Gujarat High Court
Bhavan Sanga Gamara vs Rajkot Municipal Commissioner on 20 July, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
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
MR HS MUNSHAW(495) for the Respondent(s) No. 1
==========================================================
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 Page 15 of 16 Downloaded on : Thu Jul 21 21:49:36 IST 2022 C/LPA/873/2022 CAV ORDER DATED: 20/07/2022 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 Page 16 of 16 Downloaded on : Thu Jul 21 21:49:36 IST 2022