Gujarat High Court
Suresh Kumar Maftlal Vyas vs The Additional Secretary Ministry Of ... on 19 April, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18968 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SURESH KUMAR MAFTLAL VYAS
Versus
THE ADDITIONAL SECRETARY MINISTRY OF INDUSTRY AND MINES
& 4 other(s)
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Appearance:
MR PJ MEHTA(467) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,4,5
MS ARCHANA R ACHARYA(2475) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 19/04/2022
CAV JUDGMENT
The captioned writ petition, prays for the prayers, namely, (i) to issue writ of mandamus or any other appropriate writ, order or direction against the respondent - State authorities to submit the fact-finding report/inquiry report against the culprits, and (ii) writ of certiorari or appropriate writ, order or direction, seeking quashing Page 1 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 and setting aside of the order dated 23.5.2016 passed by the respondent no.5, i.e. the Charity Commissioner in Judicial Misc. Application No.65 of 2015.
2. The basis on which the aforementioned prayers have been prayed for, is alleged maladministration by the respondent no.3 - Trust and more particularly, regarding allotment of Ambika Bhojnalaya Yearly Food Contract to M/s Touchstone Foundation, Ahmedabad (hereinafter referred to as 'the foundation') without inviting tenders as well as the advance payment of Rs.1.5 crore to it.
3. As can be culled out from the averments made in the petition memo, the petitioner's grievance is to take steps against the Deputy Collector & Administrator of Shree Arasuri Ambaji Mata Devsthan Trust (hereinafter referred to as 'the Trust') owing to maladministration of the public fund. According to the petitioner, despite there being the Rules, Regulations and Circulars governing the grant of contract, the Administrator of the Trust has awarded the contract of Rs.18 crore to the foundation, without inviting tenders as well as usage of other materials, namely, food, water etc. by the foundation and advance payment despite the fact that it is the obligation of the contractor to procure such items. Allegation is made that the necessary amendment was incorporated in collusion with the contractor by the Administrator. It is the case of the petitioner that as per the resolution dated 23.1.2014 of the State Government, there is no such provision of offering advance payment; however, ignoring such instructions, the foundation has been extended the benefit. The grievance is also to the effect that the contract dated 4.2.2014 was executed by the Collector with the foundation, and as per clause no.3, it was agreed that the Trust will give advance payment of Rs.1.5 crore. Such condition, has been incorporated by the Administrator in the office note dated 7.2.2014 by effecting amendment; whereas, the contract was already Page 2 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 executed on 4.2.2014. It is therefore, the case of the petitioner that the Trust has been subjected to financial loss by the Administrator in collusion with the foundation. Not only that, in disregard of the orders issued by the Industries & Mines Department, payment of huge amount has been made to the foundation. The grievance is also to the effect that the contract is dated 4.2.2014 when, Mr J.G. Hingrajiya, was the Collector, Banaskantha; however, instead of Mr Hingrajiya, Mr M.S. Patel, has signed the contract, who has taken charge as Collector on 20.2.2014.
3.1 The petitioner had made various applications to the Secretary, Gujarat Vigilance Commission and to the Assistant Charity Commissioner, Banaskantha with a request to look into the same and get the necessary inquiry done. In the application before the Assistant Charity Commissioner, it has been requested to take disciplinary proceedings against Shri G.P. Brahmbhatt and also to make inquiry by the Police Inspector under the provisions of Sections 37 and 38 of the Gujarat Public Trust Act, 1950 (hereinafter referred to as 'the Act of 1950') with a further request to pass necessary orders.
4. The affidavit has been filed by the respondent no.3, Mr R.K. Patel, Incharge Administrator of the Trust, inter alia, stating that the Trust manages the affairs of the temple of Shree Arasuri Ambaji Mata. The Trust also carries out the functions of distribution of packed prasad and affairs of the Bhojanalaya, known as 'Ambika Bhojanalaya'. The preparation and distribution of prasad and running of Bhojanalaya, is outsourced and for which, the Trust enters into contract with contractors and experts in the field. According to the respondent no.3, the Management/Decision Committee has been constituted by the State Government by passing resolution dated 6.6.2003 and it is authorised to take decision on behalf of the Trust. On 9.4.2013 and 18.6.2013, the foundation offered its rate for preparation, packaging of prasad and Page 3 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 also offered to maintain and manage the affairs of the Bhojanalaya.
4.1 The Management Committee of the respondent - Trust convened its meeting, dated 19.6.2013, and passed a resolution no.42, resolving to award the contract to the foundation for a period of three years. Resolution dated 4.8.2013 was passed to give the contract to the foundation for preparing the prasad and on 6.8.2013, the Trust passed resolution no.Am/bhojanalay/ contract/2013 to give the contract to the foundation to manage the Bhojanalaya. Accordingly, the Collector, on 6.8.2013, addressed a communication to the Additional Secretary, apprising it about the resolutions dated 4.8.2013 and 6.8.2013 passed by the Committee of the Trust and sought necessary approval. Pursuant whereof, the Industries & Mines Department, passed a resolution dated 23.1.2014, giving approval to allot the contract to the foundation for preparing prasad and managing Bhojanalaya. The decision of the State Government in its Industries & Mines Department was communicated to the foundation on 28.1.2014 and thereafter, the foundation was called upon to execute the agreement which came to be executed on 4.2.2014. On 5.2.2014, the Trust passed a consequential resolution for giving the contract to the foundation as per the agreement dated 4.2.2014, followed by the contract on 6.2.2014.
4.2 In the affidavit, it has also been explained that Mr Hingrajiya was the Collector of Banaskantha district and was transferred and as a result whereof, the charge was handed over to Mr M.S. Patel, successor in office on 15.2.2014 who, took over the charge in place of Mr Hingrajiya. File was placed before the then Collector on 5.2.2014 for signing the contract, however, before the contract could be signed, in the interregnum, the transfer took place and accordingly, Mr M.S. Patel, successor in office signed the contract on 20.2.2014. According to the respondent no.3, it cannot be said that the signature of the Collector, who took charge, was taken in Page 4 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 advance. It is also the stand of the respondent no.3 that all the necessary permissions were sought for from the State Government and it is only thereafter, that the contract was given to the foundation and therefore, there is no irregularity or malpractice exercised in awarding the contract to the foundation as alleged.
4.3 While adverting to the aspect of advance payment, it is stated that on 31.3.2014, a resolution has been passed resolving that the advance payment given will be adjusted, while clearing the final bills. It is also the case of the respondent no.3 that after almost 20 months from the date of the award of the contract, the petitioner with an ulterior motive, has made the application on 16.10.2015 to the learned Charity Commissioner under the provisions of the Act of 1950 to take action against the Administrator for the alleged irregularity and corruption.
5. Affidavit-in-reply is also filed by the respondent no.1, inter alia, stating that pursuant to the application dated 1.6.2016 of the petitioner, the respondent no.4 conducted a detailed inquiry, calling upon the concerned respondents to furnish necessary documents and details as regard entire controversy. It is only after conducting a detailed inquiry, the respondent no.4 had come to the conclusion that there is no breach or infraction of the applicable Rules and Regulations and the allegations levelled by the petitioner, were found to be lacking of proof or any reasonable ground. Reliance has been placed on the inquiry report dated 7.2.2018, which was prepared by the respondent no.4 and was submitted to the respondent no.2 on 17.2.2018.
6. The reply is filed by the respondent no.2 as well, which was pursuant to the order passed by this Court on 3.7.2018. Reference has been made to the affidavit filed by the respondent no.3. In the reply, it has been stated that the contract was given for a period of three years, which expired on 6.2.2017 and for the purpose of Page 5 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 finalising the new contract/renewal, a meeting was convened on 21.1.2017 for issuance of tender and initiation of other procedures related thereto. The Committee comprising of nine officers unanimously resolved that a new tender would be invited for the Bhojanalaya and prasad which decision, was communicated to the Principal Secretary (Tourism, Devasthanam Management & Pilgrimage) on 27.1.2017 who, in turn, vide communication dated 1.4.2017, intimated the Trust to carry out necessary procedure of awarding the work through e-tendering.
6.1 Apropos which, the procedure for issuance of the tender was undertaken and after completion of the procedure, tender notice was published in the daily newspaper and was also uploaded on the Government online tender portal. Four agencies had submitted their tenders for the Bhojanalaya and two agencies had submitted their tenders for the prasad. Technical bids were opened online on 11.9.2017 in the presence of bidders, and agencies were asked to remain present with all the documents for the pre-qualification scrutiny and thereafter, on 6.4.2018, the Committee decided to open the financial bids of qualified tenderers. As a result of the tender process for the purpose of prasad, M/s Mohani Caterers was found to be the lowest bidder. While on 4.5.2018, tender for Bhojanalaya was also opened wherein also, M/s Mohani Caterers was found to be lowest. After the completion of the above procedure, the Administrator of the Trust sought necessary sanction from the Government and the State Government in its Industries & Mines Department, vide communication dated 13.7.2018, accorded its approval to M/s Mohani Caterers for prasad and Bhojanalay, it being the lowest bidder. The deponent of the affidavit has emphasised that as per the procedure observed, it is established that after the completion of the period of contract to the foundation, transparent procedure for awarding the contract, afresh was carried out in the matter.
Page 6 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 6.2 While adverting to the grievance of the petitioner about submission of the fact-finding report/inquiry, it is averred that the respondent no.4 - Vigilance Commission, looked into the grievance of the petitioner as regards the irregularities committed by the trustees of the Trust in awarding the contract to the foundation. The respondent no.4 - Vigilance Commission, had called upon the factual report from the respondent no.1, who thereupon had addressed a letter wherein, entire factual aspects involved in the matter were explained. Considering the explanation of the respondent no.1, the respondent no.4 - Vigilance Commission asked for further details which were also furnished vide letter dated 10.8.2017. After examining the matter, the respondent no.4 - Vigilance Commission did not find any other points except for the issues on which the petitioner has approached the Court, warranting departmental inquiry for violation of the Government Rules. The respondent no.4 - Vigilance Commission was of the opinion that there appears to be a lapse in submitting the proposal with necessary justification and therefore, it suggested the Trust to adopt appropriate procedure in future for taking corrective measures as per the directives that may be issued by this Court. It is emphatically stated in the reply that department has taken cognizance of the observations of the respondent no.4 - Vigilance Commission and pursuant to the directives of taking corrective measures, the department had intimated to all the concerned officers to comply with the observations of the respondent no.4 - Vigilance Commission and take proper care while awarding the contract for Government related works in future. While concluding, it is urged that the petition does not require to be entertained.
7. Mr P.J. Mehta, learned advocate appearing for the petitioner, while inviting the attention of this Court to the agreement dated 4.2.2014, submitted that the condition of payment which deals with the services rendered in terms of Schedule 1 and 3, provides for one Page 7 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 time mobilisation advance of Rs.1.5 crore for continual advance buying and inventory management for smooth operation and on time delivery which, would be adjusted at the time of expiration of the MoU, is a novel condition and such condition is unknown to the contract. It is submitted that the contract has been awarded in favour of the foundation, without inviting any tender process. Also, the advance payment, has been made to the foundation. It is further submitted that undue favour has been shown to the foundation inasmuch as, condition no.3 of the Schedule 1, permits the foundation to utilise the electricity connection and fuel like kerosene and LPG in the kitchen providing separate meters for LPG and fuel consumption. It is submitted that such facilities are being provided to the foundation which is unknown to contracts executed by the State Government. Instead of taking care of the interest of the Government, facilities are being provided to the contractor for executing the contract.
7.1 It is further submitted that the agreement, is dated 4.2.2014 when, it was Mr J.G. Hingrajiya who was the Collector and was relieved vide office order dated 14.2.2014; however, the agreement, has been signed by Mr M.S. Patel, who was not working as a Collector on 4.2.2014.
7.2 It is submitted that the procedure adopted by the Trust and the benefits extended while awarding the work, clearly suggest that there is an illegality and malpractice adopted by the administrator of the Trust. The petitioner being a whistle-blower, submitted an application to the respondent no.4 - Vigilance Commission, and to the learned Charity Commissioner. In the report dated 7.2.2018 of the respondent no.4 - Vigilance Commission, it has been clearly observed that there has been a lapse on the part of the Trust in sending the proposal to the department. It is therefore, submitted that it is not that there was no lapse or illegality committed; there was illegality committed by the Trust and that too only with a view Page 8 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 to favouring the foundation and that is how public money has been siphoned away.
7.3 It is also submitted that while awarding the work, procedure followed by the Trust was not transparent, and therefore, there is a presumption that serious illegality has been committed. That there was a maladministration as well as corruption while doing so. It is submitted that the application was made before the learned Charity Commissioner who, did not accept the say of the petitioner on the ground that it would not fall within the purview of the provisions of Section 41A of the Act of 1950 and left it to the petitioner to move the Collector, Banaskantha, Assistant Charity Commissioner, Banaskantha, Vigilance Office, to canvas its grievance, if he deems fit. It is submitted that though it has been left to the learned Assistant Charity Commissioner to take appropriate action on the basis of the allegations made, the Assistant Charity Commissioner would not be able to take any action when the learned Charity Commissioner himself has not exercised the powers under the Act of 1950. It is therefore, urged that considering the conduct of the officers of the Trust, the State Government, the issue requires to be gone into, directing the respondents to submit a fact finding report and take action against the culprits who have been involved in the illegality committed while awarding the work.
8. On the other hand, Mr. Krutik Parikh, learned Assistant Government Pleader appearing for the respondents submitted that the work, was in the realm of no profit no loss. It was given on the subsidized rate. It is submitted that the foundation was allowed to operate the equipments which were already in place and the subsidized material, namely, LPG and kerosene which were available to the Trust, were also offered to the foundation. It is submitted that the application of the petitioner, was considered by the respondent no.4 - Vigilance Commission and it required certain information from the Industries & Mines Department which were Page 9 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 also provided and since there were certain other requirements, the same were also provided by the department on 10.8.2017. It is submitted that in the report, it is categorically stated that the decision of the Management Committee of the Trust, was considered in-depth and after due deliberation, so also considering the presentation, the decision was taken. It is also submitted that no such cash advance payment was made to the foundation and the stock which was available with the Trust, was given to the foundation as per the prevalent market rate and which amount, has also been recovered from the foundation.
8.1 It is submitted that after the respondent no.4 - Vigilance Commission gave its report, the department had addressed a communication to the Collector and informed that since it is found that there is no infraction of Rules of the State Government, the issue of departmental inquiry does not arise, however, it has been cautioned that in future, the work should not be awarded without tender, so also the advance payment for which, necessary corrective measures have been directed to be taken. It is submitted that the principal grievance raised in the present writ petition is in the nature of PIL. Neither any legal nor fundamental right of the petitioner has been infringed. The learned Charity Commissioner has also given liberty in favour of the petitioner that if he has any grievance, he can move the Collector, canvassing his grievance and the Collector, has been directed to look into the matter, so also the allegations and to investigate the same. The Assistant Charity Commissioner, has also been directed to take action.
8.2 It is further submitted that though various allegations have been made against the foundation, the petitioner chose not to join it as a party respondent and therefore, the petition suffers from the vice of non-joinder of necessary party. On this count alone, the petition deserves to be dismissed. As is discernible from the contents of the report, it does not suggest that any irregularity has Page 10 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 been committed. After the expiry of the tender, in the year 2017, the procedure has been adopted by the department of issuing e- tendering and it is only after following the detailed procedure of inviting the tender, that the work has now been allotted in favour of M/s Mohani Caterers.
9. Mr P.J.Mehta, learned advocate appearing for the petitioner, in rejoinder, has submitted that the findings given by the learned Charity Commissioner, are incorrect. Specific reliance was placed on the judgement by the petitioner in the case of Pavankumar Jain vs. Priyavadan Ambalal Patel passed in Letters Patent Appeal No.1132 of 2013 wherein, it has been held that for the purpose of smooth administration of the Trust, the learned Charity Commissioner is fully authorised to take decision. It is submitted that the learned Charity Commissioner, is empowered to issue any appropriate direction for smooth administration of the Trust. It is therefore, submitted that when the learned Charity Commissioner had all the powers to issue direction for smooth administration of the Trust, the learned Charity Commissioner ought not to have disposed of the application with liberty to the petitioner to move the Collector, Banaskantha, Assistant Charity Commissioner, Vigilance Commissioner, to canvass his grievance. It is therefore, submitted that the petition requires consideration and deserves to be allowed.
10. Heard the learned advocates appearing for the respective parties.
11. Pertinently, the State Government, vide its resolution dated 6.6.2003, has constituted a Management/Decision Committee for the trust, authorising it to take the decision on behalf of the Trust. The Trust, had expressed its intention to outsource its function for preparation and distribution of prasad and running the Bhojanalaya. In terms of the expression of the intention, the foundation having necessary expertise in the field, gave its proposal on 9.7.2013, Page 11 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 offering to undertake the work of preparation, packaging and distribution of prasad and also maintaining and managing the affairs of the Bhojanalaya of the Trust. The Trust, accepted the offer of services in terms of the offer dated 9.7.2013 and thereafter, considering the same, agreement dated 4.2.2014 was executed between the Collector, Banaskantha and Chairman of the Trust as the Administrator & Deputy Collector of the Trust on one hand and the authorised signatory of the foundation on the other. Before executing the agreement dated 4.2.2014, necessary steps have been taken by the Management Committee of the Trust. As aforesaid, Expression of Intention was invited. Apropos which, the foundation has submitted its offer and the Management Committee of the Trust, convened a meeting on 19.6.2013, passing a resolution, resolving to award contract to the foundation. On 4.8.2013 and 6.8.2013, resolutions were passed by the Trust for the purpose of preparing, distribution of prasad and running the Bhojanalaya respectively. On 6.8.2013, the decision of the Committee was intimated to the State Government in its Industries & Mines Department.
12. The communications were addressed by the Collector dated 4.8.2013 and 6.8.2013 for preparing of prasad and for running the Bhojanalaya. The proposal sent to the State Government contained that the prasad will be prepared hygienically and by adopting high- tech technology. It was also considered that the building, machinery, utensils, infrastructure, will be provided by the Trust. The proposal also contained the aspect that the functions of Bhojanalaya, namely, purchase of food articles, preparing food and serving food, utensils, cleaning the hall etc. would be done by the foundation and all the expenses will be incurred by the foundation. The State Government in its Industries & Mines Department, after in-depth deliberation and considering the proposals dated 4.8.2013 and 6.8.2013, accorded the permission for a period of three years, Page 12 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 vide resolution dated 23.1.2014 permitting to allot the contract to the foundation. Therefore, the decision was taken by the Committee, and was subsequently approved by the State Government.
13. One of the grievances raised by the petitioner, is about putting signature of the Collector on the agreement inasmuch as, when the agreement was executed on 4.2.2014, the concerned Collector was Mr J.G. Hingrajiya and not Mr M.S. Patel. Mr M.S. Patel took charge only on 15.2.2014 and therefore, he could not put his signature on the agreement dated 4.2.2014. It is true that the agreement is dated 4.2.2014, the date mentioned is also 4.2.2014, it has been signed by Mr M.S. Patel, Collector, Banaskantha, Chairman and Mr G.P. Brahmbhatt, Administrator and Deputy Collector of the Trust, however, at the end of the agreement, date has not been mentioned. If at all there is some lacuna in signing the agreement that would not be sufficient to allege illegality of a higher scale. It is not to suggest that this Court, approves such irregularity, however, that by itself cannot nullify the process, which otherwise has its stamp by the State Government at the highest level. The affidavit also suggests the detailed steps taken by the respondents while awarding the contract and the decision by the Committee and final decision by the State Government.
14. Pertinently, a detail reply was also submitted by the Administrator/Deputy collector of the Trust before the learned Charity Commissioner, explaining each and every aspect. So far as the procedure is concerned, detailed explanation has been offered as discussed hereinabove. It has also dealt with the allegation of foundation using milk powder instead of milk and committing breach in making the prasad. It has also been stated that the investigation was done and the sample of the prasad and powder were sent to the Food and Drugs Laboratory, Ahmedabad and it has given its report about the usage of the milk powder instead of milk.
Page 13 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 The milk powder was confirming the Food Safety and Standard Regulations, 2011 and therefore, the only discrepancy was that the milk powder was used without permission of the Trust. The foundation, was issued necessary instructions for not repeating such mistakes in future, and necessary the deduction was made from the bills. Various other issues have also been raised and have been sufficiently dealt with by the Administrator & Deputy Collector of the Trust.
15. Furthermore, respondent no.4 - Vigilance Commission, acting upon the application of the petitioner, has inquired the matter seeking necessary explanation from the department, i.e. Industries & Mines Department which, had furnished the explanation. The respondent no.4 - Vigilance Commission, upon further inquiry, sought for further information, which were also submitted by the department on 28.7.2017 and further compliance on 10.8.2017. It has been stated that in the proposal of the Collector and the resolution dated 23.1.2014 of the Industries & Mines Department, there was no reference of the advance payment of Rs.1.5 crore, however, permission was given by the Collector on its file on 6.2.2014 which was condition no.3 in the agreement dated 4.2.2014. It has also been stated that important decisions of the Trust, are being taken by the Collector and wherever necessary, in consultation with the State government. It also states that no cash advance payment has been made to the Trust and only the stocked food material was allowed to be used at the purchase price. The said amount, was also recovered from the foundation. After 2017, a decision has been taken that the awarding of work for the purpose of prasad and running Bhojanalaya, shall be given by tender process only. The respondent no.4 - Vigilance Commission was also of the opinion that there seems to be a lapse in submitting the proposal and therefore, it suggested to adopt appropriate procedure for future, by taking corrective measures as per the decision that may Page 14 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 be given by the Hon'ble High Court. The Deputy Secretary, Industries & Mines Department, has in turn informed the decision to the Collector and Chairman of the Trust along the lines of the contents of the letter rated 7.2.2018 of the respondent no.4 - Vigilance Commission.
16. In the affidavit, subsequent detailed procedure has been set out of awarding the work for preparing the prasad and work of running the Bhojanalaya in favour of M/s Mohani Caterers, Ahmedabad. Therefore, this Court, is of the opinion that the grievance of the petitioner alleging misappropriation, illegalities, is not in the right earnest and therefore, no directions are required to be issued, as prayed for.
17. Furthermore, the petitioner, has prayed for the following reliefs:-
"12. There for the petitioner prays as undertake {A.} Be pleased to issue writ of mandamus or any other Appropriate writ, order, directions against Respondent no- 1- to 3 for submitting the fact finding report/ inquiry report against the culprits within stipulated period in the interest of the justice {B} Be pleased to issue writ of certiorari, or / appropriate order against the Respondent no- 5 Charity commissioner gujarat state, Ahmedabad quashing and setting aside the Order dated 23/5/2016 passed in Judc.Misc.Appli. No-65 of 2015 Annexure A in the interest of justice"
The petitioner, is seeking submission of the fact finding report/inquiry report against the culprits within a stipulated period in the interest of justice. The petitioner has prayed for quashing and setting aside of the order dated 23.5.2016 passed by the learned Charity Commissioner in Judicial Misc. Application No.65 of 2015. If one is to go by the prayers, it is clear that the grievance of the petitioner, is against the alleged irregularities committed by the Trust. Since the petitioner, is seeking writ of mandamus and it is well settled that one of the conditions for exercising the power Page 15 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 under Article 226 of the Constitution of India for issuance of mandamus is that the Court must come to the conclusion that the aggrieved party has a legal right, which entitles him to any of the rights and that such right has been infringed. That existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. In the present case, the nature of reliefs claimed by the petitioner, are not connected to or relatable to any of the breach of legal or fundamental right of the petitioner vis- a-vis the corresponding duty by the State.
Apt would be the observations made in paragraph 17 of the judgment in the case of Director of Settlements, A.P. vs. M.R. Apparao reported in (2002) 4 SCC 638, which reads thus:-
"17. Coming to the third question, which is more important from the point of consideration of High Court's power for issuance of mandamus, it appears that the constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression 'for any other purpose'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, it must be exercised along recognised lines and subject to certain self-imposed limitations. The expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Court must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior Courts or Government, requiring him or them to do some particular thing therein specified which Page 16 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh vs. State of U.P., AIR 1962 SC 1183). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. When the aforesaid principle are applied to the case in hand, the so-called right of the respondents, depending upon the conclusion that the amendment Act is constitutionally invalid and, therefore, the right to get interim payment will continue till the final decision of the Board of Revenue cannot be sustained when the Supreme Court itself has upheld the constitutional validity of the amendment Act in Venkatagiri case on 4th of February, 1986 in Civil Appeal No. 398 & 1385 of 1972 and further declared in the said appeal that interim payments are payable till determination is made by the Director under Section 39(1). The High Court in exercise of power of issuance of mandamus could not have said anything contrary to that on the ground that the earlier judgment in favour of the respondents became final, not being challenged. The impugned mandamus issued by the Division Bench of the Andhra Pradesh High Court in the teeth of the declaration made by the Supreme Court as to the constitutionality of the amendment Act would be an exercise of power and jurisdiction when the respondents did not have the subsisting legally enforceable right under the very Act itself. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court committed serious error in issuing the mandamus in question for enforcement of the so-called right which never subsisted on the date, the Court issued the mandamus in view of the decision of this Court in Venkatagiri case. In our view, therefore, the said conclusion of the High Court must be held to be erroneous."
Under the circumstances, the petition does not deserve to be entertained. Since this Court, has not entertained the first prayer of the petitioner, there arises no question of allowing the second prayer of quashing and setting aside the order dated 23.5.2016 of the learned Charity Commissioner passed in Judicial Misc. Application No.65 of 2015.
18. One more ground is available for dismissing the writ petition and that would be non-joinder of the necessary party. The edifice on which the petition has been filed is the work awarded in favour of Page 17 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022 C/SCA/18968/2016 CAV JUDGMENT DATED: 19/04/2022 the foundation. The allegations are made against the respondents, so also the foundation; however, the foundation has not been joined as a party respondent and therefore, the petition is dismissed on the ground of non-joinder of necessary party, as well.
19. In view of the aforementioned discussion, the petition is dismissed. Rule is discharged. No order as to costs.
(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 18 of 18 Downloaded on : Thu Apr 21 20:45:33 IST 2022