SCA/7976/1995 of JAYANTILAL MOHANLAL DESAI Vs STATE OF GUJARAT on 9 December 1996

JUDGMENT:

The petitioners have filed this writ petitionunder Article 227 of the Constitution of India, with aprayer to the effect that this Court may be pleased toissue a writ of certiorari or any other appropriate writ,or an order quashing the impugned order dated 5th January 1994 passed by the then Dy. Collector, Navsari, inC.T.S. Appeal No. 12 of 1993-94, the copy of which isannexed as Annexure D to this petition. The questionthat falls for consideration is whether the owner of theneighbouring property can as of a right claim theopportunity of being heard before the City SurveyOfficer, or the authority in appeal who is to pass theorder qua the right, title, interest, possession, use andoccupation, sketch, area, number, tenure, liability,nature, encumbrance, measurement etc., of a property(land).

2. The petitioners are the owners and in possession

of the property bearing Rev. Survey No. 226/1, the CitySurvey Number of which is 4043 admeasuring 644 sq.mts.situated in Ashanagar, behind Garda College Campus, WardNo.6 at Navsari in Valsad District. They purchased thisproperty on 20-8-1963 from Naranjibhai Bhimjibhai Patel.The petitioners thereafter constructed the house thereonleaving the margin land open. The land on which theyconstructed the house is a `C' tenure land. To the Southof their house, there is an open land, i.e. a plotbearing Tika No. 56, Rev.S. No. 266 and 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, it might be belonging toDesai Mancherji Palanji, Bejarji Kharshedji and ArdesharManekji. After the independence Naranbhai BhikhubhaiPatel became the owner. He later on sold the same toGovindji Hiralal Patel, the father of respondents Nos. 2& 3. The respondent No.2 relinquished his right, titleand interest making respondent No.3 to be the sole ownerof that land. The respondent No.3 on 20-9-95 sold theland to the respondent No.4, the Co-op.Housing Society,who is to construct the flats. During the reign oferstwhile Baroda State, the land now belonging torespondent No.4 was `A' tenure land and so 100%construction was possible. In 1914 A.D., City Surveyenquiry was held. At that time the land was found to be`A' tenure land. In 1974 when again City Survey inquirywas held, the tenure of the land came to be changed from`A' tenure to `C' tenure passing necessary order on31-7-74 so as to promote worthier and healthier housingschemes for better living. Having come to know thattenure of the land was changed, the respondent No.3preferred the appeal, before the Dy. Collector in theyear 1993-94, about 20 years after theresolution-cum-order dated 31-7-74 passed by the CitySurvey Officer, for getting the tenure of the landchanged from `C' to `A' tenure, alleging that it was theorder passed without any authority, and the then owner

Govindji Hiralal Patel was also not heard, etc. Placingreliance on G.R. dated 3-1-1958 and probably on Para 127of the City Survey Manual, as well as Para 108(5)(6) ofthe City Survey Manual, the Dy.Collector allowed theappeal and on 5-1-94 ordered to convert the land from `C'tenure to `A' tenure. The petitioners could know thatrespondent No.3 had filed the appeal or was likely tofile the appeal. They therefore on 21-10-93 tendered theapplication requesting the Dy. Collector to grant themthe opportunity of being heard before any order ispassed. After passing the impugned order on 5-1-94, theDy. Collector rejected the application of thepetitioners on 11-1-1994. The petitioners then knew thatwhen the land was converted into `A' tenure land, therespondent No.4 will be able to use 100 % of the land forthe construction, they will not have to keep the marginland open to sky, as a result several problems wouldarise and the construction of the flats or dwellingblocks of the respondent No.4 would certainly be touchingto their compound wall leaving no land in between. Theyalso knew that as per their apprehension the Nagarpalikaof Navsari had granted the permission to construct. Thepetitioners therefore filed the appeal before theCollector, Valsad against the permission to constructgranted by the Nagarpalika joining the Dy. Collector asone of the parties. They also filed this petition on15-9-1995 challenging the legality and validity of theimpugned order on the ground that the opportunity ofbeing heard was not given to them.

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 petitioners werenot given the opportunity to submit their say;consequently their rights qua their property werejeopardised. Making such submission, the learnedadvocate for the petitioners urged to set aside theimpugned order and issue appropriate direction.

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 whomthe order is sought. Many are under the belief thatalike in U.K. and U.S.A. the administrative authority

is not bound to give the opportunity to submit if thereis no statutory provision, as in that case it is notregarded as a sine qua non of natural justice. In short,the person is not entitled to the opportunity of beingheard in administrative matter in the absence ofconferment of the right by the Statute, but such beliefis not congruous with law. In appeal, examining themerits of the order passed or decision taken by CitySurvey Officer, 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 thepetitioners (though they cannot claim easement right)have a right to claim the opportunity of being heard.The answer to the question whether their interest isprejudicially 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 tothis 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 petitioners 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. Thepetitioners had therefore a right to claim opportunity tosubmit. As the same is not given, the impugned order isrequired to be struck down. Even on other counts also,it is not maintainable.

7. Even when administrative order is passed, the reasons 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 father of therespondent No.3 was at the time of former city surveyinquiry was given notice and heard or not. There isnothing indicating that standards accepted to check theevils or odds of urbanisation or environmental hazardswere borne in mind. To provide adequate living systemand maintenance of the standard thereof, Town PlanningAct and alike other Acts are enacted. To be in tune withsuch adequate system, it seems formerly lands wereconverted from `A' tenure to `C' tenure in 1973 AD; andsuch object is not borne in mind. Further why from `A'tenure to `C' tenure the land was converted at the timeof former inquiry, and what was then the good cause torestore the nature that stood during the reign of thethen princely State of Baroda is not at all dealt with,and conveniently the object to promote adequate livingsystem is ignored. The order in question thereforecannot be said to be well-reasoned, the same on that

8. In one's own support, the Deputy Collector hasplaced reliance on the Government Resolution dated3-1-1958 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 RevenueCode, 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 therider 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 Survey Officer 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 discardingjustness, fairness and reasonableness.

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 explain 10-C. In the case on hand, no plea regarding delay,latches or acquiescence has been raised in the affidavitfiled 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 of acquiescence, delay and latches. No other submissionsare advanced.

11. I am, therefore, of the view that injustice hasbeen done to the petitioners. The petition is,therefore, allowed, and the order dated 5-1-1994 passedby the Dy. Collector is set aside. The Dy. Collectorshall now consider the appeal afresh hearing theconcerned and the petitioners, and shall pass appropriateorder. No costs in the circumstances of the case. Ruleis made absolute.

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