1) The petitioners have challenged an order dated 19th March 1997 passed by the Collector, Surat, as confirmed by an order dated 9th March 2000 passed by the Revenue Secretary. The petition arises in the following factual background:-
1.1) With respect to land bearing Survey No.144 of Taluka: Choryasi, District: Surat, the original owners had obtained N.A. permission from the Collector, Surat, by an order dated 23rd June 1992. While granting such permission, the Collector had imposed several conditions, inter alia, that the construction on such land shall be made for residential use. Further conditions included the following:-
I) Out of the total land area of 8094 square meters, construction would be made only on 2509 square meters and the rest will be kept open.
ii) Without the prior permission of the Collector, such land and the construction that may be put up on the land will be to no use other than residential purpose.
iii) The construction as per the sanctioned plan shall be completed within three years from the date of the order. Intimation of such completion shall be made to the City Survey Superintendent, Surat. If construction is not completed within such time, application for extension shall be made.
1.2) Paragraph-14 of the order of the Collector pertained to penalties for breach of any of the conditions. Paragraph-14(a) provided that in case of any breach, without prejudice to any action that may be available under any other provisions of the law, the Collector may, upon imposition of penalty, permit the owner to continue to occupy the land. Paragraph- 14(b) authorised the Collector to direct removal of such construction as was found against the provisions of the N.A. order or any excess construction was found. It further provides that despite such order, if the construction is not removed, it would be open for the Collector to do so at the cost of the owner.
1.3) The original land owners disposed of the said property along with the construction put up thereon pursuant to N.A. order dated 23rd June 1992. The present petitioners are the purchasers of such properties, which they claimed to have purchased in the year 1993 through separate registered sale deeds. They claim to be in actual possession, use and occupation of such properties.
1.4) The Collector, Surat, issued a show-cause notice dated 15th October 1996 to the original owners why action should not be taken for breach of the conditions of the N.A. permission. According to the Collector, the construction carried out was in breach of the above noted three conditions in the N.A. order. In short, the case of the Collector was that the construction carried out was not in conformation with the plan passed, that the same was not completed within the time envisaged in the N.A. order and most importantly the land was put to non-residential use. Since the original land owners had already sold the property, they did not appear before the Collector despite repeated notices. The Collector, therefore, proceeded ex parte to pass the impugned order dated 19th March 1997. He held that the land owners had breached the conditions of N.A. permission. He directed the owners to remove the construction within three months, failing which, the authority of Surat Municipal Corporation would do so.
1.5) Aggrieved by such order of the Collector, the present petitioners preferred a revision application before the State Government. In the revision application, they contended that no notices were served upon them before the Collector passed the impugned order. They were affected parties. They also submitted that necessary construction was carried out as per the plan and the revised plan. The Special Secretary dismissed the revision application by the order dated 9th March 2000. The petitioners have, therefore, approached this Court by way of present petition. As the memo of the revision application filed by the petitioners before the Special Secretary is not on record, counsel has supplied a copy thereof, which is taken on record. From such revision application, it emerges that the ground of non- hearing of the petitioners was prominently taken by the petitioners in such revision application before the Special Secretary.
2) Learned counsel Mr.Utpal M. Panchal for the petitioners vehemently contended that without any notice to the petitioners, the impugned action came to be taken. He submitted that the petitioners have occupied the property since long. They purchased the property through registered sale deeds. Their names were entered in the revenue record since 1993. He further submitted that the defects, if any, pointed out by the Collector in the construction carried out by the original land owners can be cured with necessary permission from the authorities and imposition of penalty, if at all. He, however, did not dispute that the construction is being put to industrial use and not residential use.
3) On the other hand, learned Assistant Government Pleader Ms.Shruti Pathak opposed the petition contending that the authorities have taken into account all aspects of the matter. Breach of N.A. use permission is apparent on the face of the record. No useful purpose would be served in permitting a fresh hearing to the petitioners.
4) Learned counsel Mr.Kaushal D. Pandya for the Municipal Corporation submitted that the Corporation is only a nodal agency and has no concern with the orders under challenge.
5) From the record, it emerges that the petitioners had purchased the property long before the Collector initiated action for breach of conditions of N.A. use permission. Such notice was issued in the month of January 1996 to the original land owners. Admittedly, no notice was either issued or served to the petitioners. The names of the petitioners had been entered into revenue record as far as back in the year 1993. In that view of the matter, the petitioners were required to be heard if the Collector wished to take any action adverse to their interest. Obviously, the original land owners, having disposed of the property, no longer retained any interest in the issue. They, therefore, did not even appear before the Collector. Had the names of the petitioners not been mutated in the revenue record, the authorities could perhaps have taken a plea that in absence of any reflection of the petitioners' interest from the record, it was not necessary for the Collector to issue any notice to them. The present case, however, stands on a different footing. The petitioners were, therefore, required to be heard before passing the impugned order which would obviously affect them adversely.
6) In view of the fact that the petitioners admitted change of user from that of permissible under the N.A. permission, namely, of residential use to that of industrial use, the question may arise whether any useful purpose would be served in granting hearing to the petitioners. If the stand of the authorities is that such change of user is fatal in all cases and not curable under any circumstances and, therefore, the hearing would make no difference, could be perhaps accepted. It is not unknown that certain breaches or changes, if otherwise not prohibited in law, could be cured. In other words, if, as per the provisions contained in the Town Planning Scheme and other land laws applicable in case if the change of user is not totally impermissible, it would still be open for the petitioners to request to the revenue authorities to regularise such use after collection of penalty or fine. Paragraph-14(a) of the Collector's N.A. order precisely provided such a situation. For such purpose, at least the petitioners had a right of audience.
7) Under the circumstances, the impugned orders dated 19th March 1997 and 9th March 2000 are set aside.
The proceedings are placed back before the Collector before whom the petitioners will participate in connection with the notice dated 15th October 1996. The Collector shall supply them copy of the said notice dated 15.10.1996 and permit them to make a representation with respect to all aspects of the matter. If the petitioners request for regularisation of any of the breaches, the same shall be examined in accordance with law. I make it clear that there is no suggestion in my order that the breaches, even if are such which cannot be cured, should be regularised.
8) With the above observations, the petition is disposed of. Rule is made absolute to the above extent.
(AKIL KURESHI,J.) Vahid