Gujarat High Court
Wind World India Ltd vs Shree Tebhada Gram Panchayat,Through ... on 8 February, 2023
Bench: Aravind Kumar, Ashutosh Shastri
C/LPA/135/2023 JUDGMENT DATED: 08/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 135 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 22350 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/LETTERS PATENT APPEAL NO. 135 of 2023
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WIND WORLD INDIA LTD.
Versus
SHREE TEBHADA GRAM PANCHAYAT,THROUGH ITS SARPANCH
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Appearance:
MR KUNAL J. VYAS, ADVOCATE WITH
MR DEVARSH TRIVEDI, ADVOCATE FOR GANDHI LAW
ASSOCIATES(12275) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 08/02/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. This intra-court appeal lays a challenge to the order dated 2.1.2023 whereby petition has been dismissed on the ground that petitioner has the right of remedy of statutory appeal under Section 24 of the Gujarat Panchayats Act, 1993 before the District Panchayat against the order dated 27.10.2022 passed Page 1 of 5 Downloaded on : Thu Feb 09 20:48:27 IST 2023 C/LPA/135/2023 JUDGMENT DATED: 08/02/2023 by respondent Nos.1 and 2. The thrust of the arguments and grievance of the writ applicants before the learned Single Judge in sum and substance was to the effect that impugned order dated 27.10.2022 has been passed in utter violation of Rule 55(2) and (3) of the Gujarat Panchayats Rules. However, the learned Single Judge was of the view that against said order, there is an appeal provided under the Act which is an alternate and efficacious remedy and as such the writ application is not maintainable.
2. Having heard the learned advocates appearing for the parties and on perusal of the record, we notice that it is trite law, where there is infringement of a right, the doors of this Court under Article 226 of the Constitution of India cannot be shut when grievance is made out that impugned order has been passed in violation of principles of natural justice. For the proposition that alternate remedy is no bar for exercise of jurisdiction under Article 226 of the Constitution of India, following judgments can be looked out:
(i) State of U.P. and otehrs vs. M/S. Indian Hume Pipe Co. Ltd. [AIR 1977 SC 1132];Page 2 of 5 Downloaded on : Thu Feb 09 20:48:27 IST 2023
C/LPA/135/2023 JUDGMENT DATED: 08/02/2023
(ii) Shashi Gaur vs. NCT of Delhi and others [(2001) 10 SCC 445];
(iii) Dhampur Sugar Mills Ltd. vs. State of U.P. and others [(2007) 8 SCC 338].
3. In the instant case, as noticed hereinabove and at the cost of repetition, the grievance of the petitioners was that the impugned order dated 27.10.2022 passed by respondent Nos.1 and 2, i.e. Shree Tebhada Gram Panchayat was in violation of Rule 55. A perusal of sub-rule (1) of Rule 55 would indicate that before taking any action under sub-section (5) of Section 104 in respect of clause 9(6) or before taking action mentioned in sub- section (2) of Section 105, the person against whom the action is proposed should be given 7 clear days' notice to show-cause why the proposed action should not be taken giving details of the action desired to be taken. Sub-rule (2) of Section 55 mandates that such notice should clearly mention the last date on which the reply is to be submitted in writing to be delivered to the panchayat and also the date, time and place where he would be given a personal hearing before the panchayat meeting. Whereas, in the instant case, notice dated 7.10.2022 Page 3 of 5 Downloaded on : Thu Feb 09 20:48:27 IST 2023 C/LPA/135/2023 JUDGMENT DATED: 08/02/2023 (Annexure-P/21) which has been heavily relied upon by the panchayat would indicate that it is only a notice issued to petitioners to submit the objection in person. In other words, it does not indicate that petitioners have been notified of the date, time and venue of personal hearing as required to be furnished under Rule 55(2) of the Rules.
4. At this juncture, learned advocate who has taken notice on behalf of respondent Nos.1 and 2 and represented by Mr. Hriday Buch, would submit that respondent Nos.1 and 2 would hold the hearing on any date fixed by this Court and prayer for suitable order being passed. Learned advocate appearing for the appellants fairly admit this position. In that view of the matter, without going into merits of the case, we direct the petitioners to appear before respondent No.1 on 15.2.2023 at 11.00 a.m. at the office of respondent No.1 without waiting for any further notice from respondent Nos.1 and 2. It is also made clear that respondent Nos.1 and 2 would not be required to issue any fresh notice to petitioners and on the aforesaid date and time, petitioners shall appear before respondent No.1 as agreed before this Court.
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5. It is needless to state that after hearing the petitioners, respondent Nos.1 and 2 would be at liberty to pass orders on merits and in accordance with law without being influenced by its earlier orders. Learned advocate appearing for the petitioners would fairly concede this procedure would meet the mandate prescribed under Rule 55 of the Rules and petitioners would be satisfied. In the meanwhile, Mr. Hriday Buch, learned advocate appearing for respondent Nos.1 and 2 would fairly undertake that till passing of fresh orders by respondent Nos.1 and 2, no coercive steps as has been proposed would be taken against petitioners. His submission and undertaking is placed on record. Appeal stands disposed of. Pending application if any stands consigned to records.
(ARAVIND KUMAR,CJ) (ASHUTOSH SHASTRI, J) Bharat Page 5 of 5 Downloaded on : Thu Feb 09 20:48:27 IST 2023