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SCA/303419/1993 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3034 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
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 ?
=========================================
DAHYABHAI
SOMABHAI CHAMAR - Petitioner(s)
Versus
COLLECTOR
& 3 - Respondent(s)
=========================================
Appearance :
MS.
ARCHNA PATEL FOR MR HARDIK C RAWAL
for Petitioner(s) : 1,
MS. KRINA CALLA
ASSIT.GOVERNMENT PLEADER for Respondent(s) : 1,
MR ASHOK N PARMAR
for Respondent(s) : 2 - 3.
MR KV SHELAT for Respondent(s) :
4,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 20/03/2009
ORAL
JUDGMENT
By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for an appropriate writ, direction and
order quashing and setting aside the order passed by the respondent
Collector, Sabarkantha at Himatnagar dated 3.3.1993 in quashing and
setting aside the Resolution No. 72/1/2 dated 17.10.1992 of Modasa
Nagarpalika in regularizing the services of the petitioner and
others, who were serving as daily wagers.
Ms.
Archna M. Patel, learned advocate for Shri Hardik Raval, learned
advocate appearing on behalf of the petitioner has submitted that
before passing the impugned order by the Collector, Sabarkantha
under Section 258 of the Gujarat Municipalities Act and canceling
the resolution, the petitioner has not been given an opportunity of
being heard. Therefore, it is submitted that the impugned order
passed by the Collector, Sabarkantha is in breach of principles of
natural justice. Ms. Archna Patel, learned advocate for the
petitioner has heavily relied upon the decisions of this Court in
the case of R.C. Gajjar an Another Vs. State of Gujarat &
Others reported in 1996(1) GLH 276
and in the case of Vasantilal Ramanlal Kansara reported
in 1995(2) GLH 436.
Ms. Archna Patel, learned advocate appearing for the petitioner has
also tried to submit the case on merits, however in view of the
above this Court proposes to remand the matter to the Collector
Sabarkantha for passing impugned order after giving an opportunity
to the petitioner, this Court is not further considering the case on
merits.
Ms.
Krina Calla, learned AGP for the respondent No.1 is not in a
position to dispute that before passing the impugned order
petitioner was not heard.
In
view of the aforesaid factual scenario and decisions of this Court
in the case of R.C. Gajjar an Another (supra) and Vasantilal
Ramanlal Kansara (supra), the impugned order passed by the
Collector, Sabarkantha in so far as petitioner only deserves to be
quashed and set aside and the matter is required to be remanded to
the Collector, Sabarkantha for taking afresh decision in accordance
with law and on merits and after giving an opportunity to the
petitioner.
For
the reasons stated above, petition succeeds in part. The impugned
order passed by the Collector, Sabarkantha dated 3.3.1993 in
quashing and setting aside the Resolution No. 72/1-2 dated
17.10.1992 qua the petitioner only is hereby quashed and set aside
and the matter is remanded to the Collector, Sabarkantha for taking
an appropriate decision in accordance with law and on merits after
giving an opportunity to the petitioner. Such an exercise shall be
completed by the Collector, Sabarkantha within a period of three
months from today. Petitioner and Nagarpalika are directed to
cooperate the Collector, Sabarkantha in disposal of the Appeal on
remand within stipulated time stated herein above. It is to be noted
that this Court has not expressed in opinion on merits and the
impugned order is satisfied only on the ground that same is in
breach of principles of natural justice and it will be for the
Collector, Sabarkantha to pass an impugned order in accordance with
law and on merits. Rule is made absolute accordingly. There shall be
no order as to costs. Direct service permitted.
(M.R.SHAH,J.)
kaushik
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