SCA/2044/1995 of JAYANTILAL MOHANLAL DESAI Vs STATE OF GUJARAT THRU- on 9 December 1996

JUDGMENT:

The petitioner has filed this writ petition underArticle 227 of the Constitution of India, with a prayerto the effect that this Court may be pleased to issue awrit, of certiorari or any other appropriate writ, or anorder quashing the impugned order dated 20th May 1993passed by the then Dy. Collector, Navsari in C.T.S.

Appeal No. 53 of 1992-93, the copy of which is annexedas Annexure `C' to this petition. The question thatfalls for consideration is whether the owner of theneighbouring property can as of a right claim theopportunity of being heard before the City Survey Officeror the authority in appeal who is to pass the order quathe right, title, interest, possession, use andoccupation, sketch, area, number, tenure, liability,nature, encumbrance, measurement etc., of a property(land).

2. The petitioner is the owner of the land bearingRev. Survey No. 266/1, Tika No.21, Survey No. 20 ofPlot No.9 the new City Survey Tika number of which is 60and Survey No. 4043 admeasuring 644 sq.meters situatedin Ashanagar, behind Garda College Campus, Ward No.6 atNavsari in Valsad District. It is the `C' tenure land.He purchased this land on 20-8-1963 by a registered SaleDeed from Dr. Naranjibhai Bhikhubhai Patel. Afterpurchasing the land, the petitioner constructed abuilding and at present he is using and occupying thesame with his family. Towards the West of his house,there is a plot bearing Tika No. 56, S. No. 3054admeasuring 412 sq.mts. It is also the `C' tenure land,whereon 100% construction is not permitted, margin landhas to be kept open. Formerly, the land belonged toDesai Mancherji Palanji, Bejarji Kharshedji and ArdesharManekji. The plot bearing Survey No. 3054 was owned andpossessed by Govindji Hiraji Patel. The respondents Nos.2 and 3, who are at present the owners of Survey No.3054, made an application for change in the tenure from`C' to `A'. The Mamlatdar rejected the application inthe year 1973-74. Thereafter they filed the appeal beingC.T.S. Appeal No. 53/1992-93. The then learned DeputyCollector on 20th May 1993 allowed the appeal and changedthe tenure of the land from `C' to `A' and so 100%construction thereon is now possible. In the thenprincely State of Baroda, the land was `A' tenure land.In 1914 A.D., City Survey enquiry was held. At that timethe land was found to be of `A' tenure land. In 1974when again the City Survey inquiry was held, the tenureof the land came to be changed from `A' tenure to `C'tenure, passing necessary order so as to promote worthierand healthier housing schemes for better living. Afterthe respondents Nos. 2 & 3 filed the appeal before theDeputy Collector at Navsari for getting the tenure of theland changed, the petitioner having come to know aboutthe same, urged the Deputy Collector to afford theopportunity of being heard. The same was turned down,and the Deputy Collector, though the appeal was filedabout 20 years after the Mamlatdar passed the order,

passed the order in appeal favouring the respondents Nos.2 & 3. The Deputy Collector held that the order, whichwas challenged before him, was passed without anyauthority, and the then concerned owner was not heard.Further, placing reliance on the G.R. dated 3rd January,1958 produced at Annexure `G' and probably on Para 127 ofthe City Survey Manual, as well as Para 108(5)(6) of theCity Survey Manual, the Dy.Collector allowed the appealand converted the land from `C' tenure to `A' tenure.The petitioner then came to know about the order havingbeen passed by the Dy. Collector. He, therefore, couldjudge that the respondents Nos.2 & 3 would be able to use100 % of the land for the purpose of construction, hewould not have to keep the margin land open to sky, as aresult several problems would arise, and the constructionof the flats or dwelling blocks would certainly betouching to his compound wall leaving no land in between.He also knew that the Nagarpalika of Navsari had grantedthe permission to construct. The petitioner thereforefiled the appeal before the Collector, Valsad against thepermission to construct granted by the Nagarpalikajoining the Dy. Collector as one of the parties. Healso filed this petition challenging the legality andvalidity of the impugned order on the ground that theopportunity of being heard was not given to him and onfew other grounds.

3. In democratic State, rule of law cannot bedivorced. In our democratic system, rule of law isadopted and the same is supreme. No authority cantherefore pass the order capriciously or dehors the law.Any order passed without following procedure andprinciple of natural justice is really the negation ofthe rule of law resulting into civil consequencesaffecting the rights of a person. The petitioner was notgiven the opportunity to submit his say; consequently hisrights qua his property were jeopardised. Making suchsubmission, the learned advocate for the petitioner urgedto set aside the impugned order and issue appropriatedirection.

4. The authority whether judicial or quasi-judicialwho has to adjudicate must adhere to the principles ofnatural justice and must give a reasonable opportunity ofbeing heard to the person who is interested or likely tobe affected by the order to be passed or against whom theorder is sought. Many are under the belief that alike inU.K. and U.S.A. the administrative authority is notbound to give the opportunity to submit if there is nostatutory provision, as in that case it is not regardedas a sine qua non of natural justice. In short, the person is not entitled to the opportunity of being heardin administrative matter in the absence of conferment ofthe right by the Statute, but such belief is notcongruous with law. In appeal, examining the merits ofthe order passed or decision taken by City SurveyOfficer, necessary order is passed which is thequasi-judicial act, and so the principle of audi alterampartem even if the same being not specifically covered inStatute will come into play. Even if it is considered tobe the administrative act, the doctrine of naturaljustice must be held to be applicable only if it involvescivil consequences, because in every administrative orderprinciple of natural justice would not be applicable andthose who are likely to be prejudicially affected shouldbe given the opportunity of being heard so as to havefairness and check insidiousness, or collusion orarbitrariness or unreasonableness, capriciousness orirregularity or unjust exercise of powers or injury toothers. Now the question that arises is whether thepetitioner has a right to claim the opportunity of beingheard. The answer to the question whether his interestis prejudicially affected is the decisive factor.

5. Urbanization has come to fore for various reasonsand so cities are becoming crowded. To check the evilsor bad effects of urbanisation, rules are framed orcertain standards in all the fields are adopted orexpected, and lands are also categorised. Those rules orstandards are required to be kept in mind. Withinavailable resources society and individual have a rightof adequate, if not better living system, attune withrules of health and modernization which is the off-springof a right to life guaranteed in the Constitution. Bythe march of science, notions and rights get changed ortake a new shape, and some times present are waived, orignored being obsoluscent and new are found imperativefor adequate living. The authority therefore cannot shutits eyes towards new right or standards or system thesociety or State is adopting for providing andencouraging adequate living. Its order must becompatible with the standard or system adopted. Hencewhen individual right or matter is likely to be linkedwith the group rights or likely to affect thecommunity-life, opportunity of being heard to theconcerned persons has to be given either by giving noticeindividually or issuing public notice.

6. The persons purchase land and erect the dwellinghouses in a particular locality finding the same to besuitable qua decent life, health, multi-purpose utility,convenience and comforts and uniform system; and more to this certain rules made for adequate living in thelocality or town or city. If by administrative act or byany order to be passed in any proceeding is likely toaffect local set up or system of life or likely to runcounter to the uniformity for comforts, convenience andadequate living, notice to the concerned parties isnecessary. The petitioner and others in the localityfollowing and accepting the rules suitable to their lifestyle preferred to have their residence. During thecourse of hearing, it was made clear that in the localitywhere land in question is situated, virtually all theplots are categorised as `C' tenure land and so whoeverdesires to build residential blocks or units has to leavethe margin land open because building rules mandate sowhich is not the case where `A' tenure land is to be usedfor erecting residential units. By the order inquestion, therefore, their right to adequate living freefrom close-knit is likely to be affected. The petitionerhad therefore a right to claim opportunity to submit. Asthe same is not given, the impugned order is required tobe struck down. Even on other counts also, it is notmaintainable.

7. Even when administrative order is passed, thereasons thereof should be given so that in case of itschallenge the same can well be tested on merits onjudicial anvil. In the case on hand, it is not statedwhy after 20 years the appeal was entertained and whatwas well-set in the locality was disturbed. It is alsonot ascertained whether in fact the predecessor-in-titleof the respondent Nos. 2 & 3 was at the time of formercity survey inquiry was given notice, and heard or not.There is nothing indicating that standards accepted tocheck the evils or odds of urbanisation were borne inmind. To provide adequate living system and maintenanceof the standard thereof, Town Planning Act and alikeother Acts are enacted. To be in tune with such adequatesystem, it seems formerly lands were converted from `A'tenure to `C' tenure in 1973 AD and such object is notborne in mind. Further why from `A' tenure to `C' tenurethe land was converted at the time of former inquiry, andwhat was then the good cause to restore the nature thatstood during the reign of the then princely State ofBaroda is not at all dealt with, and conveniently theobject to promote adequate living system is ignored. Theorder in question therefore cannot be said to bewell-reasoned, the same on that count requires to bestruck-down.

8. In one's own support, the Deputy Collector hasplaced reliance on the Government Resolution dated 3-1-1958 of the then Bilingual Bombay State, the copy ofwhich is produced at Annexure `G'. It does not commandthe authority to convert the tenure of land. It isissued to confer and regulate the occupancy of the land,levy of occupancy charges, and provide security to thetenure of the land, i.e., house-sites formerly under thereign of the then princely State, and after Independence,merged in the then Bombay State. The same is certainlynot for converting the tenure of the land, which can bedone under the law applicable and also undergoingnecessary formalities. The reliance is erroneouslyplaced and order that is passed on that base is nothingbut capricious exercise of powers.

9. In view of Section 205 of the Bombay Land Revenue Code, the appeal before the Deputy Collector against theorder of the City Survey Officer is required to bepreferred within the period of 60 days. The orderconverting the land from `A' tenure to `C' tenurechallenged in appeal before Deputy Collector was passedon 31-7-74 when City Survey Officer held inquiry.Thereafter in 1993, the appeal came to be filed. Thereis nothing on record indicating what was the good causeto admit the appeal, and whether delay u/s. 206 BombayLand Revenue Code was condoned. Of course, no appealagainst admission of appeal after the expiry of theperiod of limitation is competent in law, and thereforeauthority admitting the appeal has to assign good causeso that under supervisory jurisdiction under theConstitution, the High Court can have the adequate scopeto test it, when group interest is involved. This Courtdoes not have anything to examine the order qua collusionetc., when condonation is assumed.

10. It was contended on behalf of the respondentsthat in view of Para 106 of City Survey Manual, it wasopen to the respondent to file appeal at any time evenafter several years. It may be stated that the provisionof Manual cannot override the provision of Bombay LandRevenue Code. Para 106 therefore cannot override Section205 of the Bombay Land Revenue Code. In the alternativealso, the contention cannot be accepted. Para 106 wouldcome into play for filing appeal at any time without therigour of Section 205 if before passing the orderprocedural formalities or fundamental rules relating toprocedure are ignored or set at naught. The order underchallenge does not indicate that formerly by City SurveyOfficer procedural formalities were set at naught. Thereis no application of mind in this regard and mechanicallywhat has been alleged by respondent is accepted whichamounts to non-application of mind and discarding justness, fairness and reasonableness. No othersubmission is advanced.

10. A The impugned order came to be passed by theDeputy Collector at Navsari on 5th January 1994. Thepetitioner's request to grant opportunity to submit wasthen turned down on 11th January 1994 which wascommunicated to the petitioner. The petitioner thenfiled this petition on 15th September 1995. It is,therefore, contended on behalf of the opponents that thepetition is filed late by one year, eight months and fivedays, and such inordinate delay was fatal to thepetition. On that count, namely delay, latches andacquiescence, therefore the petition was liable to berejected.

10-B. Although Articles 226 & 227 of the Constitutionof India do not fix any particular period of limitation,the party wanting to claim relief must, therefore, comebefore the High Court as expeditiously as possible. Itis for the Court to consider in each case having regardsto facts and circumstances of the case, whether there isgross delay in presenting the petition. There can be nohard and fast rule, or no mathematical formula layingdown the period within which the remedy must beexhausted, beyond which, delay would be considered fatalto the exercise of the discretion in favour of thepetitioner. However, ordinarily if the petition is filedwithin the period of 8 to 10 months after the cause ofaction arises, the same should be held to have been filedwithin reasonable time. Accordingly, if this petition isconsidered, one would be inclined to believe that it isfiled late by one year and on that count it must fail,but petition on that count cannot be dismissed. If thepetition is admitted, it cannot be thrown off on thetechnical plea of delay or latches or acquiescence. Oncethe petition is admitted, ordinarily it should bepresumed that even if there is a delay, the same iscondoned of course subject to the plea that may be raisedby the other side on his appearance before the Court andin that case court will have to consider the questionabout delay and decide in whose favour exercise of thediscretion must tilt. If the plea is not raised by theotherside, but the contention about delay, latches oracquiescence is raised at the time of submittingarguments, the same cannot be countenanced because inthat case, the other side will have no chance to explainthe delay by filing the affidavit.

10-C. In the case on hand, no plea regarding delay,latches or acquiescence has been raised in the affidavit filed by the respondents and for the first time at thetime of making submissions the contention is raised, andtherefore the petitioner has lost the opportunity toexplain the delay by filing the counter-affidavit. Whenthat is so, the petition cannot be thrown overboard onthe technical plea of delay, latches and acquiescence.

10-D. It should be borne in mind that the doctrine ofacquiescence, delay or latches can be invoked if it isfound that assertion of a right by the petitioner hascaused prejudice to the opposite party because of latefiling of the petition. In other words, if there isbelated or stale claims, i.e. there is gross orinordinate delay in filing the petition, the delay wouldgain importance if entertaining the petition and grant ofthe relief would have the result of unsettling settledstate of affairs and order of things in existence for along time. If the opposite party is not likely to sufferany injury, delay will loose its vigour. In the case onhand, the land now in possession of respondent No.4 hasto be utilized for constructing the flats, or dwellingunits. Yet the flats are not constructed and land is notvirtually used for any other purpose. If the petitionis, therefore, entertained and decided the opponentswould not suffer any injury; and nothing would be upsetand no prejudice is likely to be caused. At the mostthey will have to modify or alter their plan which cannotbe termed injury or prejudice in the eye of law. If therespondent No.4 has purchased the land from respondentNo.3 knowing about the tenure-order in question, thepetition cannot be thrown overboard on the ground thatowing to late filing of petition, expected benefitsthereof will be jeopardised and upset the set-up becauseno one can escape of latent, patent or inherentinfirmities of the act, order or transaction later oncoming to light on adjudication having erosive effect onthe good aspects thereof as he can be deemed to haveaccepted the otherside of the transaction. Soon he cameto know about the plan to construct, the petitionerapproached the Nagarpalika, Navsari, so as to resist thegrant of the permission to construct, but on the samebeing granted, the petitioner challenged the same beforethe Collector, Valsad, filing appropriate application andalso filed this petition. So it would not amount toacquiescence. Further the delay, in the alternative,cannot be considered gross. In view of the matter, thispetition cannot be held bad because of the doctrine ofacquiescence, delay and latches. No other submissionsare advanced.

been done to the petitioner. The petition is, therefore,allowed, and the order dated 20th May 1993 passed by theDy. Collector is set aside. The Dy. Collector shallnow consider the appeal afresh hearing the concerned andthe petitioner, and shall pass appropriate order. Nocosts in the circumstances of the case. Rule is madeabsolute.

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Note: As per the order dated 28-1-1997 passed after theCourt was moved on the basis of speaking to minutes,Paras 10-A to 10-D are inserted hereinabove. Noteportion not to be given to the reporter.