(1) Heard Mr.Minesh C. Dave, learned advocate for the petitioners, Mr.Ronak Raval, learned Assistant Government Pleader for the respondent State authorities, and Mr.Ashok A. Purohit learned advocate appearing for respondent No.3.
(2) RULE. Learned advocates appearing for the respective parties waive service of rule.
(3) Considering the fact that the matter is pending for admission since 2006 and in fact notice pending admission has been issued by this Court (Coram: S.R.Brahmbhatt, J) on 01.07.2011 and for the reasons noted hereinbelow the matter is taken up for final disposal today.
(4) Mr.Minesh C. Dave, learned advocate for the petitioners, has taken this Court through the order dated 09.08.2004 passed by Collector, Surendranagar, confirmed in Revision application No.77 of 2004 by the State Government vide order dated 31.01.2006.
(5) The short facts which are relevant for the purpose of deciding the present petition are enumerated as under:
(6) That respondent No.3Municipality, being the owner of land situated within the city limit of Limbdi Nagarpalika, published an auction notice for the plots in question, dated 07.08.1980 wherein the plots situated at Station Road, Near Balubha Dharamshala as well as the plots situated Near Petrol Pump, B/h. Pathikashram were put to auction on 14.08.1980 at 10 hrs. and 3 hrs. respectively. It appears from the record that by order dated 07.08.1980 surveyor, recovery clerk, time keeper and other officers were appointed to conduct the auction so advertised. It appears from the original record, which is made available for the perusal of the court, that conditions of the auction were also fixed by respondent No.3 Municipality.
(6.1)That the record indicates that the auction did take place and the bid given by the petitioner came to be accepted and accordingly the petitioners paid 25% of the said amount on 14.08.1980 itself and the remaining amount has been paid by the petitioner on 22.09.1980. That by a communication dated 19.12.2003, in response to the application given by petitioner No.2Shri Jashwant Raghuvir and other dated 01.10.2003, District Collector, Surendranagar asked for the details of the auction from the Chief Officer of respondent No.3Municipality. On the basis of those details District Collector, thought it fit to exercise his powers under Section 258 of the Gujarat Municipalities Act, 1963 (the Act) and by impugned order dated 09.08.2004 granted stay.
(6.2)Aforesaid order dated 09.08.2004 was challenged by the petitioners by way of filing Revision Application No.77 of 2004 before the revisional authority i.e. Deputy Secretary to the State Government, Urban Development & Urban Housing Development Department, as provided under Section 264 of the Act, which came to be rejected vide the impugned order 31.01.2006 and hence, the present petition.
(7) Mr.Dave, learned advocate for the petitioners, has almost reiterated the contentions raised before the revisional authority to the effect that the petitioners have already paid the price, as was fixed for the aforesaid auction, before 24 years. It was contended that the petitioners are in possession of the plots in question and the same are open plots. It was contended that the impugned order passed by District Collector, Surendranagar is passed without affording opportunity of hearing to the petitioners. No further or other contentions are raised on behalf of the learned advocate for the petitioners.
(8) Mr.Ashok A. Purohit, learned advocate for respondent No.3, has supported the contentions raised on behalf of the learned advocate for the petitioners.
(9) As against this Mr.Ronak Raval, learned Assistant Government Pleader appearing for the respondents State authorities, submits that the impugned orders are legal and proper and has further submitted that it was not necessary to hear the petitioners. It was further submitted that as no permission provided under Section 65(2) of the Act is obtained by respondent No.3 Municipality the proceedings of the auction are bad and hence, the petition deserves to be dismissed.
(10) As mentioned hereinabove, on an application dated 01.10.2003 filed by petitioner No.2 and other Collector, Surendranagar called for the details of the auction. It is a matter of record that those details were sent by the Chief Officer of respondent No.3Municipality wherein it was clearly pointed out that money was received and the petitioners have been put to possession.
(11) Learned Assistant Government Pleader further submitted that the proceedings under Section 258 of the Act is between the municipality and the State Government and there is no necessity to hear the affected parties or the parties which are to be affected by the proceedings as provided under Section 258 of the Act.
(12) On bare reading of the impugned order passed by the collector it transpires that no notice is given to the petitioners. Even the original record also indicates that no notice was given to the petitioners, which are directly affected by the proceedings.
(13) At this it would be advantageous to refer to the judgment of Division Bench of this Court in the case of H.H.Parmar Vs. Collector, Rajkot & Anr., 1979 (2) G.L.R. 97 wherein Division Bench of this Court has observed in Paragraph Nos.79 and 21:
“7 The next argument which he has raised before us is that the petitioner was not given an opportunity of being heard before the Collector made the impugned order under sec. 258. Subsec.(1) of sec. 258 provides as follows:
"If in the opinion of the Collector the execution of any order or resolution of a municipality or the doing of anything which is about to be done or is being done by or on behalf of a municipality is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work".
The question which has arisen before us in the context of subsec. (1) of sec. 258 is whether the petitioner was entitled to be heard before the Collector made the impugned order.
8 The Resolution was indeed passed by the Municipality. If the resolution affected the municipality alone the question of hearing a third party would not arise. However can it be said that a third party who has received some benefit under the resolution is not entitled to be heard before the benefit which has accrued to him is withdrawn by the Collector by making an order under sec. 258 (1) ?
9 Now so far as the resolutions such as one with which we are concerned in this case are passed there are three stages of procedure. The first stage consists of the municipality passing such a resolution. The second stage consists of the President of the Municipality or any other authorized officer issuing an order of appointment under such a Resolution. The third stage consists of the person assuming charge of his office to which he is appointed under such a Resolution. If the Municipality has passed such a resolution and if no order of appointment has been issued in pursuance thereof there is no doubt in our minds that it creates no right in favour of a third person and that therefore none except the municipality is required to be heard before an action is taken under sec. 258 However if an order of appointment has been issued and the appointee has taken charge of his office under the resolution a right accrues to the appointee to hold that office. Whether that right has lawfully accrued to him or unlawfully accrued to him cannot be decided against him unless he has been heard. It was therefore necessary for the Collector to issue notice to the petitioner giving him a reasonable opportunity of being heard before he made the impugned order.
21 In the result in light of the findings which we have recorded on the contentions relating to violation of natural justice and on the interpretation of subsec. (1) of sec. 258 we are of the opinion that the impugned order made by the Collector of Rajkot suffered from two fatal infirmities. It is therefore liable to be quashed.”
(14) Learned Assistant Government Pleader has invited attention of this Court to the Full Bench judgment in the case of Parshottambhai G. Chavda Vs. State of Gujarat, 1998(1) G.L.H. 519 and contended that the judgment of H.H.Parmar Vs. Collector, Rajkot & Anr. is overruled.
(15) As far as the contention raised by the learned Assistant Government Pleader is concerned, it deserves to be noted that the Full Bench of this Court had considered the following question as mentioned in Paragraph No.1 of the aforesaid judgment:
“Whether the Collector has power, authority or jurisdiction under Section 258 of the Gujarat Municipalities Act, 1963, to suspend a Resolution passed by the Municipality which has been executed or implemented?”
In the instance case no such contention is raised. The predominant contention which is raised by the petitioners is to the effect that even though they were affected persons Collector, Surendranagar, while exercising powers under Section 258 of the Act, has not put them to any notice and opportunity of being heard is not given. The said contention was also reiterated by the petitioners before the revisional authority, however, the same is not considered and, therefore, only because the petitioners were heard before the revisional authority it cannot be said that the petitioners were afforded opportunity of being heard at the stage of the proceedings under Section 258 of the Act. Therefore, the contention raised by the learned Assistant Government Pleader that the ratio laid down by the Division Bench of this Court in case of H.H.Parmar (supra) is overruled also on the ground of giving opportunity of being heard is not correct.
(16) In view of the aforesaid, the orders impugned in the present petition deserve to be quashed and set aside only on the short ground that opportunity of being heard was not given to the petitioners and the proceedings deserve to be remanded to District Collector, Surendranagar for its fresh hearing on merits.
(17) District Collector, Surendranagar shall give a notice of hearing to the petitioners and after verification of the original record if any other allottee(s) is/are left out notice to such allottee(s) shall be given and after hearing all the parties i.e. the present petitioners / allottee(s) of the plots, District Collector pass a fresh order under Section 258 of the Act on its on merits. District Collector, Surendranagar shall decide all the issues afresh, without being influenced to the fact that earlier orders are set aside by this Court, as this Court has not expressed any opinion on merits.
(18) The petitioners shall file reply, if required, at the first instance on receipt of the notice from District Collector, Surendrangar. As the proceedings are pending since 1980, District Collector shall expedite the proceedings and shall issue notice as provided in this judgment to the petitioners within a period of 15 (fifteen) days from the date of receipt of this judgment and dispose of the same after giving opportunity of hearing to all concerned, as observed in this judgment as expeditiously as possible but not later than 03 (three) months from the date of the notice.
(19) It is made clear that this Court has also not observed anything on merits and it may not be construed that by quashing and setting aside the impugned orders this Court has endorsed the auction proceedings in any manner. If the petitioners are in possession of the land / plots in question, the petitioners shall not make use of the same in any manner whatsoever and should not deal with the same in any manner, till the proceedings are pending before District Collector, Surendranagar.
(20) In view of the above, the petition is partly allowed. Rule is made absolute only to the aforesaid extent. There shall be no order as to costs.
B h a v e s h * * * * Sd/ [ R.M.CHHAYA, J]