Gujarat High Court Case Information System
Print
SCA/6016/2001 7/ 7 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
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 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.
As
the pipeline was substituted by ‘PVC’ in 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 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.
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.
Heard
Mr.Tirmizi, learned Counsel for the petitioner and Mr.Pandya,
learned AGP for the respondent State Government and its authorities.
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.
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. 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.
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.
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 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.
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.
In
the result, the petition is meritless and hence, dismissed. Rule
discharged. I.R., if any, stands vacated. No order as to cost.
11.11.2008 (Jayant
Patel, J.)
vinod
Top