1. Rule. Mr.Ronak Raval, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1 and 2. Mr.Abhisst K.Thaker, learned advocate, waives service of notice of Rule for respondents Nos.3 to 6. None has appeared for respondent No.7 after issuance of notice. As the interest of respondent No.7 is the same as that of respondents Nos.3 to 6, who are represented, there is no necessity of issuing notice of Rule to respondent No.7.
2. The challenge in this petition is to the order dated 15.11.2011, passed by the Collector, Bharuch, whereby revised Non Agricultural Use Permission (N.A. Permission) has been granted to respondents Nos.3 to 7, in respect of land bearing Survey No.108/1, 109/1/B/1 and 109/2/1 Paiki, bearing Plots Nos.15 and 24, admeasuring about 866.24 square metres.
3. Briefly stated, the facts of the case are that initially, N.A. Permission was granted in respect of the land in question by order dated 18.10.1994, passed by the Collector, Bharuch. The permission was granted to the original owner of the land in question, one Iqbalbhai Patel, for residential purposes. The original owner sold the land by carving out plots, to individual owners. Subsequently, respondents Nos.37 purchased Plots Nos.15 and 24 and made an application dated 30.06.2011, for revised N.A.Permission, for the purposes of constructing residences and Small Centre. After receiving a positive opinion from all concerned authorities, the Collector (respondent No.2), granted revised N.A. Permission vide the impugned order dated 15.11.2011.
4. The petitioner is an unregistered Association of Plot Holders and occupants of houses constructed on the plots situated on land bearing Survey No.108/2, 109/1/B and 109 of Dungri, District Bharuch, styled as Patel Park. According to the petitioner, it comprises of 18 members and the owners of 8 plots are not included. The petitioner is aggrieved by the passing of the impugned order as, according to it, the Collector did not grant an opportunity of hearing to any of the plot holders before passing the said order, permitting respondents Nos.37 to construct 20 flats and 24 godowns. Respondents Nos.36 are the owners of Plot No.15, while respondent No.7 is the owner of Plot No.24. The petitioners have raised several contentions on merits, apart from contending that the principles of natural justice have been violated, while passing the impugned order. Hence, the petition.
5. Mr.Ronak Rawal, learned Assistant Government Pleader, appearing for respondents Nos.1 and 2 and Mr.Percy C.Kavina, learned Senior Counsel appearing for respondents Nos.3 to 6, have strongly opposed the petition by raising a preliminary objection that the petitioner has an alternative, efficacious remedy against the impugned order of the Collector, without exhausting which, it has invoked the extraordinary jurisdiction of this Court.
6. Answering the preliminary objection regarding availing of the alternative remedy, Mr.M.M.Saiyed, learned counsel for the petitioner, has submitted that the members of the petitionerAssociation are plot holders whose plots are contiguous to plots Nos.15 and 24 owned by respondents Nos.37, in respect of which revised N.A.Permission has been granted by the impugned order. It is submitted that by not granting an opportunity of hearing to the members of the petitionerAssociation before passing the impugned order, the principles of natural justice have been violated, therefore, the Court may not relegate the petitioner to availing of the alternative remedy. It is submitted that under the original N.A. Permission dated 18.10.1994, only two bungalows were to be constructed on Plots Nos.15 and 24, whereas, by the impugned order, the Collector has permitted 24 godowns and 20 flats to be constructed. That, the common plot admeasures 1152 square metres, which is sufficient for 73 beneficiaries, but the member of the people using it would now increase due to the revised N.A. Permission, leading to overcrowding and congestion.
7. On the point of alternative remedy, learned counsel for the petitioner has placed reliance upon Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others – (1998)8 SCC 1.
8. Regarding opportunity of hearing, reliance has been placed upon M.Naga Venkata Lakshmi v. Visakhapatnam Municipal Corpn. And Another – (2007)8 SCC 748 and Dr.Jayantilal Mohanlal Desai v. State of Gujarat & Ors. 1997(1) GLR 617.
9. It is further submitted that the Collector has not taken into consideration that National Highway No.228 is situated to the east of Patel Park and no construction permission could have been granted within 40 meters of the centre point of the highway.
10. It is contended that the impugned order would lead to civil consequences as the convenience and living conditions of the members of the petitionerAssociation would be affected. The Collector has not taken into consideration the Government Resolution dated 17.07.1980 wherein guidelines have been laid down for construction of “Small Centers”.
11. Learned counsel for the petitioner has further submitted that even an unregistered Association can file a writ petition, therefore, the present petition is maintainable. In support of the above submission, reliance has been placed on Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and others AIR 1981 SC 298.
12. That, the petitioner has locusstandi to file the present petition as the members of the petitionerAssociation would be affected by the grant of permission to respondents Nos.3 to 7.
13. Mr.P.C.Kavina, learned Senior Advocate for respondents Nos.3 to 6, has opposed the petition by submitting that the petitioner presupposes that in a matter of revision of N.A. Permission, the neighbours or contiguous plot holders have locusstandi. The petitioner has no locusstandi to impress upon the Collector as to how this property should be used. The N.A. Permission has been granted in the year 1994 and by the impugned order, revised Development Permission has been granted to respondents Nos.3 to 7, who are the owners of Plots Nos.15 and 24. Respondents Nos.3 to 7 have applied for revised N.A. Permission under Section 65A of the Gujarat Land Revenue Code, 1879 (“the Code” for short), in accordance with law, vide application dated 30.06.2011. The plots in Patel Park are of individual ownership, therefore, nobody can interfere in the business of other plot holders. The petitioner is not a registered society, therefore, permission of the society for any work on the land of the respondents is not required. The impugned order has been passed by the Collector after careful scrutiny of the application of respondents Nos.3 to 7 and after considering the opinion of various Government authorities, namely, the Executive Engineer, National Highway, PWD and other concerned Departments. It is only after a diligent inquiry that N.A.Permission has been granted. It is further submitted that the Town Planner, Bharuch, has sanctioned the revised Layout Plan for residences and Small Centre and construction was allowed after leaving a distance of 24 metres from the centre of the road as per the impugned order. The respondents have left 24.3 metres’ distance from the centre of the road, therefore, no illegality has been committed.
14. Learned Senior Counsel has further submitted that the petitioners are neither the owners of the plots in question nor do they have any right over them, therefore, it was not necessary for the Collector to grant them an opportunity of hearing. Respondents Nos.3 to 6 have already invested a huge amount on the land and have sold the shops to several persons and thus, third party rights have already been created. The petitioner has not joined the parties who would be affected by the prayers made in the petition, therefore, the petition is not maintainable on the ground of nonjoinder of necessary parties.
15. Apart from the objection regarding availability of an alternative remedy, learned Senior Counsel for respondents Nos.3 to 6 has forcefully submitted that the petition is not maintainable as the petitioner is not an “aggrieved person”. Reliance has been placed upon a judgment of the Supreme Court in Adi Pherozshah Gandhi v. H.M.Seervai, Advocate General of Maharashtra, Bombay – 1970(2) SCC 484, in support of this submission.
16. Mr.Ronak Raval, learned Assistant Government Pleader, has submitted that the petitioner has no cause of action for filing the present petition. Moreover, the petitioner has an efficacious alternative remedy available, therefore, the petition may be dismissed. It is further submitted that Section 65A of the Code does not contemplate personal hearing to be provided to the applicant. In any case, no legal or fundamental rights of the petitioner are affected. The petitioner is not the owner of the land in question, therefore, there is no necessity of hearing it at all. It is submitted that the principles of natural justice have not been violated by passing the impugned order and if the petitioner is aggrieved by the same, it can avail of the alternative remedy.
17. I have heard learned counsel for the respective parties, perused the averments made in the petition and other documents on record.
18. It is not in dispute that the petitioner has an alternative remedy against the impugned order passed by the Collector. However, it is the case of the petitioner that the principles of natural justice have been violated, as no opportunity of hearing was given to the petitioner before passing the impugned order.
19. At this stage, to examine the sustainability of the submissions made by learned counsel for the petitioner, the judgments cited by him may be taken note of.
20. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others (supra), the Supreme Court has held that though the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature, and is not limited by any other provision of the Constitution, the High Court has imposed upon itself, certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. However, the Supreme Court has further held that the alternative remedy would not operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of the fundamental rights, or where there has been a violation of the principles of natural justice, or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
21. In order to examine whether the petitioner ought to have been heard before passing of the impugned order under Section 65A of the Code, it would be fruitful to advert to the said provision of law, which is reproduced below:
“65A. Procedure if occupant wishes to apply his land from one nonagricultural purpose to another nonagricultural purpose:
Where the occupant of any land assessed or held for any nonagricultural purpose wishes to use such land or part thereof for any nonagricultural purpose, the Collector’s permission shall in the first place be applied for by him and the provisions of section 65 shall, so far as may be, apply to such application.
Explanation – In this section, and in section 67A “nonagricultural purpose” means any of the purposes specified in clauses (b) to (e) of subsection (1) of Section 48.”
22. From a plain reading of the above provision, it does not transpire that an opportunity of hearing is contemplated to the applicant, leave alone to the neighbours. Examining the submissions made by learned counsel for the petitioner independently of the above provision of law, in the view of this Court, for an opportunity of hearing to be granted to the petitioner, it first ought to be established whether the petitioner is an affected or “aggrieved” party. In Adi Pherozshah Gandhi v. H.M.Seervai, Advocate General of Maharashtra, Bombay (supra), the Supreme Court has held as below:
“6. The expression a “person aggrieved” is not new, nor has it occurred for the first time in the Advocates Act. In fact it occurs in several Indian Acts and in British Statutes for more than a hundred years. In the latter a right of appeal to a “person aggrieved” is conferred in diverse contexts. It occurs in the Ale House Act, the Bankruptcy Acts, Copyright Act, Highway Act, Licensing Acts, Milk and Dairies (Amendment) Act, Rating and Valuation Act, Summary Jurisdiction Act, Union Committee Act, Local Acts, in certiorari proceedings and the Defence of Realm Regulations to mention only a few. The list of Indian Acts is equally long.
7. As a result of the frequent use of this rather vague phrase, which practice, as Lord Parker pointed out in Eealing Corporation v. Jones (LR (1959) 1 QBD 384), has not been avoided, in spite of the confusion it causes, selections from the observations of judges expounding the phrase in the context of these varied statutes were cited before us for our acceptance. The observations often conflict since they were made in different contexts and involved the special standing of the party claiming the right of appeal. Yet these definitions are not entirely without value for they disclose a certain unanimity on the, essential features of this phrase, even in the diversity of the contexts. The font and origin of the discussion is the well known definition of the phrase by James L.J. in In Re Sidebotham Ex. p. Sidebotham ((1880) 14 Ch D 458 CA). It was observed that the words “person aggrieved” in Section 71 of the Bankruptcy Act of 1869 meant:
"not really a person who is disappointed of a benefit which he might have received, if some order had been made. A “person aggrieved”, must be a man who had suffered a legal grievance, a man against whom a decision has been pronounced which had wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something."
The important words in this definition are “a benefit which he might have received” and “a legal grievance” against the decision which “wrongfully deprives him of something” or affects “his title to something”.”
(emphasis supplied)
23. In Lalbhai Trading Company Through B.K.Bhatt & Ors. v. Union of India & Ors. 2006(1) GLR 497, this Court has held as below:
“14 On a conspectus of the aforesaid case law it becomes clear that the words “person aggrieved” are required to be ascertained with reference to the purpose of the provisions of the statute in which they occur. The meaning may vary according to the context of the statute. However, one thing is certain, a person can be said to be aggrieved if a legal burden is imposed on him which may be in the form of being denied or deprived of something to which such person is legally entitled.
[a] The meaning of the words 'aggrieved person' cannot be read as an expression which is rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury suffered by the person are relevant factors.
[b] The duty of the Court is to read into the statute, a duty to act fairly in accordance with the principles of natural justice. If a person suffers a wrong as a result of unfair treatment on the part of the authority, he is a person who has suffered a legal grievance, against whom a decision has been pronounced which decision has either wrongfully deprived him or wrongfully refused him something or wrongfully affected his title to something. In other words, the person must have suffered a legal wrong or injury, in the sense, that his interest is prejudicially and directly affected by the act or omission of the authority.
[c] The grievance has to be his own beyond some grievance or inconvenience suffered by him in common with the rest of the public. The test is: can the person be said to be entitled to object and be heard by the authority before the authority takes the impugned action.
[d] The person has to be directly and immediately affected. An aggrieved party is one whose personal, pecuniary or property rights are adversely affected by another person's action or by a decree or judgment by a court ”
(emphasis supplied)
24. Keeping in mind the above principles of law, in the present case, the petitioner has not been successful in establishing that it has a legal grievance against the impugned decision or that it has been wrongfully deprived of any legal right in property, or a fundamental right. The petitioner is not a person who has suffered a legal wrong or injury and nor is it directly or immediately affected. As stated by the Supreme Court in Lalbhai Trading Company Through B.K.Bhatt & Ors. v. Union of India & Ors. (supra), an aggrieved person is one whose personal, pecuniary or property rights are affected by any person’s action. Such is not the case with the petitioner.
25. Respondents Nos.3 to 7 are the owners of the plots in question for which N.A. Permission has already been granted on 18.10.1994. Vide the impugned order, revised N.A. Permission has been granted and the said respondents have been permitted to construct residences and Small Centre on the land. The submissions made by learned counsel for the petitioner, to the effect that the area will become congested as a larger number of people would be using the common plot and roads of Patel Park, are still in the realm of apprehension and nothing has yet been translated into reality. It cannot, then, be presumed that merely by granting revised N.A. Permission, the living conditions of the members of the petitionerAssociation would be adversely affected. Moreover, learned advocate for the petitioner has not been able to successfully demonstrate what civil consequences would follow to the petitioner as a result of the impugned order.
26. From the above facts and circumstances and as the petitioner is not a “person aggrieved” or directly affected, it cannot be said that an opportunity of hearing was required to be granted to it by the Collector, before passing the impugned order. In the view of this Court, considering the provision of law and the facts and circumstances of the case, it cannot be concluded that the principles of natural justice have been violated by passing the impugned order. This Court would, therefore, not entertain the petition as the petitioner has an alternative efficacious remedy against the impugned order of the Collector.
27. Learned counsel for the petitioner has placed reliance upon Dr.Jayantilal Mohanlal Desai v. State of Gujarat & Ors. (supra). The facts of that case were totally different than those obtaining in the present petition and for reasons stated hereinabove, the ratio of this judgment would not apply to the case in hand.
28. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and others (supra), the Supreme Court has held that a petition filed by an unregistered Association is maintainable. However, this Court does not propose to enter into the question of maintainability of the petition on this ground.
29. In M.Naga Venkata Lakshmi v. Visakhapatnam Municipal Corpn. And Another (supra), the Supreme Court has held as below:
“6. The legality and/ or validity of the deed of sale executed by vendor in favour of the appellant is not in dispute. It is also not in dispute that no layout plan existed in the area in question where she had purchased the land. Before making the Zonal Plan and the Master Plan, the Authority was required to give an opportunity of hearing to the persons who may be affected thereby. Neither the writ court nor the court of appeal dealt with the question as regards the right of the appellant to be heard in the matter. If the allegations made in the writ petition were correct, we do not know why the fact that her land had been earmarked for the purpose of providing an open space to the other owners of the said layout had not been disclosed to her.”
The Supreme Court has held that before making the Master/Zonal Plan, the authority concerned is required to give an opportunity of hearing to the persons who may be affected thereby. This judgment was in relation to the provisions of the Andhra Pradesh Urban Areas (Development) Act, 1975, and it was found that certain persons who are directly affected, were not heard. The present case is regarding revised N.A. Permission to respondents Nos.3 to 7, who are the owners of the land in question, whereas the petitioner has not been able to demonstrate how, and in what manner, it is directly affected by the same.
30. For the aforestated reasons, as the petitioner is not a “person aggrieved”, and as the principles of natural justice have not been violated by the Collector before passing the impugned order, this Court would not be inclined to entertain the petition. Accordingly, the petition stands rejected.
31. It is open to the petitioner to avail of the alternative remedy, if so desired. In the event that the petitioner does decide to avail of the alternative remedy, the Competent Authority shall take a decision, in accordance with law, without being affected by any observation made in this judgment.
32. Rule is discharged. There shall be no order as to costs.
(SMT. ABHILASHA KUMARI, J.) (sunil)