Shivanginiben Vishalkumar Patel vs District Development Officer
2021 Latest Caselaw 13845 Guj

     C/SCA/12707/2021                                JUDGMENT DATED: 13/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12707 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                             Sd/-

================================================================

1     Whether Reporters of Local Papers may be allowed                    YES
      to see the judgment ?

2     To be referred to the Reporter or not ?                             YES

3     Whether their Lordships wish to see the fair copy                   NO
      of the judgment ?

4     Whether this case involves a substantial question                   NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                        SHIVANGINIBEN VISHALKUMAR PATEL
                                     Versus
                         DISTRICT DEVELOPMENT OFFICER
================================================================
Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                Date : 13/09/2021

                                ORAL JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the reliefs :-

"(A) Be pleased to issue a writ of prohibition and a writ of mandamus or a writ in the nature of prohibition and mandamus or any other appropriate writ, order or direction and to quash and set aside the impugned show cause notice issued by the respondent dated 05-07/08/2021 - Annexure - K;

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

(B) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned show cause notice issued by the respondent dated 05-07/08/2021 - Annexure - K, and further be pleased to retrain the respondent, his agents and servants from restraining the petitioner from discharging her duty as a Sarpanch of Gadariya Gram Panchayat;

(C) Be pleased to pass such other and further orders as may be deemed fit and proper."

2. The case of the petitioner is that the petitioner belongs to Socially and Economically Backward Class, who contested the election of Gram Panchayat, Gadariya in December 2016 and was elected as Sarpanch of Gram Panchayat, Gadariya. The first meeting of Gram Panchayat was held on 24.10.2017 and from that date, the petitioner took the charge as Sarpanch. The petitioner contested the said post on the seat of Socially and Economically Backward Class - woman category. The Panchayat comprises of 10 members and one Sarpanch. It is the say of the petitioner that the Talati-cum-Mantri, at the relevant point of time, was one Ms. Margiben Shah and she was posted from 2017 at Gadariya Gram Panchayat and was transferred in June 2019. The said Talati- cum-Mantri never cooperated with any of the Panchayat matters and had become arrogant and unbecoming of her office. According to the petitioner, on account of such conduct of Talati-cum-Mantri, various complaints were made by Sarpanch and other members of Gram Panchayat about irregularities committed by the said Talati- cum-Mantri not only about her working but also about her behaviour. One application was also submitted to the District President on 27.09.2018 indicating that the said Talati-cum-Mantri is behaving in a very graceful manner and is refusing to cooperate in any of the works of the Gram Panchayat along with the other grievances which are mentioned. However, according to the petitioner, no steps were taken. By narrating this, the petitioner

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

has then submitted that the show cause notice came to be issued in exercise of powers under sub-section (1) of Section 57 of the Gujarat Panchayats Act calling upon the petitioner as to why she should not be removed from the post of Sarpanch on account of irregularities and negligence in discharge of her duties and also for abusing her office. It was also alleged about financial irregularities and thereby called upon the petitioner to remain present before the respondent on 14.11.2019 to submit her representation. The show cause notice contains 13 articles of charges levelled against the petitioner, but then relying upon the report of Accounts Officer, District Panchayat, Valsad dated 20.08.2018, present show cause notice was issued. According to the petitioner, the said notice had been replied denying all the charges levelled against her and then, the authority, in exercise of power under Section 57(1) of the Act, issued an order on 06.01.2020 removing the petitioner from the post of Sarpanch of Gadariya Gram Panchayat. Feeling aggrieved and dissatisfied with the said order, the petitioner approached the appellate authority under Section 57(3) of the Act by preferring Appeal No. 7 of 2020 along with application for interim relief. Since no hearing had taken place, the petitioner, at the relevant point of time, was constrained to preferred a writ petition being Special Civil Application No. 12526 of 2020 and the Hon'ble High Court vide order dated 11.02.2021 disposed of the same since the Additional Development Commissioner, Gujarat State was pleased to pass an order on 08.02.2021 during the pendency of the petition.

2.1 It is the case of the petitioner that learned Additional Development Commissioner, while setting aside the order in origin dated 06.01.2020, had ordered to reinstate the petitioner to the post of Sarpanch of Panchayat and further remanded the matter for fresh consideration. While passing the said order, it has been case of the petitioner that so far as the charges levelled against the petitioner for charges Nos.8 to 10 are concerned, the petitioner

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

was held to be not responsible, whereas in respect of charges Nos. 1 to 7, a finding was recorded by the Additional Development Commissioner that these charges fall within the duties of Talati- cum-Mantri for which the petitioner cannot be held to be responsible and so far as other charges are concerned, the Development Commissioner held that the charges cannot sustain and as a result of this, the matter was remanded back so as to enable the District Development Officer to take into consideration the provisions of Section 57(1) of the Act and decide the same on merits.

2.2 The petitioner submits that on 05.07/08/2021, impugned notice came to be issued indicating that the petitioner to remain present on 12.08.2021 to explain and represent. The said show cause notice was supplied with a copy of earlier copy of notice as well. On receipt of the said notice impugned in the present petition, the petitioner submitted an application on 09.08.2021 whereby she demanded the documents relied upon by the respondent for issuing show cause notice. Yet another application also came to be filed simultaneously demanding the order passed by the Talati-cum- Mantri dated 12.02.2021 so as to enable the petitioner to prefer the effective reply to the show cause notice. It is the case of the petitioner that since the documents were not provided, the petitioner submitted yet another application dated 12.08.2021 stating that the petitioner has only received report dated 10.08.2021, however copy of letter dated 12.02.2021 of Talati-cum- Mantri is yet not provided and as such, in absence of any such document, it would not possible for the petitioner to effectively reply to the notice and as such, demanded the said material as well. The petitioner has submitted that the respondent authorities have taken action against the Talati-cum-Mantri as well whereby she was directed to deposit Rs.26,500/- which she has deposited. The said amount was towards the loss caused to the Panchayat on

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

04.03.2021.

2.3 Be that as it may. The petitioner has been provided with the report dated 20.08.2019 of the Accounts Officer and communication dated 12.02.2021 issued by the Talati-cum-Mantri is also provided which is narrated in the list of events. However, the petitioner, instead of submitting reply to the show cause notice, has challenged the same by way of present petition by raising multiple grounds and the petition with aforesaid background is taken up for hearing for consideration of prayers which have been sought in the petition.

3. Learned advocate Mr. B. M. Mangukiya appearing on behalf of the petitioner has contended that in view of the fact that the authority has come to the conclusion that there is no fault on the part of the petitioner so far as issues Nos. 1 to 7 are concerned as indicated in the original notice and further, in view of the fact that so far as issues/allegations Nos.8 to 10 are concerned, in view of Section 253 of the Act there would be a collective responsibility of the members of the Panchayat, and there is hardly any reason to call upon the petitioner to submit anything. Additionally, it has been pointed out that so far as issue No.11 is concerned, it has been clarified that in view of inquiry appearing to be defective, so unless and until fresh inquiry is undertaken, the petitioner even cannot be called upon to explain by virtue of impugned notice.

3.1 According to learned advocate Mr. Mangukiya, issuance of show cause notice itself is without the authority of law and the issues which have been set at rest cannot be reopened and as a result of this, a further process pursuant to the impugned notice is impermissible. Learned advocate Mr. Mangukiya, after drawing attention to the orders of Additional Development Commissioner which partly allowed has contended that issuance of impugned notice since is without jurisdiction deserves to be

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

quashed. Learned advocate Mr. Mangukiya has tried to explain the factual details so far as the allegations are concerned, but after narrating, has submitted that this Court has jurisdiction even to quash and set aside the notice in view of this peculiar background of facts and hence, has requested the Court to consider and grant the relief as prayed for in the petition.

3.2 Learned advocate Mr. Mangukiya has submitted that the facts are not such which may attract the steps to be initiated against the petitioner under Section 57(1) of the Act and that being so, even if the petition is at a notice stage after remand of the proceedings from the Additional Development Commissioner, the relief prayed for in the petition deserves to be granted. According to him, the exercise which is sought to be undertaken pursuant to the impugned show cause notice amounts to miscarriage of justice and hence, since the petitioner has not committed any misconduct nor any disgraceful conduct in discharge of duties as well as in absence of any persistence default, there is hardly any question arises for taking action for removal of the petitioner. By contending this, a request is reiterated to quash the impugned notice. In respect of factual details with regard to verification of vouchers and other material related to alleged irregularity, a contention is tried to be developed that the action initiated is uncalled for and smacks mala fide. To substantiate his contention, learned advocate Mr. Mangukiya has relied upon two decisions one delivered by Hon'ble Apex Court reported in (1998) 8 SCC 1 and a decision delivered by the Division Bench of this Court reported in 1960 GLR 260. Ultimately, a request is made to grant the relief prayed for in the petition. No other submissions have been made.

4. Having heard learned advocate Mr. Mangukiya for the petitioner and having gone through the record, first of all, it clearly transpires that issuance of impugned show cause notice in calling

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

upon the petitioner to submit an explanation or tender the written representation, the District Development Officer has merely called upon the petitioner to justify and this issuance of show cause notice is based upon the decision delivered by the Additional Development Commissioner in Appeal No. 7 of 2020, which is not under challenge. This fact is not in dispute.

5. On perusal of the order of Additional Development Commissioner who partly allowed the appeal, which indicates that he has directed to remand the proceedings before the District Development Officer, Valsad to examine the merit and to take a decision afresh and this is also after re-posting the petitioner to the post in question. A perusal of the petition clearly indicates that this order pursuant to which the impugned show cause notice is issued, is not under challenge. The relief clause contained in paragraph 38 is clearly indicating that what is under challenge is merely a show cause notice by virtue of which the petitioner is called upon to explain and nothing beyond at this stage and as such, basically this petition is at a notice stage. It appears from the record that since the Additional Development Commissioner has passed an order remanding the matter to the District Development Officer and the said order having not been challenged in the proceedings, the same has attained finality. It is not in dispute that issuance of notice impugned in the petition is in respect of the remand proceedings and further, it is not in dispute that the District Development Officer has no jurisdiction under Section 57 of the Act to examine the issue and as such, the pleas which are tried to be raised in the present proceedings can well be agitated and represented before the authority who has offered an opportunity to the petitioner to meet with. Hence, this Court is not inclined to exercise extraordinary jurisdiction at this stage of the proceedings. No prejudice is likely to be caused to the petitioner as the petitioner is offered an opportunity to explain after re-posting. The Court, at this

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

stage, cannot presume that the authority will not act within the four corners of law.

6. For coming to this conclusion, the Court is mindful of the proposition of law laid down by Hon'ble Apex Court in a decision reported in (2016) 2 SCC 653 wherein the Hon'ble Apex Court has clearly propounded that the High Court should not assume or prejudge that the authority will not act in accordance with the law and by interjecting the process, the High Court cannot assume the function which the authority is otherwise expected to undertake. Relevant observations contained in the said decision deserves to be quoted hereunder :-

"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

42. In Mansukhlal Vithaldas Chauhan v. State of Gujarat[9] this Court held that it is primarily the responsibility and duty of a statutory authority to take a decision and it should be enabled to exercise its discretion independently. If the authority does not exercise its mind independently, the decision taken by the statutory authority can be quashed and a direction given to take an independent decision. It was said:

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

"22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right".

23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion."

43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."

7. Yet another reason for not entertaining the petition is that the petition is at a notice stage. Every issue of law and fact is yet to be agitated before the authority who has called upon the petitioner and offered an opportunity and as such, at every stage of decision

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

making process, it is not open for the petitioner to invoke extraordinary jurisdiction of this Court. When the order of remand is not under challenge and notice has been given in respect of the said order, the petitioner is under an obligation to represent before the authority and in view of the decision delivered by Hon'ble Apex Court on the issue of exercise of extraordinary jurisdiction at notice stage well propounded. Few decisions of the Hon'ble Apex Court deserve to be kept in mind, which decisions are after the decision of Whirlpool Corporation reported in (1998) 8 SCC 1. Hence, few observations contained in the following decisions, relevant to the issues, the Court deems it proper to reproduced hereunder:-

(1) Hon'ble Apex Court in the case of Union of India & Anr. v. Vicco Laboratories, reported in (2007) 13 SCC 270, has held and observed in para 31 as under:-

"31.Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out."

(emphasis supplied)

(2) Hon'ble Apex Court in the case of Sanjay Kumar Jha Vs.

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

Prakash Chandra Chaudhary and others, reported in (2019)2 SCC 499, has held and observed in para 16 as under:-

16. In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.

(3) Yet, there is one decision which has been taken by this Bench only in the case of M/s. Balaji Indane Gramin Vitarak Vs. Indian Oil Corporation Ltd., i.e. judgment and order dated 9.7.2021 in Special Civil Application No.9652 of 2021, which case was at a notice stage and the Court did not entertain and this decision is not disturbed right upto the highest forum.

(4) Yet, another decision of very rent time of Hon'ble the Apex Court in the case of Commissioner of Central Excise, Haldia Vs. Krishna Wax Private Limited, reported in (2020)12 SCC 572, wherein also, very same principle is reiterated. The relevant observations contained in para 14 and 15 are reproduced hereunder:-

14. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the concerned person must first raise all the objections before the

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

authority who had issued a show cause notice and the redressal in terms of the Civil Appeal 8609/2019 [Diary No. 17005 of 2018] Commissioner of Central Excise, Haldia vs. M/s. Krishna Wax (P) Ltd. existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India and another vs. Guwahati Carbon Limited, it was concluded; The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution, while in Malladi Drugs and Pharma Ltd. vs. Union of India, it was observed:-

"The High Court, has, by the impugned judgment held that the Appellant should first raise all the objections before the Authority who have issued the show cause notice and in case any adverse order is passed against the Appellant, then liberty has been granted to approach the High Court...

.... in our view, the High Court was absolutely right in dismissing the writ petition against a mere show cause notice.

15. It is thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter.

9. In view of aforesaid circumstances which are stated herein before and in view of aforesaid proposition of law laid down by Hon'ble Apex Court, the factual details which are tried to be agitated here in the petition, can well be examined by the competent authority who has afforded an opportunity by issuance of notice. The disputed questions of fact are not to be adjudicated or agitated normally in the writ jurisdiction. The law is absolutely clear on such in a decision reported in (2018) 6 SCC 202. Hence, in view of aforesaid peculiar background of facts, no case is made out by the petitioner to call for any interference at this stage. In light of the aforesaid background of facts, the decisions which have been tried to be relied upon by learned advocate for the petitioner

C/SCA/12707/2021 JUDGMENT DATED: 13/09/2021

and having gone through and considered the same, the same are not possible to be of any assistance to the petitioner and again it is quite settled position of law that if the facts are different, the ratio laid down in another decision cannot be applied as a straitjacket formula. One additional fact may make a world of difference in applying the principle. As a result of this, contentions raised by the petitioner deserve no consideration.

10. Accordingly, the petition is dismissed with no order as to the costs.

Sd/-

(ASHUTOSH J. SHASTRI, J)

cmk