Gujarat High Court
Parbatbhai Bhurabhai Bareja vs State Of Gujarat & 2 on 28 July, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/18076/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18076 of 2014
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PARBATBHAI BHURABHAI BAREJA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR. VIPUL B SUNDESHA, ADVOCATE for the Petitioner(s) No. 1
MS. MEGHA CHITALIYA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 28/07/2015
ORAL ORDER
Rule. Learned Assistant Government Pleader Ms. Megha Chitaliya waives service of notice of Rule on behalf of the respondents.
1.1 In the facts and circumstances of the case, and upon consent and request of both the learned advocates for the parties, the petition is taken up for final consideration.
2. The petitioner has prayed as under, "... to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside order dated 20.09.2010 passed by the Page 1 of 5 C/SCA/18076/2014 ORDER respondent No.3-District Collector (at ANNEXURE-B hereto) as well as order dated 16.12.2013 passed by respondent No. 2 (at ANNEXURE-H hereto) and further be pleased to direct respondent No. 3 to immediately grant mining permission to the petitioner over the land in question, as per application dated 04.01.2010 of the petitioner (at ANNEXURE-A)."
3. The relevant fact and the nature of challenge may be stated in brief. On 04.01.2010, the petitioner made an application for grant of quarry lease for excavating the mineral building limestone in respect of land bearing Survey No. 52/4/1 paiki, admeasuring 1 Hector, at village Balej, Taluka and District Probandar. The Collector rejected the application on 20.09.2010. It is the contention of the petitioner that the rejection by the Collector was on flimsy and arbitrary ground that the land in question was asked for by the Reliance Industries.
3.1 Against the aforementioned order of the Collector, the petitioner has preferred Revision Application before respondent No. 2 herein - the Secretary & Appellate Authority, Industries and Mines Department. It was filed on 03.01.2014. The petitioner has stated that he sent reminders on 04.02.2014 and again on 07.08.2014 for hearing of the appeal/revision. It is stated that shockingly, the Page 2 of 5 C/SCA/18076/2014 ORDER petitioner received on 06.09.2014, a letter from the authority intimating that the Revision was already decided on 16.12.2013. The petitioner has challenged the said order passed by respondent No. 2, by filing the present petition under Article 226 of the Constitution.
4. Heard learned advocate Mr. S.P. Majmudar for the petitioner and learned Assistant Government Pleader for the respondent-authorities.
5. The contention of the petitioner that the impugned order was passed without hearing him and thus by violating the principles of natural justice, could well be countenanced. The impugned order recites that the hearing of the Revision Application was kept on 24.10.2013 at Collector's Office, Probandar, and that the petitioner was absent on the said date. The authority has further mentioned that the petitioner did not ever asked for fresh date of hearing, nor submitted any representation in writing.
5.1 The petitioner was not heard before the impugned order passed by the Revisional Authority, is an uncontroverted position emerges from the facts on record. Petitioner's categorical and clear averment on oath in this regard has not been denied. Rather learned Assistant Government Pleader was not in position to dislodge the factum of non-hearing of the petitioner. The statement in the impugned order that the petitioner was served with notice of hearing does not inspire truth. The petitioner was not served with Page 3 of 5 C/SCA/18076/2014 ORDER the notice as stated by him. He was totally unaware of the date of hearing.
5.2 In any view, that fact remains that the impugned order passed by the Revisional Authority was without affording opportunity of being heard and that the petitioner had not put forth his case before the Revisional Authority. There was, therefore, no gainsaying about non-compliance of principles of natural justice.
5.3 Respondent No. 2 - Revisional Authority while considering and deciding Revision Application functions as a quasi-judicial authority. It is enjoined to ensure audi alterem partem. Its impugned order passed in disregard of natural justice by not availing opportunity to the petitioner-applicant and dismissing the Revision Application cannot sustain as the same is liable to be set aside on the said ground alone.
6. Accordingly, the impugned order dated 16.12.2013 (Annexure -H) passed by respondent No. 2 dismissing the Revision Application of the petitioner is hereby quashed and set aside on the ground of breach of natural justice only. The case is remanded to the said Revisional Authority for its decision afresh. Respondent No. 2 shall undertake the exercise of deciding petitioner's Revision Application in question anew and render a fresh decision after giving due opportunity of hearing to both the sides and in compliance of natural justice within a period of six week from the date of receipt of this order.
Page 4 of 5 C/SCA/18076/2014 ORDER6.1 This Court has not gone into merits of the case of the petitioner. Any observation in this order shall not be construed as an expression on merits. The Revision Application of the petitioner shall be decided by the authority in accordance with law and on its own merits.
7. This petition is allowed as above and to the extent above. Rule is made absolute to the said extent. Direct service is permitted.
(N.V.ANJARIA, J.) BD Songara Page 5 of 5