Gujarat High Court
Rakeshsing Rammuratsingh Rajput vs State Of Gujarat on 18 July, 2018
Author: A.J. Shastri
Bench: A.J. Shastri
R/SCR.A/4768/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4768 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
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 or any
NO
order made thereunder ?
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RAKESHSING RAMMURATSINGH RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the PETITIONER(s) No. 1
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 18/07/2018
ORAL JUDGMENT
1. The present petition is filed under Article 226 and 227 of the Constitution of India for the purpose of seeking following reliefs:-
"(A) That the Hon'ble Court may be pleased to Page 1 of 7 R/SCR.A/4768/2017 JUDGMENT admit this Special Criminal Application.
(B) That this Hon'ble Court may be pleased to allow this present Special Criminal Application by issuing appropriate writ, Order or direction by quashing and setting aside the impugned show cause notice dated 25.10.2016 as HDP/88/2016 at Annexure A passed by respondent no. 2 in the interest of justice.
(C) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the impugned show cause notice dated 25.10.2016 as HDP/88/2016 at Annexure A passed by Respondent No. 2 in the interest of justice.
(D) grant such other and further relief as deemed just and proper by this Hon'ble Court in the interest of justice. "
2. When the matter is taken up for hearing, learned advocate appearing for the petitioner has fairly conceded that this petition is filed for challenging the notice issued by the respondent authority under Section 59(1) and (2) of the Gujarat Police Act,1951 and till date, no order of externment is passed. It has also been contended that petitioner is an innocent and peace living person and, therefore, he has wrongly been proceeded with.
3. However, when it has been emerged from the record that undisputedly, no order is passed so far, this petition is not possible to be entertained, more particularly in view of the fact that statutory authorities, Page 2 of 7 R/SCR.A/4768/2017 JUDGMENT who are invested with the powers, should be allowed to take appropriate decision. No doubt, the petition can be entertained at a notice stage, however, looking to the stringent provisions which are contained under the statute, this Court is of the opinion that competent authority must be allowed to take appropriate decision, as yet the explanation and reply of the petitioner to be considered by the authority.
4. The provisions of the Gujarat Police Act have specifically prescribed a statutory mechanism to deal with an issue of externment and such powers are to be exercised by the authority in the manner in which it has been prescribed. Now, in that situation if notice is issued, it is obligatory on the part of the petitioner to respond to such and try to explain and convince the authority.
5. At this juncture, it is not possible to be believed by this Court that the authority will not consider the explanation and reply of the petitioner and will act de-hors the statutory provisions. Further, at this stage, an apprehension is voiced out by learned advocate for the petitioner that without granting any adequate opportunity, straightway, an order will be passed by the authority. But, to substantiate such apprehension, there seem to be no cogent material and considering the aforesaid peculiar set of circumstance, learned advocate for the petitioner, under the instructions, does not press the present petition with a view to submit Page 3 of 7 R/SCR.A/4768/2017 JUDGMENT appropriate reply to the authority against the notice which has been issued and has also requested to take care of the opportunity concept for the petitioner.
6. The Court has also kept in mind the law propounded by the Apex Court in a decision in case of D.N. Jeevaraj v. Chief Secretary, Government of Karnataka & Ors., reported in (2016) 2 SCC 653. Relevant observations are in Para.38, 41, 42 and 43 reproduced herein after:
"38. A salutary principle or a well recognized rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India, in the following words:
"24. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 13, p. 106):
"198.-Demand for performance must precede application.- As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal."Page 4 of 7
R/SCR.A/4768/2017 JUDGMENT
25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."
41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.
42. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, this Court held that it is primarily the responsibility and duty of a statutory authority to take a decision and it should be enabled to exercise its discretion independently. If the authority does not exercise its mind independently, the decision taken by the statutory authority can be quashed and a direction given to take an independent decision. It was said:
"22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not Page 5 of 7 R/SCR.A/4768/2017 JUDGMENT conclusive as "shall" and "must" have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right".
23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion."
43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."
7. Hence, taking note of such submission, following order would meet the ends of justice, while disposing of the petition:
(1) The petitioner, if so desires, would submit the further reply to the notice dated 25.10.2016 which is under challenge, within a period Page 6 of 7 R/SCR.A/4768/2017 JUDGMENT of two weeks from today and upon such reply being submitted to the authority, the authority concerned is directed to grant an opportunity of hearing to the petitioner and after complying the principles of natural justice, shall pass an appropriate order with cogent reasons in accordance with law.
(2) Since the petition is not pressed and the petitioner would like to approach the authority by way of reply and explanation, this Court has not gone into merits of the case, as has been requested and the authority is directed to take independent decision on its own merits and in accordance with law, without being influenced by the present order.
8. Admittedly, so far no order is passed by the authority concerned. Hence, the question of continuing the interim relief would not arise.
9. In view of the above observations and directions, the present petition stands disposed of, as not pressed. Rule is discharged. Interim relief, if any, granted earlier stands vacated. Direct service is permitted.
(A.J. SHASTRI, J) Bhoomi Page 7 of 7