(Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1. This Letters Patent Appeal under Clause 15 of Letters Patent is arising from the order dated 29.9.2010 passed by learned Single Judge in Special Civil Application No.6610 of 1994 by which the petition filed by the present appellant was dismissed on the ground that there is concurrent finding of the appellate authority as well as revisional authority against the appellant and therefore there is no need to interfere with the matter.
2. We have heard Mr.A.B.Munshi, learned advocate for the appellant, Mr.C.B.Dastoor, learned advocate for the respondent No.1 and Mr.N.J.Shah, learned AGP for the respondent No.2.
3. We have perused the order passed by learned Single Judge, memo of petition, orders passed by authorities below and affidavit-in-reply filed by the respondent No.1 as well as affidavit-in-rejoinder filed by the appellant. It appears from the record that an application was submitted by respondent No.1 to the Collector, Vadodara that the appellant had constructed a residential premises on a common plot of a society. The Collector by his order dated 24.5.1993 passed an order to remove the construction on the disputed piece of land. It was further ordered that the construction shall not be permitted to continue on the said disputed piece of land.
4. Being aggrieved and dissatisfied with the said order dated 24.5.1993 of the Collector, the appellant-petitioner filed revision under Section 211 of Bombay Land Revenue Code before the Deputy Secretary, Revenue Department, State of Gujarat. The said revision application was dismissed by the revisional authority by its order dated 30.12.1993/11.1.1994.
5. These two orders were challenged by way of afore-mentioned petition on several grounds including a ground of breach of principle of natural justice of being heard by the Collector before passing the impugned order dated 24.5.1993.
6. It is clear from the order dated 24.5.1993 that the Collector, Vadodara did not issue any notice and called upon the appellant-petitioner to show-cause why the construction which he had put on the so-called common plot shall not be removed. In absence of such notice, the appellant-petitioner could not file any reply to the said notice or represent his case before the Collector. Thus it is clear that the appellant petitioner was not at all heard by the Collector before passing the impugned order. In our view, it is a clear breach of principle of natural justice in absence of hearing a party against whom the order is passed. It is a settled principle that if an authority desires to pass any adverse orders against a party, he is required to be heard by the said authority. In the present case, neither the authority has issued notice nor the appellant-petitioner was heard by the Collector who has passed the first order removing the construction on the said piece of land. It is also not clear from the said order dated 24.5.1993 that under which provisions of law, the Collector had exercise his power of removing a construction on an alleged common plot of a society.
7. In view of this, the appeal is allowed. The order passed by the Collector is quashed and set aside, and consequently the order passed by the revisional authority is also hereby quashed and set aside and the order passed by the learned Single Judge is, therefore, set aside.
8. As stated hereinabove, it is not clear that under which provisions the Collector had exercise his powers of removing the construction and therefore the Collector shall take appropriate action in accordance with law, if he is having power under the provisions of any Act, and that too after hearing the parties if the Collector comes to the conclusion that he has jurisdiction to pass any order and thereafter he will comply with the principles of natural justice i.e. hearing of the necessary parties.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top