Gujarat High Court
Siddik Osman Gajan vs State Of Gujarat on 12 June, 2018
Author: A.J.Shastri
Bench: A.J. Shastri
C/SCA/7425/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7425 of 2018
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SIDDIK OSMAN GAJAN
Versus
STATE OF GUJARAT
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Appearance:
MR.D K.PUJ(3836) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3,4
MR.UTKARSH SHARMA, AGP (99) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 12/06/2018
ORAL ORDER
[1] The present petition is filed under Article 226 of the Constitution of India by the petitioner for seeking following reliefs:
"8. A. This Hon'ble Court may be pleased to admit and allow this petition;
B. This Hon'ble Court may be pleased to quash and set aside the order dated 31/3/2018 passed by the respondent no.1 in Appeal No. 8 of 2018 preferred by the petitioner as well as the order passed by the respondent no.2 as well as the order passed by the District Development Officer, the respondent no.3 dated 14.2.2018;
C. This Hon'ble Court may be pleased to stay the execution, operation and implementation of the order dated 31/3/2018 passed by the respondent no.1 in Page 1 of 16 C/SCA/7425/2018 ORDER Appeal No. 8 of 2018 preferred by the petitioner as well as the order passed by the respondent no.2 as well as the order passed by the District Development Officer, the respondent no.3 dated 14.2.2018 pending admission, hearing and final disposal of this petition;
D. Any other and further relief, YOUR HONOUR deems fit, just and proper may kindly be granted in the interest of justice."
[2] The premise on which the present petition is brought before this Court is that petitioner was duly elected as a Sarpanch of Kervandh Juth Gram Panchayat. During the tenure of petitioner being Sarpanch, a show-cause notice was issued by respondent-authority on 19.12.2017 alleging that one criminal complaint was registered on 07.06.2017 before Bhuj City A Division Police Station for the offences punishable under Sections 465, 467, 471, 473 and 114 of the IPC which was lodged as I-C.R. No.111/2017. It was the case in the complaint that during the course of police patrolling in the area of Bhuj Town, a private information was received that two males and one female were moving in a suspicious position and their names are referred to in the complaint and when they were intercepted and napped by the police authority, it was found that they have did not any VISA passport. Upon personal inquiry of Manzura Khatun, d/o Imam Saddar, it was found that she was having certain documents in support of her claim of being Indian Citizen, but then, it was alleged that accused Manzura Khantun is though a citizen of Bangaldesh and yet has created fictitious fabricated documents posing to be an Indian Citizen and moving in the town without any valid documents with the aid and assistance of the petitioner, Page 2 of 16 C/SCA/7425/2018 ORDER and thereby, since the petitioner Sarpanch assisted her in creating such fabricated documents, the petitioner has misused his position as a Sarpanch. During the course of investigation, the search was also made of the premises of the petitioner and the panchnama was drawn on 08.06.2017 wherein it was found that some objectionable materials / documents were found from the residence of the petitioner for which there was no explanation or satisfactory reply available with the petitioner. After thorough investigation and after collecting the relevant materials, the police authority found a case against the petitioner. As a result of this, the petitioner was arrested on 08.06.2017 in connection with the aforesaid criminal complaint.
[3] From the record, it appears clearly that though initially in FIR, the petitioner was not named, however, after thorough investigation, some materials were found, as a result of this, the charge-sheet came to be filed on 18.08.2017 against the petitioner in which the petitioner was shown as accused No.1 along with other accused persons. Since the petitioner was involved himself in such a serious offence and misused his position as a Sarpanch, the petitioner was called upon to show- cause notice vide notice, as referred to above.
[4] It is further reflecting that since the petitioner was arrested in connection with aforesaid complaint, an application for bail was presented under Section 439 of the Cr.P.C and vide order dated 30.08.2017, the learned Additional Sessions Judge, Bhuj-Kutch released the petitioner on regular bail. During the course of proceedings before the learned Chief Judicial Magistrate, Bhuj-Kutch, examination of chief of the panch witness no.1 namely Osman Ismail Mandhra was also made on Page 3 of 16 C/SCA/7425/2018 ORDER 21.11.2017 and by asserting that there is no material found against the petitioner and even cross-examination which has taken place in the month of November 2017, no contrary material is found except mere suspicion. As a result of this, the petitioner was wrongly arraigned in the prosecution. Despite the aforesaid situation having been brought to the notice of respondent authority, a show-cause notice was issued on 19.12.2017 which was responded by the petitioner by filing a detailed reply on 29.01.2018 having pointed out every things. Still the authority has passed an order suspending the petitioner from the post of Sarpanch of Kervandh Juth Gram Panchayat vide order dated 14.02.2018 in exercise of powers under Section 59(1) of the Gujarat Panchayat Act (hereinafter referred to as the "Act").
[5] This order of suspending, the petitioner from the position of Sarpanch was passed by the District Development Officer under Section 59(1) of the Act. Resultantly, the said order carried in an appeal as required under Section 59(3) of the Act which appeal was registered as Appeal No. 7 of 2018. The written submissions were also submitted. However, the appellate authority has rejected the appeal in its entirety vide order dated 31.03.2018 which is made the subject matter of present petition under Article 226 of the Constitution of India.
[6] This petition originally came up for consideration on 09.05.2018, which upon the request of learned advocate posted for further hearing on 12.06.2018 and on 12.06.2018, Mr.D.K.Puj, learned advocate appearing for the petitioner has contended that no case of moral turpitude is drawn out against the petitioner. It is also contended that merely filing of criminal case would not sufficient enough to invoke jurisdiction under Section 59 of the Act and without any cogent and concurrent material, the order of Page 4 of 16 C/SCA/7425/2018 ORDER suspension cannot be passed. Mr.Puj, learned advocate has further contended that simply because the charge-sheet has been filed, the authority appears to have been assumed the guilt of the petitioner, and therefore, this exercise of jurisdiction is not called for in the eyes of law. It has been contended that pursuant to the criminal case, which has been registered, no doubt charge- sheet has been filed but during the course of some of the witnesses who have been examined, no concrete material is found on record against the petitioner. On the contrary, the panch witness No.1 namely Osman Ismail Mandhra has deposed before the Court on 21.11.2017 as indicated that merely the police has taken the signature while preparing panchnama and this panch witness No.1 has not supported the case of prosecution, and therefore, in the absence of any concrete material, it is not open for respondent authority to compel the petitioner to languish in suspension from a post which has been held through democratic process. Mr.Puj, learned advocate has contended that the petitioner has been elected as a Sarpanch through the democratic process and as an elected member has right to continue and hold the post till his full tenure and such tenure cannot be curtailed without any reasonable cause, and therefore, keeping the material on record, it clearly transpires that there is no involvement or guilt, prima facie, established of the petitioner in any manner and as such relying upon the decision delivered by this Court in the case of Bhikhumiya Sarfumiya Malek versus D.D.O., Mehsana and Anr. reported in 1999 (2) G.L.H. 963, a contention is raised that simply because the case is pending, the same is not sufficient enough to keep the petitioner under suspension. Hence, the order in question is required to be corrected by quashing and setting aside.
Page 5 of 16 C/SCA/7425/2018 ORDER[7] Mr.Puj, learned advocate has further contended that even for arriving at the ultimate conclusion, the order is not supported by valid reasons and on the contrary, belatedly after almost a period of 7 to 8 months, the order came to be passed. This unreasonable delay also appears to be not sounding any confidence in ultimate conclusion of the authority, and therefore, summarized the submissions that the witnesses are hostile there is nothing on record to connect the petitioner with crime which has been registered. Hence, there is no misuse of the position by the petitioner. Accordingly, the order in question deserves to be quashed in the interest of justice. No other submissions have been made.
[8] To meet with the stand taken by the learned advocate for the petitioner, Mr.Utkarsh Sharma, learned AGP appearing for the State authority has vehemently contended that no case is made out in view of the fact that pursuant to the thorough investigation, a specific charge-sheet has been filed against the petitioner in which he was shown as accused No.1 and there was a clear connivance which is yet to be established, and therefore, till then, in view of the object of Section 59 of the Act, the authority has taken just a decision. Mr.Sharma, learned AGP has further contended that while passing the order in appeal by respondent No.1, the specific reasons have been assigned in an order dated 31.03.2018 and as such since both the authorities below have concurrently held against the petitioner in exercise of extraordinary jurisdiction even if another view is possible, the same may not be substituted in place of authorities' conclusion.
[9] The learned AGP has further contended that it is not in dispute that both the authorities below were entrusted with a specific power to deal with and decide the issue and in due Page 6 of 16 C/SCA/7425/2018 ORDER exercise of such statutory function, the authorities have exercised the discretion which cannot be said to be without the authority of law. It has also been contended that while coming to the conclusion against the petitioner full opportunity was given to the petitioner which is again not in dispute and after dealing with all the respective submissions made by the petitioner, the authorities have passed an order by assigning cogent reasons, and therefore, when such exercise of jurisdiction is well within the scope of authority and in complete consonance with principles of natural justice, the view taken by the authority is not possible to be construed as perverse in any manner. As a result of this, in absence of any perversity or material irregularity, no interference is made in respectful submission of learned AGP. It has also been pointed out that a serious offence is committed by the petitioner in discharge of his public function, and hence, even if originally, if the petitioner is not named but during the course of thorough investigation everything is surfaced against the petitioner, such serious act on the part of petitioner about misuse of office cannot be tolerated and that is the very object of Section 59 of the Act and as such this is not a case in which there is no role played by the petitioner. On the contrary, material has also been seized from the petitioner, a clear connivance is established and there are as many as 42 witnesses which are to be examined during the course of trial of the case, and therefore, when such is the scenario this appears to be not a case of any political rivalry. On the contrary, it is the clear case of misuse of the position which petitioner was holding. Hence, looking to this peculiar set of circumstances, learned AGP has submitted that the view expressed by this Court in the case of Bhikhumiya Sarfumiya Malek (supra) is not possible to be found in favour with the petitioner. Hence, learned AGP has requested the Court to dismiss the petition summarily.
Page 7 of 16 C/SCA/7425/2018 ORDER[10] Having heard learned advocates appearing for the parties and having gone through the material on record, it prima facie found by both the authorities below that there is some connivance on the part of the petitioner in commission of an offence and the act of moral turpitude is visible by both the authorities. It is further reflecting from the record that though originally petitioner was not named but during the course of investigation more than enough material is found against the petitioner as has been found by the authority, and therefore, when certain material is seized from the residence of the petitioner the misuse of his position is evidently found by both the authorities.
[11] It is also reflecting from both the orders concurrently holding the petitioner as prima facie committing an offence of moral turpitude, Section 59 powers appears to have been rightly invoked, and therefore, no case is made out by the petitioner.
[12] To avoid unnecessary burden, this Court is not incorporating and reproducing the conclusion arrived at by both the authorities below, but a bare look of the order reflecting on pages 27 and 74 of the petition compilation, the exercise of jurisdiction is not possible to be construed as perverse in any manner nor any material irregularity is reflecting which would warrant the interference of this Court.
[13] While coming to this conclusion, it has been found by this Court that object of Section 59 of the Act is taken care of by both the authorities below, and therefore, in such peculiar set of circumstances, the ratio laid down by this Court in the case of Bhikhumiya Sarfumiya Malek (Supra) is not possible to be applied as a straitjacket formula.
Page 8 of 16 C/SCA/7425/2018 ORDER[14] It is settled position of law that for enforcing the law of precedent, there must be similarity of facts and it has been laid down by Apex Court that if there is any change of fact or any additional material, the same would make a world of difference in applying the precedent. Accordingly, while comparing the case of Bhikhumiya Sarfumiya Malek (Supra) with the background of present case, this Court is of the opinion that this is not a case of false implication and not a case of aggressive competitive politics, on account of which, the petitioner is wrongly involved nor is a case of any political rivalry. Hence, when this circumstances are evident on record, the Court is of the opinion that the said case is not possible to be applied in its full vigour. In fact, this is not a case where mere institution of criminal case based upon which a suspension is effected but here is the case in which in such institution of case, the investigation has found incriminating material and found certain articles from the residence and there is no proper explanation found by both the authorities below, and therefore, it is not possible to construe these findings of authorities which are under challenged as perverse in any manner. Hence, petition found to be devoid of merit.
[15] While coming to this conclusion, the Court is mindful of the circumstance about principle related to exercise of extraordinary jurisdiction and one of such solitary decision delivered by the Apex Court in the case of Sameer Suresh Gupta versus Rahul Kumar Agarwal reported in 2013 (9) SCC 374, this Court is not in a position to accept the submissions made by learned advocate for the petitioner.
Page 9 of 16 C/SCA/7425/2018 ORDER[16] Since this authority of the Apex Court is relied upon and taken into consideration, the relevant proposition contained in paragraphs No.6 and 7 are reproduced hereinafter:-
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) Page 10 of 16 C/SCA/7425/2018 ORDER acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly Page 11 of 16 C/SCA/7425/2018 ORDER and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise Page 12 of 16 C/SCA/7425/2018 ORDER of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in Page 13 of 16 C/SCA/7425/2018 ORDER exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in Page 14 of 16 C/SCA/7425/2018 ORDER L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief Page 15 of 16 C/SCA/7425/2018 ORDER in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
[17] In view of the aforesaid set of circumstances and in view of the material on record, this Court is of the opinion that there is no error committed by the authorities below and no case is made out by the petitioner to exercise extraordinary jurisdiction. Accordingly, petition being devoid of merit, and orders require no interference. Hence, the same is dismissed, with no order as to costs.
(A.J.SHASTRI ,J.) dharmendra Page 16 of 16