Gujarat High Court
SCA/2867/1988 of HANSRAJ TAPUBHAI Vs STATE OF GUJARAT on 7 October 1995
1 Date of Decision: 7th October 1995 SPECIAL CIVIL APPLICATION NO. 2867 of 1988 FOR APPROVAL AND SIGNATURE THE HONOURABLE MR. JUSTICE A.N. DIVECHA 1. Whether Reporters of Local Papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? No 3. Whether their Lordships
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���Date of Decision: 7th October 1995
SPECIAL CIVIL APPLICATION NO. 2867 of 1988
FOR APPROVAL AND SIGNATURE
THE HONOURABLE MR. JUSTICE A.N. DIVECHA
1. Whether Reporters of Local Papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether their Lordships wish to see the fair copy of judgment? No
4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder? No
5. Whether it is to be circulated to the Civil Judge? No
---------------------------------------------------------------- Shri Suresh M. Shah, Advocate, for the Petitioner Shri Y.M. Thakkar, Asst. Govt. Pleader, for the Respondent----------------------------------------------------------------CORAM: A.N. DIVECHA, J.(Date: 7th October 1995)
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ORAL JUDGMENT
The order passed by and on behalf of the State ofGujarat (the respondent herein) on 1st March 1988 under sec.20(2) of the Urban Land (Ceiling and Regulation) Act, 1976 (theAct for brief) is under challenge in this petition under Art.226 of the Constitution of India. By the impugned order, theexemption granted to the petitioner under sec. 20(1) of the Actwith respect to certain three parcels of land bearing Survey Nos. 106 (part), 44 (part) and 45 (part) admeasuring 13,557square meters, 12,849 square meters and 8701 square metersrespectively situated in Rajkot (the disputed lands forconvenience) came to be withdrawn.
2. It is not necessary to set out in detail the factsgiving rise to this petition. It may be sufficient to note thatthe petitioner was granted exemption under sec. 20(1) of theAct by the order passed on 20th April 1979 on certain terms andconditions. Such terms and conditions included a conditionregarding user of the disputed lands only for agriculturalpurposes and no construction thereon was permitted. It appearsthat it came to the notice of the concerned officer of therespondent that the lands remained fallow and some constructionwas raised therein. A show-cause notice thereupon came to beissued to the petitioner on 13th February 1987 under sec. 20(2)of the Act calling upon the petitioner to show cause why theexemption granted earlier should not be withdrawn. Thepetitioner made representations on 24th February 1987, 14th May1987 and 3rd July 1987 thereto. By the order passed on 1stMarch 1988 under sec. 20(2) of the Act, the respondent withdrewthe exemption granted under sec. 20(1) of the Act. Its copy isat Annexure A to this petition. The aggrieved petitioner hasthereupon approached this court by means of this petition underArt. 226 of the Constitution of India for questioning itscorrectness.
3. This petition can be disposed of on a short ground ofcontravention of principles of natural justice. It transpiresfrom the impugned order that one panchnama regarding thedisputed lands was got prepared on 5th June 1987. It transpiresfrom the impugned order that such panchnama was relied on by itsauthor for the purpose of coming to the conclusion that thepetitioner was guilty of breach of certain conditions attachedto the order granting exemption. It is the case of thepetitioner that this panchnama was prepared behind his back andno opportunity was given to the petitioner to explain theposition of the disputed lands as reflected in the panchnama.The averments made in that regard in para 6 of the petition havenot come to be controverted by or on behalf of the respondent inany manner. In that view of the matter, there is no reason notto accept such averments made in para 6 of the petition. Inthat view of the matter, there is no escape from the conclusionthat the panchnama referred to in the impugned order wasprepared behind the back of the petitioner and no opportunitywas given to him to explain it. This would certainly violatethe rule of audi alteram partem enshrined in principles ofnatural justice.
4. I am supported in my view by the order of this court inSpecial Civil Application No. 3432 of 1984 decided on 29th August 1984. In practically identical fact-situation, thiscourt upset the order passed by the State Government on theground that no opportunity was given to the petitioner toexplain the panchnama prepared in the case and referred to inthe impugned order. Sitting as a single Judge, the aforesaidorder of this court is binding to me.
5. In view of my aforesaid discussion, I am of the opinionthat the impugned order at Annexure A to this petition cannot besustained in law. It deserves to be quashed and set aside. Thematter deserves to be remanded to the respondent for restorationof the proceeding to file and for its fresh decision accordingto law in the light of this judgment of mine.
6. In the result, this petition is accepted. The orderpassed by and on behalf of the State Government on 1st March1988 under sec. 20(2) of the Act is quashed and set aside. Thematter is remanded to the respondent for restoration of theproceeding to file and for its fresh decision according to lawin the light of this judgment of mine. Rule is accordingly madeabsolute to the aforesaid extent with no order as to costs.