Ashwin Hasmukhray Trivedi vs State Of Gujarat
2023 Latest Caselaw 2026 Guj

     C/SCA/5286/2008                             ORDER DATED: 03/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5286 of 2008

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                       ASHWIN HASMUKHRAY TRIVEDI
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
VYOM H SHAH(9387) for the Petitioner(s) No. 1
for the Respondent(s) No. 3
MEET THAKKAR, AGP for the Respondent(s) No. 1
MR HARI PATEL for MR DEEPAK P SANCHELA(2696) for the
Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2,4
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 03/03/2023
                              ORAL ORDER

1. The present Special Civil Application is filed praying for

the following reliefs:

(A) This Honourable Court may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the order passed by the Collector on 2nd January, 2008 and the consequential order passed by the Chief Officer 13 th March, 2008 as illegal, contrary to law and violative of Article 14, 16 and 21 of the Constitution of India.

(B) This Honourable Court may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, direction or order directing the respondents to consider the case of the petitioner for promotion to the post of Overseer as in 1998-99 and to promote him to the said post if found fit, with all the consequential benefits including monetary benefits flowing from such decision.

C/SCA/5286/2008 ORDER DATED: 03/03/2023

(C) Be pleased to pass such other and further orders as may deem just and proper in the facts and circumstances of the case.

(D) Be pleased to award cost of the petition.

(E) During the admission, pendency and final disposal of the petition, be pleased to stay the operation, implementation and execution of the order Dated 2nd January, 2008 passed by the Collector produced at Annexure G to the petition and the consequential order passed on 13th March 2008 by the Chief Officer produced at Annexure H to the petition.

(F) During the admission, pendency and final disposal of the petition, be pleased to direct the respondent municipality to consider the case of the petitioner for promotion to the post of Overseer as in 1998-99 i.e. the date on which junior to the petitioner was promoted to the said post and place before this Hon'ble Court the result of such exercise.

2. It is submitted by Mr.Gautam Joshi, learned Senior

Advocate assisted by Mr.Vyom Shah, learned advocate for

the petitioner that impugned order dated 02.01.2008 and

the consequential order dated 13.03.2008 have been passed

without adjudication and without recording any reasons. He

submits that a perusal of the impugned order dated

02.01.2008 only records the contentions between the

parties and does not render any findings on such

C/SCA/5286/2008 ORDER DATED: 03/03/2023

contentions before passing the order. He, therefore, submits

that the said impugned order is required to be quashed and

set aside.

3. He further submits that even the said order does not

record that any hearing took place and that the impugned

order is passed without hearing him and only on the basis

of reply which was filed on record.

4. The Learned advocate Mr. Hari Patel appearing for Mr.

Deepak Sanchela for respondent No.3 and Mr. Meet

Thakkar, learned AGP appearing for respondent Nos.1 and 2

jointly submit that the impugned order records that the

written submissions as well as the reply of the petitioner

have been considered while passing the impugned order.

They, therefore, submit that no interference is called for.

5. Heard the learned counsel for the respective parties

and perused the documents on record.

C/SCA/5286/2008 ORDER DATED: 03/03/2023

6. A perusal of the impugned order reveals that para 6

thereof records the written reply filed by the petitioner

herein, para 7 thereafter records the written reply filed on

behalf of the President Nagarpalika Amreli and para 8

records the written reply of the Chief Officer Nagar Palika,

Amreli. The impugned order thereafter, records that taking

into consideration the said written replies on behalf of the

parties, the impugned order is accordingly passed. The

impugned order does not adjudicate any of the contentions

raised in the written replies of the parties. Due to non-

adjudication of any contentions, no findings are recorded by

the Collector, Amreli in the impugned order. The impugned

order also does not record whether any arguments took

place on any date of hearing thereafter, before the order

came to be passed. The impugned order is silent on all these

aspects, and therefore, the same cannot be sustained in

law. Accordingly, the impugned judgment and order dated

02.01.2008 is set aside. The consequential order dated

13.03.2008 is also set aside since it is based on the

impugned order dated 02.01.2008.

C/SCA/5286/2008 ORDER DATED: 03/03/2023

7. It is jointly submitted by the learned counsel for the

parties that now under Section 258 of the Gujarat

Municipalities Act, 1963, the powers vest with the Regional

Commissioner of Municipalities, Bhavnagar Zone and that

he would be the appropriate authority to adjudicate the

present case. Accordingly, the matter is remanded back to

the Regional Commissioner of Municipalities, Bhavnagar

Zone for de-novo adjudication on merits after hearing all the

parties concerned. Let the writ be issued to the Bhavnagar

Area Development Building, Mahatama Gandhi Sadan,

Motibag, Town Hall, Bhavnagar 364001. It is further

directed that the present case be heard and decided within

a period of six months from the date of receipt of this order.

The parities are directed to appear before the Regional

Commissioner of Municipalities, Bhavnagar Zone on 5 th

April, 2023 at 11:00 a.m. Thereafter, the said authority may

start the proceedings de-novo and decided the same on or

before 31st October, 2023. The authority shall adjudicate all

the contentions raised by the parties and record reasons

C/SCA/5286/2008 ORDER DATED: 03/03/2023

while deciding the same.

8. In view of the aforesaid directions, the present Special

Civil Application stands disposed of . No order as to costs.

Direct service is permitted.

(ANIRUDDHA P. MAYEE, J.) ALI