Gujarat High Court
Hajabhai Lakhmanbhai Atrolia vs State Of Gujarat on 9 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16295 of 2010
With
R/SPECIAL CIVIL APPLICATION NO. 16316 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HAJABHAI LAKHMANBHAI ATROLIA
Versus
STATE OF GUJARAT
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Appearance:
MR. VATSAL RUPERA FOR MR ASHISH M DAGLI(2203) for the
Petitioner(s) No. 1
MR.DHAVAL U. TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 09/07/2025
COMMON ORAL JUDGMENT
1. Heard learned advocate Mr.Vatsal Rupera for learned
advocate Mr. Ashish M. Dagli appearing for the petitioners and
learned AGP Mr. Dhaval U. Trivedi for the respondent.
2. It is by now well-settled principle that any order passed
by Civil Court is not amenable to the writ jurisdiction of this
Court under Article 226 of the Constitution of India.
Nevertheless, this Court having supervisory power under Article
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227 of the Constitution of India can entertain such an
application under Article 227 of the Constitution of India.
3. It would be profitable to refer and rely upon the decision
of Honourable Supreme Court of India in the case of Radhey
Shyam & Anr. vs Chhabi Nath & Ors., reported in 2015 (5)
SCC 423, wherein, in para 27, it was held thus:-
"Thus, we are of the view that judicial orders of civil courts
are not amenable to a writ of certiorari under Article 226.
We are also in agreement with the view of the referring
Bench that a writ of mandamus does not lie against a
private person not discharging any public duty. Scope of
Article 227 is different from Article 226."
(emphasis supplied)
4. Though these applications are filed under Article 226 of
the Constitution of India, considering the fact that the orders
of the District Court have been challenged by the petitioners in
each matter, and in view of aforesaid position of law, the
present applications are treated as being filed under Article 227
of the Constitution of India.
5. With the consent of the learned advocates appearing for
the respective parties, both these Special Civil Applications are
being decided by this common judgment. As such issue germen
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in both these matters is an identical one and due to previous
order passed by this Court, heard together.
6. For sake of convenience, facts in brief in both these cases
are as under:-
6.1. Petitioners of Special Civil Application nos.16295 &
16316 of 2010 were President and Councillors of Ranavav
Municipality who were subjected to summary inquiry initiated
by the Respondent under section 70 (2) read with section 67
(1) of the Gujarat Municipalities Act, 1963 (hereinafter referred
to as "the Act of 1963") whereby they served with show cause
notice by the respondent, as to why loss sustained by
Municipality for the misapplication of its fund for gross neglect
of petitioners duty as President/Councillors. The loss
quantified in each case would be Rs.1,20,500/ and
Rs.2,80,284/ respectively.
6.2. After completion of such summary inquiry wherein
having received explanation of petitioners and so also reply
received from chief officer of municipality, recorded and
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referred to in its orders, the respondent came to definite
conclusion that aforesaid losses sustained by said Municipality
due to gross neglect of petitioners while performing duty as a
President/Councillors as the case may be. Thus, passed an
orders directing petitioners to make such losses good to
Municipality.
6.3. The petitioners appear to have challenged respective
orders of the respondent by filing respective appeal before
District Court, Porbandar being Regular Civil Appeal No. 14 of
2007 and 16 of 2007 respectively. After hearing parties,
District Court has dismissed both these appeals by way of its
impugned judgement/order, which assailed by petitioners by
way of present writ applications.
7. The present applications are filed seeking the following
reliefs:-
"Prayer in Special Civil Application No.16295 of 2010
A. You Lordships may be pleased to admit and allow this
application.
B. Your Lordships may be pleased to quash and set aside the
order passed by the Learned Principal District Judge, Porbandar in
Regular Civil Suit no.14 of 2007 at Annexure-A and further be
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pleased to quash and set aside the order passed by the
respondent dated 2.4.2007 in case no.3 of 2007 in the interest of
justice.
C. Pending hearing and final disposal of this petition, Your
Lordships may be pleased to stay the execution, operation and
implementation of the order passed by the Learned Principal
District Judge, Porbandar in Regular Civil Suit no.14 of 2007.
D. To grant such other and further relief that may be deemed fit
and proper in the interest of justice.
Prayer in Special Civil Application No.16316 of 2010
A) That this Hon'ble Court may be pleased to admit this Special
Civil Application
B) This Hon'ble Court may be pleased to allow this Special civil
Application by quashing and setting aside the order passed by
District Court, Porbandar in Reg.Civil Appeal No.16 of 2007 dated
25.8.2010 and also be pleased quash and set aside the
order/decision passed by respondent dated 25.4.2007 in case
No.11 of 2006 at Annexure-A in the interest of justice
C) Pending admission, hearing and final disposal of this Special
Civil Application, this Hon'ble Court may be pleased to grant stay
as to execution, implementation and operation of the judgment and
order passed by learned District Court, Porbandar in Reg.Civil
Appeal No.16 of 2007 decided on 25.8.2010 and also the order
passed by respondent dated 25.4.2007 in case No.11 of 2006 at
Annexure-A in the interest of justice
D) Grant such other and further relief(s) as deemed just and
proper by this Hon'ble Court in the interest of justice."
8. SUBMISSION OF THE PETITIONERS
8.1. Learned advocate Mr. Rupera would submit that the
respondent - State herein vide its order dated 02.04.2007,
directed the petitioner to pay a sum of Rs.1,20,500/- & Rs.
2,80,284/ respectively, holding them grossly negligent in
procuring various items in relation to the construction of the
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work of gutter line and or water line as the case may be when
they were working as President & Councillors of Ranavav
Nagar Municipality.
8.2. Learned advocate, Mr.Rupera would further submit
that neither respondent nor District Court have appreciated the
submissions of the petitioners, which ultimately lend them to
make payment of the aforesaid amounts, which was otherwise
not required to be paid by the petitioners, having acted in the
capacity of President & Councillors of the Municipality.
8.3. Learned advocate Mr. Rupera would further submit
that the petitioners, being President and Councillors of the
Municipality, were acting as per the tradition of the
Municipality Act, whereby the procurement of items, which
were required for the execution of work, was found
reasonable, and, a resolution having been passed in the
General Body for awarding the contract, no fault can be found
with the petitioner, as there was no personal gain received by
the petitioner while awarding such contract to agency.
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8.4. Learned advocate Mr. Rupera would further submit
that the reply of the petitioners filed before the respondent, as
well as the grounds of appeal as agitated before the District
Court, were not at all appreciated and, thereby, the petitioners
were wrongly held liable to pay the amount.
8.5. Learned advocate Mr. Rupera would further submit
that merely because a tender processes were not undertaken by
the petitioners, they could not have been held guilty for
paying more amount while procuring the items so mentioned
in the impugned orders passed by the respondent.
8.6. Learned advocate Mr. Rupera would further submit
that the items which were procured and the contract that was
awarded to the agencies were in line with the rates which
were sanctioned by the State at that point of time; as such, no
loss was caused to the Municipality.
8.7. To buttress his argument, the learned advocate Mr.
Rupera would rely upon the decision of this Court in the Case
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of Hinaben R Chauhan Versus State Of Gujarat reported in
2002 (4) GLR 3421.
8.8. Making the above submission, learned advocate Mr.
Rupera would request this Court to allow the present writ
applications.
9. SUBMISSION OF THE RESPONDENT STATE
9.1. Per contra, learned AGP Mr. Trivedi would submit
that, as such, neither the respondent nor the District Court has
committed any gross error of law while passing the
order/judgment, as the case may be, and this Court, while
exercising its jurisdiction under Article 227 of the Constitution
of India, should not interfere in the matter.
9.2. Learned AGP would further submit that there is a
concurrent finding of fact recorded by the respondent -
authority as well as the District Court, rejecting all contentions
raised by the petitioners; this Court may not re-appreciate the
evidence on record and may not come to any different finding
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and conclusion than what has already been passed by the
respondents.
9.3. Learned advocate Mr. Trivedi would further submit
that, undisputedly, the procurement of items by the petitioners
were without floating tender and due to higher rates which
were given for the procurement of time, ultimately, the
Municipality, Ranavav, has been caused loss of Rs.1,20,500/-,
for which the petitioners were held guilty and liable to pay as
per Section 70 of the Gujarat Municipalities Act, 1963
(hereinafter referred to as "the Act of 1963").
9.4. Learned advocate Mr. Trivedi would further submit
that there is nothing on record to substantiate the case of the
petitioners that the items in question which were procured by
the petitioner, were in line with the rates which are duly
sanctioned by the State while awarding public contracts and in
the absence of such material on record, this Court may not
accept the submissions of the petitioner on their face value.
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9.5. Lastly, the learned advocate Mr. Trivedi would submit
that the decision of this Court in the case of Hinaben (supra)
would not be applicable to the facts of the present case as,
prior to the passing of the order by the respondent, a show-
cause notice came to be issued on 13th February 2007 wherein
it has already been shown that due to the gross negligence on
the part of the petitioner, the Municipality has sustained a loss
of Rs.1,20,500/- & Rs. 2,80,284/ respectively. It is submitted
that once such facts have been recorded in the show-cause
notice as well as in the orders passed by the respondents, and
it had been found that the Municipality has sustained a
financial loss of Rs.1,20,500/- & Rs. 2,80,284/ respectively due
to the misdeed and gross negligence of the petitioners, no
error can be found in the order passed by the respondent as
per Section 70 of the Act, 1963.
9.6. Making the above submission, learned AGP Mr. Trivedi
would request this Court to dismiss the present application.
10. No other and further submissions are made.
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11. POINT FOR DETERMINATION
11.1. The short question that falls for my consideration is
whether, in the facts and circumstances of the present case, is
there any gross error of law or any jurisdictional error
committed by the District Court while dismissing the appeals
filed by the petitioners, thereby confirmed the orders passed
by the respondent-Director of Municipalities holding the
petitioners liable to pay a sum of Rs.1,20,500/- and Rs.
2,80,284/ respectively?.
12. ANALYSIS
13. It is not in dispute that the petitioners were President
and Councillors of the Municipality, Ranavav, when the
contracts were awarded in the year 2000 in respective cases.
14. It appears that while awarding the contract and procuring
the items so mentioned in the orders passed by the Respondent
on 02th April, 2007 and 25th April, 2007 respectively, no
tenders were floated by the Municipality and, as such, the
procurement were made on the basis of Resolution No. 17 &
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41 passed by the Municipality in its General Body Meeting
held on 08.05.2000 & 14.02.2000 respectively, whereby the
petitioners, being President and Councillors who have
authorized President, to purchase items who acted upon it by
procuring the items without ascertaining whether such rates
were government-approved rates or not and so also without
floating tender as required under section 67 (1) of the Act of
1963 as such purchases in both cases were beyond Rs. 5000/.
15. As such, there is nothing on record to substantiate the
averments of the petitioners that the rates which were
approved and paid by the Municipality to the agencies were
government-approved rates for which no tenders were required
to be floated.
16. It is also undisputed on record that no tenders were
floated to obtain the items in question, and it was later on
found by the Collector, Porbandar, that there was some
irregularities found in awarding of the contract as well as the
procurement of items by the Municipality, vide its letters dated
19th October, 2006 and 26th December, 2006 and 01st August,
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2001 respectively addressed to the respondent, i.e., the
Director of Municipalities, to take appropriate action in the
matter.
17. The only defense submitted by the petitioner to wash
their hands that they had procured the items as per the
approved rates and, as such, approval was granted by the
Urban Housing and Urban Development Department,
Gandhinagar, vide its letter dated 22.11.1996 in first matter
and, as such, there was no irregularity and/or any illegality
was committed by them and, as such, there was no financial
loss was caused to the Municipality in respective cases.
18. As referred to hereinabove, there is nothing on record to
show to this Court that the rates which were approved and
given by the petitioner to the third-party agency were
government-approved rates.
19. So far as the permission/sanction granted by the Urban
Housing and Urban Development Department, Gandhinagar, of
the State of Gujarat, dated 22.11.1996 is concerned, it was in
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relation to sanctioning the project of laying down the gutter
for drainage, but it was not in relation to any procurement
and/or awarding of contracts without following set norms and
procedures under the Act of 1963. As such, the petitioner of
Special Civil Application No.16295 of 2010 has not placed on
record the aforesaid letter dated 22.11.1996, but bare reading
of Ground No. 3 of the appeal memo of the aforesaid petition
submitted before District Court would indicate the above-stated
fact. Thus, observed and inferred as above.
20. At this stage, it would apt to refer following provisions
of the Act of 1963 which according to me a mandatory
requirements under Act of 1963 while procuring items and for
which any such contract awarded to third party agency by
Municipality.
"67. Tenders to be invited for contracts involving expenditure
exceeding Rs. 5000:- (1) Except as is otherwise provided in
sub-section (3), a Chief Officer shall, before entering into any
contract for the execution of any work or the supply of any
materials or goods which will involve an expenditure
exceeding five thousand rupees, give notice by advertisement in
a newspaper, inviting tenders for such contract:
Provided that where the work or supply involves an
expenditure exceeding twenty thousand rupees, the
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advertisement shall be published in such one or more daily
newspapers as may be approved by the municipality :
Provided further that at least clear seven days shall be allowed
to elapse between the date of the publication of the
advertisement in the newspaper inviting tenders and the last
date fixed for the receipt of tenders by the chief officer.
(2) The chief officer shall not be bound to accept any tender
which may be made in pursuance of such notice, but may, with
the approval of the executive committee, accept any of the
tenders so made which appears to him, upon a view of all the
circumstances, to be the most advantageous or may for reasons
recorded reject all the tenders submitted to him.
(3) A municipality may authorise the chief officer, for reasons
which shall be recorded in its proceedings, to enter into a
contract without inviting tenders as herein provided or without
accepting any tenders which he may receive after having
invited them.
70. Liability of councillors for misapplication:- (1) Every
councillor shall be personally liable for the misapplication of
any fund to which he shall have been a party, or which shall
have happened through or been facilitated by gross neglect of
his duty as a councillor:
Provided that no councillor shall be personally liable in
respect of any contract or agreement made, or for any expense
incurred by, or on behalf of the municipality; the funds at the
disposal of each municipality shall be liable for, and be
charged with, all costs in respect of any contract or agreement
and all such expenses.
(2) If after giving the councillor concerned a reasonable
opportunity for showing cause to the contrary, an officer
authorised by the State Government is satisfied that the
councillor was party to the misapplication of any fund of the
municipality or that the misapplication is a direct consequence
of misconduct or gross neglect on his part, the officer so
authorised shall by an order in writing direct such councillor
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to pay to the municipality before a fixed date, the amount
required to be reimbursed to it for such misapplication.
(3) If the amount is not so paid, it shall be recovered as an
arrear of land revenue and credited to the fund of the
municipality. Security when to be taken for performance of
contract. Liability of councillors for misapplication.
(4) Any person aggrieved by the decision or action of the
officer so authorised may within one month from the date of
such decision or action apply to the District Court for redress
of his grievance and that Court after taking such evidence as it
thinks necessary may confirm, modify or set aside the order
and also make such order as to costs as it thinks proper in the
circumstances."
21. The conjoint reading of the aforesaid provisions would
clearly suggests that tender were required to be floated when
items were purchased in both cases which was consciously not
done so and President though not authorized to enter into
contract on behalf of Municipality awarded contract while
procuring items described in detail in both orders passed by
the Respondent. As such, Councillors including President have
not acted in just and reasonable manner rather acted in
flagrant violation of mandatory provisions of the Act of 1963
for which held liable to pay the amount so quantified by
Respondent in its respective orders in respective cases.
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22. Thus, considering facts and circumstances of the both
case, Petitioners - President and Councillors both have misused
their office by awarding contract to agency without inviting
tender rather, it has been successfully proved as recorded by
Respondent in its orders that there was a financial loss caused
to Municipality and same was facilitated by gross neglect of
duty as a councilor in each case.
23. So far as the decision of the coordinate bench in the
Hinaben (supra) is concerned, there is no cavil that unless
there is an actual financial loss caused to the Municipality, no
action can be initiated against Councillor, including the
President, for mere procedural irregularity, such as not
obtaining prior permission.
23.1. The ratio of the aforesaid decision would not be
applicable to the facts of the present case and would not help
the case of the petitioners any longer, inasmuch as in the
present case, the Director of Municipalities, who is the
competent authority under Section 70 of the Act, 1963, have
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found that there was a financial loss caused to the
Municipality due to the gross negligence of the petitioners. Of
course, such losses were caused due to the not following of set
procedure as per Section 67 (1) of the Act, 1963 having not
floated tenders before entering into any contract for the
execution of any work or the supply of any materials or goods
worth more than Rs. 5000/ as the case may be.
24. Lastly, the present petitions are filed against concurrent
finding of facts recorded by the Respondent - Authority as well
as the District Court. When this Court exercises its jurisdiction
under Article 227 of the Constitution, cannot re-appreciate the
evidence on record and come to a different conclusion unless it
has been shown that such conclusion is erroneous, perverse,
and arbitrary, and/or contrary to the provisions of law. As
stated hereinabove, the petitioner could not make out any such
fallacy in the impugned judgment/order. [See Sameer Suresh
Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in
2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v. Prakash
Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
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25. CONCLUSION
25.1. In light of the aforesaid facts and circumstances of the
case, and even after going through the judgment and orders
passed by the respondent as well as the District Court, I am of
the view that there is no gross error of law nor any
jurisdictional error committed by the respondent and/or the
District Court, as the case may be, while passing the respective
judgment and order assailed in the respective writ applications.
25.2. As per the order passed by the respondent, the
petitioner of Special Civil Application No.16295 of 2010 was
required to deposit Rs.1,20,500/- and the petitioners of Special
Civil Application No.16316 of 2010 were required to deposit
Rs.23,357/ each, and while admitting these matters, this
Court, by its order dated 19th January 2011, stayed the
respective orders on the condition that the petitioners shall
deposit such amount as directed by the Respondent.
25.3. If such amount so far has not been deposited by the
petitioners, the petitioners are hereby directed to deposit such
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amount within 15 days from today alongwith interest as
quantified by the Respondent in its orders, failing which, the
petitioners will be subjected to the payment of the costs of this
litigation, which is quantified at Rs.25,000/- per petition cost
to be deposited with DLSA, Porbandar.
25.4. Such amount, as fixed by the Director of
Municipalities in its impugned orders, and the amount of costs
fixed by this Court as above, shall be recovered from the
respective petitioners by Ranavav Municipality through its
Chief Officer and DLSA, Porbandar respectively, albeit in
accordance with law.
25.5. Thus, in view of the aforesaid, I do not find any merit
in the writ applications, which are require to be dismissed and
in fact hereby DISMISSED. Consequently, orders passed by the
Respondent and so also by the District Court in respective
cases are hereby confirmed. Accordingly, Rule is discharged
subject to aforesaid costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
