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Gujarat High Court
Judgename :D.A.MEHTA, R.K.Abichandani
GAUTAMBHAI DEVSHANKAR DAVE - Appellant
Versus
STATE OF GUJARAT - Respondent
L.P.A. 1268 of 2003
Decided On : 12/26/2003
Non-compliance will not per se be sufficient for holding that the order is invalid and striking it down, but, the person alleging such violation has to show whether any prejudice has resulted as a consequence of such violation.
[Para 15]
It is an admitted position that the communication dated 10.9.2003 fixing hearing on 17.9.2003 was initially erroneously sent to Patan Market Committee and after return of the same was served on the petitioners on 16.9.2003. However, what is important to note is that a copy of the said intimation had also been endorsed to the advocate of the petitioners at his address, and there is no dispute by the petitioners that the same had not been received by the concerned Advocate. In the aforesaid backdrop, on 17.9.2003 petitioner No. 1 presented himself and submitted a detailed reply along with annexures running into 336 pages which are no record of the petition at pages 161 onwards; but the petitioners also tried to seek an adjournment on the ground that the notice has been received by them only on 16.9.2003. It is in these circumstances that the authority rejected the request for an adjournment and proceeded with the hearing. Considering the entire sequences of events as available on record it is apparent that it cannot be stated for a moment that the petitioners have suffered any prejudice in any manner whatsoever. In fact no prejudice is shown to have been caused to the petitioners and hence the technical plea of violation of principles of natural justice has rightly been rejected by the learned Single Judge.
[Para 15]
(b) Gujarat Agricultural Produce Market Act, 1963 (Guj. Act 20 of 1964) - Sec. 46 - Superseding Market Committee - Whether mala fide - Findings - No grounds to accept the grievance that proceedings were actuated due to intervention of respondent No. 6 who was sitting Minister of Government - Respondent No. 6 has filed affidavit in support to deny the allegation - Impugned order superseding Market Committee passed independently considering oral and written statement.
In relation to the submission that the proceedings were actuated by mala fide due to intervention of respondent No. 6 who was a sitting Minister of the Government, the learned Single Judge has taken into consideration the averment made by respondent No. 6 in the affidavit-in-reply dated 16.10.2003.
Hence, even on this count it is not possible to accept the grievance made by the petitioners. In fact, the authority who has passed the order dated 26.9.2003 has also categorically stated in its affidavit-in-reply that the same has been passed independently and in accordance with law and that too after having taken into consideration the oral and written submissions of the petitioners as well as legal aspects. In these circumstances, the learned Single Judge has rightly dismissed the contention regarding mala fides.
[Para 16]
(c) Constitution of India, 1950 - Arts. 226 & 227 - Jurisdiction - Limitation and scope indicated.
The law is settled that the powers conferred on the High Court under Arts. 226 & 227 of the Constitution of India are extraordinary and discretionary as distinguished from ordinary statutory powers. This is not a case where this jurisdiction is required to be exercised in favour of the petitioners. There is no jurisdictional error in the order of the Tribunal. It is not a case where the Tribunal has assumed not conferred on its jurisdiction or where it has failed to exercise the jurisdiction vested in it. Nor is there any error apparent on the record of its decision. The High Court does not sit as an appellate Court and interference with pure findings of fact and appreciation of evidence is not permissible. Reappreciation of evidence cannot be undertaken. Even if on same set of facts, circumstances and evidence on record, a different view may be possible, that by itself is not enough to permit the High Court to intervene. A mere wrong decision does not clothe the High Court with jurisdiction, unless it is shown that the Tribunal has reached a decision without any evidence in support of same, or that it has considered evidence which is partly relevant and partly irrelevant or that it arrived at a decision no reasonable person would have reached.
[Para 18]
(d) Gujarat Agricultural Produce Market Act, 1963 (Guj. Act 20 of 1964) - Sec. 46 - Jurisdiction - Order Superseding Market Committee - If any one of the three conditions laid down in Sec. 46(1) is shown to have been fulfilled the State Government competent to make such order - In the present case not only one but there are series of acts of commission and omission in all 12 - They cumulative go to establish that Market Committee has failed and abused its power - Impugned order dated 26.9.2003, therefore, cannot be faulted.
The entire order was based and finalized only on ground of abuse of powers as stipulated in Sec. 46 of the Act, on a plain reading of the order dated 26.9.2003 it is apparent that the authority has found that the Market Committee has persistently defaulted in performing the duties imposed on it by the Act or under the Act also by not following due procedure coupled with administrative improprieties abused its powers to entail financial loss. Therefore, if any one of the three conditions laid down in Sec. 46(1) of the Act is shown to have been fulfilled the State Government would have jurisdiction to act against such Market Committee and supersede the same.
[Para 19]
It is also necessary to note that present is not a case wherein a single aberration is the basis for taking action against Market Committee but there are series of acts of commission and omission (12 in all) which cumulatively go to establish that the Market Committee has not only failed to perform its duties but it has abused its powers. As can be seen from the charges regarding misuse of the vehicle of the Market Committee, claim of allowances which an office bearer is entitled to claim provided a personal vehicle is used, while in the present case it has come on record that though the official car of the Market Committee was used vehicle allowances were claimed by the Chairman of the Market Committee; appointment of various persons closely related to the office bearers or members of the Market Committee in utter disregard of established norms for such appointments; placing of surplus funds in deposit with a Co-operative Bank, admittedly declared to be a weak bank, wherein some of the members of the Market Committee are also on the Board of such bank and then obtaining personal loans against such deposits of the Market Committee. These are but a few instances out of the 12 charges and the authority has given cogent reasons for each and every charge along with specific details including names of persons, amounts involved, dates of such act etc. Not only that, the authority while passing order dated 26.9.2003 has dealt with detailed submission made by the Market Committee. In these circumstances, it is not possible to accept the contention that the authority had failed to deal with various submissions placed on record on behalf of the Market Committee.
[Para 20]
( 1 ) THIS Letters Patent Appeal has been preferred against the order dated 17/10/2003 and 7/11/2003 made in Special Civil Application No. 14317 of 2003 by the learned Single Judge dismissing the petition.
( 2 ) IT appears that the appellants who are original petitioners (hereinafter referred to as the petitioners) are members of the Siddhpur Agriculture Produce Market Committee (hereinafter referred to as the Market Committee) constituted under Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as the Act ). On 7/8/2003 a show-cause notice came to be issued by the State Government as to why the Market Committee should not be superseded on the stated grounds. The said show cause notice was challenged by way of Special Civil Application No. 12258 of 2003. On 19/8/2003 the petition was rejected by the learned Single Judge of this Court and the petitioners preferred Letters Patent Appeal against the same and the same came to be dismissed on 28/8/2003.
( 3 ) ON 26/9/2003 the State Government in exercise of powers under Section 46 of the Act superseded the Market Committee and appointed an Administrator. The said decision was challenged by way of a petition being Special Civil Application No. 14317 of 2003. As the said petition was rejected the original petitioners have preferred this Letters Patent Appeal.
( 4 ) MR. S. K. JHAVERI, learned Senior Advocate appearing on behalf of the petitioners contended that the order of the learned Single Judge confirming the order of the State Government superseding the Market Committee was bad in law as the learned Single Judge had failed to take into consideration that the State Government, while passing the order of supersession dated 26/9/2003, had not appreciated that :[a] The entire proceedings were in violation of principles of natural justice;[b] The proceedings were ab initio void as they were tainted with malafides;[c] The State Government while passing the order on 26/9/2003 has not appreciated and dealt with all the points raised by the petitioners in their written as well as oral submissions;[d] The order dated 26/9/2003 is stated to have been passed because the Market Committee had abused its powers but the concept of abuse of powers requires that an act/omission has to be coupled with dishonest intent, and all actions taken in pursuance of powers available under the statute cannot be termed to be abuse of powers merely because another person has a different perception in relation to a particular act or omission; and,[e] Before exercising powers under Section 46 of the Act, the State Government ought to have taken action under Sections 44, 45 and 47 of the Act, if at all it was necessary to take any action against the Market Committee.
( 5 ) MR. JHAVERI laid great emphasis on the first two grounds, viz. violation of principles of natural justice and the action being tainted with malafides. It was submitted that the entire action was politically motivated and at the behest of respondent nos. 5 and 6 who were political rivals of the petitioners. That respondent no. 5 was an Ex. Minister while respondent no. 6 was a sitting Minister. That at the behest of the said two respondents, the competent authority conducting the proceedings for and on behalf of the State Government did not grant full and proper opportunity to the petitioners to meet with the charges levelled against the Market Committee resulting in order dated 26/9/2003 being passed. It is stated that respondent no. 3 - Director issued various directions under Section 47 of the Act to the Market Committee vide order dated 30/6/2003. However, even as the Market Committee was in the process of taking corrective steps one Shri Ajitkumar Dharmendra Thakkar preferred Revision Application No. 114 of 2003 against the aforesaid decision dated 30/6/2003 and even before the Market Committee could hold its meeting for taking corrective steps it was prevented by a stay order issued by the revisional aut
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