Writ Petition No. 293 of 2007

19th February, 2013

Petitioner Counsel: Mr. J. E. Coelho Pereira,Mr. Somnath Karpe
Respondent Counsel: Mr. S. Dhargalkar,Mr. A. F. Diniz,Mr. V. P. Thali

Cases Cited:
Automotive Tyre Manufacturers Association Vs. Designated Authority & others, 2011 ALL SCR 260 : 2011(2) SCC 258 [Para 8]
Prakash Ratan Sinha Vs. State of Bihar & others, 2010 ALL SCR 326 : 2009(14) SCC 690 [Para 8]

JUDGMENT

JUDGMENT :- Heard Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioner, Shri A. F. Diniz, learned counsel appearing for the respondent no.2, Shri V. P. Thali, learned counsel appearing for the respondent no.3 and Shri S. Dhargalkar, learned Additional Government Advocate appearing for the respondent nos. 1 and 1(a).

2. The above petition seeks to quash the judgment passed by the respondent no.1 dated 29.05.2007 whereby the appeal preferred by the respondent no.3 was allowed and order passed in Revocation Order No.4/18/TS/2006- CCP/5098 dated 10.11.2006 was set aside.

3. Briefly, the facts of the case as required for disposing of the above Writ Petition are that the petitioner raised an objection to the permissions granted by the respondent no.2 in favour of the respondent no.3 in respect of the development sought to be carried out in the property allegedly belonging to the petitioner. After issuing a show cause notice, the respondent no.2 revoked the licences issued in favour of the respondent no.3. In terms of the provisions of the City of Corporation Act, an appeal came to be preferred by the respondent no.3 before the respondent no.1 which came to be allowed by the impugned judgment in the manner as stated herein above. Being dissatisfied in the manner in which the appeal as well as the merits of the appeal is disposed of, the petitioner has preferred the present Writ Petition.

4. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioner has pointed out that on the earlier occasion this Court while disposing of the Writ Petition No.134 of 2007 by order dated 27.04.2007 had directed the respondent no.1 to dispose of the appeal preferred by the respondent no.3 after giving an opportunity to the petitioner to be heard in the matter. The learned Senior Counsel further pointed out that the respondent no.1 thereafter gave an opportunity to the petitioner to file a reply before the respondent no.1 raising different contentions in support of the order impugned in the said appeal filed by the respondent no.3. The matter according to the petitioner was thereafter posted for hearing/argument. On two occasions, when the petitioner along with her advocate were present, the matter was adjourned as the respondent no.1 was not available. On the subsequent date, the Secretary of the respondent no.1 informed the petitioner, respondent no.3 and the other parties to the appeal to file their written arguments. Accordingly, the written submissions came to be filed by the respective parties and the matter was posted for further hearing before the respondent no.1. But however, the respondent no.1 without even giving a hearing or holding a discussion in connection with the said appeal, the Secretary of the respondent no.1 informed the petitioner and the other parties and the respondent no.3 that the judgment would be communicated. The learned Senior Counsel further pointed out that the petitioner had filed written submission on 24.05.2010 and no further date was given on the said date. The learned Senior Counsel further pointed out that the petitioner was served with an advance copy of the rejoinder to the written arguments filed by the respondent no.3 and the petitioner was waiting to advance oral submissions in the said appeal. But however, the learned Senior Counsel has pointed out that on 30.05.2010 the petitioner received a copy of the caveat notice filed by the respondent no.3 inter-alia stating therein that the appeal was disposed of by the respondent no.1. The learned Senior Counsel further submits that the petitioner learnt thereafter that the matter came to be disposed of on 29.05.2010 only after the Secretary of the respondent no.1 telephonically informed about the disposal of the appeal on 31.05.2010. The learned Senior Counsel as such submits that the disposal of the appeal by the respondent no.1 is in breach of the principle of natural justice as according to him no adequate hearing was given to the petitioner to advance her submissions. The learned Senior Counsel has taken me through the impugned judgment as well as the averments made in the petition and submitted that the respondent no.1 has acted arbitrarily and in breach of the principle of natural justice and on this ground alone the impugned judgment deserves to be quashed and set aside. The learned Senior Counsel has also tried to advance submission on the merits of the dispute as according to him the petitioner is justified to raise an objection to the development as admittedly according to the learned Senior Counsel the respondent no.3 has no title or ownership right to the property. But however, the remaining submissions of the learned Senior Counsel were not allowed to be raised on merits as the first contention raised was to be appreciated after hearing the learned counsel appearing for the parties.

5. Shri V. P. Thali, learned counsel appearing for the respondent no.3 has supported the impugned judgment. The learned counsel has pointed out that the respondent no.1 has rightly disposed of the matter after considering the material on record and has come to the conclusion that the respondent no.2 was not justified to revoke the licences granted in favour the respondent no.3. The learned counsel further disputes the allegation that there was no adequate hearing given by the respondent no.1 to the petitioner as according to him, the petitioner and the other respondents had voluntarily agreed to file written submissions and as such, it cannot be said that the petitioner was not given an adequate hearing in the appeal. The learned counsel further pointed out that considering that all the contentions of the parties have been duly considered by the respondent no.1, no interference is called for in the impugned judgment.

6. Shri A. F. Diniz, learned counsel appearing for the respondent no.2 has pointed out that according to the respondent no.2 the order of revocation has been rightly issued.

7. Shri S. Dhargalkar, learned Additional Government Advocate appearing for the respondent nos. 1 and 1(a) has submitted that in case this Court find fit, the respondent no.1 would give a fresh hearing to the petitioner.

8. I have carefully considered the submissions of the learned counsel and I have also gone through the records. It is now well settled by the judgments of the Apex Court reported in 2011(2) SCC 258 : [2011 ALL SCR 260] in the case of Automotive Tyre Manufacturers Association V/s Designated Authority & others and 2009(14) SCC 690 : [2010 ALL SCR 326] in the case of Prakash Ratan Sinha V/s State of Bihar & others, that in cases in which the consequences of the disposal of the dispute by the authority constituted in the Act would result in the civil consequences, a party is entitled for an adequate hearing. The Apex Court has even given observation that the written submission is not a substitute to oral submissions as in the course of the oral submissions a party has an opportunity to seek for clarification or clear any doubt in the disposal of the dispute. Taking note of the said observation of the Apex Court as laid down in the said judgments, I find that Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioner is justified to contend that the impugned judgment passed by the respondent no.1 stands vitiated for breach of the principle of natural justice in not giving an adequate opportunity to the petitioner of hearing the appeal preferred by the respondent no.3. In the present case, there are categorical statements made in the Writ Petition to suggest that the petitioner had not given up her right to advance oral arguments. The whole conduct of proceeding by the respondent no.1 does not show the compliance with the principle of natural justice. It is pointed out by the learned Senior Counsel appearing for the petitioner that even the direction to file the written arguments were not given by the respondent no.1 but by the Secretary who was at the relevant time in the office of the respondent no.1. It is expected of the respondent no.1 should realise that the appeal is heard in exercise of powers conferred on the respondent no.1 by the statute and as such the authority is expected to comply with the rules of the natural justice. In the present case, the respondent no.1 has acted in gross breach and in violation of principle of natural justice and consequently, on this ground alone the impugned judgment passed by the respondent no.1 stands vitiated.

9. As far as the rival contentions of the learned counsels of the parties on merits of the dispute, I find considering that the impugned judgment passed by the respondent no.1 deserves to be quashed and set aside for the aforesaid reason, I need not consider the rival contentions on merits. All contentions raised by both the parties are left open to be considered by the respondent no.1 after giving an adequate hearing to both the parties in support of their rival contentions in the appeal preferred by the respondent no.3.

10. At this stage, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the petitioner has also pointed out that he was not given an opportunity to file a reply to the written arguments filed by the respondent no.3. No doubt, the respondent no.1 shall give such opportunity to the petitioner but without giving up the rights of both the parties to advance oral submissions in support of their rival contentions.

11. In view of the above, I pass the following :

ORDER

(i) The impugned judgment dated 29.05.2007 is quashed and set aside.

(ii) The Corporation Appeal No. Min(UD)/21/06 is restored to the file of the respondent no.1.

(iii) The respondent no.1 is directed to dispose of the above appeal as expeditiously as possible in the light of the observations made herein above after hearing the parties in accordance with law.

(iv) Rule is made absolute in above terms.

(v) Petition stands disposed of accordingly.

Ordered accordingly.