JAYANTILAL MOHANLAL DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have filed this writ petition under Art. 227 of the Constitution of India, with a prayer to the effect that this Court may be pleased to issue a writ of Certiorari or any other appropriate writ, or an order quashing the impugned order dated 5th Jan. 1994 passed by the then Dy. Collector, Navsari, in C.T.S. Appeal No. 12 of 1993-94, the copy of which is annexed as Annexure D to this petition. The question that falls for consideration is whether the owner of the neighbouring property can as of a right claim the opportunity of being heard before the City Survey Officer, or the authority in appeal who is to pass the order qua the right, title, interest, possession, use and occupation, 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 City Survey Number of which is 4043 admeasuring 644 sq.mts. situated in Ashanagar, behind Garda College Campus, Ward No. 6 at Navsari in Valsad District. They purchased this property on 20-8-1963 from Naranjibhai Bhimjibhai Patel. The petitioners thereafter constructed the house thereon leaving the margin land open. The land on which they constructed the house is a "C" tenure land. To the South of their house, there is an open land, i.e., a plot bearing Tika No. 56, Rev. Sec. No. 266 and S. No. 3054 admeasuring 412 sq.mts. It is also the "C" tenure land, whereon 100% construction is not permitted, margin land has to be kept open. Formerly, it might be belonging to Desai Mancherji Palanji, Bejarji Kharshedji and Ardeshar Manekji. After the Independence Naranbhai Bhikhubhai Patel became the owner. He later on sold the same to Govindji Hiralal Patel, the father of respondent Nos. 2 & 3. The respondent No. 2 relinquished his right, title and interest making respondent No. 3 to be the sole owner of that land. The respondent No. 3 on 20-9-1995 sold the land to the respondent No. 4, the Coop. Housing Society, who is to construct the flats. During the reign of erstwhile Baroda State, the land now belonging to respondent No. 4 was "A" tenure land and so 100% construction was possible. In 1914 A.D., City Survey inquiry was held. At that time the land was found to be "A" tenure land. In 1974 when again City Survey inquiry was held, the tenure of the land came to be changed from "A" tenure to "C" tenure passing necessary order on 31-7-1974 so as to promote worthier and healthier housing schemes for better living. Having come to know that tenure of the land was changed, the respondent No. 3 preferred the appeal, before the Dy. Collector in the year 1993-94, about 20 years after the resolution-cum-order dated 31-7-1974 passed by the City Survey Officer, for getting the tenure of the land changed from "C" to "A" tenure, alleging that it was the order passed without any authority, and the then owner Govindji Hiralal Patel was also not heard, etc. Placing reliance on G.R. dated 3-1-1958 and probably on Para 127 of the City Survey Manual, as well as Para 108(5)(6) of the City Survey Manual, the Dy. Collector allowed the appeal and on 5-1-1994 ordered to convert the land from "C" tenure to "A" tenure. The petitioners could know that respondent No. 3 had filed the appeal or was likely to file the appeal. They, therefore, on 21-10-1993 tendered the application requesting the Dy. Collector to grant them the opportunity of being heard before any order is passed. After passing the impugned order on 5-1-1994, the Dy. Collector rejected the application of the petitioners on 11-1-1994. The petitioners then knew that when the land was converted into "A" tenure land, the respondent No. 4 will be able to use 100% of the land for the construction, they will not have to keep the margin land open to sky, as a result several problems would arise and the construction of the flats or dwelling blocks of the respondent No. 4 would certainly be touching to their compound wall leaving no land in between. They also knew that as per their apprehension the Nagarpalika of Navsari had granted the permission to construct. The petitioners, therefore, filed the appeal before the Collector, Valsad against the permission to construct granted by the Nagarpalika joining the Dy. Collector as one of the parties. They also filed this petition on 15-9-1995 challenging the legality and validity of the impugned order on the ground that the opportunity of being heard was not given to them.

(3.) In democratic State, rule of law cannot be divorced. In our democratic system, rule of law is adopted and the same is supreme. No authority can, therefore, pass the order capriciously or de hors the law. Any order passed without following procedure and principle of natural justice is really the negation of the rule of law resulting into civil consequences affecting the rights of a person. The petitioners were not given the opportunity to submit their say; consequently their rights qua their property were jeopardised. Making such submission, the learned Advocate for the petitioners urged to set aside the impugned order and issue appropriate direction.