Skip to content


Pratap V. Soni Vs. Gandhidham Development Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 459 of 1978
Judge
Reported inAIR1985Guj68
ActsGandhidham (Development and Control on Erection of Buildings) Act, 1958 - Sections 12(l); Constitution of India - Article 226
AppellantPratap V. Soni
RespondentGandhidham Development Authority and ors.
Appellant Advocate Arun H. Mehta, Adv.
Respondent Advocate K.L. Abichandani, Adv.
Cases ReferredMohinder Singh Gill v. The Chief Election Commr. New Delhi
Excerpt:
civil - construction - section 12 (i) of gandhidham (development and control on erection of buildings) act, 1958 and article 226 of constitution of india - petitioner occupied property in local limits of gandhidham town - dispute raised that petitioner constructed unauthorised wall - property purchased by respondent no. 2 for residential purposes - proceedings issued against petitioner by respondent no. 1 for obstructing him from carrying business in residential premises - no notice issued to petitioner before demolishing structure - no opportunity forwarded to petitioner to place his version - impugned order contrary to principles of natural justice - held, order void and be rejected. - - it is necessary to note at this stage that the unauthorised construction complained of in 1961.....order1. in this petition under art. 226 of the constitution, the petitioner who is an occupant of a structure standing on a plot bearing no. bbz-n2 of gandhidham, has challenged the order passed by the board of appeal under s. 19 of the gandhidham (development and control on erection of buildings) act, 1957, hereinafter referred to as the gandhidham act. as the said board has passed the order deciding the lis between the parties in a quasi-judicial manner, even though the said board is not deemed to be a civil court, its decision will be amenable to the jurisdiction of this court under art. 227 of the constitution. this petition is, therefore, treated to be one under art. 227 thereof and is being disposed of accordingly. the respondents to this petition are, the gandhidham development.....
Judgment:
ORDER

1. In this petition under Art. 226 of the Constitution, the petitioner who is an occupant of a structure standing on a plot bearing No. BBZ-N2 of Gandhidham, has challenged the order passed by the Board of Appeal under S. 19 of the Gandhidham (Development and Control on Erection of Buildings) Act, 1957, hereinafter referred to as the Gandhidham Act. As the said Board has passed the order deciding the lis between the parties in a quasi-judicial manner, even though the said Board is not deemed to be a civil court, its decision will be amenable to the jurisdiction of this court under Art. 227 of the Constitution. This petition is, therefore, treated to be one under Art. 227 thereof and is being disposed of accordingly. The respondents to this petition are, the Gandhidham Development Authority which is joined as respondent No. 1 and respondents Nos. 2 and 3 who are the owner of the house property bearing No. BBZ-N-2, and the Board of Appeal respectively.

2. It is necessary to briefly glance through the relevant facts leading to the present proceedings. According to the petitioner, he is occupying the property which is a garage within the local limits of Gandhidham town, since 1957. He is carrying on business of repairing motor cars, trucks etc. in the, said garage.

3. It was the case of the first respondent authority that in the year 1961 somewhere between 16-11-1961 and 24-11-1961, the petitioner or someone else constructed without permission a compound wall on the land in question which in those days was owned by one Keshavdas Kishandev Bhatia. The first respondent alleged that the compound wall was constructed on the said land without previous permission of the first respondent under S. 7 of the Gandhidham Act, and hence, it was an unauthorised construction. According to the case of the first respondent, a Khalsi, made a report that unauthorised construction was going on, on the said plot of land. On receipt of the said report, it was alleged that one Kuisagri Raman visited the said plot of land and made notes of inspection. It is necessary to note at this stage that the unauthorised construction complained of in 1961 was construction of compound wall and not the garage as a whole, which is now the subject-matter of bitter controversy between the parties. It appears that though the said report was made in 1961, no steps were taken by the first respondent for demolishing the said structure consisting of compound wall. It transpires from the record of the case that the first respondent itself found that no previous permission of respondent No. 1 was required for putting up compound walls which were originally 2' X 8' in height and which were then raised by 3' more, i.e. up to 5'-8'. Therefore, the compound walls were permitted 'to stay and the chapter was treated as closed. However, it appears that somewhere in the year 1970, present respondent No. 2, purchased this plot of land on which a residential house as well as the disputed garage were standing. He addressed a letter to the Secretary, respondent No. 1 authority on 9-5-1970 intimating the first respondent that he had purchased the house bearing No. BBZ-N2, Gandhidham from its original owner Gagandas of Bombay and had got a registered sale deed in his favour. He further stated that the petitioner was running a garage in the front verandah of the said house and that he was doing it un authorisedly and was carrying on the said business without his consent. He, therefore, requested respondent No.1 authority to institute suitable proceedings against the petitioner for dismantling the said garage being unauthorised business in a residential premises.

Respondent No. 2 similarly wrote to the District Judge, Bhuj on 9-10-1970 intimating the District that the petitioner had made alteration, and addition in his house No. DBZ-N2 at Gandhidhain without his notice and permission and that he had already requested the Secretary of the respondent No. 1 authority that he had no objection if the said alteration and addition was dismantled even at his cost. He further requested that this alteration may be got dismantled at Government or at his own cost. In the meantime, the first respondent authority acting upon the information supplied by respondent No. 2, by his letter dt. 9-5-1970, passed a demolition order on 13-5-1970 which is annexed as annexure 'C' collectively to the petition. This order was addressed to the petitioner as well as respondent No. 2 and they were informed that as the petitioner had carried out the construction, addition and alteration in the said house without the permission of the authority in writing as required by section 7 of the Gandhidham Act., the same was required to be demolished. Details of unauthorised construction, addition and alteration were mentioned in the said demolition order as under: -

'Converted the entire front Chabutra into a room measuring 22'-8' X 10' X T-6' height with old tin sheets roof resting on black masonry. Northern Southern and Eastern walls raised up to 6'-5'.

The said demolition order was passed under S. 12(l) of the Gandhidham Act. As per the requirement of section 12 of the Gandhidham Act, the said demolition order was to be on firmed by the board of appeal constituted under S. 19 of the Gandhidhain Act. As the demolition order was not complied with by the petitioner, a reference to the Board was made on 7-9-1970 by the first respondent. This reference was registered as Board reference No. 35 of 1970. The first respondent was the applicant in the said reference while the petitioner and respondent No. 2 were joined as opponents Nos. 1 and 2 respectively. After hearing the concerned parties, in the light of the evidence recorded in the proceedings, the Board came to the conclusion that the demolition order was required to be confirmed and accordingly the impugned demolition order was confirmed by the board under S. 12(l) of the Gandhidham Act. It is in the aforesaid circumstances that the petitioner 'has come to this court by way of the present proceedings seeking an appropriate writ or order for quashing the impugned demolition order as initially passed by the first respondent and as confirmed by the Board of Appeal. The impugned order of the Board of Appeal is at annexure D to the petition.

4. x x x x x

5. Mr, Arun H. Mehta, learned Advocate for the petitioner raised the following contentions in support of the petition

1. The impugned demolition order passed by the first respondent and as confirmed by the Board of Appeal is ex facie illegal and without jurisdiction as the petitioner was given no opportunity to represent his case before the impugned demolition order was passed by the first respondent and no show cause notice was given to the petitioner calling upon him to show cause why the proposed drastic action of demolition of his structure should not be taken against him. This order was, therefore, contrary to the basic principles of natural justice. In this connection he submitted that as the demolition order itself was contrary to the principles of natural justice and void, the Subsequent order of the Board of Appeal confirming such void order would also remain inoperative and an exercise in futility.

2. It was alternatively submitted by Mr. Mehta that in any case, the impugned order passed by the Board of Appeal was patently illegal and perverse inasmuch as it has been passed by the Board on no evidence and the adverse findings reached by the Board against the petitioner are not supported by any relevant evidence and hence, the order of the Board, confirming the demolition order is liable to be quashed and set aside.

6. x x x x x

7. As seen above, the disputed structure is within the limits of Gandhidham town in Kutch district. In the year 1957, the then Bombay legislature enacted the said Gandhidham Act. The said Act was to provide for development of Gandhidham, for the control on erection of buildings therein and for certain other matters. It extended to the whole of Gandhidham in the Kutch area now in the State of Gujarat. On the bifurcation of the bigger bilingual State of Bombay and on formation of the State of Gujarat, the said GE11ndhidbam Act has continued in force all throughout till today. S. 2 is a dictionary clause which amongst of others, defines 'building' at clause (c) to mean 'a house, hut, shed or other roofed structure... .... '

Section 2(d) defines 'development' and states 'development with its grammatical variations and congnate expressions, means the carrying out of building, engineering, mining, or other operations in, on, over or under land, or the making of any material change in any buildings or land or in the use thereof. Clause (e) defines 'erection of any building' and states that 'erection of any building' with its grammatical variations and cognate expressions include -

(i) any material alteration or enlargement of any building;

(ii) the conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation;

(iii) the conversion into more than one place for human habilitation of a building originally constructed as of one such place;

(iv) the conversion of two or more places of human habitation into a greater number of such places;

(v) such alterations of a building as affect its drainage or sanitary arrangements or, materially affects its security;

(vi) the addition of any rooms, buildings, outhouses or other structures to any building; and

(vii) the construction in a wall adjoining any street or land not belonging to the owner of the wall of a door opening on to such street or land'.

At clause (g) is defined 'owner' to include 'a person for the time being receiving or entitled to receive the rent. or a part of the rent, of any land or building, whether on his own account or as trustee or as agent or as receiver appointed by or under order of a court, or who would so receive the rent or be entitled to receive it if the building or land were let to a tenant'.

8. As per section 3 of the Act, the State Government is enjoined to constitute for the purpose of this Act an authority to be called the Gandhidham Development Authority. This authority is to consist of the following members:-

(a) the District Magistrate, Kutch, ex officio.

(b) the District Public Health officer. Kutch, ex officio;

(c) five non-Official members nominated by the State Government:

(d) not more than three persons as may be nominated by the Central Government,

The Chairman and the Secretary of the Authority shall nominated by the State Government. As per section 6 of the Act, the authority with a view to the proper laying out of land, the prevention of haphazard erection of buildings and growth of sub-standard colonies and generally with a view to developing and expanding Gandhidham according to proper planning may, by notification in the official gazette, issue in relation to Gandhidham or any area thereof, such directions as it consider necessary. The topics on which such directions can be issued are listed in sub-section (2) of section 6. Procedure to be followed by the authority before issuing the aforesaid directions is laid down by sub-section (3) of section 6. Section 7 lays down that no person shall undertake or carry out the development of any site in Gandhidham or erect any building or make or extend any excavation, or lay out any means of access to a road in Gandhidham, except in accordance with the directions issued under S. 6 and with the previous permission of the authority in writing. Section 8 lays down the procedure for applying for such permission to the concerned authority under S. 7 of the Act. Section 9 deals with prohibition of use of any land as brick fields etc. without licence. Section 10 enacts an indemnity clause and bars claims for compensation against the authority for anything which is in good faith done or intended to be done under the Act for carrying out the purpose of the Act. Then follows section 11 which entities the authority to enter upon any building or land with a view to finding out the nature of the offending structure or construction. It is necessary to extract the said section in extenso :-

'The authority may authorise any person to enter into or upon any site of building with or without assistants or workmen, for the purpose of -

(a) making any inquiry, inspection, measurement or survey or taking levels of such site or building;

(b) examining works under construction or ascertaining the course of sewers or drains;

(c) ascertaining whether any site is being or has been developed, or any building is being or has been erected, in contravention of any direction issued under S. 6 or without the permission referred to in section 7 or in contravention of any condition subject to which such permission has been granted; or

(d) ascertaining whether any land is being or has been used for the purposes of a charcoal kiln, pottery kiln or lime kiln without a licence or in contravention of any condition subject to which such licence has been granted :

Provided that no entry shall be made except between the hours of sunrise and sunset, and without giving not less than twenty four hours' written notice to the occupier or if there be no occupier, to the owner of the building or land'.

Then follows section 12 under which the impugned order of demolition has been passed by the authority. It reads as under : -

'(1) Where the authority is satisfied that the erection of any building has been commenced, or is being carried on, or has been continued in contravention of any direction issued under S. 6 or without the permission referred to in section 7 or in contravention of any condition subject to which such permission has been granted, the authority may make an order directing that such erection shall be demolished by the owner thereof within such period not exceeding two months, and on the failure of the owner to comply with the order, the authority may itself cause the erection to be demolished and the expenses of such demolition shall be recoverable from the owner in the same manner as an arrear of land revenue:

Provided that before causing such erection to be demolished, the authority shall make a reference to the District Judge. Kutch who shall constitute a Board of appeal under S. 19 for deciding the reference. The Board shall after giving notice to the owner and after giving him reasonable opportunity to show cause why the erection should not be demolished, confirm, modify or cancel the order of demolition. The decision of the Board shall be conclusive and shall not be liable to be questioned in any suit in a civil or any proceeding in a criminal court.

(2) The order directing the demolition of any erection made under sub-section (1) shall not prevent the infliction of any punishment to which the person affected thereby is liable under S. 13 or any other law for the time being in force.'

Section 13 provides for imposition of penalty on any person who undertakes or carries out the development of any site or erects any building or makes or extends any excavation, or lays out any means of access to a road in contravention of any direction issued under S. 6 or without the permission referred to in section 7 or in contravention of any condition subject to which such permission has been granted, or uses any land in contravention of the provisions of sub-section (1) of section 9. Section 18 deals with right of appeal to any person who is aggrieved by any direction issued by the authority under S. 6 or by an order of the authority under sub-section (2) of section 8 or of sub-section (3) of section 9. S. 19 deals with constitution of Board of Appeal and lays down that the Board of Appeal shall consist of a President and two assessors. The President shall be the District Judge, Kutch. The President is empowered to appoint fit and proper persons as assessors. As per sub-section (4), the President and the assessors as members of the Board are entitled to decide a reference under the proviso to sub-section (1) of section 12 or an appeal under S. 18. Section 22 lays down that every party to any proceeding before the Board of Appeal shall be entitled to appear either in person or by his recognised agent. As per section 23, all questions of law and procedure shall be decided by the President. All other questions shall be decided by the President and the two assessors, or by a majority of them. As per section 24, every decision of the Board of Appeal is treated to be conclusive and binding on all persons and shall not be liable to be questioned in any suit in a civil court. Section 25 enjoins that the Board is not to be the court. Section 30 enacts a scheme of general savings and mentions 7 cases in which provisions of the Act would not apply in contingencies enumerated therein. The said section reads as under :-

'S. 30. Nothing in this Act shall apply to -

(a) the carrying out of works for the maintenance, improvement or other alteration of any building, being works which affect only the interior of the buildings but not its drainage or sanitary arrangements or its security or which do not materially affect the external appearance of the building;

(b) the carrying out by the Government or local authority in Gandhidham of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose;

(c) the erection of a building not being a dwelling house if such building is required for purposes subservient to agriculture;

(d) the erection of buildings upon land included in the inhabited, site of any village within the meaning of the Bombay Land Revenue Code, 1879 (Bom V of 1979), as applied to the Kutch area of the State of Gujarat;

(e) excavations (including wells) made by Government or any local authority in the ordinary course of agricultural operations, or for the purpose of laying, making, altering, repairing or renewing any sewer, drain or water course for supplying water for drinking;

(f) the construction of un metaled roads intended to give access to land solely for agricultural purposes; and

(g) any area within the limits of the major port of Kandla defined or altered, as the case may be, under the Indian Ports Act 1908 (XV of 1908) being an area owned or occupied for the purposes of that port by the Central Government'.

9. The aforesaid resume of the relevant provisions of the Gandhidham Act shows that before the authority gets satisfied that any offending erection of the concerned building is in contravention of section 6 or 7, certain objective facts have to be kept before the mind's eye of the authority. Subjective satisfaction of the type as envisaged by section .12(l) is necessarily based on objective facts. Section 11 of the Act authorises the authority to enter upon the sites of buildings with a view to inquiring as to whether the structure in question is being constructed in accordance with the relevant provisions of the Act or otherwise. While effecting such entry, notice of not less than 24 hours is to be given to the occupier if any or to the owner of the building or land concerned. It is easy to visualise that on any information reaching the authority that at a particular place within the local limits of Gandhidham township, a structure is being erected which is contrary to section 6 or 7 of the Act or any other relevant provisions of the Act, that information may set in motion the authority and may ultimately result in the proposed demolition order vis a vis the concerned offending structure. However, before taking any decision in the matter, the authority must have before it the other side of the picture viz. as to whether the owner or occupier of the alleged offending structure has any valid reason to point out against the proposed, demolition of the structure. As seen above, section 2(c) defines building, but some structures may not fall within the definition of the word building or some development qua the building may not strictly speaking amount to erection of any, building as envisaged by section 2(e) or it may be that the offending construction may have been constructed after obtaining previous permission of the authority, and the information which might have reached the authority might prove to be based on mere rumour and section 7 might not get attracted in such cases or on the inspection of the alleged structure on spot after following procedure of section 11, it may be found that the offending structure does not conflict with any of the statutory provisions or owner or occupier may be able to point out to the authority that the offending structure in a given case is covered by the general scheme of savings as envisaged by section 30, especially section 30(a) or section 30(c) or section 30(d). It is, therefore, obvious that before being satisfied on objective facts that the offending erection of any building has been commenced or is carried on or has been continued in contravention of section 6 or 7 or in contravention of any condition subject to which permission, if any, was granted, the authority concerned must have before its mind's eye, other side of the picture viz. what the owner or occupier of the concerned structure has to say. Without having a glimpse of such say in the matter of the parties who would be directly affected by the demolition order, the satisfaction reached by the authority would remain a truncated one and would not be founded on all the relevant objective facts. It is true, as submitted by Mr. Abichandani the demolition order passed by the authority under S. 12(l) cannot be implemented till it gets clearance from the Board pursuant to the procedure laid down by the proviso to Section 12(l) and at the level of the Board in the concerned reference, the owner has to be given reasonable opportunity of showing cause. However, that does not mean that the authority which in the first instance takes a decision or being satisfied on objective facts has to decide of its own without having any idea about the other side of the picture namely what the concerned occupier or owner of the, structure has to say in the matter. It cannot be gainsaid that the order of demolition of any structure is bound to bring serious adverse civil consequences for the concerned owner or occupier of the structure, So far as the owner is concerned, his valuable structure would be liable to be destroyed and demolished. If he has already let out or given on leave and licence basis the said structure to a third party who is the occupier, once the structure is demolished, the tenant or licensee as the case may be, who is the actual occupier of the premises Would be thrown out. If the offending structure is a residential one the tenant or occupier who might be staying with his family members would be thrown on the streets. If it is business premises as is the case in the present proceedings, the occupier would lose his source of livelihood and the place where he might be eking out his livelihood, may be since years, would be permanently lost to him. It is, therefore, obvious that demolition order as contemplated by section 12(l) has a very drastic adverse effect on the owner of the structure as well as on the occupier of the structure. Under these circumstances, the least which the authority can do is to issue a show cause notice to the owner of the alleged offending building or structure and if the occupier of the structure is some body else, even the occupier has to be given such show cause notice. The concerned owner and occupier if any have to be given reasonable opportunity of submitting their explanation in the matter and to show cause why the proposed drastic action of demolishing the building should not be taken. Even though section 12(l) is silent on this point, the aforesaid procedure can certainly he read in it in the light of the elementary principles of natural justice which must be implied in the working of section 12(l) otherwise, the section itself would falter on the touchstone of Article 14 and would be totally unreasonable and unjust in its operation. It is trite to observe that any court which is called upon to consider any provision of a statute which without being read down, is likely to get exposed on the anvil of any fundamental right will be justified in reading down the provision with a view to sustaining it and stearing, clear of the constitutional inhibition. It is not possible to agree with the submission of Mr. Abichandani for respondent No.1 authority that no show cause notice is required to be issued either to the owner or the occupier of the offending structure and the authority can be satisfied of its own on any data available to it and can pass order of demolition as the said order will not be enforced against the concerned person till the appellate Board gives clearance after hearing the concerned owner. The clearance given by the Board after hearing the concerned owner has nothing to do with the initial passing of the, order of demolition which is within the domain of the authority itself which has to be satisfied on objective facts that the offending erection of the building is required tote demolished. That decision is of the authority itself. It is obvious that if the authority is satisfied to the contrary, there would arise no occasion for making reference to the Board for getting the demolition order confirmed. Therefore, it is not possible to agree with Mr. Abichandani that passing of the demolition order is absolutely innocuous and it is merely a proposed order which becomes the order of demolition on confirmation. On the contrary, the demolition order becomes complete when the authority is satisfied on objective facts as laid down by Section 12. Only implementation of the order can take effect after getting clearance from the Board in reference as per proviso to section 12. The scheme underlying S. 12(1) can profitably be compared with the scheme of confirmation proceedings in case of a death sentence imposed by the sessions court against an accused in a criminal trial. Merely because the death sentence cannot be executed without getting it confirmed by the High Court, can it be said that the sessions court which initially passes the death sentence need not allow the accused to have his say in the matter or that the order of sessions court passing the death sentence is not a complete and legally operative adverse order against the accused? Confirmation proceedings before the High Court in such a case and before the Board under S. I 2(1) only give additional procedural safeguards to, the concerned aggrieved parties. Defence proceeding before the Board u/s.12 (1) give an protection to the concerned owner or occupier of the offending structure. Bull that docs not mean that before passing the order of demolition on subjective satisfaction based on objective facts, the authority of its own and without being informed about the other side of the picture, can take its own decision against the affected parties without even permitting them to have their say in the matter. Such type of absolute power with the authority cannot be culled out from section 12(l), otherwise, the very power would falter on the touchstone of Art. 14. It would be in consonance with the elementary principles of natural justice and fair play that the authority, before deciding that erection of any building is required to be demolished and before passing any order u/s. 12(11), should at least follow the bare minimum principles of natural justice and call upon the owner and occupier of the structure, if any. to have their say in the matter and after considering their versions in the matter, the demolition order if any can be passed by the authority on being satisfied on the objective facts brought to its notice. In the process of arriving at such satisfaction on objective facts, the authority can still resort to the power under section 11 to make on the spot inquiry or inspection and having gathered all relevant facts and having taken into consideration the rival versions put forward by the concerned owner or occupier of the building, the authority can get genuinely satisfied on objective facts and pass a proper order of demolition as per section 12. It is now well settled by series of judgments of the Supreme Court that even though a section does not expressly provide for a machinery for complying with the basic principles of natural justice, such a requirement can be read in it to sustain it against any possible constitutional attack. I may usefully refer to one such judgment of the Supreme Court in the case of S. L. Kapoor v. Jagmohan, AIR 1981 SC 136. The Supreme Court in that case was concerned with the provisions of S. 238(1) of the Punjab Municipal Act under which a municipal committee could be superseded by the State Govt. If it was found that the concerned committee was incompetent to perform or persistently made default in the performance of the duties imposed on it by or under that or any other Act or exceeded or abused its powers. The section, in its own terms did not provide for any show cause to the to the concerned committee so ordered to be superseded. However, by applying the basic principles of natural justice to the exercise of such power, it was held by, the Supreme Court that minimum requirement of natural justice has to be followed before taking any steps against the concerned municipal committee under S. 238(l). Chinnappa Reddy, J. speaking for the Supreme Court, has made the following pertinent observations in para 7 of the report : -

'The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the psittacine incantation of 'administrative action'. Now, from the time of the decision of this court in State of Orissa v. Dr. (Miss) Binapani Dei, (1967) 2 SCR 625 : AIR 1967 SC 1269, 'even 'in administrative order which involves civil consequences.....must be made consistently with the rules of natural justice'. What are civil consequences' The question was posed and answered by this court in Mohinder Singh Gill v. The Chief Election Commr, New Delhi (1978) 2 SCR 272 : AIR 1978 SC 851 '.

Krishna lyer, J's observations in this connection in the aforesaid decision were extracted in the said para of the report as under :--

'But what is a civil consequence, let us ask ourselves, by passing verbal booby traps? 'Civil consequence' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-Pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence'.

In para 10 of the report, the Supreme Court turned down the submission of the Attorney General to the effect that when the question was one of disqualification of an individual member, section 16 of the Punjab Municipal Act expressly provided for an opportunity being given to the member concerned whereas section 238(l) did not provide for Such an opportunity and so, by necessary implication, it must be considered that the principle of audi alteram partem was excluded. This argument of the attorney general before the Supreme Court runs parallel to the argument which was advanced before me by Mr. Abichandani who submitted that under the proviso to section 12(l), express provision is made for giving reasonable opportunity to the owner by the Board before confirming the demolition order. Therefore, by necessary implication, it has to be held that no such opportunity was required to be given by the authority. 'This argument stands repelled by the Supreme. Court which, speaking through Chinnappa Reddy, J. in S. L. Kapoor's case (AIR 1981 SC 136) (supra) laid down as under on this aspect : ---

'We are unable to agree with the submission of the learned Attorney General. It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from that other provision. It may be a weighty consideration to be taken into account but the weightier consideration 'is whether the administrative action entails civil consequences. This was also the view taken in Mohinder Singh Gill v. The Chief Election Commr. New Delhi (1978) 2 SCR 272 . AIR 1978 SC 851. where it was observed : --

'We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the Rules and inferentially where it has not specified it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication'.

In the very same case, it has been laid down how elementary principles of natural justice can be breathed in a provision and what would be the scope and ambit of such an exercise. In para 16, it has been held: - -

'In Our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one., But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken. against him. If that is made known the requirements are met'.

In the very same decision of the Supreme Court, another argument raised by the Attorney General on behalf of the authorities to the effect that observance of principles of natural justice would not have made any difference on the facts of the case and no prejudice would be caused to any one by nonobservance of such principles, was repelled by the Supreme Court in the following terms :-

'In our ' view, the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not Issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal'.

In the light of the aforesaid settled legal position, it is, therefore, obvious that the authority was not entitled to Pass the impugned order of demolition under S. 12(l) without giving any show cause notice and an opportunity to the petitioner to have his say in the matter by submitting his explanation against the proposed action, 'This barest minimum requirements of natural justice have to be breathed in section 12 without which operation of section 12 would falter on the anvil of Art. 14.

10. So far as the facts of the present case are concerned, it is an admitted position that in 1970, no show cause notice was issued to the petitioner who is the occupier of the structure sought to be demolished. He was not told as to what is the nature of the structure which offends the relevant provisions of the Gandhidham Act. He naturally got no opportunity to put forward his version in the matter before the authority so that the authority could have a comprehensive view of the situation and come to its satisfaction on relevant objective facts. In the sequence of events which have already been noticed by me, respondent No. 2 who is the owner of the plot in question gave it in writing to the authority that an offending structure was put up illegally by the petitioner. Relying on the information supplied to the authority by respondent No. 2, respondent No. 1 almost automatically and without calling upon the petitioner to have his own say in the matter, passed the impugned order of demolition at annexure 'C' collectively on 13-5-1970 and then placed it for confirmation of the Board. As the impugned order is contrary to the elementary principles of natural justice, it is a void order and such a void order cannot be confirmed by the confirming authority which heard the petitioner. The entire exercise would be one in futility as a still-born or a void order cannot get revitalised by any process of confirmation. Consequently, even though before confirmation, the petitioner was heard, the same would make no difference to the result of the petition. The impugned order under S. 12( 1) as passed by the first respondent must be treated to be null and void arid the consequential confirmation order must fall with it. The first contention of Mr. Arun Mehta, therefore, stands accepted.

11 to 13. x x x x x x x x x x

14. Before parting with the discussion on this aspect, I must notice the one additional argument voiced by Mr. Abichandani for respondent No. 1, He submitted that proviso to section 12(1) contemplates in express terms giving a reasonable opportunity of hearing or showing came to the owner of the structure. That the petitioner of his own does not claim ownership of the structure and, therefore, it was not necessary to hoar him, though the Board had been charitable to the petitioner in affording him an Opportunity of hearing. The said argument is devoid of any substance and is stated to be rejected. It ' is true that proviso to section 12( 1) contemplates given a reasonable opportunity to show cause to the owner and that would squarely cover cases where owners are occupiers of the offending structures. Put if the owner parted with possession of the offending structure to a tenant or licensee Who occupied the structure for residential purpose or business purpose as the case may, be, if no opportunity of hearing is to .be given to such occupier who will be a direct casualty by demolition of such structure, even proceedings before the Board would falter on the touchstone of Article 14 and would be rendered contrary to the basic principles of natural justice. It is, therefore, necessary to read down even proviso to section 12(l) by holding that even before the Board, occupier of the impugned structure which is required to be demolished has to be given a reasonable opportunity for showing cause why the erected structure occupied by him should riot be demolished. This procedural safeguard -can be read in 4ection 12(l) proviso to revitalise and to make the proceedings before tire Board effective and in consonance with the natural justice. The same reasons on which the principles of natural justice have to be read in section 12(l) enjoining upon the authority to issue a show Cause notice and to call for explanation of the owner or the occupier, as the case may be, before passing the demolition order, must apply while importing principles of natural justice and fair play in confirmation proceedings before the Board under proviso, to section 12(l). It has, therefore got to be held that tire Board had not become charitable in hearing, the petitioner. In fact respondent No. 1 had, joined the petitioner as opponent No. 1 and as opponent No. 2 the owner of the plot in question, As respondent. No. 1 itself had joined the petitioner in the reference proceedings, it would be too late in the day for respondent No. 1 to argue at this stage the petitioner was not a necessary and that he need not be heard is of that and that the Board had heard him out of any charitable consideration or by way of grace. In the settings of section 12(l) and keeping in view the nature of order which is to be passed there under and which is to be confirmed by the Board, not only the owner of the structure sought to he demolished but occupant thereof if any is also a necessary party in, proceedings before the Board and must have a right of audience on the basic principles of natural justice so the confirmation order can become fully effective and operative.

15. x x x x x x x

16. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //