Gujarat High Court Case Information System
Print
LPA/2220/2010 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2220 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3553 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? NO
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
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 ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
KESHABHAI
PANABHAI SOLANKI - Appellant(s)
Versus
DAHYAJI
BABAJI THAKOR & 4 - Respondent(s)
=========================================================
Appearance
:
MR
M P SHAH for
Appellant(s): 1, MS KRUTI
M SHAH for Appellant(s): 1,
MR NK MAJMUDAR for Respondent(s) :
1,
MR UMESH TRIVEDI ADDL GOVERNMENT PLEADER for Respondent(s) : 2
- 4.
MR HS MUNSHAW for Respondent(s) :
5,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
:6/7/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE K.M.THAKER)
1.
Present Appeal under Clause 15 of Letters Patent is directed against
the judgment and order dated 13.8.2010 whereby the learned Single
Judge has allowed the petition preferred by present respondent No.1
and set aside the order dated 20.2.2010 passed by the Additional
Development Commissioner and restored the order dated 25.6.2009
passed by the District Development Officer (“DDO” for
short) by virtue of which present petitioner was put under
suspension in exercise of the powers under Section (1) of Section 59
of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the
“Act”).
1.1
Having regard to the rival contentions, Admit.
Mr. Majmudar, learned advocate for respondent No.1 and
Mr. Trivedi, learned Additional Government Pleader
and Mr. Munshaw, learned advocate for
respondent No.5 have waived service of admission. With the consent
and at the request of learned Counsel the appeal is taken up for
final decision.
2.
The facts leading to and involved in present appeal need to be
stated at this stage.
2.1
At the relevant time the appellant herein was holding post of
Sarpanch of village Takodi. During his tenure three complaints viz.
(1)
CR. No. II-83 of 2008 for the offences punishable under Sections
323, 504, 506(2), 427 and 114 of IPC; (2) CR. No. I-86 of 2008 for
the offence punishable under Sections 149, 143, 323, 426 of IPC and
(3) F.I.R CR. No.I-15 of 2009 dated 27.1.2009 for the offences
punishable under Sections 405, 406, 408, 409, 420, 465, 468, 471,
478, 477(A) and 120(B) of Indian Penal Code were filed against him.
The appellant was arrested and was detained in prison until he came
to be released on bail.
2.2
It appears that present respondent No.1 (original-petitioner) had
demanded before the District Development Officer (“D.D.O.”
for short) that necessary and appropriate steps may be taken against
the appellant in view of his arrest pursuant to the FIRs. In view of
such complaint and insistence of the respondent No.1 the D.D.O. had
issued a Notice calling upon the appellant to show cause as to why
he should not be suspended from the post of Sarpanch. The said
complainant is present respondent no.1 and original petitioner.
2.3
Subsequently, the DDO passed order dated 25.6.2009 suspending the
appellant from the post of Sarpanch. Aggrieved by the said order
dated 25.6.2009, present appellant preferred appeal before the
Development Commissioner (present respondent No.2) which was
registered as Appeal No.86 of 2009.
2.4
At this stage, it is pertinent to note that in the said Appeal No.86
of 2009 (preferred by present appellant) present respondent No.1 had
preferred an application, before the Development Commissioner,
praying that he may be impleaded as party respondent. The Appellate
Authority allowed the said application of present respondent No.1
vide order dated 26.11.2009 and impleaded him as a party to the
appeal proceedings. Consequently the respondent no.1 was one of the
parties to the appeal proceedings instituted by present appellant.
2.5
It is pertinent to note that present appellant never challenged the
said order dated 26.11.2009 and that therefore the said order
remained unchallanged and has attained finality.
2.6
In view of the said order dated 26.11.2009, present respondent No.1
filed reply against the petitioner’s appeal before the Development
Commissioner and supported the D.D.O’s order dated 25.06.2009.
2.7
Ultimately, by order dated 20.2.2010 the appeal preferred by present
appellant was allowed and the order dated 25.6.2009 passed by the
DDO suspending the appellant was set aside. The Appellate Authority
found that the first adjudicating authority had not examined as to
whether the charges and alleged offence amounted to “moral
turpitude” or not. He also observed that the charges cannot be
said to be of “moral turpitude”.
2.8
Against the said order dated 20.02.2010, present respondent No.1
i.e. the complainant preferred the writ petition which was opposed
by present appellant on diverse grounds, including the ground of
maintainability of petition and on the ground of complainant’s
locus.
2.9
After hearing the contesting parties, the learned Single Judge has
set aside the order dated 20.2.2010 passed by the Appellate
Authority in the aforesaid Appeal No. 86 of 2010 (which was filed
by present appellant) and restored the order dated 25.6.2009 placing
present appellant under suspension. The appellant is aggrieved by
the judgment. Hence, present appeal.
3.
Heard Ms. Kruti M Shah learned advocate for the appellant, Mr. N.K.
Majmudar, learned advocate for the respondent No.1. Mr. Umesh
Trivedi, learned Additional Government Pleader for respondent No.2
State, and Mr. Munsha, learned advocate for the DDO (respondent
No.5). We have perused the record.
4.
Ms. Shah, learned Counsel for the appellant in the first instance
has challenged the maintainability of the petition at the instance
of present respondent No.1 and submitted that the order dated
25.6.2009 placing appellant under suspension was passed by the DDO,
hence the necessary and proper party to the proceedings,
particularly in the appeal under Section 59(3) of the Act, would be
the Panchayat, the Competent Authority (i.e. the DDO) and the
appellant, while respondent No.1 would be a third party to the
appeal proceedings since the dispute is between the concerned member
(i.e. the appellant), the Panchayat and the Competent Authority. She
submitted that the respondent No.1 had no cause and justification to
prefer the petition challenging the order passed in the statutory
appeal preferred by present appellant. She also submitted that the
appellant’s objection against the maintainability of the petition
ought to have been accepted by the learned Single Judge. She further
submitted that the respondent No.1 is, in any manner, not the
affected or aggrieved party. The learned Counsel submitted that it
has been held that original complainant cannot be said to be “person
aggrieved”. It is also contended that the appellate
authority’s order was legal and based on conclusion that the alleged
offence did not amount to “moral turpitude” and ought
not have been set aside.
4.1
Per contra Mr. Majmudar, learned advocate for the respondent No.1
has submitted that the respondent No.1 is resident of the village
where before his suspension, the appellant was Sarpanch of the
Panchayat. He has submitted that even if the appellant’s contentions
regarding scope of Section 59 and/or against the locus standi of
respondent No.1 were to be accepted, then also by any stretch of
imagination it cannot be said that he i.e. the respondent No.1
cannot maintain a writ petition against the order of statutory
authority inasmuch as a writ petition by the original complainant
and/or by a person who is party to the Appeal proceedings (from
which the petition arose) would be maintainable. He submitted that
whether the alleged offence amount to moral turpitude is required to
be considered in light of the position held by the appellant. He
also submitted that the respondent No.1 is also a member of village
Panchayat and that therefore it cannot be said that the appellant is
not interested and/or affected party and has no locus to challenge
the order passed by the Appellate Authority – Development
Commissioner.
5.
While advancing her submissions the learned advocate for the
appellant referred to Section 59(3) of the Act and urged that the
respondent No.1 is not an aggrieved person and therefore has no
locus to question any decision of the authority on the issue about
appellant’s suspension. So as to emphasize her submission she relied
on Section 57(3).
6.
Actually, in the given set of facts in present Letters Patent Appeal
maintainability of the said statutory appeal is not the issue but
the issues which arise are about the maintainability of petition and
the petitioner’s locus to maintain a writ petition under Articles
226 and 227 of the Constitution of India against the order passed by
statutory authority in Appeal No.86/2009 in which the respondent
no.1 was party. The learned Single Judge entertained the writ
petition by the complainant against the appellate authority’s order.
The appellant feels aggrieved by the said decision.
7.
In view of the appellant’s submissions, we may, before proceeding
further take into consideration the said provisions which read
thus:-
“57(3)
Any person aggrieved by an order of the competent authority under
sub-section (1) and (2) may, within a period of thirty days from the
date of the communication of such order, appeal to the State
Government.
59(3)
An appeal shall lie against an order passed under sub-section (1) to
the State Government. Such appeal shall be made within a period of
thirty days from the date of the order”
7.1
Even a cursory glance at the above noted provisions shows that there
is a marked difference between the scope and effect of the said two
provisions. On one hand, sub-section (3) of Section 57 does provide
for appeal against the order under sub-sections (1) and (2) of
Section 57 i.e. order of Removal of Sarpanch or Up-Sarpanch and / or
the order disqualifying Sarpanch or Up-Sarpanch, but the provision
confers the said right of statutory Appeal only on the “person
aggrieved by an order” of the competent authority whereas the
sub-section (3) of Section 59, on the other hand, is not qualified in
like manner by the words “any
person aggrieved by an order of Competent Authority……”.
(as in case of sub-section (3) of Section 57) and it merely
postulates that an appeal
against the order passed under sub-section (1) of Section 59 shall
lie to the State.
7.2
The said omission is deliberate and purposive. The legislature has
consciously not qualified the provision under sub-section (3) of
Section 59 in the same manner as has been done in case of
sub-section (3) of Section 57. Hence, the said provision must be
allowed its due and complete role.
7.3
It deserves to be mentioned that the question whether the words
“any person aggrieved” in sub-section (3) of Section 57
would include the original complainant has been considered, upon
reference made by learned Single Judge, by the Division Bench in
the case of Mr. M.H. Patel Vs. Sejalben J. Patel (2010 (2) GLH 757)
in light of and in the perspective of the provision under
sub-section (3) of Section 57. The Division
Bench, after considering other
decisions
held that the meaning of the term may vary according to the context
of the statute and ordinarily a person would be aggrieved if the
decision is materially adverse to him and
if a legal burden is imposed on him and
that normally a person is required to establish that he has been
denied or deprived of something to which he is legally entitled and
the term “person aggrieved”
must be understood in the context in which the provisions of the
statute under consideration have been made. It also deserves to be
mentioned that in
the matter between S.P. Patel vs. State of Gujarat (SCA No.17427 of
2005) the learned Single Judge, while holding that the petitioner
had no locus standi to maintain the petition also took into
consideration that “he had not taken any active steps to
participate in the proceedings before the D.D.O.
and/or the Commissioner and that he was a fence-sitter.
8.
Another material
and vital fact,
which is the main distinguishing feature in present case is
that unlike in the said
case of
S.P. Patel (supra) wherein the
complainant remained fence-sitter and had not taken any steps, in
present case, the
respondent no.1 was not
only the complainant before the Competent Authority but when
the appellant herein
filed Appeal, the
respondent No.1 had immediately filed application for being
impleaded in the appeal
and when the
Appellate Authority, after
considering the objections of present appellant, vide order dated
26.11.2009, granted the application of present respondent No.1 made
him / allowed him to be
party to the appeal proceedings (in the appeal filed by present
appellant). The
respondent no.1 also filed his reply/objections and
his objections were also taken on record and considered by the
Appellate Authority. The further relevant and vital distinguishing
fact in present case is that when the application of present
respondent no.1 was allowed vide order dated 26.11.2009, present
appellant did not challenge the said order dated 26.11.2009 (and
thereafter also does not appear to have challenged the said order
until now) and it has remained unchallenged and has now attained
finality. Therefore when the appellate authority passed the order
present respondent No.1, filed the petition. Thus, in present case,
the respondent No.1 (original complainant) consistently and
constantly remained
present and active in the
proceedings.
9.
It also emerges from the aforesaid facts that none of the stages /
events of the Appeal proceedings were challenged by present
appellant, at any time, before the final order and until the Court
issued Notice in the petition against the Appellate Authority’s
order. In any case the order dated 26.11.2009 joining respondent No.
1 as party in the Appeal was never challenged by the appellant and it
was only at that stage i.e. in the said respondent’s petition that
the appellant herein raised the objection about complainant’s locus.
Therefore, when the appellant herein never challenged the order dated
26.11.2009 and accepted the said order, it is now not open to the
appellant to challenge the locus of the original complainant in the
appeal proceedings and / or to contend that the respondent No.1 had
no locus to prefer appeal, hence he does not have locus to file the
petition.
9.1 Furthermore,
maintainability of a writ petition
invoking Article 226 and / or Article
227 of the
Constitution of India and/or the issue about the locus standi of the
petitioner to
maintain a writ petition, ordinarily,
cannot be
determined on the basis of the provision conferring right of appeal
contained in a particular statute. Such provision can only determine
maintainability of statutory appeal.
10.
While considering the
appellant’s objection against the maintainability of the petition
and against the locus standi of the
respondent No.1 to maintain the petition, it deserves to be noted,
at the outset, that the
two issues viz. (a)
maintainability of a petition and (b) at whose instance such
petition would lie are two different matters and one cannot be
confused with the other. Likewise the issue as to whether the order
suffers from any error which would or would not warrant examination
by way of judicial review, also stand apart.
10.1
The legality,
validity and maintainability of the order of statutory authority
can always be made subject matter of judicial
review, albeit, within the well recognized limitations
applicable to the process of judicial review.
In view of the facts and circumstances discussed above, the
objection against the
maintainability of the petition, (wherein the petitioner
challenged order passed by statutory authority in the
proceedings to which he was party) is unsustainable. Hence,
the first part of the objection should not detain us and it
being without merits, is rejected.
11.
Now
so far as the appellant’s objection against the locus standi of
the respondent No.1 is concerned the said issue is, as
observed by Lord Denning “in administrative law the
question of locus standi is the most vexed question of all”
(in “Law
of Writs” 5th
edition as quoted by Hon’ble Mr. Justice C.K. Thakkar, as his
lordships then was).
11.1
The following factual aspects are in the background of the
said objections and need to be taken into account while
considering the said objection.
(a)
Present Respondent No.1 is a resident of the village where the
appellant, at the relevant time, was Sarpanch.
(b)
the Respondent No.1 also happened to be one of the members of
the elected body / village panchayat of which present appellant
was Sarpanch.
(c)
before the appellate authority also the respondent No.1 had
made application for being impleaded in the proceedings and
upon being impleaded prosecuted the appeal proceedings also.
(d)
the respondent No.1 has, right from inception of the
proceedings, continuously remained active in the entire
proceedings, after having put the things in motion after the
three FIRs were filed against the appellant.
(e)
the petition preferred by respondent No.1 raised questions, in
light of and on the strength of the provision contained under
Section 59(1) prescribing bar against a person to hold the
office of Sarpanch upon occurrence of any of the specified
contingency.
12.
If follows that the appellant’s objections are required to be
examined in light of the fact that the grievance raised in the
petition is against the incumbent in public office and about
his suitability to hold the office.
12.1
In this view of the matter, should we nip such proceedings, in
the bud on the ground of locus alone and thereby allow the
appellate authority’s order to survive and operate, and that
too without even examining and testing it, is the question
which arise from the appellant’s objection.
12.2
If we examine the petition, we find that in effect and in
substance what the respondent No.1 did by filing the petition
is that he brought to the Notice, initially of the authority
and then to the Notice of the Court, the factum about the FIRs
having been filed against the appellant and requested for
appropriate action in view of the bar imposed by Section 59(1)
of the Act. It may be recalled that the Apex Court has observed
in the case of K.Anbazhagan vs. Superintendent of Police (AIR
2004 SC 524) that:-
“In
many a cases the political opponents in, democracy, play an
important role both inside and outside the House. They are the
watchdogs of the Govt. in power. It will be their effective
weapon to counter the misdeeds and mischieves of the Govt. in
power. They are the mouthpiece to ventilate the grievances of
the public at large, if genuinely and unbiasedly projected.”
12.3
In present case the respondent No.1 may be in political
rivalry with the appellant, nontheless it is a matter of
record that he happened to be one of the members of the
Panchayat (in which the appellant was Sarpanch) and his
complaint before the DDO put the things in motion and his
petition questioned the appellant’s continuation in public
office upon 3 FIRs were having been filed against him and that
therefore before deciding as to whether the action in law taken
out by the respondent No.1 against the appellant should be
nipped in the bud by accepting the appellant’s objection on the
ground of locus of respondent No.1, we would rather take into
account the aforesaid factual aspects and also certain
decisions and precedents on the issue.
12.4 Now
so far as said respondent’s locus to prefer the petition is
concerned, ordinarily the judicial redress by writ petition is
available to a person who has suffered legal injury and whose
legal right is impinged or prejudicially affected. The
recognized and settled concept is that a person seeking writ of
mandamus must have legal right and the opposite party must be
obliged with corresponding legal duty and the petitioner’s
legal right must have been adversely affected and the demand to
remedy the injury is not paid heed to.
12.5
However, the said traditional concept of personal injury or the
concept that the seeker of the judicial redress should be the
aggrieved person are fast vanishing and law has, as observed by
the Apex Court, veered round from genuine grievance against the
order effecting prejudicially to “sufficient interest”
in the matter. Thus, in certain cases, demonstration of even
“sufficient interest” may make a petition
maintainable, whereas in some case, in view of compelling and
conscience disturbing facts, a petition by a person who has
genuine, justified and sincere concern deeper than that of
busybody can satisfy the court on the said count. In the case
between Jasbhai Motibhai Desai vs. Roshan Kumaar, Haji Bashir
Ahmed and other (AIR 1976 SC 578[1]) the Apex Court observed
that:-
The
expression “aggrieved person” denotes an elastic,
and, to an extent, an elusive concept.
12.6
Then in the case of S.P. Gupta, V.M. Tarkunde J.L. Kalra and
others vs. President of India (AIR 1982 SC 149) the Apex Court
observed that:-
“The
basic of entitlement to judicial redress is personal injury
from violation, actual or threatened, of the legal right or
legally protected interest of the person seeking such
redress.”
12.7
The Apex Court has considered the concept of locus standi by
categorizing or classifying the petitioners as “stranger”,
“busybody”, “interested person”,
“aggrieved person”. In the case between Jasbhai
Motibhai Desai vs. Roshan Kumaar, Haji Bashir Ahmed and other
(supra) wherein the objection against locus of the appellant
to prefer the petition was raised mainly on the ground that
appellant’s rights were not in any manner affected. The High
Court dismissed the petition holding that no right vested in
the appellant and appellant was not aggrieved person. In
this backdrop the Apex Court considered the issue as to
whether the proprietor who was holding licence to exhibit
film was entitled to invoke certiorari jurisdiction ex debito
justitiae (to get a ‘No-objection Certificate” issued
in favour of proprietor of Cinema, quashed) on the ground
that the order suffered from defect of jurisdiction and
having considered the facts the Apex Court in paragraph
No.12, 36, 37 and 38 observed thus:-
“12.
According to most English decisions, in order to have the
locus standi to invoke certiorari jurisdiction, the
petitioner should be an “aggrieved person” and, in
a case of defect of jurisdiction, such a petitioner will
be entitled to a writ of certiorari as a matter of
course, but if he does not fulfil that character, and is a
“stranger”, the Court will, in its discretion,
deny him this extraordinary remedy, save in very special
circumstances. This takes us to the further question: Who
is an “aggrieved person” And what are the
qualifications requisite for such a status ? The
expression “aggrieved person” denotes an elastic,
and, to an extent, an elusive concept. It cannot be
confined within the bounds of rigid, exact and
comprehensive definition. At best, its features can be
described in a broad, tentative manner. Its scope and
meaning depends on diverse, variable factors such as the
content and intent of the statute of which contravention is
alleged, the specific circumstances of the case, the nature
and extent of the petitioner’s interest, and the nature and
extent of the prejudice or injury suffered by him. English
Courts have sometimes put a restricted and sometimes a wide
construction on the expression “aggrieved person”.
However, some general tests have been devised to ascertain
whether an applicant is eligible for this category so as to
have the necessary locus standi or ‘standing’ to invoke
certiorari jurisdiction.”
“36.
It will be seen that in the context of locus standi to
apply for a writ of certiorari, an applicant may ordinarily
fall in any of these categories: (i) ‘person aggrieved’; (ii)
‘stranger’; (iii) busybody of meddlesome interloper.
Persons in the last category are easily distinguishable from
those coming under the first two categories. Such persons
interfere in things which do not concern them. They
masquerade as crusaders for justice. They pretend to act in
the name of Pro Bono Publico, though they have no interest of
the public or even of their own to protect. They indulge in
the past-time of meddling with the judicial process either by
force of habit or from improper motives. Often, they are
actuated by a desire to win notoriety or cheap popularity;
while the ulterior intent of some applicants in this
category, may be no more than spoking the wheels of
administration. The High Court should do well to reject the
applications of such busybodies at the threshold.
37.
The distinction between the first and second categories of
applicants, though real, is not always well-demarcated.
The first category has, as it were, two concentric zones: a
solid central zone of certainty, and a grey outer circle of
lessening certainty in a sliding centrifugal scale, with an
outermost nebulous fringe of uncertainty. Applicants falling
within the central zone are those whose legal rights have
been infringed. Such applicants undoubtedly stand in the
category of ‘persons aggrieved”. In the grey
outer-circle the bounds which separate the first category
from the second, intermix, interfuse and overlap increasingly
in a centrifugal direction. All persons in this outerzone may
not be “persons aggrieved”.
38.
To distinguish such applicants from ‘strangers’, among them,
some broad tests may be deduced from the conspectus made
above. These tests are not absolute and ultimate. Their
efficacy varies according to the circumstances of the case,
including the statutory context in which the matter falls to
be considered. These are: Whether the applicant is a person
whose legal right has been infringed? Has he suffered a legal
wrong or injury, in the sense, that his interest, recognised
by law, has been prejudicially and directly affected by the
act or omission of the authority, complained of? Is he a
person who has suffered as legal grievance, a person “against
whom a decision has been pronounced which has wrongfully
deprived him of something or wrongfully refused him
something, or wrongfully affected his title to something? Has
he a special and substantial grievance of his own beyond some
grievance or inconvenience suffered by him in common with the
rest of the public? Was he entitled to object and be heard by
the authority before it took the impugned action? If so, was
he prejudicially affected in the exercise of that right by
the act of usurpation of jurisdiction on the part of the
authority? Is the statute, in the context of which the scope
of the words “person aggrieved” is being
considered, a social welfare measure designed to lay down
ethical or professional standards of conduct for the
community? Or is it a statute, dealing with private rights of
particular individuals?”
12.8
In the case of Fertilizer Corporation Kamagar Union (Regd.)
Sindri and others v. Union of India and (AIR 1981 SC344) the
Supreme Court has observed that:-
“When
a citizen belongs to an organization which has special
interest in the subject-matter, if he has some concern deeper
than that of a busybody, a writ petition by such a citizen
would have been permissible under Art. 226 of the
Constitution. ”
12.9
Thus, in the matter of filing a writ petition the Apex
Court recognized the right and locus of a citizen who has
“special interest” and some deeper concern”
in the subject matter. Likewise when some compelling and
conscience disturbing facts or when an order dealing with
alleged act or conduct in the nature of moral turpitude
rendering a person unfit to continue to hold public office,
or when such conduct by a person holding public office is
made the ground for preferring writ petition so as to
question the respondent’s suitability in the office and to
behold the dignity and purity of public office then in such
cases, depending on its facts, it may not be proper or
justified to allow the ground of locus standi to be an
impediment and / or to deny a writ on the ground of lack of
locus standi of the person seeking corrective command by the
Court. In the case of Banglore Medical Trust vs. B.S.
Muddappa and others (1991 (4) SCC 54) the Apex Court has
observed that:-
“35.
Locus standi to approach by way of grant relief in writ
petition and refusal to equity jurisdiction are two
different aspects, may be with same result. ……. The
restricted meaning of aggrieved person and narrow outlook of
specific injury has yielded in favour of broad and wide
construction in wake of public interest litigation. Even
in private challenge to executive or administrative action
having extensive fall out the dividing line between
personal injury or loss and injury of a public nature is
fast vanishing. Law has veered round from genuine grievance
against order affecting prejudicially to sufficient interest
in, the matter. The rise in exercise of power by the
executive and comparative decline in proper and effective
administrative guidance is forcing citizens to espouse
challenges with Public interest flavour. It is too late in
the day, therefore, to claim that petition filed by
inhabitants of a locality whose park was converted into a
nursing home had no cause to invoke equity jurisdiction of
the High Court. In fact public spirited citizens having
faith in rule of law are rendering great social and legal
service by espousing cause of public nature. They cannot
be ignored or overlooked on technical or conservative
yardstick of the rule of locus standi or absence of
personal loss or injury. Present day development of this
branch of jurisprudence is towards freer movement both in
nature of litigation and. approach of the courts.
…….”
12.10
In the case of Gadde Venkateshwara Rao vs. Govt of A.P.
(AIR 1996 SC 828) the Apex Court that:-
“……the
petitioner who seeks to file an application under Art. 226 of
the Constitution should be one who has a personal or
individual right in the subject-matter of the petition. A
personal right need not be in respect of a proprietary
interest : it can also relate to an interest of a
trustee. That apart, in exceptional cases, as the
expression “ordinarily” indicates, a person who has
been prejudicially affected by an act or omission of an
authority can file a writ even though he has no proprietary
or even fiduciary interest in the subject-matter
thereof…….”
12.11
In the case between M.S. Jayaraj vs. Commissioner of Excise (AIR 2000
SC 3266) a bidder in auction of licence of vending foreign liquor
within the prescribed range was permitted “by the Excise
Commissioner” to shift his domain (from Changanassery excise
range to another range called Karukachal) to another range. The
hotelier doing business in another range viz. Karukachal (where the
bidder was permitted to shift his domain) was distressed by such
permission and approached the High Court. Before the learned Single
Judge, the hotelier failed, however before the division bench
hotelier succeed as the decision of the Excise Commissioner was set
aside. The bidder claimed that the Division Bench, in appeal filed
by the hotelier, did not seriously address his objection that the
hotelier had no locus to challenge the order of the Commissioner as
none of his rights was impinged by the order allowing the bidder to
shift his domain from one range to another. The Apex Court in
paragraph Nos. 10 and 13 observed thus:-
“10.
……. the right of the third respondent is not affected by the
order passed by the Excise Commissioner as the licence granted to
her is only for selling liquor in small quantity and that too only
to those persons who visit the hotel and restaurant, whereas the
appellant is not permitted to sell it like that. We too feel that
if the business of the third respondent is to be carried on in
accordance with the rules such business cannot affect the business
of the appellant. In that view of the matter appellant would
not be a rival trader or a rival business contender for the third
respondent. Perhaps bearing in mind this aspect the third
respondent maintained the stand in the counter affidavit filed in
this Court that her objection against the order of the Excise
Commissioner is as a citizen of Karukachal Panchayat and she is
entitled to raise such objection.
13.
In the light of the expanded concept of the locus standi and also
in view of the finding of the Division Bench of the High Court
that the order of the Excise Commissioner was passed in violation
of law, we do not wish to nip the motion out solely on the
ground of locus standi. If the Excise Commissioner has no
authority to permit a liquor shop owner to move out of the range
(for which auction was held) and have his business in another
range it would be improper to allow such an order to remain
alive and operative on the sole ground that the person who filed
the writ petition has strictly no locus standi. So we proceed to
consider the contentions on merits. ”
12.12
In the aforesaid decision also the Apex Court, while acknowledging
that aspect of locus standi had expanded, approved the decision of
the Division Bench of entertaining the petition. The order passed by
the excise commissioner was found to have been “passed in
violation of law” and therefore, the Apex Court considered it
appropriate to not terminate the action in law solely on the ground
of locus standi and instead proceeded to consider the contention on
merits.
12.13
In the case between Sai Chalchitra vs. Commissioner, Meerut Mandal
(2005 (3) SCC 683) the appellant before the Apex Court was running a
Cinema Hall. The licence given to respondent No. 3 to run a video
parlor was cancelled by the District Magistrate. The said order was
set aside by the Commissioner allowing the video parlor to remain in
operation. In his writ petition against the Commissioner’s order the
appellant contended before the High Court that the video parlor of
respondent No.3 was situate within 350 mtrs. from the cinema hall and
that therefore such licence could not have been issued in view of the
provision under U.P. Cinema (Regulation of Exhibition by Means of
Video) Rules, 1988. The writ petition was dismissed by the High Court
on the ground of locus standi of the appellant holding, inter alia,
that the appellant could not raise grievance against his rival in
trade and the appellant had not been denied or deprived of any of his
legal right including right to exhibit film. The matter was carried
to the Apex Court. The Apex Court, in the appeal preferred by owner
of the cinema hall observed that:-
“5….we
are of the opinion that the High Court clearly erred in dismissing
the writ petition filed by the appellant on the ground of locus
standi. The appellant being in the same trade as Respondent No.3 has
a right to seek the cancellation of the licence granted to Respondent
No.3 being in violation of the Act and the Rules.”
13.
Having regard to the precedents – the above noted decisions –
and in light of facts of present case, it emerges that the petitioner
– respondent No.1 would not fall into the category of a
“complete stranger” and / or a “busybody” as
explained by the Apex Court in the case of J.M. Desai (supra).
13.1
When the order impugned in the petition is challenged inter alia on
the ground that it is contrary to the decided cases and when the
subject matter of the petition concerns or relates to incumbent in
public office and his suitability to hold the office, in our view it
cannot be said that the petition preferred by present respondent No.1
(i.e. the complainant) should not have been entertained by the
learned Single Judge or that the respondent No.1 (original
complainant) had no locus standi to prefer the writ petition under
Articles 226 and 227 of the Constitution of India against the order
of the Appellate Authority in the appeal proceedings to which he was
made/impleaded as party
13.2
Having regard to the facts of present case particularly the fact
that subject matter of the petition, inter alia, raises the issue
about suitability of incumbent in public office, we are not inclined
to accept the appellant’s objections against the locus standi
of the petitioner (i.e. the original complainant) to prefer the writ
petition and/or against the decision of the learned Single Judge
entertaining the petition and we are not inclined to nip the
proceedings on the ground of locus standi of the petitioner. The
objection is, therefore, not accepted and is hereby rejected.
14.
We may now turn to the appellant’s challenge against the
decision of the learned Single Judge setting aside the Appellate
Authority’s dated 20.02.2010 and restoring the order dated
25.06.2009 by the Competent Authority.
15.
For the purpose of passing the order of suspension dated 25.6.2009
against present appellant, the Competent Authority took into account
the 3 different complaints against the appellant, alleging
commission of criminal offence, under Sections 143, 149, 323, 426
as well as Sections 405, 406, 408, 409, 420 and 120-B etc. of the
Indian Penal Code. The Competent Authority recorded that the alleged
offence constituted / were in nature of moral turpitude and since
the petitioner was arrested and detained in prison, until he came to
be enlarged on bail, there was case for passing order of suspension
under sub-section (1) of Section 59.
16.
However, in exercise of his powers conferred by the provision under
sub-section (3) of Section 59 the Appellate Authority, by his order
dated 20.02.2010, set aside the order of Competent Authority holding
that the charges leveled against present appellant did not
constitute moral turpitude.
16.1
In its order dated 20.2.2010, the
Appellate Authority has made reference of the two decisions relied
on by the appellant one being the case between Narabhai Veljibhai
Chaudhari Vs. R.S. Waghela and others (1997(1)GLR 599) and another
being the case between
Bhikhumiya Sarfumiya Malek Vs. D.D.O., Mehsana (1999(3) GLR 2693).
16.2 True
it is that the learned Single Judge, in the decision in the
case of Narabhai Veljibhai Chaudhari (supra) has observed that
Sarpanch cannot be suspended merely on institution of criminal case.
However, it is also
relevant that in the very same decision,
the learned Single Judge has also observed that whether the alleged
act constitutes offence
of moral turpitude or not depends on various factors and there
cannot be straight
jacket formula and that
it would not be desirable to express any opinion regarding the
nature of
alleged offence as it may prejudice the criminal case. Likewise, in
the second decision also i.e. in the case of Bhikhumiya Safumiya
Malek (supra) the
learned Single Judge has observed that “I do not wish to
express any opinion about the allegations in the criminal case as
the matter is yet before the Criminal Court for purpose of framing
charge……”.
16.3 Despite
such observations in the said decisions, the Appellate Authority,
without any discussion about the nature of alleged offence and
without examining the allegations in the 3 FIRs (filed against
present appellant) in the context of the post held by the appellant,
quashed the order of the Competent Authority, and without recording
any reasons, the appellate authority also concluded that “it
was difficult to accept that the allegations constitute offence of
moral turpitude”. The Appellate Authority failed to consider
that in one of the cited cases i.e. in the case of N.V. Chaudhary
(supra) the learned Single Judge observed, in the backdrop of the
facts of that case recorded in para 4 of the decision, that the
allegations did not inspire confidence and that the oral version
does not find corroboration from medical evidence and emphasized
the point that the facts should be carefully scrutinized and the
conclusion must be reached upon proper application of mind and not
casually and / or mechanically.
17. Thus,
even according to the judgments referred to by the Appellate
Authority (on which the appellant relied), it was necessary for the
authority to independently examine the allegations and determine,
objectively, whether the alleged offence were in nature of moral
turpitude and whether it would constitute offence of moral
turpitude, or not.
17.1 However,
in the impugned order there is no discussion whatsoever about the
factual background and/or about the nature of alleged offence. It
also does not come out from the Appellate Authority’s order that the
authority had considered the allegations and the nature and gravity
of alleged offence from the perspective of the office and post held
by the accused and from the perspective that the case concerns
public office and the person holding the office.
17.2 The
Appellate Authority has only reproduced the numbers of the sections
prescribing penalty for the alleged offence and after merely
mentioning the sections stated in the FIR, the Appellate Authority,
without any discussion and without recording any reasons, recorded
that it was difficult to consider the allegations as offence of
moral turpitude. Such approach towards the matter, even according to
the decisions referred to by the Appellate Authority in its order,
is unjustified and unsustainable, and vitiates the order.
17.3 So
as to further appreciate this aspect it would be appropriate to refer
to two earlier decisions viz. the decisions in the case between
Patel Bhogilal Manohrdas vs. Development Commissioner (1976 GLR 724)
and R.M. Patel vs. Additional Development Commissioner (1992 (1) GLH
197). In the case of Patel Bhogilal Manohardas (supra), the learned
Single Judge considered the question whether the information lodged
with police would amount to institution of criminal proceedings or
not and observed that:-
……Now
the question whether the information lodged with the police amounts
to institution of criminal proceedings is not difficult to answer. If
the legislature had meant by criminal proceedings in a Court of law
or judicial proceedings in a Criminal Court of Law it would have
unmistakably said so. The legislature has not used that language in
sub-sec.(1) of sec.51. The legislature has used the expression any
criminal proceedings which admits of a very wide connotation.
Proceedings can be before a Court of law or before a police officer
who is competent to entertain them. If such proceedings whether
before a Court of law or before a police officer are criminal in
nature then their institution enables the District Development
Officer to suspend inter alia a Sarpanch from his office provided
they are in respect of an offence or offences involving moral
turpitude. In my opinion the expression any criminal proceedings is
wide enough to include within its sweep proceedings before a police
officer in the shape of information of an offence lodged with him……”.
In
another case i.e. in the case of R.M. Patel (supra), another learned
Single Judge considered the view in the above referred case of Patel
Bhogilal Manohardas (supra) and held that the words “any
criminal proceedings” shall have to be given wide meaning so as
to include not only the proceedings before the Court of Law but even
the stage of investigation before the Police Officer.
17.4
Unfortunately, the aforesaid aspects do not appear to have been
given due consideration by the Appellate Authority in the impugned
order. Actually without independently examining the allegations and
without taking his own independent and objective decision the
Appellate Authority could not have reached the conclusion that it was
difficult to consider the allegations as constituting offence of
moral turpitude. The Appellate Authority’s order is, thus, defective
and against the decided cases and also against the spirit and object
of the provision.
18. It
is pertinent that the provision empowering the competent authority
to suspend a Sarpanch or Up-Sarpanch in the event of specified
contingencies is based on the fundamental principle of public
policy viz. maintaining purity in public office. The provision
barring a person who is facing charge of offence of moral
turpitude, from holding public office e.g. to place the incumbent
in the office of Sarpach or Up-Sarpanch under suspension if he is
charged with offence of moral turpitude, is incorporated with a
view to ensuring fulfillment of the said requirement and object
and for realizing the avowed principle of public policy viz.
maintaining purity, dignity and standard of public office. It is
in light of the said principle behind the provision that the
question as to when and how the power can be and should be
exercised by the competent authority, can be (and should be)
answered.
18.1
The language of the said subsection (1) of section 59 make it
clear that the expression “any criminal proceedings is wide
enough to include within its fold, the proceedings before a
police officer in the shape of information lodged with him (i.e.
FIR), as well, and indicates the intention of legislature to
allow the authority sufficient room to exercise the power to
maintain purity of the public office.
18.2
It is true that every case does not call for drastic action and
mere allegation or charge of involvement of Sarpanch or Up-Sarpanch
in petty offence or offence of trivial nature or offence which is
not in the nature of moral turpitude may not justify action under
subsection (1) of section 57 or even under subsection (1) of section
59. Likewise, in all cases there may not be sufficient information
or material or details to satisfy the competent authority to take
action under subsection (1) of section 59 and the authority may
consider it appropriate, in the facts of the case before him, to
wait until investigation, pursuant to the information to the police
officer, is over and chargesheet is filed, while in another case the
competent authority may find it appropriate to take action under the
aforesaid provision, upon detention in prison of the incumbent in
the office. There cannot be a straight-jacket formula and any rigid
or inflexible rule cannot be laid down as to in which type of cases
the power can be and should be exercised and in which type of cases
it should not be exercised or in which type of cases the power can
be exercised at the stage when the FIR is lodged or chargesheet is
filed or charge is framed. Furthermore, while there cannot be a
straight-jacket formula, the competent authority must always have
regard to, and should always keep in focus, the object and purpose
of the provision.
18.3
Having regard to such aspects the legislature has, in its wisdom,
confered the discretion, to take appropriate decisions in light of
the facts of each case, on the competent authority. However, the
guiding factor or the thumb rule which should act as the fundamental
principle and focal point is the object of the said provision viz.
the principle of public policy to maintain purity, and dignity of
the public office and to bar a person, against whom there is charge
of moral turpitude (or in whose case any of the contingencies
specified in the section has arisen) from holding the public office.
18.4 Another
aspect which also should guide the competent authority in exercising
the discretion and the power under subsection (1) of section 59 is
that the provision has been made in respect of the office of local
body where the person holds the office upon being elected by the
electorate who does not have the power to recall the elected
members of the local body and that therefore the legislature
recognized the requirement to provide a safeguard so that such
member who is elected for holding the public office of Sarpanch or
Up-Sarpanch in the local body, does not misuse the absence of
right of being recalled by the electorate and upon recognizing the
said requirement, the legislature made the provision
by way of sections 57 and 59 of the Act. At the same
time suspension of elected representative by administrative order
ought to be done cautiously and fine balance between
the need to maintain purity of public office and tenure of elected
member has to be maintained.
18.5 It
is trite to say that whether the alleged offence constitutes or
involves the question of moral turpitude or not, has to be judged
also in light of the post or position or the office held by the
person charged with the offence. Diverse factors may have to be kept
in mind before deciding as to whether the offence is in the nature
of and / or constitutes moral turpitude or not e.g. the person who
committed the offence, the post / position held by him, the person
against whom the alleged act was committed, the nature of the
alleged act and the manner and circumstances in which it was
committed, the circumstances in which the alleged act was committed
etc. and for such purpose it may be necessary to take into account
the facts and allegations stated in the complaint / FIR or the
chargesheet and not merely the provisions. The decision by the
competent authority cannot be taken by divorcing the said aspects
from the constituents or the ingredients of the alleged offence.
18.6
While taking the decision and exercising the discretion and before
passing the order under subsection (1) of section 59, the competent
authority has to apply mind to the aforesaid and such other relevant
aspects. The fulcrum, for all decisions will, however, be morality
or its absence and that is what must act as the beacon light for the
authority. In the process of decision making, what applies to and
what is true for the competent authority, also applies to and is
true for the appellate authority as well, (i.e. also applies to the
appellate authority when it examines the order of the competent
authority while deciding the appeal).
19.
A person who is detained in prison renders himself incapable of
discharging duties of the office. When prima facie involvement is
shown and the person in the office is found to be under cloud of
doubt then the competent authority is required to take appropriate
decision. True it is that the probability or possibility of
concocted and frivolous complaints, either out of political rivalry
or personal enimosity, cannot be ignored and that therefore the
competent authority has to satisfy himself and exercise the
discretion and power judiciously.
19.1
The competent authority also needs to keep in focus that if the
person is allowed to hold the office of head of panchayat without
any action under the said provision, while he continues to be
detained in prison then such inaction may result into and would
amount trivializing the system of local authority and it may uproot
the very basis of the system viz. the faith, trust and confidence
of people electing their representatives.
19.2
A reference of few instances wherein the Court has considered the
alleged act by the sapanch or Up-Sarpanch as moral turpitude, will
not be out of place at this stage. In the case of R.M. Patel (supra)
the alleged offence was punishable under section 146, 353 and 506 of
IPC wherein the Court dismissed the petition by the sarpanch who
made grievance against the order suspending him from the post of
sarpanch. In the case between S.P. Shah vs. Kavant Gram Panchayat
the division bench, while deciding letters patent appeal (LPA No.680
of 1997 in SCA No.347 of 1997), considered the alleged offence of
misappropriation and the charge under section
409 of IPC, as an act of moral turpitude. In the case between Mustaq
Ahmed Hasanbhai Mansuri vs V.C. Trivedi (2003 1 GLH 572), the Full
Bench while considering a case in which
the sarpanch was removed in exercise of power under section 57(1)
considered the act of encroachment by up Up-Sarpanch as
“disgraceful” and observed that :-
4.4 ………………….
A disgraceful conduct is much more grave than a mere misconduct. A
disgraceful conduct brings disrepute not only to the
Councillor who is guilty of such conduct, but would also
cast a stigma upon the institution, namely, the
Municipality. Webster gives the word “disgraceful”
meaning as synonymous of “infamous”, “detestable”,
“odius”, “scandalous”, “base”, “vile”, “shamefull”,
ignominious”………………..President, Vice President
or Councillor of a Municipality,as the case may be, is a public figure holding public post and is supposed to conduct himself in such a manner whether in the discharge of his duties or otherwise, that his conduct does not bring shame or dishonour or ignominy to himself or the institution. The decisions taking contrary view on this point stand overruled.
20.
The appellate authority has not addressed any of the relevant
aspects, discussed above. It is pertinent to note that the appellate
authority lost sight of the observations that “the authority
is required to scrutinize the cases with more care and caution”
made in the judgments referred to by it in the impugned order. It is
also pertinent that in present case the appellate authority set
aside the order of competent authority on the ground that the
competent authority had not considered the relevant aspects and then
the appellate authority also committed the same error and without
any discussion and without recording reasons to justify and support
its conclusion and by merely taking note of the number of the
provisions / sections mentioned in the FIRs recorded the finding or
the view that the alleged offence in all the three FIR’s (or
chargesheet) do not constitute moral turpitude.
20.1
In our view the impugned order cannot be said to be an order passed
after addressing the relevant issue. The order merely takes note of
the numbers of the provisions / sections mentioned in the FIRs i.e.
Sections 409, 420, 406, 408, 143, 323, 426 etc. and not the facts or
allegations against the accused (appellant herein) and it also does
not discuss as to whether in light of the office and the post held
by the appellant the facts / allegations would constitute offence in
the nature of moral turpitude. The basis and reasons justifying,
and / or in support of, the conclusions are not discernible from the
order. On careful consideration, and upon overall view of the facts
and on examination of the order impugned in the petition we are of
the considered view that the order dated 20.2.2010 is not
sustainable and deserves to be set aside. The learned Single Judge
is right and justified in setting aside the order dated 20.2.2010.
21.
Therefore, we are not inclined to interfere with the order of the
learned Single Judge setting aside the appellate authority’s order
dated 20.2.2010 and we confirm the said part of the judgment dated
13.8.2010 passed by the learned Single Judge by which the learned
Single Judge quashed the Appellate Authority’s order dated
20.2.2010. The decision of the learned Single Judge to treat the
petition by respondent No.1, as maintainable, is also confirmed.
21.1
The appellant has also contended that after setting aside the order
of the appellate authority, the learned Single Judge has restored
the order of the competent authority, however, the order of the
competent authority also is unsustainable and the said order ought
not have been restored. On scrutiny of the order dated 25.6.2009 it
comes out that notwithstanding or irrespective of the competent
authority’s conclusion the said order dated 25.6.2009 by the
competent authority suffers from same defects as in the order dated
20.2.2010,.
21.2
In this situation and at this stage the options or alternatives
before us, are two. Either we consider the allegations, nature and
gravity of the alleged offence, and other relevant aspects and
pronounce as to whether they constitute moral turpitude or not;
or, we remand the case for fresh consideration and decision. We
are conscious that it is advisable and necessary, as far as
possible, to avoid remand of the case and we are not very happy in
remanding the case.
21.3
However, we are also alive to the possibility that the conclusion
by the statutory authority as to whether the alleged acts
constitute moral turpitude or not; may not have bearing before the
trial Court which would try the case against the appellant;
however even a prima facie view expressed by this Court may
probably affect or influence the proceedings before the trial
Court.
21.4
Lest it should happen, we do not see, at this stage and in the
facts of present case, any other option but to remit the case
before the appellate authority (since the learned Single Judge has
already set aside the Appellate Authority’s order, and we have not
disturbed the said part of the order) in view of the inherent
defects in the appellate authority’s order and also to avoid
the above noted eventuality and contingency. We order accordingly.
Consequently the said limited part of the judgment dated 13.8.2010
to the extent and by which the learned Single Judge restored the
order of the competent authority will not survive.
22.
We have noticed at the outset that the appellate authority had, at
initial stage, stayed the operation of the order dated 15.7.2009
passed by the DDO. Therefore, also, instead of remanding the case to
the competent authority, we deem it proper to remand the case to the
appellate authority. Thus, on remand, the said order dated 15.7.2009
and the same status shall stand restored and the case shall be
deemed to have been remitted and restored before the Appellate
Authority, at that stage. For removal of doubt it is clarified that
the proceedings are remitted to the Appellate Authority and shall be
deemed to have been restored at the stage when order dated 15.7.2009
staying the Competent Authority’s order was passed. In this view of
the matter the order by learned Single Judge restoring the order of
Competent Authority shall not survive and the Appellate Authority’s
order dated 15.7.2009 shall stand revived and restored. The
Appellate Authority shall be at liberty to pass appropriate order in
accordance with law and after hearing all the parties who were
treated as party to the proceedings and were heard while deciding
the Appeal No. 86 of 2009.
23.
We also clarify that we have not expressed any opinion as to whether
the alleged offence constitutes moral turpitude or not and it would
be for the appellate authority to pass appropriate order in
accordance with law and the precedence on the point.
With
the aforesaid clarifications and directions the appeal stands
disposed. The appellate authority shall, as aforesaid, take fresh
decision as early as possible and preferably within 3 months from
receipt of the copy of this order. In the facts of the case there
shall be no order as to costs.
Sd/-
(
S. J. MUKHOPADHAYA, C. J. )
sd/-
(
K. M. THAKER, J. )
Suresh*
Top