SCA/6017/1995 of DIPAKBHAI R KOTHARI Vs SURENDRANAGAR MUNICIPALITY on 16 October 1995

ORAL JUDGMENT

The order passed by the Collector of Surendranagar(respondent No. 7 herein) on 1st July 1995 is under challengein this petition under Art. 226 of the Constitution of India.By his impugned order, respondent No. 7 disposed of the caseinstituted by the petitioner herein against Resolution No. 2passed by the Town Planning Committee of the Surendranagar UrbanDevelopment Authority.

2. It is not necessary to set out in detail the factsgiving rise to this petition. It may be sufficient to note thatthe Town Planning Committee of Surendranagar Urban DevelopmentAuthority by its resolution No. 2 approved the plans ofconstruction submitted by respondents Nos. 2 and 3. It appearsthat the petitioner was aggrieved thereby. He thereupon invokedthe jurisdiction of respondent No. 7 under sec. 258 of theGujarat Municipalities Act, 1963. It appears to have beenregistered as Case No. 7 of 1993. By an undated order passedtherein, respondent No. 7 came to the conclusion that thebuilding plans were sanctioned according to law and nothing morewas required to be done. Its copy is at Annexure I to thispetition. The aggrieved petitioner has thereupon approachedthis court by means of this petition under Art. 226 of theConstitution of India for questioning its correctness.

3. The grievance of the petitioner against the impugnedorder at Annexure I to this petition is two-fold. In the firstplace, it has been urged that no opportunity of hearing wasgiven to the petitioner before passing it. Secondly, it hasbeen submitted that respondent No.7 relied on the surveyor'sreport without furnishing its copy to the petitioner. These twogrievances voiced by the petitioner have remaineduncontroverted. It is not the case of the respondents or any ofthem that an opportunity of hearing was given to the petitioneror that the surveyor's report was furnished to him. LearnedCounsel Shri Vakharia for respondents Nos. 2 and 3 admits thatthe petitioner was not heard in the matter nor was he given acopy of the surveyor's report. In that view of the matter, theimpugned order at Annexure I to this petition can be said tohave been passed in contravention of the audi alteram partemrule. It cannot therefore be sustained in law.

4. It may be mentioned that a copy of the impugned order atAnnexure I to this petition was not given to the petitioner.What was conveyed to the petitioner was only an intimationthereof by an order passed on 1st July 1995. Its copy is at

Annexure G to this petition. It appears that the impugned orderat Annexure I to this petition was submitted to this court in asealed cover in the previous proceeding by means of SpecialCivil Application No.. 7623 of 1993. The petitioner haslevelled allegations of ulterior motive against respondent No.7 for not giving a copy of the impugned order at Annexure I tothis petition to the petitioner. It is the case of thepetitioner that its copy was given to respondents Nos. 2 and 3.I think these allegations need not be dealt with seriously forthe simple reason that respondent No. 7 was required to givehis decision in a sealed cover before this court in the previousproceeding. Respondents Nos. 2 and 3 have categorically deniedreceipt thereof or its knowledge prior to production of thesealed cover before this court. It is possible that respondentsNos. 2 and 3 might have obtained its copy from some othersource and respondent No. 7 might not be responsible forsupplying its copy to these two respondents even if thepetitioner's case is believed. Be that as it may, the factremains that the impugned order at Annexure I to this petitioncannot be sustained in law.

5. In view of my aforesaid discussion, I am ofthe opinionthat this petition deserves to be accepted and the impugnedorders passed by respondent No. 7 at Annexure I to thispetition deserves to be quashed and set aside. The matterdeserves to be remanded to respondent No. 7 for restoration ofthe proceeding to file and for his fresh decision according tolaw after giving an opportunity of hearing to the petitioner andalso after supplying a copy of the surveyor's report.

6. In the result, this petition is accepted. The orderpassed by respondent No. 7 at Annexure G and also at Annexure Ito this petition are quashed and set aside. The matter isremanded to respondent No. 7 for restoration of the proceedingto file and for his fresh decision according to law. Since thematter is old, respondent No.7 is directed to dispose it of asexpeditiously as possible preferably within one month from thedate he comes to know of this judgment of mine. It is open tothe petitioner or any of the respondents to produce a certifiedcopy of this judgment of mine before respondent No. 7 and theperiod of one month for disposal of the proceeding will startfrom that date. Any final decision passed by respondent No. 7against the petitioner will not be implemented for a period ofone week from its date subject to the condition that it would beopen to respondent No.1 to process the plan submitted byrespondents Nos. 2 and 3 without finally sanctioning them for aperiod of one week. Rule is accordingly made absolute to theaforesaid extent with no order as to costs.