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2008 (2) GCD 1335 (Guj)
Hon’ble Mr. Justice K.M. Thaker
Janardan Jaishankar Jokharkar & Anr. [Vadodara]
Versus
State of Gujarat & Ors.
Special Civil Application No. 6105 of 1992—Decided on 09/01/2008
Agricultural Land—Regularisation of land—Unauthorised construction.
Head Note :
Civil Law—Agricultural land—Regularisation of land—Unauthorised construction—Petitioners, owner of land, applied for Non-agricultural use of land for construction of cinema building—Cinema building constructed—Petitioner also constructed a shopping centre on balance open land—Respondent issued notice—After considering reply, competent authority passed order directing petitioners to demolish the said construction—While passing order, competent authority proceeded on the premise that shopping centre was constructed near the State Highway and without maintaining required road-margin—In the notices issued to petitioners, no allegation about the construction touching the State Highway and/or insufficient margin was mentioned—Held, impugned orders deserve to be set aside and matter deserves to be remanded to be original and competent authority for proper consideration of all relevant issues involved in the matter.
Held :
On perusal of the record, it is noticed that in the notice dated 12.12.1988, pursuant to which the impugned order has been passed, no allegation about the construction touching the State Highway and/or insufficient margin was mentioned. In absence of any such reference in the notice, the impugned order passed by the Secretary (Appeals) turns into an order beyond the scope of the notice. The authority passing an order of adjudication cannot take into account the grounds or circumstances which are not alleged in the notice and /or in respect of which the petitioner is not put to notice. Otherwise, the very purpose of issuing notice and inviting explanation is frustrated, and going beyond the purview of the show-cause notice or taking into account aspects not enumerated in the show-cause notice and making them basis for the order also amount to violation of principles of natural justice. When an authority passes an order which is based on ground or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing and becomes violative of audi alteram partem rule. In present case, it is obvious that the grounds of insufficient margin and/or the building touching the State Highway are not mentioned in the show-cause notice. Not only this, but even the order of the original and competent authority also does not contain any such finding of fact at this stage in the order dated 11.02.1989. In this view of the matter, it was not permissible for the Secretary (Appeals) to take into consideration aspects which did not form part of the show-cause notice and/or which were not reflected in the original order impugned before that authority. The impugned order, on this ground, alone deserves to be set aside. [Para 15 ]
Law Laid Down :
When an authority passes an order which is based on ground or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing and becomes violative of audi alteram partem rule. [Para 15]
K.M. Thaker, J.—In the present petition, the petitioners have, inter alia, challenged order dated 11.2.1992 passed by Secretary in Case No. SRD/LaKaPa/ST/1/89 whereby the said authority rejected present petitioners revision application against the order dated 11.2.1989 passed by D.D.O., original and competent authority and confirmed the said order dated 11.2.1989 of the said authority.
2. The facts, giving rise to present petition, are as follows;
The petitioners are owners of land bearing Block No. 364 at Mandvi Taluka, Surat District. The petitioners had applied for “Non-Agricultural Use” [“NA use”] permission for the said land and the competent authority by his order dated 15.01.1982 granted NA use permission for 13,245 sq. mtrs. By the same order, the petitioners were also authorised to construct a cinema building in the area admeasuring 655 sq.mtrs.
It is the case of the petitioners that pursuant to the said order and permission, the petitioners constructed cinema theatre and said assertion of petitioners is not disputed by respondents.
3. It appears that subsequently the petitioners constructed a shopping centre on the balance open land in respect of which NA Use permission was granted. The said shopping centre came to be constructed by the petitioners in area admeasuring about 448 sq.mtrs.
4. The said action of the petitioners gave rise to an action from the respondents who were of the view that the petitioners had committed breach of the conditions of the NA Use permission and the said construction was made without obtaining permission for change of use.
5. In the view of the matter, the respondents issued a notice dated 12.12.1998 calling upon the petitioners to show-cause as to why the construction should not be removed. The copy of the notice dated 12.12.1998 was not on record, however, the petitioner was asked to submit a copy on record and at the time of hearing the petitioner tendered a copy thereof which is taken on record. The petitioners replied the said notice vide their communication dated 14.12.1988 representing, inter alia, that the area was mainly populated by Adivasis and so as to provide facility to the residents of the said area for purchasing the equipments, husbandry, insecticides etc., at one place, the said shopping centre was constructed. The petitioners in their reply-cum-representation, also prayed for regularising the construction by pleading that they were unaware about the provisions for obtaining further permissions, even after the NA Use permission was granted. The petitioners represented that since the NA Use permission was granted they bona fide believed that no further permission was required.
6. The respondents were not satisfied with the said explanation and were also not inclined to grant the request, consequently the competent authority passed order dated 11.02.1989 directing the petitioners to demolish the said construction.
7. Aggrieved by the said order, the petitioners challenged the same before the Secretary [Appeals], Revenue Department. The said authority was also not persuaded by the submissions of the petitioners and dismissed the Application by his order dated 11.02.1992. Aggrieved by the said two orders, the petitioners are before this Court.
8. The petition was admitted in 1993 and yet the respondents have not filed any affidavit opposing the petition even after 15 years.
9. Heard Mr. Mehta, learned Advocate for the petitioners and Ms. Phalguni Patel, learned AGP for the respondents.
10. Mr. Mehta, learned Advocate, submitted that the construction of the said shopping centre was, in any case, not contrary to the relevant and applicable bye-laws and regulations pertaining to building construction and in fact the plans were also got approved by the petitioners before undertaking the construction and by resolution order dated 01.12.1986, permission (NOC) was also granted by the Panchayat vide Resolution No. 2 passed in the meeting held on 01.12.1986. In submission of Mr. Me
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