Shivabhai Mohanbhai Rathod vs State Of Gujarat

Ashutosh J. Shastri, J

RULE returnable forthwith. Learned Assistant Government Pleader waives service of Rule for and on behalf of the respondent authorities.

With the consent of learned advocates for the parties and with their request, the matter is taken up for hearing particularly when in several identical matters, the Coordinate Benches have passed the orders. Accordingly, the matter is taken up for hearing.

Present petition under Article 226 of the Constitution of India is filed challenging the legality and validity of the order passed by the respondent Mamlatdar, Bhavnagar (Rural) dated 18.7.2020, whereby a direction was issued to the petitioner to vacate the land in question, which is possessed by the petitioner. Multiple contentions have been raised by learned advocate Mr. Rajesh Gidiya, including the contention about the pendency of PIL No.205 of 2018 with regard to the land.

Learned advocate Mr. Gidiya has drawn the attention of this Court to the notice issued by the Mamlatdar dated 9.7.2020, whereby hearing is fixed on 13.7.2020 at about 15.00 Hrs. Simultaneously, a communication is also pressed into service by learned advocate, whereby the request was made by the lawyer concerned of the petitioner on 13.7.2020 asking for some reasonable time, so as to produce reply-cum-objection to the notice as some documents are very much needed to respond to the notice. The Mamlatdar kept the matter on the very next day, i.e. on 14.7.2020,and without granting any adequate opportunity, straightway passed the impugned order on 18.7.2020 and consequential order came to be passed on 27.7.2020 to vacate the land in question, failing which the same will be removed at the cost of the petitioner.

Learned advocate Mr. Gidiya has submitted that this is nothing but a flagrant violation of the principle of natural justice and in a hurried manner, the order is passed in complete violation of the principle of natural justice and in addition to this contention, has also submitted that in an identical situation of this very area and at the instance of the very same authority, the other persons were also sought to be evicted and some of them have approached this Court by way of filing the petitions under Article 226 of the Constitution of India wherein the Coordinate Benches of this Court have protected and set aside the impugned orders passed by the authority. Mr. Gidiya has drawn the attention of this Court to some of the orders passed in Special Civil Application No.9508 of 2020 as well as Special Civil Application NO,.9573 of 2020 and has requested that since the petitioner's case is identically situated, the same order be passed in the interest of justice.

Às against the aforesaid submissions, learned Assistant Government Pleader has made an attempt to contest but could not withstand to the circumstance that the Coordinate Benches have passed the orders in favour of the persons who are identically situated to the petitioner and therefore, has left the matter to the discretion of the Court and requested to pass suitable order in the interest of justice.

Having heard learned advocates appearing for the parties and having gone through the material on record, it is quite clear that the show cause notice had been given to the petitioner only on 9.7.2020 to remain present for hearing on 13.7.2020 and on 13.7.2020, when a request is made that in this Covid-19 situation, some documents are required to be found and taken out to give effect reply to the notice and to respond, time was sought. Surprisingly, learned Mamlatdar had no-doubt granted time of 24 hours only in such a situation and then in a hot hurried manner, appears to have passed the order on 18.7.2020 itself. This very exercise of jurisdiction appears to be not only in hurried manner but without granting sufficient opportunity to the petitioner to represent the case and also without granting any opportunity of hearing and the law on the issue of compliance of the principle of natural justice is abundantly clear, which need not to be reproduced in the present order, and further surprising fact is that after passing the order on 18.7.2020, in a very brief period, consequential final notice also came to be given under Section 202 of the Bombay Land Revenue Code. This situation is reflecting the other identical cases as well decided by the Coordinate Benches of this Court. As a result of this, the Court would like to adopt the very same approach in the present controversy and since the Court has considered the order passed by the Coordinate Bench, few observations contained therein deserve to be reproduced hereunder:-

"3. .............Mr.Gidiya, learned advocate, relies on an order passed by this Court in Special Civil Application No. 9508 of 2020 which reads as under:

"Order dated 18/07/2020 rendered under Section 61 of the Gujarat Land Revenue Code by the Mamlatdar, Bhavnagar (Rural) evicting the petitioner from the land in question on the ground that the encroachment has been made by the petitioner thereon is sought to be assailed in this petition principally on the ground that after issuance of the notice adequate opportunity of being heard to the petitioner was denied.

On consideration of the rival submission, this Court is unable to uphold the submission made by the learned AGP that the petition should be dismissed for alternative remedy with the petitioner ;inasmuch as; it is a settled legal position that if the principle of natural justice are violated, the petition at the discretion of the high court depending upon the facts and circumstances of each case can be entertained despite the availability of alternative remedy. In the instant case, the impugned order has been passed in most cryptic manner without even recording the reasons of not giving an opportunity to the petitioner beyond one day. Such an opportunity, in the opinion of this court, is nothing but a mockery of justice and therefore the discretion is required to be exercised in favour of the petitioner at this pre-admission stage itself by directing the respondent -Mamlatdar to hear the case again after giving an adequate opportunity to the petitioner.

The learned counsel for the petitioner states that within a period of four weeks from this date the show-cause-notice issued to the petitioner shall be replied and necessary documents, if any, shall be produced with the authority. In view of the said statement, the respondent -Mamlatdar shall accept the reply to the show-cause notice with the documents, if any, and shall fix the date of hearing within next two weeks on which date the petitioner will remain present either in person or through his advocate and co- operate in the hearing of the case. The impugned order is thus quashed and set aside and with the aforesaid observations and directions, the petition is disposed of. "

The order dated 17.07.2020 is quashed and set aside only on the ground that it did not give the petitioner reasonable opportunity of hearing. The order dated 17.07.2020 is quashed and set aside. The petitioner shall be given an opportunity of hearing. Mr.Gidiya, learned advocate, states that the petitioner shall file response before the Mamlatdar.

In view of the said statement, the respondent -Mamlatdar shall accept the reply to the show-cause-notice with the documents, if any, and shall fix the date of hearing within next two weeks on which date the petitioner will remain present either in person or through his advocate and co- operate in the hearing of the case. The impugned order is thus quashed and set aside and with the aforesaid observations and directions, the petition is disposed of. The petition is allowed, accordingly. Rule is made absolute to the above extent. The Registry to communicate the order through E-mail.

In view of the aforesaid observations, the Court finds that a case is made out by the petitioner to call for interference. Accordingly, the petition is ALLOWED with following directions, which would meet the ends of justice:

(1) Order dated 18.7.2020 passed by the respondent authority is quashed and set aside and it is directed that the petitioner shall be given an opportunity of hearing.

(2) The petitioner will file appropriate response before the respondent- Mamlatdar, as undertaken by learned advocate Mr. Gidiya.

(3) As soon as such response will be filed by the petitioner, preferably within a period of TWO WEEKS from today, and upon receipt of the same, the respondent Mamlatdar shall accept the reply to the show cause notice along with the documents, if any, and shall fix a date of hearing within next TWO WEEKS, on which date, the petitioner is directed to remain present either in person or through some legal representative and shall cooperate with the hearing.

(4) The respondent Mamlatdar shall take appropriate decision upon conclusion of such process and shall pass an order in accordance with law.

(5) It is needless to clarify that since the Court has not expressed any opinion on merit, it would be open for the respondent Mamlatdar to take appropriate decision strictly in accordance with law on the basis of the material on record which may be placed by the petitioner and the decision shall be communicated to the petitioner.

Rule is absolutely to the above extent. Registry shall communicate this order through email or FAX to the concerned authority.