Ukabhai Polabhai Solanki vs State Of Gujarat
2021 Latest Caselaw 169 Guj

         C/SCA/9662/2020                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9662 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 or any
      order made thereunder ?

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                           UKABHAI POLABHAI SOLANKI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR MAULIK NANAVATI FOR NANAVATI & CO.(7105) for the Petitioner(s)
No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR CHINTAN S POPAT(5004) for the Respondent(s) No. 4
MR HS MUNSHAW for the Respondent(s) No. 3,
RULE SERVED(64) for the Respondent(s) No. 2,5
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    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 07/01/2021

                               ORAL JUDGMENT

Heard learned advocate Mr. Maulik Nanavati for

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Nanavati and Co for the petitioner, learned advocate Mr. H.S. Munshaw for respondent no.3, learned advocate Mr. Chintan Popat for respondent no. 4 and learned Assistant Government Pleader Mr. Krutik Parikh for the respondent­State through video conference.

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

"(a) To issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting the impugned order dated 17.06.2020 passed by the Additional Development Commissioner in Vivad Application No.26 of 2019 and restore the order dated 10.06.2019 passed by the District Development Officer, Gir Somnath ordering removal of respondent no.4 from office of Sarpanch of Kesariya Gram Panchayat;

(b) Pass an ex parte ad interim order staying the operation of the impugned order dated 17.06.2020 passed by Additional Development Commissioner in Vivad Application No.26 of 2019 pending the hearing and final disposal of the present petition;

(c) To pass such other order and grant such other relief as may be deemed appropriate in the facts and circumstances of the present case."

2. The brief facts of the case are as under:­

2.1 A complaint came to be given by the petitioner in September, 2017 to the District Development Officer, Gir Somnath alleging

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commission of financial irregularities by respondent no.4, who at the relevant point of time was serving as Sarpanch of Kesariya Gram Panchayat. It was alleged in the complaint that respondent no.4, in his capacity as Sarpanch, purchased 80 LED light for installation on street light poles at Rs.4100/­ per unit from one Raichura Energy which vendor was otherwise selling the same light bulbs in open market at Rs.2800/­ per unit and thereby caused monetary loss to the panchayat of an amount of Rs.1,04,000/­. It was further alleged that no tenders were floated or bids were invited and no purchase procedure as prescribed in law was followed by respondent no.4 prior to making purchase of the lights. It was also alleged that respondent no.4 had withdrawn cash of Rs.3,20,000/­ purportedly for making payment against various vouchers which procedure is completely unknown to law. Some other instances of financial irregularities and supervisory lapses were also mentioned in the complaint.

2.2) An inquiry, under Section 57 of the Gujarat Panchayat Act 1993 ("the Act" for short) was conducted by the respondent no.3­District Development Officer, Gir Somnath. It is the case of the petitioner that after granting an opportunity of personal hearing and after considering the material placed by respondent no.4, the District Development Officer by an

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order dated 10.06.2019 ordered removal of respondent no.4 from office of Sarpanch of Kesariya Gram Panchayat.

2.3) Respondent no.4 filed an appeal being Vivad Application No. 26/2019 under Section 57(3) of the Act before the Additional Development Commissioner - respondent no.2 which came to be allowed by an order dated 17.06.2020. Being aggrieved by the said order, the petitioner has preferred the present petition.

3. Learned advocate Mr.Maulik Nanavati would submit that the Appellate Authority did not assign reasons for reversing the order passed by the District Development Officer and therefore, the impugned order dated 17.06.2020 passed by the Additional Development Commissioner is liable to be quashed and set aside and the matter is required to be remanded back to the Additional Development Commissioner so as to pass a fresh denovo order giving reasons for reversal of the order passed by the District Development Officer.

4. On the other hand, learned advocate Mr.Chintan Popat for the respondent no.4 would submit that the petitioner has no locus to prefer this petition and therefore, the petition is not maintainable. Mr. Popat relied upon the decision of the Apex Court in case of Ravi

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Yashwant Bhoir v. District Collector reported in 2012 (4) SCC page 407, wherein it is held as under :

"44: Shri Chintaman Raghunath Gharat, Ex­ President was the complainant, thus, at the most, he could lead the evidence as a witness.

He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat probation valuntas reasons i.e. a claim devoid of reasons. Under the garb of being necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party. (Vide: Adi Pherozshah Gandhi

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v. H.M. Seervai, Advocate General of Maharashtra, AIR 1971 SC 385; Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed & Ors., AIR 1976 SC 578; Maharaj Singh v. State of Uttar Pradesh & Ors., AIR 1976 SC 2602; Ghulam Qadir v. Special Tribunal & Ors., (2002) 1 SCC 33; and Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors., (2008) 10 SCC 766). The High Court failed to appreciate that it was a case of political rivalry. The case of the appellant has not been considered in correct perspective at all."

5. Mr. Popat further submitted that the petitioner has also not come with clean hands, as the petition is filed with a malafide intention because the respondent no.4 has lodged the complaint against the petitioner while the wife of the petitioner was Sarpanch and as a retaliation, the petitioner has lodged the complaint against the respondent no.4. Mr. Popat submitted that the Appellate Authority has passed the impugned order after taking into consideration the material on record and therefore, no interference is called for while exercising the powers under Article 227 of the Constitution of India.

6. Learned advocate Mr.Nanvati in rejoinder submitted that the complaint referred by Mr.Popat is after three months from the date of passing of the order by the District Development Officer and therefore, it cannot be said that the petitioner has filed the complaint as a retaliation to the complaint filed by the

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respondent no.4.

7. Learned advocate Mr.Munshaw for the respondent no.3 ­ District Development Officer is a formal party.

8. Having heard the learned advocates for the respective parties and having considered the impugned order passed by the Additional Development Commissioner, it is apparent that Additional Development Commissioner has not given any reason for reversing the order dated 10.06.2019 passed by the District Development Officer with regard to the aspects which are considered by the District Development Officer while passing the order dated 10.06.2019 removing the respondent no.4 from the post of Sarpanch under Section 57 of the Gujarat Panchayat Act, 1993.

9. The Additional Development Commissioner passed the impugned order by recording the submissions made on behalf of the respondent no.4 and remarks dated 16.7.2019 of the District Development Officer and came to the conclusion that the District Development Officer did not consider the documentary evidence produced on record with regard to the letter dated 08.01.2019 of Raichura Energy as well as less amount paid with regard to the excavation of the land. However, there is no reason recorded by

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the Additional Development Commissioner with regard to the other allegations which have been found favour with the District Development Officer with regard to the payment of cash of Rs.3,20,000/­ in violation of the rules.

10. With regard to the contention raised by the learned advocate for the respondent no.4 that the petitioner has no locus to challenge the order passed by the Additional Development Commissioner is concerned, the petitioner is the complainant who succeeded before the District Development Officer. It is true that the petitioner was not party before the Additional Development Commissioner when respondent no.4 challenged the order passed by the District Development Officer. The petitioner has however, challenged the order passed by the Additional District Development Officer as the Additional District Development Officer has allowed the appeal filed by the respondent no.4 without assigning any reason for reversing the order passed by the District Development Officer. In such circumstances, the petitioner is entitled to challenge such order as it cannot be said that there is no lis between the petitioner and the respondent no.4, more particularly, when the petitioner is a resident of the village whose rights are crystallized by virtue of the order passed by the District Development Officer and the District Development Officer has found

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irregularities with regard to the conduct of the respondent no.4. In such circumstances, the reliance placed by learned advocate Mr.Popat on decision of the Apex Court in case of Ravi Yashwant Bhoir V/s. District Collector, Raigad reported in AIR 2012 SC 1339 is not applicable in the facts of the case, as in the said case, the authorities confirmed the disqualification of the petitioner therein and said order of confirmation of the disqualification was challenged before the higher authority and in that circumstances, the Apex Court held that the complaint cannot be joined as a necessary party as there is no lis between the complainant and the petitioner and hence, he cannot claim status of an adversarial litigation. However, in the facts of the case the petitioner has filed the present petition under Article 226 of the Constitution of India, only to point out the infirmity in the impugned order passed by the Additional Development Commissioner and in that view of the matter, the petition is maintainable under Article 226 of the Constitution of India.

11. Considering the above discussion, it is apparent that the Additional Development Commissioner has passed absolutely slipshod order without assigning any reason much­less any cogent reason to reverse the detailed reasoned order passed by the District Development Officer.

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12. In such circumstances, without adverting on the merits of the matter, the impugned order dated 17.06.2020 passed by the Additional District Development Commissioner is hereby quashed and set aside and the matter is remanded back to the Additional Development Commissioner to pass a fresh de­novo order taking into consideration the material on record by giving detailed reasons in support thereof. Such exercise shall be completed within a period of three months from the date of receipt of this order. It is clarified that this Court has not examined the merits of the case and the Additional Development Commissioner is required to pass a fresh order in accordance with law without being influenced by any observation made in this order.

13. Rule is made absolute to the aforesaid extent.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR