SCA/7359/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7359 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HANSABEN SUNILKUMAR THAKKAR - Petitioner(s) Versus THE DISTRICT COLLECTOR & 1 - Respondent(s) ========================================================= Appearance : MR JAGDISH H MEHTA for Petitioner(s) : 1, MR VINAY PANDYA, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. DS AFF.NOT FILED (N) for Respondent(s) : 1, MR DEEPAK P SANCHELA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 29/09/2008 ORAL JUDGMENT SCA/7359/2008 2/4 JUDGMENT 1. Rule. Mr. Pandya, learned AGP waives notice of Rule for respondent No.1 and Mr.Sanchela for respondent No.2. 2. With the consent of the learned advocates appearing for both the sides, the matter is finally heard. 3. The petitioner by this petition has challenged the order dated 22.04.2008 passed by the District Collector, Patan, whereby the Resolution of the Municipality dated 17.01.2007 for renewing the lease in favour of the petitioner is suspended permanently. 4. Heard Mr.Mehta for the petitioner, Mr.Pandya, learned AGP for respondent No.1 and Mr. Sanchela for respondent No.2. 5. Upon hearing the learned counsel appearing for both the sides, it appears that it is an admitted position that no opportunity of hearing has been given by the District Collector to the petitioner before passing the impugned order and therefore, the impugned order (Annexure-A) since is passed in breach of principles of natural justice, cannot be sustained. 6. Mr.Sanchela, learned counsel appearing for the respondent however submitted that it was a wrong action on the part of the Municipality and without prior approve of the Collector, lease SCA/7359/2008 3/4 JUDGMENT could not be renewed and therefore, he submitted that this Court may not set aside the order of the Collector, more particularly when the Director of Municipality has also initiated proceedings against the office bearers of the Municipality and who not implement the order of the Collector. 7. In my view, if the decision of the Municipality is illegal, which the Collector may examine the said aspects after giving opportunity of hearing to the petitioner since the petitioner can be said as affected party by the decision. Further, if the Director of Municipality has initiated proceedings against the officer bearers of the Municipality, the same may continue, subject to the hearing of the petitioner and passing the fresh order by the Collector as ordered hereinafter. 8. In the above view of the matter, the impugned order (Annexure-A) is quashed and set aside on the ground of breach of principles of natural justice with further direction that the matter shall stand restored to the Collector of Case No. 43/07. The opportunity of hearing shall be given by the Collector to the petitioner as well as to the Municipality if required and afresh order shall be passed as early as possible, preferably within a period of six weeks from the receipt of the order of this Court. SCA/7359/2008 4/4 JUDGMENT 9. It is also observed that it will be open to the Collector to pass the fresh order independently on the basis of the material available before it and the rights and contentions both the sides shall remain open in such proceedings. 10.The present order shall not operate as a bar to the Municipality to take any action in accordance with law there is breach of any conditions of the lease. 11.Petition is allowed to the aforesaid extent. Rule is made absolute accordingly. D.S. (JAYANT PATEL, J.) *bjoy