Gujarat High Court
Hajabhai Lakhmanbhai Atrolia vs State Of Gujarat on 9 July, 2025
NEUTRAL CITATION
C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16295 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 16316 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HAJABHAI LAKHMANBHAI ATROLIA
Versus
STATE OF GUJARAT
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Appearance:
MR. VATSAL RUPERA FOR MR ASHISH M DAGLI(2203) for the
Petitioner(s) No. 1
MR.DHAVAL U. TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 09/07/2025
COMMON ORAL JUDGMENT
1. Heard learned advocate Mr.Vatsal Rupera for learned advocate Mr. Ashish M. Dagli appearing for the petitioners and learned AGP Mr. Dhaval U. Trivedi for the respondent.
2. It is by now well-settled principle that any order passed by Civil Court is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Nevertheless, this Court having supervisory power under Article Page 1 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined 227 of the Constitution of India can entertain such an application under Article 227 of the Constitution of India.
3. It would be profitable to refer and rely upon the decision of Honourable Supreme Court of India in the case of Radhey Shyam & Anr. vs Chhabi Nath & Ors., reported in 2015 (5) SCC 423, wherein, in para 27, it was held thus:-
"Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."
(emphasis supplied)
4. Though these applications are filed under Article 226 of the Constitution of India, considering the fact that the orders of the District Court have been challenged by the petitioners in each matter, and in view of aforesaid position of law, the present applications are treated as being filed under Article 227 of the Constitution of India.
5. With the consent of the learned advocates appearing for the respective parties, both these Special Civil Applications are being decided by this common judgment. As such issue germen Page 2 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined in both these matters is an identical one and due to previous order passed by this Court, heard together.
6. For sake of convenience, facts in brief in both these cases are as under:-
6.1. Petitioners of Special Civil Application nos.16295 & 16316 of 2010 were President and Councillors of Ranavav Municipality who were subjected to summary inquiry initiated by the Respondent under section 70 (2) read with section 67 (1) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act of 1963") whereby they served with show cause notice by the respondent, as to why loss sustained by Municipality for the misapplication of its fund for gross neglect of petitioners duty as President/Councillors. The loss quantified in each case would be Rs.1,20,500/ and Rs.2,80,284/ respectively.
6.2. After completion of such summary inquiry wherein having received explanation of petitioners and so also reply received from chief officer of municipality, recorded and Page 3 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined referred to in its orders, the respondent came to definite conclusion that aforesaid losses sustained by said Municipality due to gross neglect of petitioners while performing duty as a President/Councillors as the case may be. Thus, passed an orders directing petitioners to make such losses good to Municipality.
6.3. The petitioners appear to have challenged respective orders of the respondent by filing respective appeal before District Court, Porbandar being Regular Civil Appeal No. 14 of 2007 and 16 of 2007 respectively. After hearing parties, District Court has dismissed both these appeals by way of its impugned judgement/order, which assailed by petitioners by way of present writ applications.
7. The present applications are filed seeking the following reliefs:-
"Prayer in Special Civil Application No.16295 of 2010 A. You Lordships may be pleased to admit and allow this application.
B. Your Lordships may be pleased to quash and set aside the order passed by the Learned Principal District Judge, Porbandar in Regular Civil Suit no.14 of 2007 at Annexure-A and further be Page 4 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined pleased to quash and set aside the order passed by the respondent dated 2.4.2007 in case no.3 of 2007 in the interest of justice.
C. Pending hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the order passed by the Learned Principal District Judge, Porbandar in Regular Civil Suit no.14 of 2007. D. To grant such other and further relief that may be deemed fit and proper in the interest of justice.
Prayer in Special Civil Application No.16316 of 2010 A) That this Hon'ble Court may be pleased to admit this Special Civil Application B) This Hon'ble Court may be pleased to allow this Special civil Application by quashing and setting aside the order passed by District Court, Porbandar in Reg.Civil Appeal No.16 of 2007 dated 25.8.2010 and also be pleased quash and set aside the order/decision passed by respondent dated 25.4.2007 in case No.11 of 2006 at Annexure-A in the interest of justice C) Pending admission, hearing and final disposal of this Special Civil Application, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the judgment and order passed by learned District Court, Porbandar in Reg.Civil Appeal No.16 of 2007 decided on 25.8.2010 and also the order passed by respondent dated 25.4.2007 in case No.11 of 2006 at Annexure-A in the interest of justice D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
8. SUBMISSION OF THE PETITIONERS 8.1. Learned advocate Mr. Rupera would submit that the respondent - State herein vide its order dated 02.04.2007, directed the petitioner to pay a sum of Rs.1,20,500/- & Rs. 2,80,284/ respectively, holding them grossly negligent in procuring various items in relation to the construction of the Page 5 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined work of gutter line and or water line as the case may be when they were working as President & Councillors of Ranavav Nagar Municipality.
8.2. Learned advocate, Mr.Rupera would further submit that neither respondent nor District Court have appreciated the submissions of the petitioners, which ultimately lend them to make payment of the aforesaid amounts, which was otherwise not required to be paid by the petitioners, having acted in the capacity of President & Councillors of the Municipality. 8.3. Learned advocate Mr. Rupera would further submit that the petitioners, being President and Councillors of the Municipality, were acting as per the tradition of the Municipality Act, whereby the procurement of items, which were required for the execution of work, was found reasonable, and, a resolution having been passed in the General Body for awarding the contract, no fault can be found with the petitioner, as there was no personal gain received by the petitioner while awarding such contract to agency. Page 6 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025
NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined 8.4. Learned advocate Mr. Rupera would further submit that the reply of the petitioners filed before the respondent, as well as the grounds of appeal as agitated before the District Court, were not at all appreciated and, thereby, the petitioners were wrongly held liable to pay the amount. 8.5. Learned advocate Mr. Rupera would further submit that merely because a tender processes were not undertaken by the petitioners, they could not have been held guilty for paying more amount while procuring the items so mentioned in the impugned orders passed by the respondent. 8.6. Learned advocate Mr. Rupera would further submit that the items which were procured and the contract that was awarded to the agencies were in line with the rates which were sanctioned by the State at that point of time; as such, no loss was caused to the Municipality.
8.7. To buttress his argument, the learned advocate Mr. Rupera would rely upon the decision of this Court in the Case Page 7 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined of Hinaben R Chauhan Versus State Of Gujarat reported in 2002 (4) GLR 3421.
8.8. Making the above submission, learned advocate Mr. Rupera would request this Court to allow the present writ applications.
9. SUBMISSION OF THE RESPONDENT STATE 9.1. Per contra, learned AGP Mr. Trivedi would submit that, as such, neither the respondent nor the District Court has committed any gross error of law while passing the order/judgment, as the case may be, and this Court, while exercising its jurisdiction under Article 227 of the Constitution of India, should not interfere in the matter. 9.2. Learned AGP would further submit that there is a concurrent finding of fact recorded by the respondent - authority as well as the District Court, rejecting all contentions raised by the petitioners; this Court may not re-appreciate the evidence on record and may not come to any different finding Page 8 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined and conclusion than what has already been passed by the respondents.
9.3. Learned advocate Mr. Trivedi would further submit that, undisputedly, the procurement of items by the petitioners were without floating tender and due to higher rates which were given for the procurement of time, ultimately, the Municipality, Ranavav, has been caused loss of Rs.1,20,500/-, for which the petitioners were held guilty and liable to pay as per Section 70 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act of 1963"). 9.4. Learned advocate Mr. Trivedi would further submit that there is nothing on record to substantiate the case of the petitioners that the items in question which were procured by the petitioner, were in line with the rates which are duly sanctioned by the State while awarding public contracts and in the absence of such material on record, this Court may not accept the submissions of the petitioner on their face value. Page 9 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025
NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined 9.5. Lastly, the learned advocate Mr. Trivedi would submit that the decision of this Court in the case of Hinaben (supra) would not be applicable to the facts of the present case as, prior to the passing of the order by the respondent, a show- cause notice came to be issued on 13th February 2007 wherein it has already been shown that due to the gross negligence on the part of the petitioner, the Municipality has sustained a loss of Rs.1,20,500/- & Rs. 2,80,284/ respectively. It is submitted that once such facts have been recorded in the show-cause notice as well as in the orders passed by the respondents, and it had been found that the Municipality has sustained a financial loss of Rs.1,20,500/- & Rs. 2,80,284/ respectively due to the misdeed and gross negligence of the petitioners, no error can be found in the order passed by the respondent as per Section 70 of the Act, 1963.
9.6. Making the above submission, learned AGP Mr. Trivedi would request this Court to dismiss the present application.
10. No other and further submissions are made. Page 10 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025
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11. POINT FOR DETERMINATION 11.1. The short question that falls for my consideration is whether, in the facts and circumstances of the present case, is there any gross error of law or any jurisdictional error committed by the District Court while dismissing the appeals filed by the petitioners, thereby confirmed the orders passed by the respondent-Director of Municipalities holding the petitioners liable to pay a sum of Rs.1,20,500/- and Rs. 2,80,284/ respectively?.
12. ANALYSIS
13. It is not in dispute that the petitioners were President and Councillors of the Municipality, Ranavav, when the contracts were awarded in the year 2000 in respective cases.
14. It appears that while awarding the contract and procuring the items so mentioned in the orders passed by the Respondent on 02th April, 2007 and 25th April, 2007 respectively, no tenders were floated by the Municipality and, as such, the procurement were made on the basis of Resolution No. 17 & Page 11 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined 41 passed by the Municipality in its General Body Meeting held on 08.05.2000 & 14.02.2000 respectively, whereby the petitioners, being President and Councillors who have authorized President, to purchase items who acted upon it by procuring the items without ascertaining whether such rates were government-approved rates or not and so also without floating tender as required under section 67 (1) of the Act of 1963 as such purchases in both cases were beyond Rs. 5000/.
15. As such, there is nothing on record to substantiate the averments of the petitioners that the rates which were approved and paid by the Municipality to the agencies were government-approved rates for which no tenders were required to be floated.
16. It is also undisputed on record that no tenders were floated to obtain the items in question, and it was later on found by the Collector, Porbandar, that there was some irregularities found in awarding of the contract as well as the procurement of items by the Municipality, vide its letters dated 19th October, 2006 and 26th December, 2006 and 01st August, Page 12 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined 2001 respectively addressed to the respondent, i.e., the Director of Municipalities, to take appropriate action in the matter.
17. The only defense submitted by the petitioner to wash their hands that they had procured the items as per the approved rates and, as such, approval was granted by the Urban Housing and Urban Development Department, Gandhinagar, vide its letter dated 22.11.1996 in first matter and, as such, there was no irregularity and/or any illegality was committed by them and, as such, there was no financial loss was caused to the Municipality in respective cases.
18. As referred to hereinabove, there is nothing on record to show to this Court that the rates which were approved and given by the petitioner to the third-party agency were government-approved rates.
19. So far as the permission/sanction granted by the Urban Housing and Urban Development Department, Gandhinagar, of the State of Gujarat, dated 22.11.1996 is concerned, it was in Page 13 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined relation to sanctioning the project of laying down the gutter for drainage, but it was not in relation to any procurement and/or awarding of contracts without following set norms and procedures under the Act of 1963. As such, the petitioner of Special Civil Application No.16295 of 2010 has not placed on record the aforesaid letter dated 22.11.1996, but bare reading of Ground No. 3 of the appeal memo of the aforesaid petition submitted before District Court would indicate the above-stated fact. Thus, observed and inferred as above.
20. At this stage, it would apt to refer following provisions of the Act of 1963 which according to me a mandatory requirements under Act of 1963 while procuring items and for which any such contract awarded to third party agency by Municipality.
"67. Tenders to be invited for contracts involving expenditure exceeding Rs. 5000:- (1) Except as is otherwise provided in sub-section (3), a Chief Officer shall, before entering into any contract for the execution of any work or the supply of any materials or goods which will involve an expenditure exceeding five thousand rupees, give notice by advertisement in a newspaper, inviting tenders for such contract:
Provided that where the work or supply involves an expenditure exceeding twenty thousand rupees, the Page 14 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined advertisement shall be published in such one or more daily newspapers as may be approved by the municipality :
Provided further that at least clear seven days shall be allowed to elapse between the date of the publication of the advertisement in the newspaper inviting tenders and the last date fixed for the receipt of tenders by the chief officer.
(2) The chief officer shall not be bound to accept any tender which may be made in pursuance of such notice, but may, with the approval of the executive committee, accept any of the tenders so made which appears to him, upon a view of all the circumstances, to be the most advantageous or may for reasons recorded reject all the tenders submitted to him.
(3) A municipality may authorise the chief officer, for reasons which shall be recorded in its proceedings, to enter into a contract without inviting tenders as herein provided or without accepting any tenders which he may receive after having invited them.
70. Liability of councillors for misapplication:- (1) Every councillor shall be personally liable for the misapplication of any fund to which he shall have been a party, or which shall have happened through or been facilitated by gross neglect of his duty as a councillor:
Provided that no councillor shall be personally liable in respect of any contract or agreement made, or for any expense incurred by, or on behalf of the municipality; the funds at the disposal of each municipality shall be liable for, and be charged with, all costs in respect of any contract or agreement and all such expenses.
(2) If after giving the councillor concerned a reasonable opportunity for showing cause to the contrary, an officer authorised by the State Government is satisfied that the councillor was party to the misapplication of any fund of the municipality or that the misapplication is a direct consequence of misconduct or gross neglect on his part, the officer so authorised shall by an order in writing direct such councillor Page 15 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined to pay to the municipality before a fixed date, the amount required to be reimbursed to it for such misapplication.
(3) If the amount is not so paid, it shall be recovered as an arrear of land revenue and credited to the fund of the municipality. Security when to be taken for performance of contract. Liability of councillors for misapplication. (4) Any person aggrieved by the decision or action of the officer so authorised may within one month from the date of such decision or action apply to the District Court for redress of his grievance and that Court after taking such evidence as it thinks necessary may confirm, modify or set aside the order and also make such order as to costs as it thinks proper in the circumstances."
21. The conjoint reading of the aforesaid provisions would clearly suggests that tender were required to be floated when items were purchased in both cases which was consciously not done so and President though not authorized to enter into contract on behalf of Municipality awarded contract while procuring items described in detail in both orders passed by the Respondent. As such, Councillors including President have not acted in just and reasonable manner rather acted in flagrant violation of mandatory provisions of the Act of 1963 for which held liable to pay the amount so quantified by Respondent in its respective orders in respective cases. Page 16 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025
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22. Thus, considering facts and circumstances of the both case, Petitioners - President and Councillors both have misused their office by awarding contract to agency without inviting tender rather, it has been successfully proved as recorded by Respondent in its orders that there was a financial loss caused to Municipality and same was facilitated by gross neglect of duty as a councilor in each case.
23. So far as the decision of the coordinate bench in the Hinaben (supra) is concerned, there is no cavil that unless there is an actual financial loss caused to the Municipality, no action can be initiated against Councillor, including the President, for mere procedural irregularity, such as not obtaining prior permission.
23.1. The ratio of the aforesaid decision would not be applicable to the facts of the present case and would not help the case of the petitioners any longer, inasmuch as in the present case, the Director of Municipalities, who is the competent authority under Section 70 of the Act, 1963, have Page 17 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined found that there was a financial loss caused to the Municipality due to the gross negligence of the petitioners. Of course, such losses were caused due to the not following of set procedure as per Section 67 (1) of the Act, 1963 having not floated tenders before entering into any contract for the execution of any work or the supply of any materials or goods worth more than Rs. 5000/ as the case may be.
24. Lastly, the present petitions are filed against concurrent finding of facts recorded by the Respondent - Authority as well as the District Court. When this Court exercises its jurisdiction under Article 227 of the Constitution, cannot re-appreciate the evidence on record and come to a different conclusion unless it has been shown that such conclusion is erroneous, perverse, and arbitrary, and/or contrary to the provisions of law. As stated hereinabove, the petitioner could not make out any such fallacy in the impugned judgment/order. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)]. Page 18 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025
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25. CONCLUSION 25.1. In light of the aforesaid facts and circumstances of the case, and even after going through the judgment and orders passed by the respondent as well as the District Court, I am of the view that there is no gross error of law nor any jurisdictional error committed by the respondent and/or the District Court, as the case may be, while passing the respective judgment and order assailed in the respective writ applications. 25.2. As per the order passed by the respondent, the petitioner of Special Civil Application No.16295 of 2010 was required to deposit Rs.1,20,500/- and the petitioners of Special Civil Application No.16316 of 2010 were required to deposit Rs.23,357/ each, and while admitting these matters, this Court, by its order dated 19th January 2011, stayed the respective orders on the condition that the petitioners shall deposit such amount as directed by the Respondent. 25.3. If such amount so far has not been deposited by the petitioners, the petitioners are hereby directed to deposit such Page 19 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025 NEUTRAL CITATION C/SCA/16295/2010 JUDGMENT DATED: 09/07/2025 undefined amount within 15 days from today alongwith interest as quantified by the Respondent in its orders, failing which, the petitioners will be subjected to the payment of the costs of this litigation, which is quantified at Rs.25,000/- per petition cost to be deposited with DLSA, Porbandar.
25.4. Such amount, as fixed by the Director of Municipalities in its impugned orders, and the amount of costs fixed by this Court as above, shall be recovered from the respective petitioners by Ranavav Municipality through its Chief Officer and DLSA, Porbandar respectively, albeit in accordance with law.
25.5. Thus, in view of the aforesaid, I do not find any merit in the writ applications, which are require to be dismissed and in fact hereby DISMISSED. Consequently, orders passed by the Respondent and so also by the District Court in respective cases are hereby confirmed. Accordingly, Rule is discharged subject to aforesaid costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 20 of 20 Uploaded by MOHD MONIS(HC01900) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 23:13:03 IST 2025