Research › Search › Judgment

Gujarat High Court · body

2003 DIGILAW 464 (GUJ)

SHAMBHUBHAI JETHABHAI PATEL v. STATE

2003-08-07

J.N.PATEL

body2003
J. N. PATEL, J. ( 1 ) RULE. With the consent of learned counsel for parties both the Misc. Civil Application No. 1647/02 and Special Civil Application No. 10865/02 are taken for final hearing today. ( 2 ) HEARD Mr. Raval for the applicant and Mr. Joshi for respondent Nos 1 to 4 and Mr. Vyas for respondent No. 5. ( 3 ) HAVING heard the learned advocates for parties it appears that the Dy. Secretary who passed the order on behalf of the State Govt was not holding the charge of Dy. Secretary (appeals) when he signed the order, dated 7/10/02 because even in the affidavit in reply which is filed by Mr. G. P. Raval, Dy. Secretary it has been mentioned that Mr. Machchhar who has signed the order was relieved as Dy. Secy (Appeals) on 23. 9. 02. The contention as sought to be raised on behalf of the State Govt is that a draft judgment was prepared and it was forwarded to the Secretary and the concerned Minister for approval. However, no changes or alterations are made by the Secretary as well as by the concerned Minister, and therefore, it remained to continue as the decision taken by Mr. Machchhar and therefore Mr. Machchhar has rightly signed the order, dated 7. 10. 02. The aforesaid contention in my view can not be accepted in view my earlier decision dated 18. 10. 02 in SCA No. 10406/02 (Narendrabhai Ratanji Patel vs State of Gujarat ). In case of Narendrabhai (supra) at paras 3 and 4 the observations are as under:"3. UPON inquiry put by the Court, it has been reported that at the election dated 11-7-2002 there was majority of 21 votes against 19 votes i. e. there was a difference of 2 (two) votes between the elected candidate and the defeated candidate and, therefore, it is clear that but for the interim order of the Court the result would have been otherwise. MR. JOSHI, learned Counsel who is appearing for the applicant in these petitions, has submitted that there was simultaneous videography for the proceedings of the meeting dated 11-7-2002 and he has further submitted as per the information of his client that the fax communication was received during the course of the period when the meeting was actually going on. MR. JOSHI, learned Counsel who is appearing for the applicant in these petitions, has submitted that there was simultaneous videography for the proceedings of the meeting dated 11-7-2002 and he has further submitted as per the information of his client that the fax communication was received during the course of the period when the meeting was actually going on. It is surprising that neither the Election Officer, nor the Chief Officer has disclosed the aspects regarding simultaneous video-recording of the proceedings of the meeting dated 11-7-2002, though it is their defence that the fax communication has been received after the proceedings of the meeting. Further, the contemporaneous record for holding of the meeting is not produced by the Election Officer or by the Chief Officer. "the similar is the situation in the present case also and, therefore, in view of the decision in the case of Narendrabhai Ratanji Patel (supra) dated 18. 10. 02, the contention of the State Govt for upholding the decision signed by Machchhar though he was not holding the charge of Dy. Secretary (Appeals) at the relevant point of time can not be accepted and deserves to be rejected. ( 4 ) MR. VYAS appearing for the respondent No. 5 had made an attempt to submit that as such on the aforesaid factum regarding handing over of the charge or forwarding the draft etc was within the knowledge of the original petitioner-applicant herein and Mr. Vyas submitted that no objection was raised by the petitioner at least at the time when the matter was taken up for hearing by this court and therefore he submitted that once such objection is not raised the principles of waiver would apply and the applicant is estopped from raising such contention as a ground for review. In my view, no such principle of estoppel or waiver can operate against the basic provisions of statute for maintaining the power of quasi judicial authority. There is no material on record to show that the petitioner had conscious knowledge of the aforesaid aspects and inspite of the same the petitioner has waived and accepted the order as of admitted position. There is no material on record to show that the petitioner had conscious knowledge of the aforesaid aspects and inspite of the same the petitioner has waived and accepted the order as of admitted position. The State is exercising power as quasi judicial authority and even if it is accepted as that of a a public office, it can not be read that the principles of waiver would apply so as to confer the authority or power or position upon the person who had at the relevant point of time no power at all. ( 5 ) THEREFORE, in the above view of the matter, it appears that the aforesaid aspects regarding the fact that Mr. Machchhar who signed the order at the relevant point of time was not holding the charge of the Dy. Secretary (Appeals) could not be brought to the notice of the court. Possibly had such contention raised and said fact brought to the notice of the court, then this court in view of the decision in Narendrabhai Ratanji Patel (supra) dated 18. 10. 02 would have taken different view for the purpose of examining the order of the State Govt keeping in view the aspect of authority or signing of the order or pronouncement of the order by the competent person. Therefore, the case is made out for review and recalling of the judgment, dated 23. 10. 2002 passed in SCA No. 10865/02 and hence this MCA is allowed to the aforesaid extent and the judgment and order dated 23. 10/02 passed in SCA No. 10865/02 is recalled. Rule in MCA is made absolute accordingly. ( 6 ) IN view of the aforesaid order in MCA, the SCA No. 10865/02 will have to be considered on merits. No further detailed discussion is required but the same situation would prevail so far as the scrutiny of authority the order dated 7. 10. 02 passed by the Dy. Secretary (Appeals) which is impugned in the petition is concerned. As such, in view of the decision, dated 18. 10. 02, of this court in case of Narendrabhai Ratanji Patel (supra) it is not necessary to refer to the reasons again. Here also same situation would prevail in as much as when the Dy. Secretary (Appeals) passed the order and signed the order, he was not holding the charge of the Dy. 10. 02, of this court in case of Narendrabhai Ratanji Patel (supra) it is not necessary to refer to the reasons again. Here also same situation would prevail in as much as when the Dy. Secretary (Appeals) passed the order and signed the order, he was not holding the charge of the Dy. Secretary (Appeals) at the relevant point of time and therefore the order passed by the Dy. Secretary (appeals) can not be sustained in the eye of law. ( 7 ) HENCE, I am of the view that the following directions would meet with the ends of justice: (I) the order, dated 7. 10. 02 passed by the Dy. Secretary (Appeals) is quashed and set aside on the short point that the Dy. Secretary, Mr. Machchhar who has signed the order was not holding the charge of the Dy. Secretary (Appeals) at the relevant point of time. (II) it is directed that the Dy. Secretary (Appeals), Cooperation Dept of the State Govt shall rehear the revision application No. 88/02 and after giving opportunity of hearing to all concerned shall render decision within a period of three months from the date of receipt of writ of this court. (III) until the decision is rendered by the Dy. Secretary (Appeals) in the aforesaid revision application, the statusquo prevailing as on today shall be maintained. ( 8 ) SPECIAL Civil Application No. 10865/02 is allowed in terms of aforesaid directions. Rule is made absolute accordingly. There shall be no order as to costs. .