Bhupendrabhai Devjibhai Chauhan vs State Of Gujarat on 7 October, 2021

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Gujarat High Court

Bhupendrabhai Devjibhai Chauhan vs State Of Gujarat on 7 October, 2021

Bench: Ashutosh J. Shastri

     C/SCA/17727/2018                                 ORDER DATED: 07/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 17727 of 2018
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 20428 of 2018
==========================================================

BHUPENDRABHAI DEVJIBHAI CHAUHAN Versus STATE OF GUJARAT & 15 other(s) ========================================================== Appearance:

MR JAL S UNWALA SR. ADVOCATE with MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1 MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3,4 MR DIGANT M POPAT(5385) for the Respondent(s) No. 6,7 NOTICE SERVED BY DS(5) for the Respondent(s) No. 10,11,12,13,14,15,16,5,8,9 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 07/10/2021 ORAL COMMON ORDER

1. Both these petitions are arising out of common grievance raised in the petitions, but since challenge to the impugned orders are almost similar and in view of the fact that both were clubbed together, the same are taken up upon request for its decision in common and as such, Special Civil Application No. 17727 of 2018 is treated as a lead matter and for the sake of convenience, the facts are taken from the said petition.

2. By way of this lead petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

"8(a) This Honourable Court may be pleased to issue any other appropriate writ, order or direction, quashing and setting aside the impugned orders passed by the Collector, Mahisagar - respondent no.

2 herein dated 18.07.2017 in the proceeding bearing number NPL/VASHI/333/17 as well as the order dated 14.11.2018 passed by the respondent no. 1 - Commissioner of Municipalities in the Appeal Page 1 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 No. 46/ File No. 935/Vashi/2018, which are at Annexure-A to the present petition;

(b) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to stay further operation, implementation and execution of the impugned orders passed by the Collector - Mahisagar - respondent no. 2 herein dated 18.07.2017 in the proceeding bearing number NPL/VASHI/333/17 as well as the order dated 14.11.2018 passed by the respondent no. 1 - Commissioner of Municipalities in the Appeal No. 46/File No. 935/Vashi/2018, which are at Annexure-A tot he present petition;

3. The case in brief of the petitioner is that there is a land situated being City Survey No. 3387 within the limits of Nagar Palika and which is referred to as Revenue Survey No 1036/1/1 paiki in the revenue records, belongs to the petitioner - Nagar Palika. The total area of land is admeasuring about 4460 sq.mtrs., and in the year 1999, the said land was purchased by the petitioner - Nagar Palika from the State Government.

3.1. It is the case of the petitioner that in respect of this land, the General Body of the petitioner - Nagar Palika passed various Resolutions ranging from the year 2012 till 2014, unanimously resolving to allot the land admeasuring 200-250 sq.mtrs., from the said City Survey No. 3387 for the construction of 10 offices/showrooms/go-downs for the purpose of leasing out. The General Body of the petitioner - Nagar Palika passed Resolution No. 317 on 27.01.2012; Resolution No. 422 on 07.01.2013; Resolution No. 24 on 19.03.2013; Resolution No. 160 on 13.06.2014; Resolution No. 136 on 20.01.2014, whereas Resolution No. 10 was passed on 27.04.2014.

3.2. It is further the case of the petitioner that before proceeding with the auction, the Nagar Palika has got Jantri valuation of the land in Page 2 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 question and after considering the valuation, an advertisement came to be published in local daily news paper on 05.02.2014, inter alia inviting applications from public at large for offering bids for construction of offices/show rooms/godowns at their own costs, which would be allotted to the successful bidders for a period of nine years only, meaning thereby, on the allotted portion, construction will have to be undertaken by the successful bidders who are to be allotted. The petitioner has received as many as 42 applications, out of which, on proper scrutiny it was found that 10 applications were found to be eligible/suitable for allotment of 10 plots. Accordingly, after opening of price bids on 18.06.2014, the petitioner proceeded ahead with the allotment process. The Chief Officer, at the relevant point of time was of the opinion that some more price can be fetched. As a result of this, after passing necessary order, the price was also enhanced vide letter dated 18.06.2014, which was also duly communicated to the respective applicants and again after undertaking the process of scrutiny on the revised bids, allotment letters were issued 10 in numbers to the successful bidders on 26.11.2015. Based upon such allotment, the allottees have started putting up construction and have built- up their respective shops/offices to a substantial extent and were almost on the verge of completion.

3.3 Further, it is the case of the petitioner that two aggrieved persons have approached the Collector against such allotment and unfortunately, at the relevant point of time, the Collector was pleased to pass an order dated 15.03.2016 by granting ex-parte stay. In view of this, since the allottees were on the verge of completion of construction, they approached this Court by way of Special Civil Application No. 6372 of 2016 challenging the said ex-parte order. However, later on the said petition was disposed of vide order dated 16.11.2016 and the matter was remanded back to the Collector. Pursuant to the said direction, than the matter was heard by the Page 3 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 Collector and was pleased to pass an order on 18.07.2017.

3.4. Feeling aggrieved and dissatisfied with the said order, the petitioner preferred an appeal before the Director of Municipalities and simultaneously, the allottees had also challenged the said order by filing revision application before the learned Secretary, Urban Development and Urban Housing Department, in which an interim order was passed on 06.09.2017, whereby, the learned Secretary was pleased to stay the operation and implementation of the impugned order passed by the Collector. However, later on, the appeal filed by the petitioner and the revision application filed by the allottees i.e. the petitioners of the cognate petition were clubbed and the Commissioner of Municipality - respondent no. 1 herein, heard the matter and passed an order on 14.11.2018. It is the case of the petitioner that not only the order passed by the Collector is travelling beyond the scope of original applications and suffering from the vice of non supply of material though relied upon, but the appellate authority has even travelled beyond that and such jurisdictional error is made the subject matter of present petition, whereby, the order of appellate authority as well as the order in origin are assailed.

4. Simultaneously, allottees as stated above have also preferred this cognate petition i.e. Special Civil Application No. 20428 of 2018, which is ordered to be heard along with main lead petition. Hence, with the aforesaid background, both the petitions have been requested to be heard together.

5. Learned Senior Advocate Mr. Jal S. Unwala assisted by Ms. Tejal Vashi, learned advocate appearing on behalf of the the petitioner - Nagar Palika in a lead matter whereas, learned advocate Mr. Udayan P. Vyas, is representing the petitioners of cognate petition i.e. Special Civil Page 4 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 Application No. 20428 of 2018, whereas, learned advocate Mr. Digant Popat is representing respondent nos. 5 and 6 and Mr. Adityasinh Jadeja, learned Assistant Government Pleader is representing the respondent - State authorities.

6. Learned Senior Advocate Mr. Unwala has raised contentions to the effect that power under Section 258 of the Municipalities Act is merely a power to suspend and not cancellation, irrespective of that, even the authority while exercising power under Section 258 of the Gujarat Municipalities Act has exceeded the jurisdiction in view of the fact that objectors have not raised such kind of grounds which are taken into consideration by the respondent - Collector. Hence without giving opportunity to the petitioner - Nagar Palika to meet with the same, the grounds which have been relied upon were not put to the notice, which has deprived the right of making effective representation which is violative of the principles of natural justice. In addition to this, it has been contended that none of the contentions which are reflecting in Section 258 of the Act are attracted by virtue of which the authority can assume the jurisdiction and as such, the authority has travelled beyond the scope of inquiry. It has further been contended that the some opinion of the Mamlatdar with respect to disaster management is relied upon while exercising jurisdiction and it is surprising to note that neither the objectors raised such, nor even the petitioner - Nagar Palika were informed or supplied with any such material related to it so as to enable them to meet with the said stand. This is clearly violative of the principles of natural justice. Learned Senior Advocate Mr. Unwala has submitted that even the State authorities in appeal/revision application has even travelled beyond what has been observed by the Collector and as such, the very exercise of jurisdiction is uncalled for, which requires interference of this Court.

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C/SCA/17727/2018 ORDER DATED: 07/10/2021 6.1. Learned Senior Advocate Mr. Unwala has further submitted that the original action was taken up by the Collector, was without granting any opportunity of hearing or without even supplying the relevant documents, and later on also, when the hearing took place, the authority has relied upon some material behind the back of the petitioner - Nagar Palika and as such, the entire exercise is visibly a predetermined move of the authority and as such, a clear error of jurisdiction is committed while passing the impugned order. It has further been submitted that being a public body, has taken every care that maximum price can be fetched in respect of allotment and for that purpose, the entire allotment procedure has been done in transparent manner and when it has been found that some more price is possible to be fetched, even again applicants were called upon and after evaluation through proper procedure, valuation was fixed. Hence, the allotment procedure is not irregular in any form. On the contrary, when allotment has taken place on the basis of such transparent manner, there is hardly any reason for the authority to pass the impugned orders.

6.2. Yet the circumstance which has been pointed out by learned Senior Advocate Mr. Unwala is that a close perusal of the relevant provisions of Section 65(2) of the Act is suggesting that if the lease is to be assigned beyond the period of ten years, then in such case permission is required of the Government and again the lease, if of more than Rs.1 lakhs. On perusal of the valuation which has been recorded of each lease is clearly indicating that the said lease is to the extent of nine years only and further the valuation of such lease is not travelling beyond the ceiling limit of Rs.1 lakh in any case which requires no prior permission of the Government and as such, ex-facie the embargo contained under Section 65(2) of the Act is not attracted in the present case. That being so, the authority ought to have considered the stand of the municipality in its proper perspective.

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C/SCA/17727/2018 ORDER DATED: 07/10/2021 Further, it has been submitted that the land has been purchased by the Municipality from the Government long back and to generate the income and funds of the municipality, it is always open for the municipality to take all steps in the best interest of municipality and its revenue, of course, subject to regulatory measure. Here, according to learned Senior Advocate Mr. Unwala, in respect of present allotment, norms are properly followed by the Municipality there is hardly any reason to interfere with the Resolutions which have already been implemented. Learned Senior Advocate Mr. Unwala has submitted that this power of suspension under Section 258 of the Act cannot be exercised beyond a reasonable period and further at a stage where the Resolutions were already implemented. Pursuant to Resolutions the entire procedure was lawfully completed, allotment was done, possession was entrusted and every construction has been almost on the verge of completion. As a result of this, the orders passed by the authorities are required to be quashed and set aside.

6.3. Learned Senior Advocate Mr. Unwala has further submitted that in any case, since their appears to be clear violation of the principles of natural justice, the impugned orders are not sustainable on that count alone. When the authorities have chosen to rely upon the material without putting it to the notice of the petitioner - Nagar Palika and without affording an opportunity to meet with the same, the same is clearly hit by violation of the principles of natural justice. Learned Senior Advocate Mr. Unwala to substantiate this submission, has also referred to a decision delivered by the High Court in the case of Ragahavbhai Arjanbhai & Anr., v Amreli Nagar Palika & Anr., reported in 1994 (2) GLR 1117.

7. So far as another cognate matter i.e. Special Civil Application No. 20428 of 2018 filed by those respective petitioners i.e. allottees. Mr. Udayan Vyas, learned advocate appearing for the petitioners has Page 7 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 submitted that substantially all the submissions he is adopting of learned Senior Advocate Mr. Unwala, but just with a view to clarify the situation more on facts, it has been submitted that prior to allotment, the Nagar Palika has undertaken appropriate procedure. First of the all advertisement came to be published which is reflecting on page 31, then tender notice has also been given and in response thereto, public auction is undertaken and thereafter, the allotment process has been undertaken. Out of several applications which have been received, these petitioners having found to be more higher in bids offered, the Nagar Palika after fulfilling required procedure has passed a Resolution and additionally it has also been submitted that while fixing the price even the valuation of the competent authority is also taken in to consideration and only thereafter, the process is concluded and as such, when the petitioners have been allotted the portion, the said allotment has taken place in a transparent manner, they may not be put to any jeopardy by exercising such power under Section 258 of the Act at a belated stage by the authority. The appellate authority also ought to have examined this independently, instead of routinely confirming the order passed by the Collector.

7.1. Learned advocate Mr. Vyas has submitted that the petitioners are at present in such a precarious position that despite their hard earned money spent in developing and putting up construction, they are at present nowhere and in such a serious situation when orders are passed the same cannot be said to be just and proper exercise of jurisdiction. It has been submitted that the petitioners also were not aware of the opinion of the Mamlatdar, about the disaster management issue, no such things were even conveyed to the petitioners not only at the time of allotment, but during the course of hearing before the authority as well. Had such material been supplied to the petitioners, the same also could have been met with by tendering proper explanation but here, behind the back of the Page 8 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 petitioners, some Resolutions/Circulars and the opinion of the Mamlatdar have been pressed into service,which has clearly violated principles of natural justice. It is settled position of law that if the material is relied upon without allowing concerned person to meet with the same, violates the principles of natural justice and fair play in action. Hence, the orders impugned are clearly violative of such settled position of law, same are not sustainable. The reliefs prayed for in the petition deserves to be granted.

8. As against this, Mr. Adityasinh Jadeja, learned Assistant Government Pleader appearing on behalf of the State authority has opposed the petition by contending that the orders impugned in the petition are reasoned orders and after extending opportunity to the parties affected, the discretion is exercised vested in statute and as such, may not be disturbed in the interest of justice. It has further been contended that looking to the chronology of events and the facts, the office of the Collector has acted well within the discretion vested in law and as such, when adequate opportunity is given, there is hardly any reason for the petitioner - Nagar Palika to invoke jurisdiction of this Court. Mr. Jadeja, learned Assistant Government Pleader has further contended that while passing the order, Section 65(2) of the Act has been considered and if consolidated valuation of the land is seen, the same is beyond the amount of Rs. 1 lakh so the embargo created by the statue is attracting in the present case and that being so, the concurrent finding of facts may not be disturbed in the interest of justice.

8.1. Mr. Jadeja, learned Assistant Government Pleader, has submitted that in view of the controversy which has been generated in the present proceedings, principles of natural justice is not possible to be assumed as violated since reasons are assigned. However, Mr. Jadeja, learned Assistant Government Pleader has candidly submitted that the report Page 9 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 which has been relied upon of Mamlatdar dated 19.04.2016 has not been supplied in advance and, further the other relevant Circulars and Resolutions of the Government, which are referred to and found to be violated as mentioned in clause 1 of conclusion reflecting on page 35 are not made available. Mr. Jadeja, learned Assistant Government Pleader has submitted that irrespective of it, when prima facie there is violation found, the authority has rightly exercised discretion. Hence, requested the Court to dismiss the petition. On the issue of non supply of relevant material which is relied upon by the authority while passing the impugned order, Mr. Jadeja, learned Assistant Government Pleader could not confront candidly to the said aspect and has left it to the discretion of the Court with no other submissions.

9. Having heard the learned advocates appearing for the respective parties and having gone through the submissions made by both the learned counsels in the context of orders which are made in the petition, few circumstances are undisputably reflecting on record.

9.1. It is not in dispute that the land was purchased by the petitioner - Nagar Palika from the State Government way back in the year 1999 and as such, it would be the domain of Nagar Palika to utilize the land to the best interest of the Nagar Palika and to generate income, it appears that allotment procedure has been undertaken.

9.2. That various Resolutions which have been passed which are quashed and set aside by the Collector in exercise of powers under Section 258 of the Act are ranging from the year 2012 till 2014. The last Resolution appears to be of 24.07.2014. In addition to it all other previous Resolutions mentioned in the order are already implemented which are disturbed by the Collector after almost a period of three years is visible Page 10 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 from the order of the Collector dated 18.07.2017. The first initiation of the proceedings is in the year 2016, so in any case, the record indicates that for those Resolutions of prior to 2014, powers appear to be exercised under Section 258 of the Gujarat Municipalities Act.

9.3. It is undisputed position on record and candidly submitted before the Court that the Collector while passing the order has specifically relied upon the previous orders of 02.01.1999 as well as has given much emphasis on the opinion given by the Mamlatdar of disaster management, Lunawada on 19.04.2016 and heavily relied upon the same, the orders have been passed which is very much visible on page 21. Now in the context of this undisputed position, two situations which emerge before the Court is that the powers which are exercised after almost a period of three years from the last Resolution dated July, 2014, when actual implementation has taken place and further the material which has been relied upon is undisputedly not made available to the petitioner - Nagar Palika before passing the impugned order and as such, in view of this situation, a contention which has been canvassed by learned Senior Advocate Mr. Unwala appears to be justified.

9.4. Perusal of the appellate order as well almost same situation is reflecting wherein on page 35, the appellate authority also has travelled beyond the examination of the application of the objectors as well as the order of Collector and has concluded that in view of the Government Resolutions and Circulars, the Municipality has not sought any change for the purpose or use of the land, which are those Resolutions and Circulars not mentioned in the order, particulars whereof, are not narrated and undisputedly, those Circulars and Resolutions even are not provided to the petitioner. So in substance, it appears from both the orders that the material which has been relied upon while passing the order against the Page 11 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 petitioner - Nagar Palika, the same was not supplied. Hence, non- supplying of such material, as rightly submitted by the learned Senior Advocate Mr. Unwala has prejudiced the right of the petitioner in making effective representation or raise proper defence. Hence, it clearly violates principles of natural justice and fair play in action.

10. At this stage, the decision delivered by the Apex Court in the case of Alagaapuram R. Mohanraj & Ors., v Tamil Nadu Legislative Assembly Represented by its Secretary and Anr., reported in 2016 (6) SCC 82, the Court is mindful of the observations that if the decision making process is in non compliance of principles of natural justice, violates Article 14 and non supplying of relevant material relied upon for reaching adverse conclusion, having civil or evil consequences itself amounts to violation of principles of natural justice. A reference made of such observations is in para 44 and 45 of the said decision, which the Court deems it proper to reproduce hereunder:-

"44. The principles of natural justice require that the petitioners ought to have been granted an opportunity to see the video recording. Perhaps they might have had an opportunity to explain why the video recording does not contain any evidence/material for recommending action against all or some of them or to explain that the video recording should have been interpreted differently.

45. The Privileges Committee should have necessarily offered this opportunity, in order to make the process adopted by it compliant with the requirements of Article 14. Petitioner No. 1 in his reply letter to the notice issued by the Privileges Committee seeks permission to give further explanation when the video recording is provided to him. The Petitioner No. 3 in his reply letter states that he believes his version of his conduct will be proven by the video recording. The other petitioners do not mention the video recording in their reply letters. However, it is not the petitioners burden to request for a copy of the video recording. It is the legal obligation of the Privileges Committee to ensure that a copy of the video recording is supplied to the petitioners in order to satisfy the requirements of the principles of natural justice The failure to supply a copy of the video recording or affording an opportunity to the petitioners to view the video recording Page 12 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 relied upon by the committee in our view clearly resulted in the violation of the principles of natural justice i.e. a denial of a reasonable opportunity to meet the case. We, therefore, have no option but to set aside the impugned resolution dated 31.03.2015 passed in the Tamil Nadu Legislative Assembly. The same is accordingly set aside."

10.1 Yet another decision of the Division Bench of this Court in the case of Raghavbhai Arjanbhai & Anr., v Amreli Nagar Palika & Anr., reported in 1994 (1) GLH 470 is also on the issue of exercise of jurisdiction under Section 258 of the Gujarat Municipalities Act and the relevant observations contained therein, deserve to be considered, which has indicated that the Resolution once passed by the Municipality and when acted upon by the third parties, the Collector cannot exercise jurisdiction. Now, here, in the instant case as well, the Resolutions which have been passed ranging from the year 2012 to July, 2014 are already implemented and third parties i.e. allottees have acted upon the same and at that stage after almost a period of three years, the Collector has exercised powers under Section 258 of the Act, which appears to be in conflict with the proposition which has been laid down by the Division Bench of this Court, the relevant observations contained in the said decision of the Division Bench, the Court would like to reproduce the same hereunder :-

"8. Resolutions Nos. 22 and 23 were passed on July 23, 1992. The Administrator wrote letter dated December 3, 1992 to the Collector making request for cancelling the resolution. When this request was made, period of more than four months had already passed from the date of passing of the resolution. Pursuant to the resolution, amount of advance lease of Rs. 50,400/ - was accepted by the Municipality and the petitioners were put in possession of the shops. Thus, there remained nothing to be done pursuant to the resolution. Therefore, we accept the submission made on behalf of the petitioners that in facts of the case provisions of Section 258 of the Act could not have been invoked.

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C/SCA/17727/2018 ORDER DATED: 07/10/2021

16. In view of the settled legal position as stated above, the impugned order passed by the Collector in purported exercise of powers under Section 258 of the Act cannot be sustained. As indicated herein above, everything that was required to be done pursuant to the resolution passed by the Municipality was done. Nothing further was required to be done by the Municipality. Therefore, there was nothing to be stayed or suspended. Hence the Collector could not have exercised powers under Section 258 of the Act. On this ground also the order passed by the Collector cannot be sustained and the same is required to be quashed and set aside."

10.2. Yet another decision delivered by the Apex Court in the case of Uttar Pradesh Government v. Sabir Hussain reported in (1975) 4) SCC 703 it has also been observed and propounded that if the copies of the material documents have not been supplied though relied upon has caused serious prejudice, the same is stated to be violative of the principles of natural justice. The relevant observations contained in para 16 and 17 are reproduced hereunder :-

"16. In view of these stark facts, the High Court was right in holding that the plaintiff (respondent) was not given a reasonable opportunity to show cause against the action proposed to be taken against him and that the non-supply of the copies of the material documents had caused serious prejudice to him in making a proper representation. There was a disobedience of the mandate of s. 240(3) of the Government of India Act, 1935 and the impugned order stood vitiated on that score alone. Reference to Rule 5-A of the Appeal Rules, made by the High Court in support of its conclusion, was unnecessary because application of that Rule to the employees of the Jail Department had been expressly excluded by Rule 6 of the Appeal Rules. More over, Rule 5-A was inserted in 1953, while we are dealing with a removal order made in 1949.

17. It was contended before us by Mr. R. P. Agarwala that the removal order, dated 18-5-1951, passed by the Government of the respondent's appeal was also invalid because in violation of the basic principles of natural justice and fair play, copies of the proceedings, report and findings of the Enquiring Officer were not supplied to the plaintiff to enable him to file an effective appeal. There is undoubtedly force in this contention but we think it unnecessary to decide this point as the order or removal, dated 15-8-1949, being Page 14 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 void ab initio due to non-compliance with the requirements of s. 240(3), the appellate impugned order would automatically fall within it."

11. With respect to another issue related to Section 65(2) of the Act, as well as regarding change of use etc., it appears that since the land has been in occupation right from the date of purchase from the State Government, the background of fact indicates that breach shown by the authority is too technical in nature, and if the same is allowed, then the authority can be allowed to assume jurisdiction at any point of time, even beyond unreasonable period and that is not the purport of provision. So far as Section 65(2) of the Act is concerned, prima facie, as indicated, the same appears to be not in violation. Be that as it may, the orders impugned are bad on the substantial ground of violation of the principles of natural justice, the same are void and as such, if the orders are bad on any one of the grounds, then one ground is sufficient enough to quash the impugned orders. As a result of this, without expressing much, the Court is not inclined to allow orders to be sustained in the eye of law, more particularly, when these issues have been raised not only after an unreasonable period of time, but without putting it to the notice of the petitioner - Nagar Palika and the petitioners have not been allowed to represent fairly, which has grossly violated the principles of fair play in action.

11.1 Additionally, as pointed out by other learned advocate Mr. Vyas, in cognate petition that how and in what manner, ultimately, the allotment has taken place. The chronology of circumstances which have been pointed out that the advertisement came to be published on page 31 of the cognate petition i.e. Special Civil Application No. 20428 of 2018, then tender notice has also been given inviting tenders from various aspirants, then valuation is also made by the Municipality and as indicated from Page 15 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 page 48, that each plot is evaluated which amount is below Rs.1 lakh. Further, out of the said process, even one additional attempt is made to see that the maximum price can be fetched by the Municipality and it is only after such transparent manner proceedings of auction have taken place and the allotment is only for a period of nine years and not of ten years or beyond ten years and as such, para 7 on oath which has been mentioned, the court has taken note of which also indicates that the process was undertaken in a substantial compliance and is a transparent process. Be that as it may, the authority has not considered the same as is clearly visible from the order and as such, when at a stage where almost 95% of the construction is already completed, there was hardly any justification for Collector to exercise jurisdiction under Section 258 of the Act and especially in violation of the principles of natural justice and at much a belated stage.

11.2. One additional factor which has been pointed before the Court which cannot be lost sight of is that an affidavit is filed on behalf of respondent nos. 6 and 7 who initially raised objections, have now clearly asserted on oath that in the interest of public of Nagar Palika, they are of the view to withdraw the original complaint made before the Collector which is clearly visible from page 345 and 346 of the petition compilation. The said declaration is on oath on 07.08.2019. Further be that as it may, the overall discussion and the reflection of record is indicative of the fact that orders passed by the authorities are in gross violation of the principles of natural justice, the Court see no reason to allow them to be sustained in the eye of law.

12. At this stage, the Court is further mindful of the decision of the Hon'ble Supreme Court in the case of State of Assam v. Mahendra Kumar Das reported in 1970 Law Suit (SC) 158, and considering the Page 16 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 following observations, the Court since has considered, deem it proper to reproduce hereunder:-

"It has been further laid down by this Court in The Collector of Central Excise and Land Customs v. Sanawarmal Purohit, Civil Appeals Nos. 1362-1363 of 1967, D/- 16.02.1968 = (reported in 1969 Assam LR (SC) 11) that "A quasi-judicial authority would be acting contrary to the rules of natural justice if it acts upon information collected by it which has not been disclosed to the party concerned and in respect of which full opportunity of meeting the inferences which arise out of it has not been given."

The above two extracts, it will be noted, emphasize that rules of natural justice can be considered to have been violated only if the authority concerned acts upon information collected by it and the said information has not been disclosed to the party against whom the material has been used."

12.1 The last decision in line is a decision again on the issue of violation of principles of natural justice is in the case of Homi B. Munshi v. P.G. Shroff reported in 1989 LawSuit (SC) (Guj) 102, wherein in para 13 and 15, the Court has observed as under :-

"13. It may, however, be pointed out that in Suresh Koshy's case (supra) the Supreme Court had quoted with approval the following observations made by Tucker, L.J., in Russel v. Duke of Norfolk 1949 (1) ALL ER 109 page 118 :

"There are, in my view, no words which are of Universal application to every kind of inquiry and every kind of domestic Tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but whatever standards adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case".

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C/SCA/17727/2018 ORDER DATED: 07/10/2021 It would thus be clear that whatever standard is adopted, the requirement of natural justice is that the person concerned should have a reasonable opportunity of presenting his case. It is no doubt true that as held by the Supreme Court in Suresh Koshy's case (supra) the question whether the requirements of natural justice have been met with by the procedure adopted in a given case must depend to a great extent, on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. In the instant case Regulation 6 does provide for giving reasonable opportunity of defending himself to the concerned officer employee before the disciplinary authority. But apart from that having regard to the nature of functions, which the disciplinary authority has to discharge, the delinquent officer concerned should have reasonable opportunity of presenting his case. In the light of what is discussed above, failure to supply a copy of the Inquiring Authority's report would amount to denial of reasonable opportunity. In my opinion therefore, having regard to the facts and circumstances of the case, disciplinary authority has committed breach of principle of natural justice by non-supply of copy of the Inquiring Authority's report to the petitioner.

15. In the instant case admittedly petitioner was not supplied with a copy of the report of the Inquiring Authority nor was he given opportunity of being heard before the disciplinary authority after submission of the report by the Inquiring Authority. It must, therefore, be held that the petitioner had been denied reasonable opportunity of representing his case as contemplated under Regulation 6 of the Regulations. Under the circumstances, the order dismissing the petitioner from service passed by the disciplinary authority must be held to be illegal. It has been held by this Court in Hasmukhbhai Dhanjibhai Zaveri v. R. Parthasarthy (1971) XII GLR 128 that the vice that attaches to an order passed in contravention of the Rules of natural justice cannot be cured ex post facto by affording to the person affected thereby an opportunity to represent his case after the order is passed. An order made in breach of the principles given to the affected person to represents his case after such an order is made cannot have the effect of resuscitating a still-born order. Applying the ratio of the above decision to the facts of the present case, it must be held that no life can be infused in the order passed by the disciplinary authority, which is void, by supplying to the petitioner copies of the inquiring Authority's report and the disciplinary authority's order containing reasons recorded by it, Page 18 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022 C/SCA/17727/2018 ORDER DATED: 07/10/2021 before he approached the appellate authority and giving him an opportunity to represent his case before the appellate authority. Therefore, the order passed by the appellate authority will be of no consequence and the action taken against the petitioner of dismissing him from service must be held to be illegal and void. It must, however, be made clear that the proceedings upto the stage of Inquiring Authority's report cannot be held to be illegal. It is only the orders passed by the disciplinary authority and the appellate authority, which are held to be illegal and void."

13. From the aforesaid proposition, may be under service jurisprudence, but touching to the principles of natural justice, on that very count, the orders impugned are since being clearly in conflict with the proposition, the same are required to be quashed, since violation will have the effect of declaring the action void. As a result of this, along with other contentions, when one of the contention is sufficient enough to strike down the action, the Court need not to conclude at length and all the other issues, when prima facie satisfied with the orders, one count itself deserves to be quashed of course orders are bad on other issues as well, as discussed above.

13.1. A background of aforesaid peculiar nature, if to be visualized in context of Section 258 of the Act, the condition precedent and eventualities which are mentioned in Section 258 of the Act are not satisfactorily concluded by the authority. Whether the case falls within the parameter of Section 258 of the Act deserves to be considered which has not been analyzed while coming to the conclusion. The orders impugned appear to be silent on this circumstance and as such also, it is not possible to safely come to the conclusion that resort of Section 258 of the Act is warranting. As a result of this, on overall consideration, the orders appear to be not sustainable. Hence, in considered opinion, the petitioners have made out a case to call for interference.

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C/SCA/17727/2018 ORDER DATED: 07/10/2021

14. Accordingly, the petition stands allowed. The impugned orders dated 18.07.2017 and order dated 14.11.2018 are hereby quashed and set aside.

15. In view of the aforesaid observations and discussions in the lead matter, cognate matter being Special Civil Application No. 20428 of 2018 also stands allowed on the same terms. Hence, the same is also disposed of accordingly.

(ASHUTOSH J. SHASTRI, J) phalguni Page 20 of 20 Downloaded on : Sun Jan 16 22:11:35 IST 2022

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