SCA/6016/2001 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6016 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KANUBHAI R SHAH - Petitioner(s) Versus DY. SECRETARY & 1 – Respondent(s) Appearance : MR MM TIRMIZI for Petitioner(s) : 1, MR PANDYA, AGP for Respondent(s) : 1 – 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 11/11/2008 ORAL JUDGMENT 1. The short facts of the case appears to be that the petitioner was President of the Chhota Udepur Nagar Palika (hereinafter referred to as the “Municipality”). During the period when it SCA/6016/2001 2/8 JUDGMENT was Nagar Panchayat, a resolution was passed for purchase of casting pipelines for water connection. The sanction was obtained from the District Development Officer for purchase of such pipelines. However, it appears that thereafter in the General Board Resolution dated 16.11.1989 the word 'PVC' was added in addition to the casting pipelines by putting slash (/). The said resolution of the Municipality was not forwarded to the Collector for review or for sanction by any competent authority. The petitioner, in capacity as the President of the Nagar Palika, sanctioned the quotations received from M/s.A.King Pipes, Nadiad. The pertinent aspect is that no tender was invited for purchasing of PVC pipes. The petitioner thereafter placed the order to a different party namely; Supreme Agency, Jalgaon for purchase of the PVC pipes and the payment was made to such party. It further appears that no approval of the General Body was obtained by the petitioner for such purpose. 2. As the pipeline was substituted by 'PVC' in SCA/6016/2001 3/8 JUDGMENT place of casting pipe, there was opposition from the local people and as a result thereof, the work of laying down of the pipelines was stopped. Since the pipe remained unused, they were sold by inviting offers from the public, but as no response was there, ultimately they were sold after getting permission of the District Planning Unit. The price received of the pipes was considered and it was found that the amount of Rs.53,498.70 was received less than the price paid by the Municipality for purchasing of the pipes and there was also expenses incurred of Rs.18,040.75 for disposal of the pipes and total Rs.71,539.45 was found as the loss caused to the Municipality. The proceedings were initiated by the Collector under Section 267 of the Act and the petitioner was given opportunity of hearing. After considering the record, it is found by the Collector that there was tampering of record by the petitioner in the Resolution No.18 and the pipes were illegally purchased and there was no proper exercise of the duty for purchase of the SCA/6016/2001 4/8 JUDGMENT pipe, which had resulted into a loss to the Municipality of Rs.71,539.45, for which the petitioner was found as responsible and, therefore, the said amount was ordered to be recovered from him as per the order dated 6.4.1996. 3. The petitioner carried the matter before the State Government in revision. The State Government called for the record and reappreciated the evidence and it has also found that there was tampering of the record by the petitioner, the pipes were purchased without prior sanction and the powers were exercised in an arbitrary manner, which had resulted into the loss to the Municipality to the tune of Rs.71,539.45. Therefore, the revision was dismissed and the order of the Collector was confirmed. It is under these circumstances, the petitioner has approached this Court by the present petition. 4. Heard Mr.Tirmizi, learned Counsel for the petitioner and Mr.Pandya, learned AGP for the respondent State Government and its authorities. SCA/6016/2001 5/8 JUDGMENT 5. Mr.Tirmizi, learned Counsel for the petitioner raised the first contention that the ground submitted in the reply of the petitioner dated 12.3.2001 were not considered by the State Government. In furtherance to his submission, by relying upon the reply dated 12.3.2001 – Annexure “C” before the State Government, it was submitted that the upset price of the pipes were not fixed and the pipes were sold away at a lower price and the said aspect was not considered. He submitted that if the matter is remanded to the State Government for reconsideration the same shall meet with the ends of justice. 6. The perusal of the order passed by the lower Authorities and more particularly of the Collector shows that thrice advertisements were given for disposal of the pipes and in spite of the same, no purchaser came forward to submit offer for purchase of the pipes. The cost of the advertisement was Rs.18,040.75. Therefore, it is not a case where without inviting offer by public advertisements, the pipes are sold away. SCA/6016/2001 6/8 JUDGMENT Further for the offer of Rs.1,84,839/-, sanction of the competent authority was obtained. Therefore, under these circumstances, even if the contention of the petitioner of non-fixation of the upset price is considered, it would not alter the ultimate result, nor can it be said that the offer was accepted for sale of the pipes in an arbitrary manner at R.1,84,839/-, more particularly when the sanction was obtained of the competent authority. 7. Mr.Tirmizi, learned Counsel for the petitioner next contended that the order is not a well reasoned order and all contentions raised on behalf of the petitioner are not considered. 8. The perusal of the order passed by the Collector read with the order of the State Government shows that there is examination of all the record of the Municipality by the Collector as well as by the State Government. It is found that there is tampering in the resolution and the pipes are purchased without prior sanction of the competent authority, the payment is made without prior approval of the General Body and SCA/6016/2001 7/8 JUDGMENT all such acts are done by the petitioner, which has resulted into the loss to the Municipality of Rs.71,539.45. Therefore, it is not possible to accept the contention of the learned Counsel for the petitioner that the impugned orders are not well reasoned orders. 9. It deserves to be recorded that the petition arises against the order passed by the Collector and its confirmation thereof by the State Government. Both the authorities have examined the record, appreciated and reappreciated the evidence and have concluded the issues on facts. No facts contrary to the same are brought on record by the petitioner. The scope of the petition is not as that of the Court of appeal. Unless the powers are exercised in a perverse manner, it would not be a case for interference. No such case is demonstrated in the petition. Under these circumstances, it is not a case where the impugned order deserves to be modified by this Court in a petition under Article 226/227 of the Constitution of India. 10.In the result, the petition is meritless and SCA/6016/2001 8/8 JUDGMENT hence, dismissed. Rule discharged. I.R., if any, stands vacated. No order as to cost. 11.11.2008 (Jayant Patel, J.) vinod