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SCA/3880/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3880 of 2010
=========================================================
RAMANBHAI
ANTOLBHAI PATEL & 2 - Petitioner(s)
Versus
VADODARA
MUNICIPAL CORPORATION & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL S SHAH for
Petitioner(s) : 1 - 3.MR SURESH M SHAH for Petitioner(s) : 1 -
3.
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 30/03/2010
ORAL
ORDER
1.
The petitioners have invoked Articles 14 and 226 of the
Constitution with the prayers to set aside the notice dated
21.8.2009 under Section 192 read with Section 155 of the Bombay
Provincial Municipal Corporation Act, 1949 ( for short the Act )
and to restrain the respondents from disturbing, or entering into,
the possession of their lands. The impugned notice clearly states
that the respondent Municipal Corporation intends to lay pipeline
for water supply along 18 mtr. wide proposed road which is passing
through Survey No.1 claimed to be the petitioners’ land at present.
2. Petitioners
are already informed by letter dated 26.12.1996 of the Baroda Urban
Development Authority that the lands of Survey No.1 is falling into
residential zone, and on the western side of it, the proposed 18 mtr.
wide road is going to affect the use of the land.
3. It
was vehemently argued by learned counsel Mr.Shah that the petitioners
were required to be given an opportunity of being heard and for
explaining to the respondents that pipeline could be laid along a
better route to save the existing structure owned or occupied by the
petitioners on the lands in question. He relied upon the judgment of
Division Bench of this Court in Killol V.Shelat vs. Municipal
Corporation of City of Ahmedabad reported in 2009(1) GLH 13,
wherein it was observed in the context of the provisions of Sections
210 and 213 of the BPMC Act that a citizen who has been deprived of
valuable right of property is entitled to the minimum right of
hearing. It is by now well settled that, without affording
opportunity of being heard, no order adverse to a person can be
passed. Principles of natural justice require that before taking
action against the citizen, he must have a right to be heard. It is,
however, also observed by the Division Bench that such requirement of
principles of natural justice can be abridged or even totally shut
out. That can be done only by statutory provisions or by necessary
implication. In other words, when the statute is silent, principles
of natural justice can be read into it and unless a statutory
provision specifically or by necessary implication dispenses with the
principles of natural justice, hearing must be given before passing
any adverse order.
4.
It was also submitted by learned counsel Mr.Shah that the route for
laying the pipeline was along the street which was only proposed and
the development plan in that regard was yet to be finalised and
sanctioned. That, however, is wholly irrelevant as far as operation
of provisions of Section 155 and Section 192 is concerned.
5.
Reading the provisions of Section 155 and Section 192 of the Act, in
light of the observations as aforesaid, it is fairly clear that
provisions of Section 155 and Section 192 are made for constructing,
carrying or repairing essential services like drains and pipelines
for water supply. The provisions are made to carry out the work and
not to plan or prescribe any work or make adverse orders, and the
notice is envisaged only to facilitate the affected party in
minimising damage and in cooperating with the municipal authorities
in carrying out the work. In
such circumstances, the opportunity of hearing as envisaged
in other provisions of the same act could not be read in the
provisions of Section 155 and Section 192 of the Act. Instead, the
principles of natural justice, a notice for showing cause or taking
of any decision after affording to the parties concerned an
opportunity of being heard are excluded by necessary implication.
Therefore, in absence of any allegation of mala
fide,
this Court would not be justified in staying or setting aside the
impugned notice. It is already clarified in the impugned notice, and
it is further clarified hereby that the petitioner’s right to claim
compensation, if any, under the provisions of any law shall not be
affected by carrying out the laying of pipeline in terms of the
impugned notice.
6.
With these observations, the petition is summarily dismissed.
(
D.H. Waghela, J. )
syed/
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