ORDER : (ASHUTOSH J. SHASTRI, J.) 1. Present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against the oral order dated 6.6.2022 passed by the learned Single Judge in Special Civil Application No.3177 of 2016. 2. The case of the appellants- original petitioners is that for the benefit and welfare of animals, a shelter house came to be constructed after following proper procedure and in accordance with law and after obtaining necessary permissions. On account of financial crunch observed by Panjra Pole Trust, commercial shops were constructed on one part of the building facing subject road, which is proposed to be 24 meters vide, and on the other side of the building, residential quarters are constructed. These commercial shops and construction put up were with a sole idea to generate income since appellants being occupiers and tenants of these shops they are regularly paying rent to Goushala which proceeds are being utilized for welfare of the animals and utilized for their shelter and nourishment. 3. It is the case of the appellants that in the year 1996, work of Town Planning Scheme Nos.7 and 8 for city of Rajkot came to be drafted, which got finalized and according to the appellants-petitioner, said Town Planning Scheme Nos.7 and 8, road and public streets with their width were prescribed and for present, Bhavnagar road as per Town Planning Scheme was proposed to be 24 meters wide. According to appellants, under the guise of widening of road, deviation in road line of public street prescribed in final Town Planning Scheme Nos.7 and 8 has been commenced. Resultantly, commercial shops which are in occupation of the present appellants will be adversely affected and surprisingly, the then Trustees of Rajkot Mahajan Panjara Pole Trust submitted an affidavit to the Corporation giving consent for demolition and on account of such road widening, according to appellants, there was no authority to submit such affidavit dated 17.11.2009, resolutions came to be passed and as a result of it, respondent Corporation served a notice under Section 210 of the Gujarat Provincial Municipal Corporation Act, 1949 (‘GPMC Act’) to the appellants and as such, left with no alternate, appellants were constrained to approach this Court by filing Special Civil Application No.3177 of 2016 for assailing the action of the respondent authority. 4. 4. Said Special Civil Application challenging action of respondent authority in issuing consequential order dated 22.2.2016 came to be preferred, which had come up for consideration before the learned Single Judge who by oral order dated 6.6.2022, dismissed the petition and interim relief which came to be granted earlier was vacated. However, upon request of appellants, said interim relief which was in operation was ordered to be extended till 6.7.2022. Hence, with this background, present Letters Patent Appeal has been filed. Learned senior Advocate Shri Yatin Oza assisted by learned advocate Mr. Jit Patel has represented the appellants. Whereas Shri H.S. Munshaw, learned advocate, has represented respondent No.1 authority whose action was basically under challenge. 5. Learned senior advocate Shri Yatin Oza appearing for the appellants has submitted that action on the part of respondent authority is not only unjust and arbitrary but without an authority of law and as such, contending all aspects urged not been properly considered by the learned Single Judge and order under challenge requires to be set aside by granting consequential reliefs as prayed for, has sought for allowing the appeal. It has been been contended that road in question, which is sought to be expanded, is actually the road prescribed under sanctioned Town Planning Scheme, which has now become part of the Act by virtue of its finalization and as such, if proposed action is implemented, same would tantamount to tinkering with the scheme which has attained finality. Shri Oza has submitted that there is a set procedure prescribed under the Town Planning Act and if any deviation or verification or modification is to be undertaken in finalized Town Planning Scheme and for that purpose, Shri Oza has drawn attention of this Court to Sections 66, 70, 70(A), 71 and 74 of the Town Planning Act and as such, it is submitted that action under GPMC Act is impermissible. 6. 6. Learned senior advocate Shri Yatin Oza has also submitted that had there been any intention on the part of the respondent authority to widen the road on account of demand, the issue would have been different, but here is a case in which, respondent authority under guise of widening of road, in effect is making realignment of road which is impermissible in view of the scheme having attained finality and for undertaking such an exercise, according to Shri Oza, powers either under Section 210 or under Section 212 cannot be resorted to. Hence, he contends action on the part of respondent authority is not just and proper. 7. According to learned senior advocate, learned Single Judge has not properly examined the core issue, instead went on examining as to whether the construction put up by writ applicants is authorized, legal or not, which was not the subject matter of controversy since impugned notices which have been issued are not for any illegal construction, and as such, core issue having not been properly dealt with by the learned Single Judge, impugned order requires to be corrected. It has been further contended that in effect, impugned decision is though mentioned under the provisions of GPMC Act, but in effect, it touches decision related to Town Planning Scheme, which has attained finality and that is the reason why Town Planning officer has issued communications. Shri Oza has submitted that in effect, original notice was issued by the Commissioner of Municipal Corporation and hearing was also held by the Commissioner himself, but impugned decision which has been communicated is by an authority which is not invested with the power and as such, this is in flagrant violation of principles of natural justice since hearing is extended by one officer, order is passed by another, which is impermissible and as such, in any case, impugned order is unsustainable. Hence, he prayed for the relief sought for being granted in the interest of justice. No other submissions have been made. 8. As against this, learned counsel Mr. H.S. Munshaw appearing on behalf of the contesting respondent authority has submitted that there is no reference about such contention related to Town Planning Scheme raised either in the pleadings or in the memorandum of writ application. It is only during the course of oral submissions, such a contention was attempted to be raised. According to Mr. H.S. Munshaw appearing on behalf of the contesting respondent authority has submitted that there is no reference about such contention related to Town Planning Scheme raised either in the pleadings or in the memorandum of writ application. It is only during the course of oral submissions, such a contention was attempted to be raised. According to Mr. Munshaw, this widening of road has nothing to do with the Town Planning Scheme issue and as such, attempt now being made by the petitioners to divert the attention from core issue should not be accepted. He would contend the occupiers have raised unauthorized construction and it has been put up contrary to development permission, so much so one of the office bearers of Panjara Pole Trust filed an affidavit that in case of exigency, they would leave the setback or permit the authority to remove the offending construction and learned Judge has also specifically taken note of such affidavit, as clearly visible from paragraph 17 of the order impugned. Rajkot Mahajan Panjara Pole Trust had assured through its Secretary Mr. Rajendra Ratilal Shah to handover possession of the land situated on Bhavnagar road side as and when Corporation would require the same for widening of the road. Now, having assured the Corporation by this very Trust which was entrusted with the land, there is hardly any legitimate right available for these occupiers to raise any grievance as not only they are but Trust personnel and are bound by such assurance given to the Corporation. It has been submitted that in an identical issue related to such kind of grievance in another petition also, an order of rejection came to be passed and as such, when order in question is passed after due application of mind and after considering every circumstance, there is hardly any reason for appellants to raise any grievance about the impugned order. In fact, it has been categorically found that while taking action, respondent Corporation has invoked provisions GPMC Act and while taking such action, proper procedure has been followed and same has been considered by the learned Single Judge that adequate opportunity had been given by issuance of show cause notice to these appellants-petitioners and as such, when no development permission has at all been granted to Panjara Pole Trust for such construction of shopping center on the road side, equitable jurisdiction has rightly not been exercised by the learned Single Judge. Accordingly, such a well reasoned order may not be disturbed in the interest of justice. 9. However, learned counsel Mr. Munshaw has candidly not been able to dispute the circumstance that original notice was given under Section 212 dated 2.2.2016 by the Commissioner of Rajkot Municipal Corporation and even hearing was also extended to these affected persons by the Commissioner himself. But based upon such process, Town Planning Officer of Rajkot Municipal Corporation has passed impugned communication/order dated 22.2.2016 and copy was forwarded to the Commissioner and as such, he would admit that hearing is given by one officer and order is passed by another officer and he has also not been able to dispute the fact that while taking action either under Section 210 or 212 of GPMC Act, it is the Commissioner who is invested with the power under the Statute. Furthermore, Standing Committee has been also entrusted such power for taking action in this regard with respect to several roads to Municipal Commissioner only. It is in this background of fact, learned advocate Mr. Munshaw has left it to the discretion of Court and has prayed for dismissal of the Letters Patent Appeal on the ground that appellants have not made out case. 10. Though several contentions have been raised as aforesaid, we are of the considered view that only point that arises for our consideration in this petition would be: Whether the impugned order dated 22.2.2016 at Annexure- C is sustainable in law or not? A perusal of the impugned order would indicate that it is passed by the Town Planning Officer, Rajkot Municipal Corporation. In the said order, there is a reference to the notice dated 2.2.2016 at Annexure-C, which is issued by the Commissioner. A perusal of the impugned order would indicate that it is passed by the Town Planning Officer, Rajkot Municipal Corporation. In the said order, there is a reference to the notice dated 2.2.2016 at Annexure-C, which is issued by the Commissioner. A perusal of Section 212 of The Gujarat Provincial Municipal Corporations Act, 1949 would indicate that, if any building or any part thereof is within the regular line of a public street and if, in the opinion of the Commissioner, it is necessary to set back the building to the regular line of street, he may, if the provisions of section 211 do not apply, issue a notice in writing:— (i) require the owner of such building to show cause within such period by specifying in the notice the statement as to why such building or any part there of, which is within the regular line of the street, shall not be pulled down and the land within the said line acquired by the Commissioner; (ii) require the said owner on such day to attend personally the hearing by showing cause by specifying the date and time of hearing. 11. Even the resolution passed by Rajkot Municipal Corporation dated 21.11.2014 would indicate that the Commissioner has been authorized to take steps by said resolution, which reads thus:- “The Commissioner has considered the above Report and as per Section 210 of the GPMC Act, 1949 the City's total 17 roads beings decided to be brought under regular line of public street and the Commissioner has according for three roads the section 212 proceedings to be made for that the Municipal Commissioner to be authorized has been approved. xxxx Date: 21.11.2014 Sd/- Nitin Bhardwaj Chairman Standing Committee Rajkot Municipal Corporation” 12. Pursuant to the same, A notice dated 1.1.2016 came to be issued to writ applicants fixing hearing date as 5.1.2016 at 4 p.m. and subsequently the notice dated 2.2.2016 under Section 212 of the Gujarat Provincial Municipal Corporations Act, 1949 came to be issued by the Commissioner. It is thereafter impugned order has been passed not by the Commissioner but by the Town Planning Officer. 13. The Hon’ble Apex Court in the case of Gullapalli Nageswara Rao And Others Vs. It is thereafter impugned order has been passed not by the Commissioner but by the Town Planning Officer. 13. The Hon’ble Apex Court in the case of Gullapalli Nageswara Rao And Others Vs. Andhra Pradesh State Road Transport Corporation and Another reported in AIR 1959 SC 308 has observed that the expression ‘executive power’ would include quasi-judicial powers vested in the Government by Statute, so that the delegation of such power the State Government to be exercised by some officer subordinate to the Governor, would not be unconstitutional. In the said case, hearing was done by the Secretary, Transport Department and final decision was rendered by the Minister In-Charge namely, Minister for Transport and it was held that the person, who had heard should pass the order and the decision cannot be by a person other than who had heard the matter. 14. This view also receives support from the later judgment of the Hon’ble Apex Court in the case of R. Chitralekha & Anr vs State Of Mysore & Others reported in AIR 1964 SC 1823 whereunder it has been held that person who passed the order on behalf of the Government had no authority to take the decision on behalf of the Governor, under any law or relevant rules. Mr. H.S.Munshaw, learned counsel appearing for the respondent does not dispute the fact that it is the Commissioner and Commissioner alone being empowered to pass the order. In other words, he would admit that mandate of Section 212 of the Gujarat Provincial Municipal Corporations Act, 1949 is authorizing and empowering the Commissioner to pass orders. 15. In view of the aforesaid undisputed background of facts, what is emerging clearly from the facts on hand is impugned decision, which was subject matter of main Special Civil Application dated 22.2.2016, is passed and signed by Town Planning Officer, which relates to the subject of 9 public streets and for which, it appears that powers have been resorted to under Sections 210 and 212 of GPMC Act. A close perusal of said communication would also indicate that it is his own conclusion that whatever representations in person were made before the Commissioner on 8.2.2016 were not accepted and as such, called upon the notices to remove portion of the building purportedly encroaching the road, as indicated in the notice within a period of 5 days. A close perusal of said communication would also indicate that it is his own conclusion that whatever representations in person were made before the Commissioner on 8.2.2016 were not accepted and as such, called upon the notices to remove portion of the building purportedly encroaching the road, as indicated in the notice within a period of 5 days. Thus, it would clearly emerge that original notice dated 2.2.2016 came to be issued by the Commissioner of Corporation and personal hearing was extended by the Commissioner. However, rejecting the representation of writ applicant by arriving at a conclusion ultimately is arrived at by the Town Planning Officer and his decision is communicated not only to the petitioners but copy is also forwarded to the Commissioner. There appears to be flagrant violation of the settled principles of law enunciated by catena of decisions referred to herein supra. Hence, on this ground also, we deem it proper to set aside the impugned communication dated 22.2.2016. Since this solitary undisputed fact which is unfolded in the instant case is sufficient enough to quash the action impugned in the petition. Hence, we deem it proper not to enter into other contentions which are tried to be raised and we leave it open for the parties to agitate the same in case of necessity at a later point of time. 16. While coming to this conclusion about the aforesaid convincing ground for setting aside the action, in addition to earlier decisions of Hon’ble the Apex Court reported in AIR 1959 SC 302 and other decisions, a decision in recent point of time reported in the case of Union of India and others Vs. Shiv Raj and others reported in (2014) 6 SCC 564 requires to be noticed with benefit wherein it has been held: 17. This Court in Gullapalli Nageswara Rao held: (AIR p. 327, para 31) “31. … Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” (emphasis added) 18. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” (emphasis added) 18. This Court in Rasid Javed v. State of U.P. following the judgment in Gullapalli Nageswara Rao, held that: (Rasid Javed case, SCC p. 796, para 51) “51. … a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted.” 19. A similar view has been reiterated by this Court in Automotive Tyre Manufacturers Assn. v. Designated Authority18, wherein this Court dealt with a case wherein the designated authority (DA) under the relevant statute passed the final order on the material collected by his predecessor-in-office who had also accorded the hearing to the parties concerned. This Court held that the order stood vitiated as it offended the basic principles of natural justice. 20. In view of the above, the law on the issue can be summarised to the effect that the very person/officer, who accords the hearing to the objector must also submit the report/take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice. Hence, a strong case is made out by the appellants to allow the appeal on aforesaid main contention and as such, we proceed to pass following: ORDER (1) Letters Patent Appeal stands ALLOWED by setting aside impugned order passed by learned Single Judge on aforesaid main contentions as also order dated 22.2.2016 passed by the authority is hereby quashed and set aside, with a consequential direction that respondent authorities, i.e. respondent No.1, shall extend fresh opportunity to the original writ applicants. The writ applicants shall appear before first respondent on 26.07.2022 at 3:00 PM. The first respondent is not required to issue any fresh notice to the parties. After considering the same, first respondent shall pass a fresh order in accordance with law within THREE (3) WEEKS from date of hearing as stipulated. The writ applicants shall appear before first respondent on 26.07.2022 at 3:00 PM. The first respondent is not required to issue any fresh notice to the parties. After considering the same, first respondent shall pass a fresh order in accordance with law within THREE (3) WEEKS from date of hearing as stipulated. (2) It is needless to say that since we have set aside impugned action as well as order passed by leaned Single Judge on solitary ground, as stated above, we have not expressed any opinion with regard to other issues and it is left it open for the respondent No.1 to pass fresh order in accordance with law. 17. It is made clear while parting with present order that original writ applicants shall cooperate with the 1st respondent who shall extend opportunity to the writ applicants afresh and the failure of writ applicants to appear on the date of hearing fixed, it would be open for the 1st respondent authority to proceed to pass appropriate order even ex-parte and in accordance with law the time schedule as fixed hereinbefore. 18. Since main Letters Patent Appeal is disposed of, connected Civil Applications, if any, stands consigned to records.