1. The petitioner, who was elected as the member and President of the Mangrol Taluka Panchayat, has prayed for the following reliefs:-
"(A) Be pleased to admit and allow this petition.
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and set aside the oral order which is reduced to be in writing on 12.4.2012 or any date thereafter by the respondent No.2 declining the interim relief to the petitioner.
(C) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, and grant the order, suspending the order passed by the respondent No.3 herein dated April 02, 2012 Annexure M to this petition, restraining the respondents, their agents and servants from performing the duties by the petitioner as Member and President of the Taluka Panchayat, Mangrol;
(D) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned order dated April 02, 2012 Annexure J passed by the respondent No.3 herein - District Development Officer and also the oral order dated 12.4.2012 and any other order that may be passed by the respondent No.2 herein, and be pleased to further direct that the petitioner be not restrained from functioning as member and the President of the Taluka Panchayat, Mangrol;
(E) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. It transpires from the record that the present petition came to be filed before this Court on 23.04.2012 and was listed before this Court (Coram:K.M. Thaker, J.) on 24.04.2012 and on that day, the same was adjourned to 08.05.2012. Thereafter, the matter was adjourned to 26.07.2012. As the matter was mentioned for early hearing and as the petitioner has preferred Civil Application No.7431 of 2012, the hearing was preponded on 04.07.2012.
3. Mr.Ronak Raval, learned A.G.P. appearing on advance copy given by Mr.Mangukiya, learned counsel for the petitioner was requested by the Court to produce the original record of the proceedings of the appeal which is pending before the respondent No.2-authority. The matter was listed yesterday i.e. on 04.07.2012 and on perusal of the record, the respondent-authority was directed to file affidavit-in-reply. The affidavit-in-reply filed by the District Development Commissioner today is tendered by Mr.Raval, learned A.G.P. and the same is taken on record.
4. Heard Mr.Mangukiya, learned counsel appearing with Ms.Bela Prajapati for the petitioner and Mr.Ronak Raval, learned A.G.P. for the respondent-authorities.
5. On bare perusal of the prayers, as prayed for in the petition, it transpires that in the appeal which was filed by the petitioner on 12.04.2012, even though the same was heard by the respondent-authorities on 12.04.2012, no orders have been passed and more particularly, no interim order is passed. The aforesaid situation has given rise to the present petition.
6. Mr.Mangukiya, learned counsel for the petitioner has invited attention of this Court to the contention made by the petitioner in paragraph No.18 of the petition. Mr.Mangukiya, learned counsel submitted that even though he has filed appeal on 12.04.2012 and argued it for interim relief, the authorities informed him that without looking to the papers, no interim order can be passed and, therefore, the authority did not pass any order and the matter was kept for further hearing. Mr.Mangukiya, learned counsel submitted that the petitioner again approached the authority and filed application on 17.04.2012 and prayed for identical reliefs which are, in fact, prayed before this Court. However, no hearing took place and the matter was kept on 01.05.2012. Mr.Mangukiya, learned counsel submitted that thereafter, the matter was kept on 15.05.2012 and even though, the advocate for the petitioner remained present, no hearing took place and no parawise remarks or reply was filed by the other side and therefore, no orders were passed on 15.05.2012, except adjourning the matter. Mr.Mangukiya, learned counsel submitted that meanwhile, as no hearing took place and no orders were passed, the petitioner was constrained to file the present petition on 23.04.2012. Mr.Mangukiya, learned counsel submitted that the averments made in the affidavit-in-reply are far from truth and incorrect facts are recorded. Mr.Mangukiya, learned counsel submitted that in fact, it is not correct to say that the advocate for the petitioner did not remain present. Mr.Mangukiya, learned counsel submitted that on the contrary, on coming to know that the meeting has been convened by the District Development Officer, Junagadh, to hold elections for the purpose of President of Mangrol Taluka Panchayat which was scheduled to be held on 06.07.2012, the petitioner again moved a separate application before the appellate authority on 28.06.2012. However, the respondent no.2- authority was not present and, therefore, the petitioner filed Civil Application No.7431 of 2012, as no orders were passed on the aforesaid application by the authority. Mr.Mangukiya, learned counsel submitted that in order to see that the petitioner cannot challenge the order, if any, passed by the authority before the higher forum i.e. this Court, the only option left with the authority was to keep the matter pending and with this intention in mind, no orders are passed. Mr.Mangukiya, learned counsel contended that the authority has failed to exercise the powers which are vested in it and by the conduct of the authority itself, it is clear that it is the refusal to exercise the jurisdiction. Mr.Mangukiya, learned counsel in order to buttress this contention, has relied upon the order of the Division Bench of this Court in the case of Abdulgani Abdulbhai Kureshi & Anr. V/s. State of Gujarat & Anr. reported in 1992(1) GLR 503. Mr.Mangukiya, learned counsel drawn attention of this Court to the paragraph No.22 of the aforesaid judgment. Mr.Mangukiya, learned counsel submitted that, in fact, the only formality which is pending even today, is to pass an order and, on instructions from the petitioner, Mr.Mangukiya, learned counsel states that the petitioner does not desire any further hearing in the appeal. According to learned counsel Mr.Mangukiya, in fact, the hearing has already been done but the orders are not passed and on the other hand, the meeting for election of the President of the Mangrol Taluka Panchayat as contemplated under Section 75 of the Gujarat Panchayats Act, 1993 is to be held in the meeting which is convened by the District Development Officer, Junagadh on 06.07.2012. Mr.Mangukiya, learned counsel, therefore, submitted that in totality, inaction of respondent No.2-authority in not passing any order in the appeal or in the interim application, is only with a view to preclude the petitioner from challenging any such order, if it is against the petitioner and to make the appeal infructuous. No further contentions are raised by Mr.Mangukiya, learned counsel for the petitioner.
7. Per contra, Mr.Ronak Raval, learned A.G.P. has submitted that as stated in the affidavit-in-reply filed today, as ample opportunities were given to the petitioner, learned advocate appearing for the petitioner has not remained present. He, therefore, submitted that the contention raised that the authority has failed to exercise the jurisdiction and that no order is passed for the purpose of precluding the petitioner from challenging it before the higher forum is not correct. Mr.Raval, learned A.G.P. has also made available the original record of the proceedings of the appeal for perusal of the Court.
8. Considering the submissions made by learned counsel appearing for both the parties, even at the cost of repetition, it would be necessary to note down certain dates from the record of this petition as well as the proceedings before the authority i.e. respondent No.2 herein. As can be seen from the petition and as averred by the petitioner before this Court, more particularly, in the main petition, the petitioner lodged an appeal before the appellate authority on 12.04.2012. It transpires that as per the record and as stated in the affidavit-in-reply, the aforesaid appeal came to be registered as Appeal No.4 of 2012 and the same was presented on 12.04.2012 at 5:30 p.m. It transpires from the record that no interim order was passed on 12.04.2012 and the matter was adjourned to 17.04.2012. It transpires from the record that the hearing of the same was kept on 17.04.2012 at 11:30 a.m. However, as the advocate for the petitioner did not remain present, the matter was adjourned to 01.05.2012. It transpires from the record that as averred in the affidavit-in-reply as well as the fact, which is not denied by Mr.Mangukiya, learned counsel that on 17.04.2012, learned counsel Ms.Bela Prajapati, on coming to know that the matter has already been adjourned, gave written submissions. On perusal of the aforesaid application given by the learned advocate for the petitioner, it appears that the advocate for the petitioner was intimated on 16.04.2012 at about 7:30 p.m. by fax about hearing of the appeal which was fixed on 17.04.2012 at 11:30 a.m. It is submitted in the application that prior to receipt of fax, the office of the respondent No.2-authority has also informed colleague of the learned advocate for the petitioner by telephonic call. On further perusing aforesaid application dated 17.04.2012, it transpires that the advocate for the petitioner was not permitted to meet the concerned authority and the matter was adjourned to 01.05.2012.
9. It transpires from the record that on 01.05.2012, Mr.Mangukiya, learned counsel was sick and, therefore, an adjournment application was given on the basis of which, the matter was adjourned again on 15.05.2012 at 11:30 a.m. It transpires from the record that the matter was adjourned on the aforesaid application dated 01.05.2012 and there is an endorsement of the clerk of learned counsel Mr.Mangukiya, one Mr.Vijay R. Pandey. It transpires from the record that on 15.05.2012, as no one remained present for the petitioner at 11:30 a.m., the matter stood adjourned to 29.05.2012. It further transpires from the record that after the matter was so adjourned, Mr.Mangukiya, learned counsel for the petitioner-appellant remained present before the authority and the matter was preponed for hearing on 22.05.2012. The original record shows that there is endorsement made by learned counsel Mr.Mangukiya to the effect that no parawise remarks are received and no copy is given. The said endorsement is made on 15.05.2012.
As averred in affidavit-in-reply filed today which is reflected from the original record that on 22.05.2012, no one remained present before the respondent-authority on behalf of the appellant-petitioner herein and, therefore, the matter was adjourned to 19.06.2012. The said date of adjournment i.e. 19.06.2012 was intimated by the respondent-authority vide communication dated 22.05.2012. It further transpires that on 22.05.2012 itself, after the matter was adjourned, learned advocate for the appellant gave application before the authority which, according to the endorsement, was received by the office of the appellate authority on 22.05.2012 at 16:00 hrs. requesting to preponed the matter. However, it appears that such a request made is not exceeded by the appellate authority. It transpires from the record that on 19.06.2012, no one has remained present for the petitioner and hence, the matter was kept on 10.07.2012.
10. In this set of factual background, on examining the contention raised by learned counsel Mr.Mangukiya, this Court is of the opinion that the contentions made by learned counsel Mr.Mangukiya cannot be accepted. It is however, true that the hearing for the stay has already taken place and, even at the time of first hearing on 12.04.2012, no interim order has been passed. However, considering the prayers, as prayed for, in the main petition and, more particularly, prayer (B), statement made by learned counsel Mr.Mangukiya that the hearing is already made and the petitioner is not desirous of any further hearing of the application for interim stay and also considering the prayers made in the said Civil Application No.7431 of 2012, respondent No.2-authority is hereby directed to pass final order today by 5:00 p.m. and hand over the copy of the same latest by 6:00 p.m. today, as the meeting of the President of the Mangrol Taluka Panchayat, as aforesaid, is scheduled to be held tomorrow i.e. 06.07.2012. The other prayers, as prayed for, in the petition, cannot be granted as the petitioner was removed vide order dated 02.04.2012 and seized to be the member of the Mangrol Taluka Panchayat. As far as the prayers, as prayed for, in the civil application are concerned, considering the aforesaid factual background and the reasons stated hereinabove, the civil application cannot be entertained. This order is pronounced in the open Court in the presence of the concerned officer of the respondent No.2-Panchayat, namely, Mr.B.B. Patel, Assistant Development Commissioner. The direction issued by this Court to respondent No.2 to pass the order on stay application, by 5:00 p.m. today shall be communicated to respondent No.2 by telephonic call or by Mr.B.B. Patel-Assistant Development Commissioner, who is present in the Court. The compliance of the direction of this Court shall be reported by way of filing further affidavit by said Mr.B.B. Patel by tomorrow.
11. It would be open for the petitioner to send her representative for a copy of the order to be passed by the authority as directed above.
12. With the above observations, the petition as well as the Civil Application stand disposed of.
(R.M.CHHAYA, J.) Hitesh Top