV. WITH MR CHIRAG B PATEL(3679) for the
Petitioner(s) No. 1,2
MS ASMITA PATEL AGP (99) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                               Date : 20/01/2022

                                 ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.

2. Issue Rule, returnable forthwith. Ms.Asmita Patel, learned Assistant Government Pleader waives service of Rule on behalf of the respondent.

3. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for quashing and setting aside the order dated 24.12.2021 passed by the Deputy Collector, Barvala in Sharatbhang Case No.88 of 2021.

4. The edifice, on which the petition is filed, is that the order dated 24.12.2021 has been passed in violation of the principles of natural justice; without offering opportunity to the petitioners.

5. Mr.B.S. Patel, learned Senior Counsel appearing with Mr.Chirag Patel, learned advocate for the petitioners submitted that the petitioner No.1 - Society is an allottee of the land bearing Survey No.464/1 situated at village Khas, Taluka: Ranpur, District:

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Botad (hereinafter referred to as the "land in question"). It is submitted that the land in question was allotted on permanent basis vide order dated 09.05.1971. The total area is admeasuring Hectors 160 - Are 33 - 72 sq.mtrs. and some portion whereof, is containing small mountains and can never be used for cultivation, except grazing cattle. It is submitted that presently, 45 members are in the petitioner No.1 - Society, who are cultivating the land in question as well as maintaining their livelihood by keeping and maintaining cattle and except this, they have no other source of income.

5.1. It is submitted that all of a sudden, a notice was issued on 15.12.2021, requiring the petitioners to remain present on 18.12.2021; however, such notice does not appear to have been served upon the petitioners. Thereafter, another notice dated 18.12.2021 was issued, requiring the petitioners to remain present on 24.12.2021. On 24.12.2021, a request was made to the respondent to adjourn the matter inasmuch as, the petitioners were desirous of engaging lawyer, collecting the documents and to file reply and the said application was duly received by the office of the Deputy Collector. It is further submitted that since the petitioners were desirous of submitting their reply, had addressed a communication dated 27.12.2021 requesting to provide the documents including report of the Mamlatdar dated 04.12.2021. Apropos the application of the petitioners, on 28.12.2021, the office of the Deputy Collector & Sub-Divisional Magistrate informed that after payment of the requisite fees, desired documents will be provided. It is submitted that even the necessary fees were paid on 03.01.2022 by the petitioners and they were awaiting for the next date to be fixed by the Deputy Collector. Surprisingly, order dated 24.12.2021 has been passed by the Deputy Collector without hearing the petitioners much less, without offering any opportunity to submit the reply, more particularly, when a request was made on

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24.12.2021 by the petitioners for providing such documents. Even otherwise, when the order which has been passed entails severe consequences, it is expected that the Deputy Collector ought to have heard the petitioners and thereafter passed the order. It is therefore, submitted that the order being in breach of the principles of natural justice, deserves to be quashed and set aside.

5.2. Mr.Patel, learned Senior Counsel has placed reliance on the judgment in the case of M.P. State Agro Industries Development Corpn. Ltd. vs. Jahan Khan reported in (2007)10 SCC 88. While referring to paragraph 12 of the judgment, it is submitted that the Apex Court has pointed out that there is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution of India on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. It is submitted that exceptions have been carved out inasmuch as, in an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is a failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. It is submitted that the present case falls within one of the exceptions inasmuch as, the order dated 24.12.2021 is passed in violation of the principles of natural justice.

5.3. So far as the aspect of non-furnishing of an opportunity to the petitioners is concerned, reliance is placed on the judgment in case of Mahipal Singh Tomar vs. State of Uttar Pradesh reported in (2013) 16 SCC 771. It is submitted that the Apex Court has held and observed that in administrative law, the 'rules of natural justice' have traditionally been regarded as comprising 'audi alteram

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partem' and 'nemo judex in causa sua'. It is submitted that the Apex Court when found that the report which was prepared was not supplied to any of the appellants therein and no action oriented notice or opportunity of hearing was given to them proposing cancellation of their placement, it quashed and set aside the decision taken by the State Government as well as the consequential actions. Reliance is also placed on the judgment in the case of Radha Krishnan Industries vs. State of Himachal Pradesh reported in (2021) 6 SCC 771.

6. On the other hand, Ms.Asmita Patel, learned Assistant Government Pleader could not dispute the submissions made by Mr.B.S. Patel, learned Senior Counsel for the petitioners and urged that the matter be remitted back for fresh consideration.

7. Heard the learned advocates for the respective parties.

8. Pertinently, the order under challenge is passed by the Deputy Collector in Sharatbhang Case No.88 of 2021 which was initiated by issuing notice dated 15.12.2021 and subsequent notice dated 18.12.2021. Pertinently, it is true that an appeal is provided under the provisions of the Code against the order passed by the Deputy Collector; however, owing to the fact that the order has been passed without offering sufficient opportunity to the petitioners, the same is in breach of the principles of natural justice and therefore, this Court deems it appropriate to exercise the powers under Article 226 of the Constitution of India for entertaining the writ petition.

9. At this stage, brief reference of factual aspects is necessitated. The land has been allotted to the petitioners somewhere in the year 1971 for the purpose of carrying out the agricultural activities. As recent as, in the month of December, 2021, the Mamlatdar appears to have prepared a proposal dated

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04.12.2021 which was forwarded to the office of the Deputy Collector & Sub-Divisional Magistrate. Apropos which, the Deputy Collector & Sub-Divisional Magistrate has issued notice dated 15.12.2021; however, the same does not appear to have been served upon the petitioners. Thereafter, another notice dated 18.12.2021 has been issued, requiring the petitioners to remain present on 24.12.2021 with all the supporting documents and evidence, if any. The petitioners remained present and submitted an application, inter alia, requesting that they are desirous of engaging the lawyer; would like to collect certain documents and to file the reply. With the said request, it was urged that the matter may be adjourned. It is not disputed that the petitioners neither remained present nor the communication was received by the office of the Deputy Collector.

10. Thereafter, the petitioners submitted an application dated 27.12.2021 to the office of the Deputy Collector & Sub-Divisional Magistrate, requesting it to inform about the next date. It has also been urged that the report of the Mamlatdar dated 04.12.2021, which has been received, be provided to the petitioners in furtherance of the principles of natural justice. On 28.12.2021, the office of the Deputy Collector & Sub-Divisional Magistrate addressed a communication to the petitioners that the request of the petitioners for furnishing copy of the report of the Mamlatdar and other documents, can be acceded to upon payment of the requisite fees. The petitioners, acting on such communication, deposited the requisite fees on 03.01.2022 which is also duly received; however, thereafter, the petitioners received order dated 24.12.2021 passed by the Deputy Collector, Barvala, accepting the proposal of the Mamlatdar dated 04.12.2021. As per the direction, the order dated 09.05.1971 passed by the Prant Officer has been cancelled and the land has been directed to be forfeited. The Mamlatdar has been

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further directed to take the possession and report the same. Clearly, within a span of less than one month, the notice was issued and final decision has been taken by the Collector, cancelling the order which was passed in the year 1971, with a further direction of vesting of land in the State Government.

11. Pertinently, when the request was made by the petitioners, seeking adjournment and the application having been received by the office of the Deputy Collector, there was no reason available to the Deputy Collector to have proceeded to pass the order without informing the petitioners about adjournment or refusal of the request of the petitioners for adjournment. Also, request of the petitioners for providing the report, on the basis whereof, the decision has been taken, has not been acceded to. The edifice on which the order is passed, is the report of the Mamlatdar and it was expected that the copy of the said report could also have been provided to the petitioners. However, without providing the copy of the report to the petitioners and without acceding to the request of the petitioners for an adjournment, the Deputy Collector ought not to have passed the order dated 24.12.2021.

12. The Apex Court, in the judgment cited by learned Senior Counsel Mr.Patel, in the case of Mahipal Singh Tomar (supra), while considering various judgments dealing with the aspect of 'rules of natural justice', has held and observed that the rule requires the maker of a decision to give prior notice of the proposed decision to the persons affected by it and an opportunity to them to make representation. It has been held that such principle is of great importance else, it embraces the rule of fair procedure or due process. The Apex Court has also pointed out that the notion of a fair hearing extends to the right to have notice of the other side's case, the right to bring evidence and the right to argue. It is also

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well settled proposition of law that the principles of natural justice apply to the state action where, the authority or body is charged with the duty of deciding the matter. The principles of natural justice require that it must decide the matters fairly and impartially.

13. In the present case, undue haste shown by the Deputy Collector is required to be deprecated, more particularly, when there was a request by the petitioners for an adjournment in order to enable them to put their case about the alleged breach of conditions. Further, copy of the report on which, the reliance has been placed, was not provided to the petitioners. Therefore, this Court is of the opinion that the order dated 24.12.2021 being in breach of principles of natural justice, deserves to be quashed and set aside on this ground alone.

14. Accordingly, the order dated 24.12.2021 is hereby quashed and set aside. The matter is remanded back to the Deputy Collector to take decision afresh strictly in accordance with law after providing sufficient opportunity to the petitioners. Rule is made absolute to the aforesaid extent. No order as cost.

(SANGEETA K. VISHEN,J) Hitesh