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2021 Supreme(Online)(Guj) 6747
HIGH COURT OF GUJARAT
DR. A. P. THAKER, J
MAHEZBIN MOHAMMAD ARIF KURESHI – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 10640 of 2021
For the Appellants/Petitioners: MR HARSHADRAY A DAVE
For the Respondents: MR JB DASTOOR, MR NIKUNJ KANARA, AGP
A breach of natural justice occurs when proper notice and opportunity to be heard are not provided, justifying the quashing of the order.
Headnote:(A) Article 226 of the Constitution of India - Natural Justice - Notice served after the passing of the order is a clear breach of principles of natural justice - Petitioners were not provided an adequate opportunity to be heard - Matter remanded back for a fresh decision after hearing all parties. (Paras 10, 11)
(B) The principle of natural justice provides that no one should be condemned unheard, and sufficient notice must be served. (Paras 8, 9)
Facts of the case:
The petitioners, owners of certain property, challenged an order that adversely affected their rights without proper notice and opportunity for hearing.
Findings of Court:
The court found that the notice was served after the passing of the order, thus breaching natural justice principles.
Issues: The court addressed whether the principles of natural justice were upheld in the decision-making process.
Ratio Decidendi: The failure to afford an opportunity to be heard renders the order invalid, necessitating a remand for proper hearing.
Result: Impugned order dated 17.6.2021 is quashed and set aside.
| Table of Content |
|---|
| 1. petitioners seek judicial review due to lack of notice. (Para 1 , 2 , 3) |
| 2. arguments from both sides regarding the opportunity to be heard. (Para 4 , 5) |
| 3. discussion on jurisdiction and principles of natural justice. (Para 6 , 7) |
| 4. the necessity of proper notice for a valid order. (Para 8 , 9) |
| 5. outcome of the case after reaffirming the need for adherence to natural justice. (Para 10 , 11) |
JUDGEMENT
1. By filing this petition, the petitioners have mainly prayed to quash and set aside order dated 17.6.2021 passed by respondent no.2 at Annexure to the petition and declare the same as null and void and also prayed to remand the matter.
2. It is the case of the petitioners that they are owners of property bearing City Survey No.893, 894, 895 and 896/A/1 situated at Shahpur Ward-1 of Taluka City, District Ahmedabad. It is stated that out of total land of 206.06 sq.mtrs. of Survey No.896/A/1, the petitioners sold land admeasuring 32.60 sq.mtrs. in favour of respondent nos.5 to 7 in 1994 and possession was handed over to them. It is the case of the petitioners that later on respondent nos.5 to 7 sold said land to respondent nos.3 and 4. Respondent nos.3 and 4 want to construct flat in the said land and for that they are trying the grab land of the road, which is in the property of the petitioners. Therefore, the petitioners filed Civil Suit No.1608 of 2019 seeking declaration and permanent injunction against respondent no.3 and 4. The petitioners state that during the pendency of said suit, respondent nos.3 and 4 approached city Survey Superintendent vide application dated 26.8.2020 for measurement of the property. Said application was forwarded to respondent no.2 for further action and the petitioners have filed their reply. However, due to second wave of Covid-19 the matter could not proceed further. Thereafter, respondent no.2 fixed hearing of the application on 16.6.2021 vide notice dated 3.6.2021. The petitioners state that this notice was received by them on 18.6.2021 and when the petitioners approached respondent no.2, they were informed that order is passed on 17.6.2021. It is the case of the petitioners that notice dated 3.6.2021 was posted by office of respondent no.2 on 16.6.2021 and it was received by the petitioners on 18.6.2021. Therefore, the petitioners have filed present petition with aforesaid prayer.
3. Heard learned advocate Mr.Harshadrai Dave for the petitioners, learned AGP, Mr.Nikunj Kanara for the State and learned advocate Mr.Dastoor for private respondents.
4. Learned advocate Mr.Dave for the petitioners has submitted that the matter needs to be remanded back to the concerned authority as no proper opportunity of being heard is afforded to the petitioners. He has submitted that the authority has not entered into the merits, as it can be gathered from the documentary evidence that when the matter was posted for hearing, notice thereof was issued very late and it was received by the petitioners after passing of the impugned order. He has referred to the documentary evidence at page 53 of the petition to substantiate his submission that the notice was received late and no proper opportunity of being heard was given to the petitioners and, therefore, solely on this ground the matter may be remanded back to the concerned authority.
5. Per contra, learned advocate Mr.Dastoor for the private respondents has submitted that the authority has provided ample opportunity to the petitioners herein and even as per the suit filed by the petitioners, property in question belongs to the private respondents and, therefore, the impugned order is in no way affecting the rights of the present petitioners. While reading the impugned order, Mr.Dastoor has submitted that as reflected in the order the arguments of both the sides were heard earlier and thereafter the matter was kept for report from the authority and no
