Gujarat High Court
Hareshbhai Govindlal Shah vs District Collector & on 13 April, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/13872/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13872 of 2016
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HARESHBHAI GOVINDLAL SHAH....Petitioner(s)
Versus
DISTRICT COLLECTOR & 1....Respondent(s)
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Appearance:
MR PRABHAKAR UPADYAY, ADVOCATE for the Petitioner(s) No. 1
MR. KRUTIK PARIKH AGP for the Respondent(s) No. 1
MR MOUSAM R YAGNIK, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 13/04/2017
ORAL ORDER
[1] Heard learned advocate Mr. Prabhakar Upadyay for the petitioner, Mr. Krutik Parikh, learned AGP for respondent No.1 and Mr. Mousam Yagnik for respondent No.2.
[2] By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 13.05.2016, which is a communication for on behalf of the Collector, informing the petitioner that his application under Section 258(1) of the Act has been dismissed.
[3] Learned advocate Mr. Prabhakar Upadyay appearing for the petitioner contended that the said order is passed without affording reasonable opportunity to the petitioner though several Page 1 of 3 HC-NIC Page 1 of 3 Created On Tue Aug 15 23:24:42 IST 2017 C/SCA/13872/2016 ORDER contentions were raised. This Court thought it fit to examine the said contentions of nonhearing. In the affidavitinreply filed by the respondent no.1, it is not mentioned that hearing was given, on the contrary, candidly it has been stated by the respondent No.1 that on the basis of the report received from Deputy Collector, Thasara, the authority thought it fit that there is no lacuna in the resolution passed by the respondent No.2Municipality and accordingly the Authority has disposed of the application of the petitioner by way of communicationcumorder dated 13.05.2016.
[4] Learned AGP Mr. Krutik Parikh appearing for the respondent No.1 and Mr. Mousam Yagnik appearing for the respondent No.2 reiterated the stand taken by the respondent no.1 in the affidavit that as such the petitioner has got efficacious alternative remedy by way of filing revision before the State Government.
[5] Having gone through the records of the petition and considering the contentions raised by the learned counsel appearing for the parties, it is an admitted position that the impugned ordercum communication dated 13.05.2016 passed by the Authority is passed without giving reasonable opportunity of being heard.
[6] Considering the provisions of Section 258 of the Gujarat Municipality Act, 1963, as well as ratio laid down by the Apex Court in the case of H.H. Parmar Vs. Collector, Rajkot & Anr. reported in Vol.20, 1979(2)GLR,97, the order deserves to be Page 2 of 3 HC-NIC Page 2 of 3 Created On Tue Aug 15 23:24:42 IST 2017 C/SCA/13872/2016 ORDER quashed only on solitary ground of breach of principles of natural justice.
[7] Considering the ratio laid down by the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai and Ors. reported in AIR 1999 Supreme Court 22, in light of the fact that the hearing is not given, availability of alternative remedy would not in any manner bar the jurisdiction of this Court under Article 226 of the Constitution of India.
[8] In the aforesaid grounds, the impugned communicationcumorder dated 13.05.2016 passed by District Collector, Kheda is hereby quashed and set aside. The District Collector, Kheda shall give an opportunity of hearing to the petitioner and pass afresh order in accordance with law, without in any manner being influenced by order impugned.
[9] It is however clarified that it will be open for the petitioner to take all available contentions which are raised in the present petition. The petition is allowed only on the sole ground of nonhearing. The petition is allowed to the aforesaid extent. No order as to costs.
(R.M.CHHAYA, J.) manoj Page 3 of 3 HC-NIC Page 3 of 3 Created On Tue Aug 15 23:24:42 IST 2017