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C/SCA/2393/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2393 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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AATULBHAI TAPUBHAI NAKUM....Petitioner(s)
Versus
STATE OF GUJARAT, THROUGH SECRETARY, & 5....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1
MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4 - 6
MR JANAK RAVAL, ASSTT GOVT PLEADER for the Respondent(s) No. 1 - 2
MR C P CHANIYARA, ADVOCATE for the Respondent(s) No. 3
MR. DINESH N TRIVEDI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 08/07/2015
ORAL JUDGMENT
1. The matter is taken up for final hearing and disposal with consent of learned advocates for the parties. Hence, RULE. Learned Assistant Government Pleader Mr. Janak Raval for respondent Nos.1 Page 1 of 10 C/SCA/2393/2015 JUDGMENT and 2 and learned advocate Mr. C.P. Chaniyara for respondent No.3 waive service of Rule. Respondent Nos.4 to 6 being formal parties, Rule is not required to be issued to them.
2. By the present petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 5.12.2014 passed in Appeal No.83 of 2014 preferred by the petitioner against the order dated 24.9.2014 passed by respondent No.3- District Development Officer suspending the petitioner from the office of the Sarpanch in exercise of the powers under Section 59 of the Gujarat Panchayat Act, 1993 ('the Act').
3. The case of the petitioner is that one Somabhai Rajabhai Rathod since established an Unit of grinding bones just at the distance 200 to 300 meters from the residential area of the village, the petitioner as a Sarpanch wrote to the Pollution Board on 26.11.2013 and to other authorities on behalf of the people of the village who suffered lot of hardships and unbearable smell coming out on account of grinding bones. On such application made by the petitioner, site inspection of such Unit was carried out by the officer of the Gujarat Pollution Control Board and having found substance in the grievance raised by the petitioner, it was assured by the Board to take needful action. It is further case of the petitioner that since immediate action was not taken, the matter was pursued as drinking water for the people of the village started getting polluted and it was thereafter, the Board passed oder under Section 31 of the Air Pollution (Prevention and Control) Act,1981 dated 3.1.2014 for closure of the manufacturing process, wherein it is found recorded that the Unit was established without obtaining prior permission of the Board and such Unit was run by removing dead animals from the gaucher land. It is further case of the petitioner that the petitioner filed written complaint dated 17.2.2014 against owner of the Unit Mr. Page 2 of 10 C/SCA/2393/2015 JUDGMENT Somabhai Rathod with Rajula Police Station so as to see that manufacturing activity of crushing bones may not spread diseases in the village. However, grievances raised by the petitioner and the villagers were not liked by owner of the Unit Shri Somabhai Rathod and his son and he then started threatening the petitioner and other persons for which the petitioner gave one more complaint on 17.2.2014. It is also averred in the petition that on the basis of the order made by the Gujarat Pollution Control Board, the electricity company was instructed to disconnect the electric connection of the Unit. Thereafter, the electric connection of the Unit was discontinued pursuant to the order dated 26.2.2014 made by the Board. But, on account of such actions, said Shri Somabhai Rathod issued notice dated 20.3.2014 to the petitioner stating that he was holding licence for running the Unit and as per the Rules and Regulations, he was running the Unit but he was being unnecessarily harassed as he belonged to Scheduled Tribe community and that removal of a person belonging to Scheduled tribe from his land or taking away of his rights would amount to an offence of atrocity and if the petitioner did not withdraw the complaint made against him, he would take necessary legal actions under the Atrocity Act against the petitioner. As per the case of the petitioner, it is thereafter said Shri Somabhai Rathod lodged the complaint on 26.5.2014 against the petitioner and other three persons under Sections 323, 324, 394, 504, 506(2) and 114 of the Indian Penal Code, Sections 3,5,10,3(2), 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act and Section 135 of the Gujarat Police Act, alleging assault and snatching away of golden chain from his neck and hurling dis-respective words (derogatory words). Based on such complaint, action of suspending the petitioner under Section 59 of the Act was taken against the petitioner by respondent No.3, which was challenged by the petitioner by way of appeal before the respondent No.2 and having Page 3 of 10 C/SCA/2393/2015 JUDGMENT failed in the appeal, the petitioner has filed the present petition.
4. Learned advocate Ms. Bela Prajapati appearing for the petitioner submitted that respondent Nos.3 and 2 have committed serious error in simply considering the FIR lodged by Shri Somabhai Patel and ignoring other vital facts presented by the petitioner for taking action under Section 59 of the Act. Ms. Prajapati submitted that though on the basis of a pending criminal complaint, action under Section 59 of the Act could be taken, but such is not an absolute rule, especially when relevant factors which might tilt the balance in favour of the petitioner are emerging for consideration by the competent authority. Ms. Prajapati submitted that in a given case, contents of the complaint may project that it is a case of moral turpitude, but if the conduct of the informant in lodging the complaint appears to be not bonafide based on some material placed before the competent authority, then the competent authority has got discretion not to pass order under Section 59 of the Act. Ms. Prajapati submitted that here is a case where the petitioner acted for well being of the people of the village and it was on his action of pursuing the concerned authorities of Pollution Board, the Pollution Board passed order for closure of the Unit of the informant and based on such order, even electric connection of the informant was disconnected which led the informant to issue notice for filing complaint under the Atrocity Act and thereafter, the complaint under the Atrocity Act and for other offences was lodged which would show that lodging of the FIR was pre-decided when notice was issued and though the offences as alleged in the FIR had never taken place, the FIR was lodged. Ms. Prajapati submitted that veracity of the contents of the FIR could be tested before the competent Court, however respondent Nos.2 and 3 should have been mindful to the facts presented by the petitioner before taking action under Section 59 of the Act. Ms. Prajapati submitted that in the facts of the case, Page 4 of 10 C/SCA/2393/2015 JUDGMENT suspension of the petitioner from the office of Sarpanch was not warranted and therefore, this is a fit case where this Court should exercise its extraordinary power under Article 226 of the Constitution of India to quash and set aside the impugned orders.
5. As against the above arguments, learned advocate Mr. Chaniyara for respondent No.3 submitted that contents of the FIR would clearly reveal that the acts alleged to have been committed by the petitioner amounted to moral turpitude and therefore, respondent No.3 was justified in suspending the petitioner from the office of Sarpanch relying on the FIR. Mr. Chaniyara submitted that along with the offences under the Indian Penal Code, offences under the Atrocity Act are also alleged and considering such offences under the Atrocity Act, the respondent No.3 has rightly come to the conclusion that the petitioner while holding the office of Sarpanch indulged into the acts constituting moral turpitude. Mr. Chaniyara submitted that simply because the petitioner as Sarpanch had taken up some causes for the village people by addressing representations to the concerned authorities for closure of the Unit of the informant on the ground that manufacturing activities were causing pollution in the village, it could not be said that the impugned order of suspending him was not independent action and unless contrary is proved, the competent authority is presumed to have considered all other aspects of the matter, including filing of the complaint by him against the informant- Mr. Somabhai Rathod. Mr. Chaniyara submitted that the petitioner since holding the office of Sarpanch, is found to have acted in a way not befitting his position as Sarpanch, it could not be said that respondent No.3 exceeded his power while passing the impugned order. Mr. Chaniyara submitted that the Appellate Authority has well considered the material on record and committed no error in concurring with the view taken by the respondent No.3.
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6. Learned Assistant Government Pleader Mr. Raval appearing for respondent Nos.1 and 2 while adopting the arguments of learned advocate Mr. Chaniyara submitted that the Appellate Authority has considered the contents of the FIR and other material and found that the petitioner has indulged into the acts of moral turpitude and therefore, the Appellate Authority has rightly dismissed the appeal of the petitioner.
7. Having heard learned advocates for the parties, it appears that based on the FIR registered as C.R. No.I-47 of 2014 lodged with Rajula Police Station for the offences 323, 324, 394, 504, 506(2) and 114 of the Indian Penal Code, Sections 3,5,10,3(2), 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act and Section 135 of the Gujarat Police Act on 26.5.2014, action under Section 59 of the Act was initiated against the petitioner. In ordinary circumstances, only the nature of offences alleged would be relevant to decide whether alleged acts would amount to moral turpitude so as to call for action of suspension under Section 59 of the Act. However, when there are other circumstances, notice of which if could be taken from the materials available, which may require consideration to decide whether the action of suspension under Section 59 of the Act is warranted, the competent authority may be obliged to consider such other circumstances before taking action under Section 59 of the Act. The alleged offences under the Atrocity Act may amount to moral turpitude but even then without going into the veracity or otherwise of the allegations in the complaint, the competent authority is under obligation to consider other relevant factors presented by the person facing action of suspension. The petitioner in his reply to the show cause notice has well presented such relevant aspects for consideration by the competent authority. The petitioner has pointed out that he had moved Gujarat Pollution Page 6 of 10 C/SCA/2393/2015 JUDGMENT Control Board, as a result of which the Unit of the informant was closed on finding that the Unit was causing pollution and the electric connection of the Unit was also disconnected. The petitioner has also stated that he was threatened of dire consequences by the informant, for which he represented before various authorities to take necessary action and filed complaint only thereafter, the petitioner was issued legal notice by informant for filing criminal complaint under the Atrocity Act. The Court finds that such facts stated in the reply are supported by the documents presented by the petitioner. However, on perusal of the impugned order dated 24.9.2014 passed by the respondent No.3, it appears that though action taken by the petitioner as a Sarpanch for closure of the Unit run by the informant and the complaint filed by the petitioner has been taken note of, however such facts are not given much importance on the ground that the petitioner remained in custody between 29.5.2015 and 4.6.2014 and the offences alleged are of moral turpitude. It appears that further fact which has weighed with respondent No.3 is of filing the charge-sheet in connection with the FIR lodged by the informant.
8. The Court finds from Annexure-A, which is a communication addressed by the petitioner as back as on 26.11.2013 as a Sarpanch of the Village with signatures of various other persons to Mamlatdar and other authorities, including respondent No.3, bringing to the notice of the concerned authority that only at the distance of 200 to 300 kilometers from the residential area of the village, the informant was running an Unit for crushing bones of dead animals by bringing dead animals from various other villages and requesting vide this very communication to relieve the village people from the harassment caused by dogs which used to gather at the place of Unit of the informant where dead animals were brought. It appears that in response to such application, site inspection was made by the officers of the Gujarat Pollution Control Board and thereafter, the Page 7 of 10 C/SCA/2393/2015 JUDGMENT petitioner was informed vide letter dated 17.12.2013 that what was stated by the petitioner in his communication had substance and the petitioner was assured of taking further action by the head office of the Board. The petitioner then sent one more communication dated 23.12.2013 at Annexure-C which appears to have been singed by not less than 50 to 60 villagers bringing to the notice of the concerned authorities about the nuisance being created by bad smell coming out from the Units of the informant and requesting to take immediate action in the matter. It appears that thereafter the Pollution Board passed order under Section 31A of the Air Pollution (Prevention and Control) Act,1981 at Annexure-E, ordering the informant to immediately close down the manufacturing activities in the Unit and also to close captive power plant if was in operation for such activity and to stop using electricity supplied by the electricity company till further order was made and to remove dead animals from the gaucher land of the village. By the said order, the informant was put to notice that if directions issued in the order were not complied with, necessary complaint under Section 37 of the Air Pollution (Prevention and Control) Act would be filed against responsible person. It appears that thereafter, the petitioner filed one complaint before Police Inspector, Rajula Police Station against the informant and other responsible persons associated with the Unit alleging that since the petitioner had taken up cause by approaching the Board and had taken other actions against the Unit, the petitioner and village people were being threatened to do away with their lives, copy of such complaint filed on 17.2.2014 is at Annexure-I. Copy of such complaint appears to have been sent to the high ranking officers, including DIG of Junagadh Range and the Collector. It appears that the petitioner was informed by the Pollution Board vide letter dated 26.2.2014 about the action of sealing the Unit taken by the Collector and disconnection of the electric supply by the Page 8 of 10 C/SCA/2393/2015 JUDGMENT Electricity Company. What is more relevant is the notice dated 20.3.2014 issued by the informant to the petitioner at Annexure-O stating that the informant was holding the Unit in the name of 'Ramdev Bone Mill', which he was running under the licence and as per the rules and regulations and further stating that since he being the person from the Scheduled Tribe, he was targeted by making ill- founded allegations against him. In this very notice, it is stated that any act of taking away his land or interfering with his rights would amount to the offence of atrocity and the petitioner was asked to withdraw the complaint made by him within 10 days failing which the petitioner was threatened of taking legal action under the Atrocity Act. It is thereafter, the petitioner addressed one complaint dated 4.4.2014 to the Police Inspector about the threat administered to him and requested to give him protection. The petitioner also addressed representation dated 12.5.2014 to the Collector apprehending happening of unavoidable incident in the village if no proper action was taken. It was then the FIR was lodged by the informant on 26.5.2014, i.e. almost after a period of two months from the date of issuance of notice by him to the petitioner. In the FIR, the petitioner and other three persons are alleged to have assaulted, insulted and humiliated the informant by derogatory words. If the matter is examined in light of the facts emerging from the material on record, the Court finds that it is not a case where action under Section 59 of the Act was warranted simply on the basis of the FIR lodged by the informant. When there are no other allegations against the petitioner and when it clearly appears that the petitioner pursued his actions for closure of the Unit of the informant, which was allegedly causing pollution and nuisance in the village, the competent authority ought not to have been oblivious about such pursuits of the petitioner. In such view of the matter, the impugned orders are required to be quashed and set aside.
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9. It appears that pending the petition, process for election was sought to be undertaken by the Election Officer for the office of Sarpanch. The petitioner, therefore, moved Civil Application seeking restraint order against the Election officer and for adding the Election Commissioner and Election officer as party respondents to this petition. The Court finds that by order dated 1.5.2015, notification dated 27.4.2015 declaring the election was stayed, that is how the election for the office of Sarpanch was not held. For the above-said limited purpose, the Election Commissioner and Election officer were joined and therefore, as stated above, for the purpose of examining the main issue in the matter, they are formal parties.
10. For the reasons stated above, the petition is allowed. Impugned order dated 5.12.2014 passed in Appeal No.83 of 2014 by the respondent No.2 and order dated 24.9.2014 passed by respondent No.3- District Development Officer are quashed and set aside. Rule is made absolute accordingly.
Sd/-
(C.L.SONI, J.) Omkar Page 10 of 10