IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9337 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BACHUBHAI NARANBHAI PATEL Versus ADITIONAL DEVELOPMENT COMMISSIONER -------------------------------------------------------------- Appearance: MR NK MAJMUDAR for Petitioner MR R.M. Chauhan, AGP for Respondent No. 1 MR HS MUNSHAW for Respondent No. 2 NOTICE SERVED for Respondent No. 3 NOTICE SERVED BY DS for Respondent No. 4 -------------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT Date of decision: 01/10/1999 ORAL JUDGEMENT The petitioner, by this application under Article 226 of the Constitution of India, calls in question the legality and validity of the order dated 3rd/5th June 1997, passed by the District Development Officer, Baroda, removing him as the member of Chhani Gram Panchayat, and also the order dated 5th December 1997 passed by the Additional Development Commissioner in Appeal No. 30/97, confirming the order of the District Development Officer. 2. Necessary facts, leading the petitioner to file this application, may, in brief, be stated. The petitioner was elected as the member of Chhani Gram Panchayat (hereinafter referred to as `the Panchayat'). At the meeting subsequently held he was made the Chairman of the Octroi Committee and for the last two years he has been holding the Office of Chairman, Octroi Committee of the Panchayat. By the passage of time, the District Development Officer (D.D.O.) the competent authority within the meaning of Sec. 57 of the Gujarat Panchayats Act 1993 (for short `the Act') came to know that petitioner was misusing his office, and always stepping out of line, he used to write the chits directing the Octroi Clerk to permit certain companies or persons to bring into the local limits of the Panchayat their goods without the payment of octroi duty or on payment of trifling duty under different devices. At times oral directions were also given. On 12th February 1996 at 2.00 p.m., the company called East Africa Motors brought into the local limits of the Village 40 mopeds two wheelers and paid no octroi because of the favour shown by the petitioner. The petitioner thus poked his nose into the levy of duty as a result, without levying the octroi duty the mopeds were permitted to enter into the Panchayat's limits. On 1st March 1996 again 40 mopeds were brought into the local limits and octroi duty at the rate of Rs. 10/- per moped, in all Rs. 400/= were collected though at the prevailing rates the octroi duty was very high. By such indulgence, the Gram Panchayat sustained a loss of huge amounts which otherwise the Panchayat would have earned levying octroi duty at the prevalent rates. In February, many other mopeds were also introduced within the local limits of the Panchayat without payment of octroi duty and it was because of the indulgence shown by the petitioner. The petitioner, thus, caused titanic financial loss to the Panchayat. The Cargo Motors is also another business concern within the local limits of the Panchayat. Many times this company had also brought the goods within the local limits of the Panchayat without the payment of octroi duty because of petitioner's overpowering the members of staff. When the company was asked to furnish the particulars about the goods brought into the local limits of the Panchayat, it came to the notice that owing to unjust favour from the petitioner, in all the goods to the tune of Rs. 1,68,00,000/= were brought into the local limits without payment of octroi duty. The D.D.O. having come to know about such malfeasances asked the Sarpanch to recover the octroi duty. When the company was directed to pay the octroi duty of Rs. 4,20,000/= within the period of 7 days, the company vide its letter dated 22nd November 1995 replied disowning its liability. It was also known from the materials placed before the authority that Cargo Motors had brought the goods within the local limits of the Panchayat on 10th February 1996 and 11th February 1996, the value of which came to Rs. 17,55,526.40 ps. The octroi duty leviable on those goods was assessed at Rs. 35,110.50 ps. When Cargo Motors was, at the instance of the petitioner, illegally permitted to bring into the village limits the goods without levying octroi duty, the Panchayat sustained a loss of Rs. 35,110.50 ps. Not only that, but the Taluka Panchayat sustained the loss of 10% thereof and the District Panchayat sustained the loss of 15% thereof. By passage of time, the District Development Officer found that levy of octroi-duty was hole and corner affairs about which the petitioner had led the staff by the nose, and helpless staff was playing into his hands. On further inquiry in his own way the Dist. Development Officer also found that the petitioner had defrauded the Panchayat misusing his office, so as to have unjust enrichment. He had caused heavy financial loss to the Panchayat by artfully directing the overawed staff on octroi-side not to levy the octroi duty, or to collect only the development charges of a meagre amount and permit the concerned persons or the companies to bring into the Panchayat's limits their goods. The District Development Officer also came to know that Mangalbhai Chaturbhai Patel was serving as Octroi Supervisor. The petitioner had instructed him not to levy the octroi duty. The petitioner had thus defrauded the Panchayat misusing his office both as the member as well as the Chairman of Octroi Committee. On such realization, the Dist. Development Officer issued a notice to show cause on 3rd April 1996. The petitioner on being served with the notice prayed for the copies of certain documents, but he was not clear in his application as to the copies of which of the documents he was praying for. As every thing was not specific, but evasive and unascertainable, he was informed on 29th September 1996 to be specific & precise about the documents but thereafter also he did not put forth his demand with specific details. He then appeared before the District Development Officer, the competent authority, but did not file any reply. He engaged an advocate to defend. The matter was then adjourned for several times, and finally at the conclusion of the hearing the District Development Officer passed the order on 3rd/5th June 1997 removing the petitioner as the Member of the Panchayat invoking his powers under Section 57 of the Act. Being aggrieved by such order, the petitioner preferred an Appeal No. 30/97 which came to be dismissed on 5th December 1997 by the Additional Development Commissioner, Gujarat State, Gandhinagar. It is against these two orders, the present application is filed calling in question the legality and validity of the orders removing him from the office of the Member of the Panchayat. 3. It is the defence of the petitioner that the authorities passed the orders arbitrarily and illegally. Every allegation levelled against him is not true. He never misused his office either as a member or as the Chairman of the Octroi Committee. He never informed the Octroi Clerk not to recover the octroi duty or to recover negligible amount of duty. He as alleged did not act prejudicial to the interest of the Gram Panchayat. The order passed by the District Development Officer can in no case be sustained as it suffers from several infirmities. The opportunity of being heard was not given. Without assigning any reason, much less sufficient, and appreciating the evidence before him the District Development Officer passed the order as contemplated by Section 57 of the Act. Inquiry was not held and hearing was not fixed. The proper course open to the Additional Development Commissioner was to remand the matter as he could not lead the evidence and his Advocate had gone out for pilgrimage for couple of months. There is no evidence to show that the Panchayat sustained the loss. As per the rules in force, octroi duty was being levied. To harm his reputation, the respondents No. 3 & 4 were trying their best and it was also to secure their political goal. Virtually, there is no evidence on record and without any evidence when the orders are passed, the same are required to be quashed. The action against him is politically motivated. There is nothing on record indicating his misconduct qua collection of octroi duty. Fresh inquiry is required to be made and for that purpose the matter is required to be remanded to the District Development Officer with appropriate directions etc. 4. In reply to such contentions, Mr. Chauhan, the learned A.G.P., for respondents No. 1 & 2 contends that the orders passed by the competent authorities are quite in consonance with law. There is no irregularity or illegality, but the petitioner who failed before the competent authority, and now losing a post which he considered to be a Hen laying golden eggs, tries to catch any thing available like a drowning man. He then urged me to dismiss the petition and also pass an exemplary order about which I will be dealing at a later stage. 5. Mr. Bharat Patel, the learned advocate for respondents No. 3 & 4 adopting the arguments advanced by Mr. Chauhan, learned A.G.P., supports the impugned orders. 6. Mr. Majmudar, the learned advocate for the petitioner, in order to justify the request to remand the matter for a fresh inquiry has submitted that it is always open to this Court to inquire into the factual aspects of the case so as to impart real justice. The powers of High Court under Art. 226 of the Constitution are very wide without any barrier, or restrains. According to him, virtually here is the case of no evidence, and whatever little may be on record was not at all considered by the competent authority, namely the District Development Officer for his findings. When his order is perused it appears that he has scrawled, the evidence is not discussed and reasons are not assigned. If necessary this Court can evaluate the evidence and modify the order or pass another appropriate order. In that case, remanding the case for fresh inquiry will not be necessary. 7. It seems albeit the settled position of law, a verdict of the Court is again sought for, raising the issue about jurisdiction of the High Court. It may be stated that the jurisdiction of the High Court under Article 226 of the Constitution is supervisory in nature. The High Court does not sit or act as an Appellate Court over the action or order of subordinate authorities or Tribunal. To put in different words the powers under Article 226 are discretionary. The same are to be exercised subject to self-imposed limitation and not arbitrarily. The High Court can exercise writ jurisdiction only in cases where fundamental rights are violated, or enforcement of a legal right is necessary, or the authority has not acted in conformity with the principles of natural justice, or there is abridgement of procedure, or determination is on extraneous consideration, or the order is passed without jurisdiction or in bad faith, or a constitutional point is to be decided. 8. As submitted, the petitioner wants me to re-appreciate the evidence and determine the issues that arise for consideration which will not in view of the abovestated position of law fall within my scope of inquiry. This Court can examine the correctness of the decision making process, and not the correctness of the decision itself. The merits of the order are therefore not to be dissected, for the High Court has not to weigh the evidence on which the authority has acted with nicety. The contention, therefore, gains no ground to stand upon. It may however be stated that the D.D.O. has in brief discussed the evidence and passed the order, while in appeal, Addl. Development Commissioner has at length and in details discussed the evidence and confirmed the order of D.D.O. assigning logical reasons. The appreciation of evidence being quite just & proper, the orders cannot be termed arbitrary or perverse. 9. Faced with such situation, the learned advocate for the petitioner, to be in tune with such law, submits that in the case on hand when opportunity of being heard was not given, rule of natural justice was violated, as a result of which the petitioner has to suffer serious injustice. When that is so, this Court may exercise the powers and upset the impugned orders. No doubt, this Court can interfere with the order of the authority if principles of natural justice are found to have been violated, but certainly not in the case where opportunity to submit is not availed of by the party because in that case rules of natural justice cannot be said to have been violated. Reading both the orders, it is clear that a notice, to show the cause as to why necessary action invoking Section 57 of the Act should not be taken, was served upon the petitioner. The petitioner thereafter applied for the copies of certain documents without being specific and confusing the authority. As the authority could not make out as to the copies of which documents were prayed for, the petitioner was informed to be specific and put-forth the demand afresh, but thereafter he did nothing and conveniently remained silent. Mr. Chauhan, ld. A.G.P. rightly submits that with a view to develop the case suitably in future the petitioner remained indistinct and subtle. On being intimated, he however appeared before the District Development Officer but repeating the same uncandidness, so as to exploit the situation later on, the petitioner did not file any written statement or objection in the proceedings initiated against him under Sec. 57 of the Act. As he had engaged the advocate to represent him, the matter was kept for effective hearing, but as no one appeared on behalf of the petitioner, the matter was adjourned from time to time. It is pertinent to note that the competent authority i.e., D.D.O. adjourned the matter to 9th October 1996, 11th November 1996, 12th December 1996, 19th December 1996, 30th December 1996, 13th January 1997, 27th February 1997, and 6th March 1997, but on no date either the petitioner or his advocate appeared and proceeded with the hearing. Thus, for about 8 times opportunity to submit was granted. Such a long-rope given cannot be said to be insufficient or unreasonable. Unfortunately, it seems the petitioner did not avail of the opportunities granted. Here is therefore the case of non-availing of the opportunities granted, and not the case of bereft of opportunity. It is hence not open to the petitioner to contend that he is condemned unheard. 10. It is the next submission on behalf of the petitioner that the Advocate engaged for making submission before the competent authority, i.e. District Development Officer had gone to Haj pilgrimage and therefore he did not appear. The competent authority therefore ought to have waited till the Advocate returned and was in a position to appear, act, and plead. As the Advocate was not available, petitioner's right to defend was jeopardised. The contention, being fallacious, must fail. The authority or any Forum is not bound to wait till the party or his advocate is, as per his convenience, pleasure and leisure ready to proceed with the matter. The authority or the Forum may, in its,discretion, having regard to the facts and circumstances of the case, grant time, or may pass the order otherwise, but certainly cannot foster the forces causing delay or delaying tactics, or procrastination, or mischief on the part of any party. The Judge-authority should not granting adjournments act as the lubricant to the device of the party trying to give a suitable shape to his case and baffle or frustrate his opposite party or benumb the proceedings, or action initiated against him. His duty is to see that within reasonable time the matter reaches its normal end. The party has, therefore, to be ready to appear and proceed with the matter on the date fixed assuming that no date will be granted. If it is not convenient to his advocate to proceed with the matter on the date fixed, it is for the party to manage to proceed with the matter either engaging another advocate or personally appearing & representing his case. If the time is not granted and for doing so discretion is rightly exercised, the party cannot be allowed to later on find fault with the authority, and he cannot be allowed to lament on any ground. In no case, therefore, it can be said that if the date is not granted, the party loses the right to defend or loses the opportunity to submit his say. In the case on hand, advocates' going out of India on pilgrimage for couple of months cannot be termed a just and good cause to grant time & wait till he returned. The petitioner could have made alternative arrangement soon after the date was granted on 29-10-96 the first day. He did not avail of the said chance not once but for 8 times. The contention, amounting to shedding crocodile tears, therefore cannot be accepted. 11. It is also the contention of the petitioner that inquiry as envisaged by Section 57 of the Act was not at all held though of course notice to show cause was given, and in view of the above stated fact, symbolic opportunity of being heard was given. Before I proceed, Section 57 of the Act may be quoted; "57. (1). The competent authority may remove from office any member of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat. (2) The competent authority may, after following the procedure laid down in sub-section (1) disqualify for a period not exceeding five years any person who has resigned his office as a member, Sarpanch or Upa-Sarpanch or otherwise ceased to hold any such office and has been guilty of misconduct specified in sub-section (1) or has been incapable of performing his duties and functions : Provided that an action under this sub-section shall be taken within six months from the date on which the person resigns or ceases to hold any such office. (3) Any person aggrieved by an order of the competent authority under sub-section (1) or (2) may, within a period of thirty days from the date of the communication of such order, appeal to the State Government." Learned advocate for the petitioner lays much stress on the words "after such enquiry" appearing in the Section, and submits that over and above the notice and hearing, inquiry is required to be held by the competent authority and then appropriate order is required to be passed, but in this case when the inquiry as per the Section is not held, the orders are bad in law and cannot be maintained. For holding inquiry & passing appropriate order the matter has to be remanded. The contention is misconceived. The dictionary meaning of the words "to inquire" is to "to exert oneself to discover something". "Inquiry is a road to truth" said Gladstone and therefore the meaning of the term "inquiry" is to ask, or to seek and search for knowledge, investigation of a question. In the case of Jamunabai Motilal vs. State of Maharashtra & Another AIR 1978 Bombay 200, the meaning of the word `inquiry' is made clear, of course keeping in mind the provisions of Maharashtra Agricultural Lands (Ceiling of Holdings) Act, but it is a good guide for interpreting the words `inquiry' appearing in Section 57 of the Act. It is made clear in the decision that the word `inquiry' has a specific meaning and it is a process by which information is collected so as to determine the eventual entitlement of the person in the matters of his holding land. That process has distinctively the initiation by a notice followed by requisite hearing and the conclusion which will take the shape either of a decision or an order. Added to this are the provisions providing for appeal against the orders that conclude the inquiry. Hence, `inquiry', in short, carries the meaning a process or a path to discover the truth which contemplates different stages right from initiation of the proceedings viz: filing of a petition, and/or issuance of the notice, filing written statement, hearing for collection of the evidence if at all necessary followed by hearing the arguments and lastly the conclusion which will take a shape of a decision or an order. When accordingly, the meaning of the word `inquiry' can be spelt out, the act of giving the notice and granting the opportunity of being heard are not as submitted the stages foreign to the stages of the inquiry, but are the stages intrinsic or components of the inquiry. What has prompted Mr. Majmudar, learned advocate for the petitioner to contend as aforesaid is insequent use of the words in the aforesaid Section of the Act. In the said Section 57 of the Act, the word "inquiry" does not precede the words "notice" and "opportunity of being heard", but follows those words. It may be stated that the provision has to be construed reading the same as a whole and the construction must be logical and meaningful and not absurd, indiscriminate, or eeriery. One should not be swayed away with Legislature's permutation. The inquiry therefore cannot be described to be the process having the stages other than the essential inherent stages of service of notice & hearing and the like. Hence requirements of issuance of notice and opportunity of being heard cannot in isolation be construed or assumed to be the pre-requisite formalities before the inquiry is held. In the case on hand, as stated hereinabove while mentioning the facts and discussing points raised, notice to show cause was given. Thereafter, an opportunity to file the written statement was also given, and thereafter for 8 times the opportunities to submit were also given during the course of hearing, but grant of such opportunities was not at all availed of, with the result the District Development Officer was constrained to proceed further in accordance with law and pass the order relating to which at this stage there is no controversy before this Court. When accordingly every formality has been undergone, it cannot be said that in the case on hand inquiry in accordance with law is not held. It is rightly submitted by Mr. Chauhan that when the petitioner is playing losing game in this case to avert the operation of impugned orders, his (petitioner's) preposterous contention finding fault with the authorities may be frowned upon. The contention therefore fails. 12. If a party engages the advocate and the advocate does not appear before the Court or a forum to act, plead and defend, what the party losing the opportunity