Mahipatsinh Kesrisinh Chauhan vs State Of Gujarat
2021 Latest Caselaw 13555 Guj

      C/SCA/1460/2020                               ORDER DATED: 07/09/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/SPECIAL CIVIL APPLICATION NO. 1460 of 2020

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                        MAHIPATSINH KESRISINH CHAUHAN

                                    Versus

                         STATE OF GUJARAT & 1 other(s)

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Appearance:
MR. AUM M KOTWAL(7320) for the Petitioner(s) No. 1
MR.RAJESH CHAUHAN, ADVOCATE FOR MR HS MUNSHAW(495) for the
Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent No.1 State
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                             Date : 07/09/2021

                                ORAL ORDER

[1] By way of the present petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the impugned orders dated 30.12.2019 passed by the learned Additional Development Commissioner, Gujarat State in Appeal No. 11 of 2019 as well as order dated 29.11.2018 passed by the District Development Officer in exercise of powers under Section 57 of the Gujarat Panchayat Act (hereinafter referred as to the "Act").

[2] The case in brief projected before the Court is that the petitioner is an elected Sarpanch of Village Laval and on the basis of one anonymous application given to the

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Taluka Development Officer, Vaso by supporter of sitting member of Legislative Assembly from Matar Constituency i.e. Mr.Kesrisinh Solanki who is belonging to Bharatiya Janta Party. On the basis of such a fake and general application, the Taluka Development Officer on three different dates submitted reports to the District Development Officer on 12.07.2018, 18.08.2018 and 13.09.2018 respectively and on the basis of such reports, the District Development Officer called upon the petitioner to explain by issuance of show-cause notice in purported exercise of powers under Sub-Section (1) of Section 57 of the Act as to why the petitioner should not be removed as a Sarpanch of the village for the alleged negligence in performance of duties. The said show-cause notice dated 08.10.2018 came to be replayed and subsequently, an opportunity of hearing was given to the petitioner on 25.10.2018 which was actually heard later on 26.02.2019 and without proper application of mind, the District Development Officer passed an order on 26.02.2019 removing the petitioner from the post of Sarpanch of the village.

[3] It is this order dated 26.02.2019 is made the subject matter of Appeal under Sub-Section (3) of Section 57 of the Act before the Additional Development Commissioner alongwith an application for seeking interim relief submitted on 28.02.2019. According to the petitioner, initially despite request, no order was passed but thereafter, on 15.05.2019, the stay application came to be rejected. Hence, the petitioner was constrained to file Special Civil Application No.10008 of 2019 before this

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Court which came to be disposed of vide order dated 10.07.2019 with a direction that pending Appeal before the Additional Development Commissioner be decided as expeditiously as possible within a period of four months from the date of receipt of the order.

[4] The case of the petitioner is that though the appeal was required to be decided expeditiously preferably within a period of four months after the lapse of outer period on 30.12.2019, an appeal came to be decided by the Additional Development Commissioner who by judgment and order was pleased to dismiss the Appeal. The same having been communicated and received by the petitioner only on 03.01.2020. Therefore, feeling aggrieved and dissatisfied by, the present petition is brought before the Court.

[5] The Co-ordinate Bench of this Court was pleased to issue notice vide order dated 10.02.2020 and thereafter, after granting an opportunity to the other side to submit the reply, the petition with aforesaid background came up for consideration today before this Court.

[6] Mr.Aum M. Kotwal, learned advocate appearing for the petitioner has submitted that the order passed by the authority is quite contrary to the material on record and without consideration of the issues raised before it and as such, an order being perverse to the record, the same deserves to be quashed. It has further been contended that on account of alleged act, it cannot be said that there is any negligence in performing duty by the petitioner

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being a Sarpanch. In fact, there is no financial loss caused to the Panchayat which may permit the authority to exercise powers under Section 57 of the Act. According to Mr.Kotwal, learned advocate, the guidelines which have been issued by the State authority for seeking permission for cutting of trees and to auction the same, the said guidelines require no permission for trees which have already been fallen and here according to Mr.Kotwal, learned advocate, no live trees have been allowed to be cut by the petitioner and as such the very basis for initiating action under Section 57 of the Act is ill-founded. In addition to it, it has further been submitted that trees which have been allowed by virtue of auction are in exercise of powers and not in any unilateral form it is the collective act for the Gram Panchayat for which the petitioner alone cannot be held responsible.

[7] Mr.Kotwal, learned advocate has further submitted that a detailed reply which has been filed appears to have not been considered by the authority in true perspective and as such also, the orders suffer from vice of non- application of mind. Mr.Kotwal, learned advocate after drawing attention to few documents which are attached to the petition compilation has submitted that out of 49 trees which have been allowed in auction in respect of bounced cheque of Rs.1 lakh, only few trees have been allowed to be taken by the said auction purchaser since a cheque of Rs.1 lakh is bounced and in proportion of which, out of total 49 trees, in fact only few trees totaling around 21 have been allowed and so far as other trees are concerned, a fresh auction was initiated which has caused

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no financial loss to the panchayat and as such, in any case, this act of the petitioner cannot be said to be an act which warrants exercise of jurisdiction under Section 57 of the Act. Mr.Kotwal, learned advocate after drawing attention to Section 253 of the Act has submitted that at the best, it is a collective responsibility of all the members and not the responsibility of the petitioner alone. It has further been submitted that the report which has been submitted by the Taluka Development Officer more than one in number is also does not indicate or suggest any negligence of the petitioner in discharge of duty. Hence, in the absence of any abuse of the power by the petitioner, it cannot be said in any form that action initiated against the petitioner is just and proper. By drawing attention to the photographs, a contention is tried to be raised that all the trees were the trees of abused in nature which have already been fallen and for disposal of it, no financial loss. Hence, a request is made not to allow the impugned orders to sustain in the eye of law.

[8] Mr.Kotwal, learned advocate has submitted that the authorities below have not properly construed the material on record which has been brought by the petitioner and an action appears to be politically motivated against the petitioner. Hence, the orders impugned in the petition deserves to be quashed and set aside.

[9] Apart from that, Mr.Kotwal, learned advocate with a view to substantiate his contentions has relied upon few decisions delivered by this High Court, which are as under:

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(a) In the case of Mukeshbhai Aatmaram Patel versus State of Gujarat passed in Special Civil Application No.10522 of 2020 decided on 22.12.2020.

          (b)         In the case of Gitaben versus The State of
          Gujarat       and   Ors.       passed       in      Special           Civil
          Application       No.18886            of   2014       decided             on
          17.03.2015.


          (c)         In the case of Dipakbhai Mohanbhai Patel

passed in Letters Patent Appeal No.13 of 2019 decided on 20.03.2009.

By referring to these decisions, a contention is raised that impugned orders since suffering from vice of non- application of mind and quite contrary to the principle underlying under Section 57 of the Act, the same deserves to be quashed by granting relief, as prayed for in the petition. No other submissions have been made.

[10] To meet with the stand taken by the petitioner, Mr.Rajesh Chauhan, learned advocate for Mr.H.S.Munshaw, learned advocate appearing for the respondent No.2 has submitted that on account of act of the petitioner, a serious irregularity has taken place in the panchayat and the manner of auction process and handing over these trees to a person is clearly indicating a negligence on the part of the petitioner. It has been submitted that cheque of Rs.1 lakh has also been bounced and apart from that, the authorities below have passed a

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detailed order in exercising of jurisdiction after considering the every material. When that being so, the orders impugned cannot be said to be unjust or arbitrary or suffer from the vice of non-application of mind and in any case since the material adduced by the petitioner has been gone into by the authorities below hence, the exercise of jurisdiction cannot be said to be perverse as well. Accordingly, in the absence of any material or patent irregularity or illegality, the exercise of jurisdiction may not be said to be erroneous.

[11] Mr.Rajesh Chauhan, learned advocate while submitting this has drawn the attention of this Court to the detailed affidavit-in-reply which has been filed from page 67 on-wards and has also submitted that the specific attribution which has been made against the petitioner and thereby, has contended that this is a gross negligence in discharge of duty as a Sarpanch. By referring to Section 55 of the Act, it has been submitted that statute has invested a very responsible powers with Sarpanch and if such powers are to be exercised in such a manner the very object of responsible power would be defeated and as such in no case the petitioner is justified in pleading his ignorance. Mr.Rajesh Chauhan, learned advocate has further submitted that the attribution has been made in specific terms and qua that appropriate opportunity has been extended and the exercise of jurisdiction is not in any way violative of principles of natural justice and since that being a situation in the absence of any material irregularity, the orders may not be quashed and set aside.

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[12] To defend the orders passed by the authorities below, Mr.Kurven Desai, learned Assistant Government Pleader has submitted that this petition is filed against concurrent orders of authorities below who arrived at a specific finding after subjective satisfaction on the issue and as such in view of such concurrent findings, the petitioner has not been able to make out any distinguishable circumstance which may warrant interference. Mr.Kurven Desai, learned Assistant Government Pleader has drawn the attention of this Court to the order in origin passed by the District Development Officer and has submitted that the detailed report which has been submitted by the Taluka Development Officer dated 30.09.2018 itself is sufficient enough to arrive at a conclusion which has been taken care of and concluded by the authority in its true perspective and the appellate authority has also examined the issue at length and thereby confirmed the order passed by the District Development Officer. From the order passed by the appellate authority, a specific conclusion and satisfaction which has been arrived at by the learned Additional District Development Officer an attention is drawn of the Court to paragraphs 5.1, 5.2 and 5.3 and thereby, indicated that since after critical analysis of material on record when a conclusion is arrived at there is hardly any case made out by the petitioner to call for any interference. It is submitted that statute has invested powers in the authority to act in a particular manner and that has been done by the authority in close compliance. As a result of this, no different conclusion is possible on the basis of same material on record. Hence, in exercise of

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extraordinary jurisdiction in the absence of any patent illegality or irregularity, no substitution of view deserves be made. After drawing attention to the said conclusion, a request is made not to entertain the petition.

[13] In addition to it, Mr.Kurven Desai, learned Assistant Government Pleader has submitted that in the peculiar background of this fact Section 253 of the Act has no application at all since the affairs of the panchayat are substantially within a domain of Sarpanch who has to act in due discharge of his power and responsibility and as such by referring to Section 55 of the Act also, a request is made that contention raised by the petitioner about collective responsibility is out of place. So far as judgments which have been relied by Mr.Kotwal, learned advocate, Mr.Kurven Desai, learned Assistant Government Pleader has submitted that these judgments are not applicable in the peculiar background of present facts and by referring to all the three decisions, a contention is raised that proposition of law laid down in these decisions is salutary but background of present fact would not permit the petitioner to press into service the said decisions. As a result of this, a request is made not to entertain the petition.

[14] Having heard learned advocates appearing for the respective parties and having gone through the material on record in consonance with the proposition of law, following circumstances are not possible to be unnoticed by this Court.

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[15] A bare reading of the orders impugned would clearly indicate that adequate opportunity of hearing is given to the petitioner and a detailed order is passed in exercise of statutory duty vested in authority and the said exercise is after proper application of mind and after assigning cogent reasons. It is clearly spelt out from the order that on each aspect the explanation tendered by the petitioner has been examined at length and then on the basis of such explanation coupled with the report which has been prepared by the Taluka Development Officer dated 12.07.2018, 18.08.2018 and 30.09.2018, a conclusion is arrived at that the act of the petitioner has clearly attracted a provision of Section 57 of the Act since there is a clear responsibility of the petitioner. Such detailed conclusion arrived at in an order dated 26.02.2019 passed by the District Development Officer was also examined by the appellate authority and the learned Additional Development Commissioner also has clearly arrived at a conclusion as contained in paragraph 5 and has found that the petitioner has committed a default in performance his duty and function and thereby in exercise of power under Section 57 of the Act dismissed the appeal. The appellate authority has also examined the conduct of the petitioner in respect of auctioning of trees, 49 in numbers and further has also examined and scrutinized the report prepared by the Taluka Development Officer. It was clearly found that out of 49 trees, few trees have been taken away by the trader, some 15 trees have been taken away by the auction purchaser and some 13 trees are standing as on date of 28.09.2018 and still the reply is given in such a manner which may tantamount to be

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misleading stand on the part of the petitioner and that having clearly found on critical examination of material on record such concurrent findings of fact by both the authorities below exercise of process is not possible to be construed as perverse in any form. It further appears that while exercising discretion, the authority has not only examined the material on record in the context of exercising power under Section 57 of the Act but has also observed that the petitioner being Sarpanch, the affairs of the panchayat and the property are within the duty of the petitioner to be maintained properly and to be utilized and for that purpose, Section 55 of the Act has also been taken into consideration. When that be so, this Court has not inclined to exercise extraordinary jurisdiction equitable in nature either to set aside the concurrent finding of the facts or to substitute the finding in the absence of any other distinguishable material.

[16] Under the provisions of Gujarat Panchayat Act, Section 55 of the Act has assigned specific executive functions upon Sarpanch as well as upa-sarpanch as the case may be and petitioner being the Sarpanch of village panchayat is in-charge of the affairs of the panchayat including the function related to operating of fund of the panchayat and is also responsible for the safety of the funds of the panchayat. The manner in which the auction appears to have been held and the manner in which the trees have been allowed to be taken away and in respect of which the cheque has also been bounced, the authorities below have found that the petitioner being a Sarpanch has clearly attracted the circumstance by virtue of which step can be taken under Section 57 of the Act.

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[17] In view of the aforesaid discussion, the contentions which have been raised by the learned advocate for the petitioner are of no merit and the decisions which have relied upon having gone through, the same are not of any assistance to the petitioner in the background of peculiar facts of present case. The decisions which have been pressed into service having been gone through the factual details are quite distinct from the record of this case on hand and as such in view of settled principle of law that if the facts are different, one additional fact would make a world of difference in applying the proposition as a precedent. Accordingly, keeping all circumstances in mind, the Court is of the opinion that the contentions raised by the petitioner are of no avail. So far as Section 253 of the Act is concerned, about collective responsibility, the manner in which the petitioner has undertaken the exercise of dealing with the trees and the manner in which the explanation is not found just and proper by both the authorities below, this Court is of the opinion that petition does not deserve to be entertained.

[18] This petition basically being a petition under Article 226 of the Constitution of India, the exercise of extraordinary jurisdiction is no doubt wide enough but is also circumscribed that in the absence of any patent illegality or material irregularity such powers are to be exercised sparingly and not in a routine manner. Here in the instant case, there appears to be no perversity and the authorities have exercised well within jurisdiction vested in statute after proper application of mind and a

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reasoned order is passed. Hence, in considered opinion of this case, no case is made out by the petitioner to call for any interference, factual details related to auction of the trees have been analyzed by the authorites below in consonance with the report submitted by the Taluka Development Officer, this Court is not inclined to re- examine or re-analyse the issue which has already been undertaken by the authorities below. The law on the issue of exercise of jurisdiction under Articles 226 and 227 is spelt out in a catena of decisions delivered by the Hon'ble Apex Court and the last in line is the decision which is in the case of Sameer Suresh Gupta versus Rahul Kumar Agarwal reported in (2013) 9 SCC 374. The relevant observations contained in paragraphs 6 and 7, the Court would like to reproduce the same hereunder:

"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:

"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without

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jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

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(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:

"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and

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the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

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(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

[19] In view of the aforesaid observations and in view of the aforesaid peculiar factual details, the Court is of the opinion that no case is made out to call for any interference. Accordingly, petition being meritless, the same stands dismissed with no order as to cost. Notice is discharged.

(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR