Wind World India Ltd vs Shree Tebhada Gram ...
2023 Latest Caselaw 1330 Guj

     C/LPA/135/2023                            JUDGMENT DATED: 08/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 135 of 2023
                                In
           R/SPECIAL CIVIL APPLICATION NO. 22350 of 2022

                                 With

              CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                                  In
               R/LETTERS PATENT APPEAL NO. 135 of 2023
==================================================
                    WIND WORLD INDIA LTD.
                           Versus
     SHREE TEBHADA GRAM PANCHAYAT,THROUGH ITS SARPANCH
==================================================
Appearance:
MR KUNAL J. VYAS, ADVOCATE WITH
MR DEVARSH TRIVEDI, ADVOCATE FOR GANDHI LAW
ASSOCIATES(12275) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3
==================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                           Date : 08/02/2023
                           ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This intra-court appeal lays a challenge to the order dated

2.1.2023 whereby petition has been dismissed on the ground

that petitioner has the right of remedy of statutory appeal under

Section 24 of the Gujarat Panchayats Act, 1993 before the

District Panchayat against the order dated 27.10.2022 passed

C/LPA/135/2023 JUDGMENT DATED: 08/02/2023

by respondent Nos.1 and 2. The thrust of the arguments and

grievance of the writ applicants before the learned Single Judge

in sum and substance was to the effect that impugned order

dated 27.10.2022 has been passed in utter violation of Rule

55(2) and (3) of the Gujarat Panchayats Rules. However, the

learned Single Judge was of the view that against said order,

there is an appeal provided under the Act which is an alternate

and efficacious remedy and as such the writ application is not

maintainable.

2. Having heard the learned advocates appearing for the

parties and on perusal of the record, we notice that it is trite

law, where there is infringement of a right, the doors of this

Court under Article 226 of the Constitution of India cannot be

shut when grievance is made out that impugned order has been

passed in violation of principles of natural justice. For the

proposition that alternate remedy is no bar for exercise of

jurisdiction under Article 226 of the Constitution of India,

following judgments can be looked out:

(i) State of U.P. and otehrs vs. M/S. Indian Hume Pipe Co. Ltd. [AIR 1977 SC 1132];

C/LPA/135/2023 JUDGMENT DATED: 08/02/2023

(ii) Shashi Gaur vs. NCT of Delhi and others [(2001) 10 SCC 445];

(iii) Dhampur Sugar Mills Ltd. vs. State of U.P. and others [(2007) 8 SCC 338].

3. In the instant case, as noticed hereinabove and at the cost

of repetition, the grievance of the petitioners was that the

impugned order dated 27.10.2022 passed by respondent Nos.1

and 2, i.e. Shree Tebhada Gram Panchayat was in violation of

Rule 55. A perusal of sub-rule (1) of Rule 55 would indicate that

before taking any action under sub-section (5) of Section 104 in

respect of clause 9(6) or before taking action mentioned in sub-

section (2) of Section 105, the person against whom the action

is proposed should be given 7 clear days' notice to show-cause

why the proposed action should not be taken giving details of

the action desired to be taken. Sub-rule (2) of Section 55

mandates that such notice should clearly mention the last date

on which the reply is to be submitted in writing to be delivered

to the panchayat and also the date, time and place where he

would be given a personal hearing before the panchayat

meeting. Whereas, in the instant case, notice dated 7.10.2022

C/LPA/135/2023 JUDGMENT DATED: 08/02/2023

(Annexure-P/21) which has been heavily relied upon by the

panchayat would indicate that it is only a notice issued to

petitioners to submit the objection in person. In other words, it

does not indicate that petitioners have been notified of the date,

time and venue of personal hearing as required to be furnished

under Rule 55(2) of the Rules.

4. At this juncture, learned advocate who has taken notice on

behalf of respondent Nos.1 and 2 and represented by Mr.

Hriday Buch, would submit that respondent Nos.1 and 2 would

hold the hearing on any date fixed by this Court and prayer for

suitable order being passed. Learned advocate appearing for

the appellants fairly admit this position. In that view of the

matter, without going into merits of the case, we direct the

petitioners to appear before respondent No.1 on 15.2.2023 at

11.00 a.m. at the office of respondent No.1 without waiting for

any further notice from respondent Nos.1 and 2. It is also made

clear that respondent Nos.1 and 2 would not be required to

issue any fresh notice to petitioners and on the aforesaid date

and time, petitioners shall appear before respondent No.1 as

agreed before this Court.

C/LPA/135/2023 JUDGMENT DATED: 08/02/2023

5. It is needless to state that after hearing the petitioners,

respondent Nos.1 and 2 would be at liberty to pass orders on

merits and in accordance with law without being influenced by

its earlier orders. Learned advocate appearing for the

petitioners would fairly concede this procedure would meet the

mandate prescribed under Rule 55 of the Rules and petitioners

would be satisfied. In the meanwhile, Mr. Hriday Buch, learned

advocate appearing for respondent Nos.1 and 2 would fairly

undertake that till passing of fresh orders by respondent Nos.1

and 2, no coercive steps as has been proposed would be taken

against petitioners. His submission and undertaking is placed on

record. Appeal stands disposed of. Pending application if any

stands consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J) Bharat