1. RULE. Mr. Ronak Raval, learned AGP waives service of Rule on behalf of respondent Nos.1 and 2 and Mr. Hemant S. Munshaw, learned advocate waives service of Rule on behalf of respondent No.3.
2. Considering the issue involved in the present petition and with consent of the learned counsel appearing for the parties, the matter is taken up for final disposal forthwith.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner who happens to be Sarpanch of Varal Gram Panchayat, Taluka Shihore, District Bhavnagar has prayed for the following reliefs: “[A] Be pleased to admit and allow this petition;
[B] Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus, and to quash and set aside the impugned order dated June 09, 2011, AnnexureH to this petition, passed by the respondent no.2 herein in Appeal No.162 of 2010 preferred by the present petitioner;
[C] Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, execution and operation of the impugned order dated June 09, 2011, AnnexureH to this petition, passed by the respondent no.2 herein in Appeal No.162 of 2010 preferred by the present petitioner;
[D] Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to issue an order, restraining the respondents herein, their agents and servants from restraining the present petitioner from discharging his duties as Sarpanch of Varal Gram Panchayat;
[E] Be pleased to pass such other and further reliefs, as the nature and circumstances of the present case may require;”
4. Learned counsel Mr. B.M. Mangukiya with learned advocate Mr. Patel for the petitioner mainly submitted that the order impugned in the present petition at AnnexureH dated 9.6.2011 passed in Application No.162 of 2010 by respondent No.2 is an order passed without following the principles of natural justice. Mr. Mangukiya submitted that in addition to that, certain documents were asked for which have not been provided by the authorities. He, therefore, contended that the order impugned in the present petition deserves to be quashed and set aside only on the aforesaid ground.
5. Mr. Ronak Raval, learned AGP has relied upon the affidavit in reply filed by the Additional Development Commissioner – respondent No.2. Mr. Raval contended that as stated in para 6 of the said affidavit, the petitioner's advocate did not remain present for hearing on various dates and more particularly, on 21.9.2010, 16.11.2010, 22.12.2010, 8.2.2011 and 16.3.2011. Mr. Raval has further relied upon the photocopy of the extracts of Rojkam annexed with the said affidavit.
6. Mr. Hemant S. Munshaw, learned advocate for respondent No.3 has supported the order impugned. Mr. Munshaw contended that the order impugned is passed after consideration of the relevant material before the authority and the same does not require any interference by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.
7. Considering the rival submissions and on perusal of the order impugned dated 9.6.2011, it appears that the appeal filed by the petitioner under the provisions of Section 57(3) of the Gujarat Panchayats Act, 1993 was kept for hearing on 21.9.2010, 16.11.2010, 22.12.2010, 8.2.2011, 16.3.2011, 13.4.2011 and lastly, on 10.5.2011. It is recorded by the authority in the order impugned that after 16.11.2010 on all the 5 subsequent occasions, as can be seen from the
application at AnnexureF (Pages 78 and 79), it appears that on 10.5.2011, an application was filed before the authority. It appears from the tenor of the said application that as the learned counsel for the petitioner was held up in this Court, he could not remain present and therefore, written submissions were sought to be submitted. However, the same was declined. Such an application has been received by the office of respondent No.2 on 10.5.2011 as per the endorsement appears at Page 79. The impugned order is passed on 9.6.2011 i.e. almost after a period of one month from the date of the said hearing. Considering the aforesaid facts and circumstances, the authority while passing the order impugned could have given an opportunity of hearing to the petitioner and could have considered the submissions which were sought to be submitted by the learned counsel for the petitioner. It is no doubt true that as noted aforesaid, the learned advocate of the petitioner has also not remained present on at least 5 occasions and therefore, even while taking a lenient view by quashing the order impugned and remanding the matter back for fresh hearing, this Court deems it fit to impose cost upon the petitioner.
8. It goes without saying that respondent No.2 being a quasijudicial authority has to give an opportunity of hearing to the parties and then decide the matter, but at the same time, it is also a boundant duty of the petitioner to attend the hearing on the date which it is fixed.
9. In light of the above circumstances, this Court feels that interest of justice would be served if the order impugned dated 9.6.2011 passed by respondent No.2 herein – Additional Development Commissioner, Gujarat State, Gandhinagar in Application No.162 of 2010 is quashed and set aside and the aforesaid application is restored back to the file of Additional Development Commissioner, Gujarat State.
10. Accordingly, the matter stands remanded back for its fresh hearing in accordance with law after giving an opportunity of being heard to the petitioner on condition of payment of Rs.1,500/ (Rupees one thousand five hundred only) as costs to respondent Nos.1 and 2 jointly and Rs.1,500/ (Rupees one thousand five hundred only) as costs to respondent No.3 within a period of two weeks from today. The respondent authority shall give prior notice of hearing. Mr. B.M. Mangukiya, learned counsel for the petitioner undertakes before this Court that appropriate representation shall be made on the date which is so fixed for hearing by the respondent authority as per the aforesaid direction. If the petitioner desires to have any documents from respondent No.1 or respondent No.2, the petitioner shall apply for the same within a period of one week from today and the copies thereof shall be supplied to the petitioner within a period of one week from the date of receipt of such an application in accordance with law.
11. With these observations, the petition is allowed. The order impugned dated 9.6.2011 passed by respondent No.2 herein – Additional Development Commissioner, Gujarat State, Gandhinagar in Application No.162 of 2010 is hereby quashed and set aside. Application No.162 of 2010 is restored to the file of Additional Development Commissioner, Gujarat State, Gandhinagar for its fresh hearing, as directed above. Rule is made absolute to the aforesaid extent with costs, as aforesaid.
[R.M.CHHAYA, J.] mrpandya