Bhavan Sanga Gamara vs Rajkot Municipal Commissioner
2022 Latest Caselaw 6457 Guj

     C/LPA/873/2022                               CAV ORDER DATED: 20/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 873 of 2022
                                     In
               R/SPECIAL CIVIL APPLICATION NO. 3177 of 2016
                                    With
                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                In R/LETTERS PATENT APPEAL NO. 873 of 2022
==========================================================

BHAVAN SANGA GAMARA Versus RAJKOT MUNICIPAL COMMISSIONER ========================================================== Appearance:

MR YATIN OZA, SENIOR ADVOCATE FOR MR JIT P PATEL(6994) for the Appellant(s) No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27, 28,29,3,30,31,32,4,5,6,7,8,9

========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 20/07/2022

CAV ORDER (PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

1. Present Letters Patent Appeal under Clause 15 of the

Letters Patent is directed against the oral order dated 6.6.2022

passed by the learned Single Judge in Special Civil Application

No.3177 of 2016.

2. The case of the appellants- original petitioners is that for

the benefit and welfare of animals, a shelter house came to be

constructed after following proper procedure and in accordance

with law and after obtaining necessary permissions. On account

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of financial crunch observed by Panjra Pole Trust, commercial

shops were constructed on one part of the building facing subject

road, which is proposed to be 24 meters vide, and on the other

side of the building, residential quarters are constructed. These

commercial shops and construction put up were with a sole idea

to generate income since appellants being occupiers and tenants

of these shops they are regularly paying rent to Goushala which

proceeds are being utilized for welfare of the animals and utilized

for their shelter and nourishment.

3. It is the case of the appellants that in the year 1996, work

of Town Planning Scheme Nos.7 and 8 for city of Rajkot came to

be drafted, which got finalized and according to the appellants-

petitioner, said Town Planning Scheme Nos.7 and 8, road and

public streets with their width were prescribed and for present,

Bhavnagar road as per Town Planning Scheme was proposed to

be 24 meters wide. According to appellants, under the guise of

widening of road, deviation in road line of public street

prescribed in final Town Planning Scheme Nos.7 and 8 has been

commenced. Resultantly, commercial shops which are in

occupation of the present appellants will be adversely affected

and surprisingly, the then Trustees of Rajkot Mahajan Panjara

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Pole Trust submitted an affidavit to the Corporation giving

consent for demolition and on account of such road widening,

according to appellants, there was no authority to submit such

affidavit dated 17.11.2009, resolutions came to be passed and as

a result of it, respondent Corporation served a notice under

Section 210 of the Gujarat Provincial Municipal Corporation Act,

1949 ('GPMC Act') to the appellants and as such, left with no

alternate, appellants were constrained to approach this Court by

filing Special Civil Application No.3177 of 2016 for assailing the

action of the respondent authority.

4. Said Special Civil Application challenging action of

respondent authority in issuing consequential order dated

22.2.2016 came to be preferred, which had come up for

consideration before the learned Single Judge who by oral order

dated 6.6.2022, dismissed the petition and interim relief which

came to be granted earlier was vacated. However, upon request

of appellants, said interim relief which was in operation was

ordered to be extended till 6.7.2022. Hence, with this

background, present Letters Patent Appeal has been filed.

Learned senior Advocate Shri Yatin Oza assisted by learned

advocate Mr. Jit Patel has represented the appellants. Whereas

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Shri H.S. Munshaw, learned advocate, has represented

respondent No.1 authority whose action was basically under

challenge.

5. Learned senior advocate Shri Yatin Oza appearing for the

appellants has submitted that action on the part of respondent

authority is not only unjust and arbitrary but without an authority

of law and as such, contending all aspects urged not been

properly considered by the learned Single Judge and order under

challenge requires to be set aside by granting consequential

reliefs as prayed for, has sought for allowing the appeal. It has

been been contended that road in question, which is sought to

be expanded, is actually the road prescribed under sanctioned

Town Planning Scheme, which has now become part of the Act by

virtue of its finalization and as such, if proposed action is

implemented, same would tantamount to tinkering with the

scheme which has attained finality. Shri Oza has submitted that

there is a set procedure prescribed under the Town Planning Act

and if any deviation or verification or modification is to be

undertaken in finalized Town Planning Scheme and for that

purpose, Shri Oza has drawn attention of this Court to Sections

66, 70, 70(A), 71 and 74 of the Town Planning Act and as such, it

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is submitted that action under GPMC Act is impermissible.

6. Learned senior advocate Shri Yatin Oza has also submitted

that had there been any intention on the part of the respondent

authority to widen the road on account of demand, the issue

would have been different, but here is a case in which,

respondent authority under guise of widening of road, in effect is

making realignment of road which is impermissible in view of the

scheme having attained finality and for undertaking such an

exercise, according to Shri Oza, powers either under Section 210

or under Section 212 cannot be resorted to. Hence, he contends

action on the part of respondent authority is not just and proper.

7. According to learned senior advocate, learned Single Judge

has not properly examined the core issue, instead went on

examining as to whether the construction put up by writ

applicants is authorized, legal or not, which was not the subject

matter of controversy since impugned notices which have been

issued are not for any illegal construction, and as such, core

issue having not been properly dealt with by the learned Single

Judge, impugned order requires to be corrected. It has been

further contended that in effect, impugned decision is though

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mentioned under the provisions of GPMC Act, but in effect, it

touches decision related to Town Planning Scheme, which has

attained finality and that is the reason why Town Planning officer

has issued communications. Shri Oza has submitted that in

effect, original notice was issued by the Commissioner of

Municipal Corporation and hearing was also held by the

Commissioner himself, but impugned decision which has been

communicated is by an authority which is not invested with the

power and as such, this is in flagrant violation of principles of

natural justice since hearing is extended by one officer, order is

passed by another, which is impermissible and as such, in any

case, impugned order is unsustainable. Hence, he prayed for the

relief sought for being granted in the interest of justice. No other

submissions have been made.

8. As against this, learned counsel Mr. H.S. Munshaw

appearing on behalf of the contesting respondent authority has

submitted that there is no reference about such contention

related to Town Planning Scheme raised either in the pleadings or

in the memorandum of writ application. It is only during the

course of oral submissions, such a contention was attempted to

be raised. According to Mr. Munshaw, this widening of road has

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nothing to do with the Town Planning Scheme issue and as such,

attempt now being made by the petitioners to divert the

attention from core issue should not be accepted. He would

contend the occupiers have raised unauthorized construction

and it has been put up contrary to development permission, so

much so one of the office bearers of Panjara Pole Trust filed an

affidavit that in case of exigency, they would leave the setback

or permit the authority to remove the offending construction and

learned Judge has also specifically taken note of such affidavit,

as clearly visible from paragraph 17 of the order impugned.

Rajkot Mahajan Panjara Pole Trust had assured through its

Secretary Mr. Rajendra Ratilal Shah to handover possession of

the land situated on Bhavnagar road side as and when

Corporation would require the same for widening of the road.

Now, having assured the Corporation by this very Trust which

was entrusted with the land, there is hardly any legitimate right

available for these occupiers to raise any grievance as not only

they are but Trust personnel and are bound by such assurance

given to the Corporation. It has been submitted that in an

identical issue related to such kind of grievance in another

petition also, an order of rejection came to be passed and as

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such, when order in question is passed after due application of

mind and after considering every circumstance, there is hardly

any reason for appellants to raise any grievance about the

impugned order. In fact, it has been categorically found that

while taking action, respondent Corporation has invoked

provisions GPMC Act and while taking such action, proper

procedure has been followed and same has been considered by

the learned Single Judge that adequate opportunity had been

given by issuance of show cause notice to these appellants-

petitioners and as such, when no development permission has at

all been granted to Panjara Pole Trust for such construction of

shopping center on the road side, equitable jurisdiction has

rightly not been exercised by the learned Single Judge.

Accordingly, such a well reasoned order may not be disturbed in

the interest of justice.

9. However, learned counsel Mr. Munshaw has candidly not

been able to dispute the circumstance that original notice was

given under Section 212 dated 2.2.2016 by the Commissioner of

Rajkot Municipal Corporation and even hearing was also

extended to these affected persons by the Commissioner

himself. But based upon such process, Town Planning Officer of

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Rajkot Municipal Corporation has passed impugned

communication/ order dated 22.2.2016 and copy was forwarded

to the Commissioner and as such, he would admit that hearing is

given by one officer and order is passed by another officer and

he has also not been able to dispute the fact that while taking

action either under Section 210 or 212 of GPMC Act, it is the

Commissioner who is invested with the power under the Statute.

Furthermore, Standing Committee has been also entrusted such

power for taking action in this regard with respect to several

roads to Municipal Commissioner only. It is in this background of

fact, learned advocate Mr. Munshaw has left it to the discretion of

Court and has prayed for dismissal of the Letters Patent Appeal

on the ground that appellants have not made out case.

10. Though several contentions have been raised as aforesaid,

we are of the considered view that only point that arises for our

consideration in this petition would be:

Whether the impugned order dated 22.2.2016 at Annexure- C is sustainable in law or not?

A perusal of the impugned order would indicate that it is passed

by the Town Planning Officer, Rajkot Municipal Corporation. In the

said order, there is a reference to the notice dated 2.2.2016 at

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Annexure-C, which is issued by the Commissioner. A perusal of

Section 212 of The Gujarat Provincial Municipal Corporations Act,

1949 would indicate that, if any building or any part thereof is

within the regular line of a public street and if, in the opinion of

the Commissioner, it is necessary to set back the building to the

regular line of street, he may, if the provisions of section 211 do

not apply, issue a notice in writing:--

(i) require the owner of such building to show cause within such period by specifying in the notice the statement as to why such building or any part there of, which is within the regular line of the street, shall not be pulled down and the land within the said line acquired by the Commissioner;

(ii) require the said owner on such day to attend personally the hearing by showing cause by specifying the date and time of hearing.

11. Even the resolution passed by Rajkot Municipal Corporation

dated 21.11.2014 would indicate that the Commissioner has

been authorized to take steps by said resolution, which reads

thus:-

"The Commissioner has considered the above Report and as per Section 210 of the GPMC Act, 1949 the City's total 17 roads beings decided to be brought under regular line of public street and the Commissioner has according for three

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roads the section 212 proceedings to be made for that the Municipal Commissioner to be authorized has been approved.

xxxx

Date: 21.11.2014 Sd/-

Nitin Bhardwaj Chairman Standing Committee Rajkot Municipal Corporation"

12. Pursuant to the same, A notice dated 1.1.2016 came to be

issued to writ applicants fixing hearing date as 5.1.2016 at 4

p.m. and subsequently the notice dated 2.2.2016 under Section

212 of the Gujarat Provincial Municipal Corporations Act, 1949

came to be issued by the Commissioner. It is thereafter

impugned order has been passed not by the Commissioner but

by the Town Planning Officer.

13. The Hon'ble Apex Court in the case of Gullapalli

Nageswara Rao And Others Vs. Andhra Pradesh State

Road Transport Corporation and Another reported in AIR

1959 SC 308 has observed that the expression 'executive

power' would include quasi-judicial powers vested in the

Government by Statute, so that the delegation of such power the

State Government to be exercised by some officer subordinate to

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the Governor, would not be unconstitutional. In the said case,

hearing was done by the Secretary, Transport Department and

final decision was rendered by the Minister In-Charge namely,

Minister for Transport and it was held that the person, who had

heard should pass the order and the decision cannot be by a

person other than who had heard the matter.

14. This view also receives support from the later judgment of

the Hon'ble Apex Court in the case of R. Chitralekha & Anr vs

State Of Mysore & Others reported in AIR 1964 SC 1823

whereunder it has been held that person who passed the order

on behalf of the Government had no authority to take the

decision on behalf of the Governor, under any law or relevant

rules. Mr. H.S.Munshaw, learned counsel appearing for the

respondent does not dispute the fact that it is the Commissioner

and Commissioner alone being empowered to pass the order. In

other words, he would admit that mandate of Section 212 of the

Gujarat Provincial Municipal Corporations Act, 1949 is authorizing

and empowering the Commissioner to pass orders.

15. In view of the aforesaid undisputed background of facts,

what is emerging clearly from the facts on hand is impugned

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decision, which was subject matter of main Special Civil

Application dated 22.2.2016, is passed and signed by Town

Planning Officer, which relates to the subject of 9 public streets

and for which, it appears that powers have been resorted to

under Sections 210 and 212 of GPMC Act. A close perusal of said

communication would also indicate that it is his own conclusion

that whatever representations in person were made before the

Commissioner on 8.2.2016 were not accepted and as such,

called upon the notices to remove portion of the building

purportedly encroaching the road, as indicated in the notice

within a period of 5 days. Thus, it would clearly emerge that

original notice dated 2.2.2016 came to be issued by the

Commissioner of Corporation and personal hearing was extended

by the Commissioner. However, rejecting the representation of

writ applicant by arriving at a conclusion ultimately is arrived at

by the Town Planning Officer and his decision is communicated

not only to the petitioners but copy is also forwarded to the

Commissioner. There appears to be flagrant violation of the

settled principles of law enunciated by catena of decisions

referred to herein supra. Hence, on this ground also, we deem it

proper to set aside the impugned communication dated

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22.2.2016. Since this solitary undisputed fact which is unfolded

in the instant case is sufficient enough to quash the action

impugned in the petition. Hence, we deem it proper not to enter

into other contentions which are tried to be raised and we leave

it open for the parties to agitate the same in case of necessity at

a later point of time.

16. While coming to this conclusion about the aforesaid

convincing ground for setting aside the action, in addition to

earlier decisions of Hon'ble the Apex Court reported in AIR 1959

SC 302 and other decisions, a decision in recent point of time

reported in the case of Union of India and others Vs. Shiv Raj and

others reported in (2014) 6 SCC 564 requires to be noticed with

benefit wherein it has been held:

17. This Court in Gullapalli Nageswara Rao held: (AIR p. 327, para 31)

`"31. ... Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure."

(emphasis added)

18. This Court in Rasid Javed v. State of U.P. following the judgment in Gullapalli Nageswara Rao, held that: (Rasid Javed case, SCC p. 796, para 51)

"51. ... a person who hears must decide and that divided

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responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted."

19. A similar view has been reiterated by this Court in Automotive Tyre Manufacturers Assn. v. Designated Authority18, wherein this Court dealt with a case wherein the designated authority (DA) under the relevant statute passed the final order on the material collected by his predecessor-in-office who had also accorded the hearing to the parties concerned. This Court held that the order stood vitiated as it offended the basic principles of natural justice.

20. In view of the above, the law on the issue can be summarised to the effect that the very person/officer, who accords the hearing to the objector must also submit the report/take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice.

Hence, a strong case is made out by the appellants to allow

the appeal on aforesaid main contention and as such, we

proceed to pass following:

ORDER

(1) Letters Patent Appeal stands ALLOWED by setting aside impugned order passed by learned Single Judge on aforesaid main contentions as also order dated 22.2.2016 passed by the authority is hereby quashed and set aside, with a consequential direction that respondent authorities, i.e. respondent No.1, shall extend fresh opportunity to the original writ applicants. The writ applicants shall appear before first respondent on 26.07.2022 at 3:00 PM. The first respondent is not required to issue any fresh notice to the parties. After considering the same, first respondent shall pass a

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fresh order in accordance with law within THREE (3) WEEKS from date of hearing as stipulated.

(2) It is needless to say that since we have set aside impugned action as well as order passed by leaned Single Judge on solitary ground, as stated above, we have not expressed any opinion with regard to other issues and it is left it open for the respondent No.1 to pass fresh order in accordance with law.

17. It is made clear while parting with present order that

original writ applicants shall cooperate with the 1 st respondent

who shall extend opportunity to the writ applicants afresh and

the failure of writ applicants to appear on the date of hearing

fixed, it would be open for the 1 st respondent authority to

proceed to pass appropriate order even ex-parte and in

accordance with law the time schedule as fixed hereinbefore.

18. Since main Letters Patent Appeal is disposed of, connected

Civil Applications, if any, stands consigned to records.

Sd/-

(ARAVIND KUMAR,CJ)

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR