(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) We have heard Mr.Sinha, learned Counsel appearing for the petitioner and Mr.Kamal Trivedi, learned Advocate General appearing with Mr.P.K. Jani, learned Government Pleader for the Chief Secretary upon advance copy.
We may also record that during the course of the hearing the original file of the proceedings of the Council of Ministers was made available to the Court for perusal.
The grievance on the part of the petitioner is that as per the decision of this Court dated 30.3.2012 in Special Criminal Application No.2226 of 2010, the competent authority to grant sanction or otherwise is 'The Governor' and the Council of Ministers could not have taken final decision.
Whereas the learned Advocate General made a statement on behalf of the the State Government that the decision is taken by the Council of Ministers and as per the convention, the intimation is also sent to Her Excellency the Governor.
We may record that as per the decision of this Court, which is the basis of the present proceedings, at paragraphs 34 (3), (4), and (5), it has been observed as under:-
"34. (1) xxx (2) xxx (3) In the case of a Chief Minister or a Minister, be he, a Cabinet Minister or a Minister of State, the expression "State Government" in section 19 of the Prevention of Corruption Act, 1988 would mean "the Governor".
(4) However, unless a situation arises as a result whereof the Council of Ministers disables or disentitles itself, the Governor in such matters may not have any role to play. It is the Council of Ministers who has to first consider grant of sanction.
(5) As observed by the Supreme Court in M.P. Special Police Establishment vs. State of M.P.
and others (supra) a high authority like the Council of Ministers will normally act in a bonafide manner, fairly, honestly and in accordance with law. However, on those rare occasions, where on facts, the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrelevant and based on non-consideration of relevant factors, the Governor would be right on the facts of the case to act in his own discretion and grant sanction."
Therefore, for proper implementation of the order two steps were to be taken; one was the decision of the Council of Ministers and another was to forward the matter to 'the Governor' for her final approval or otherwise. It does appear that the Council of Ministers has taken decision on 27.6.2012 expressing the view that the sanction does not deserve to be granted. Under these circumstances, as the Council of Ministers has already taken decision, it can be said that the order is implemented by the Council of Ministers to that extent. Hence, we are of the view that no proceedings deserve to be initiated against Respondents No.1 to 8.
But it would be required for the Chief Secretary of the State Government to forward all the papers to 'the Governor' with the decision of the Council of Ministers for approval or otherwise and to take decision as per the decision of this Court in Special Criminal Application No.2226 of 2010.
At this stage, learned Advocate General states that the Chief Secretary of the State Government shall forward such proposal within a period of one week from today to Her Excellency the Governor for approval or otherwise and for appropriate decision. It is also observed that we expect that appropriate decision shall be taken within two weeks thereafter.
Hence, Respondents No.1 to 8 shall stand deleted at this stage. No formal notice is issued to Respondent No.9 (now only Respondent), since the learned Advocate General has appeared on behalf of him (the Chief Secretary of the Gujarat State - Respondent).
S.O.
to 30.7.2012 for reporting further progress of the matter.
(Jayant Patel, J.) (C. L. Soni, J.) vinod Top