DISTRICT PANCHAYAT JAMNAGAR Vs. NARSINHDAS HARIDAS KANANI

JUDGEMENT

(1.) Petitioner No.1 is Jamnagar District Panchayat through its District Development Officer. Petitioner No. 2 is the District Panchayat through its Executive Committee. Petitioner No.3 is the Secretary District Panchayat Executive Committee. All the petitioners are defendants in Regular Civil suit No. 298 of 1982 of the Court of Civil Judge (Senior Division ) Jamnagar. The aforesaid suit is filed by the respondent herein challenging the legality and validity of the show-cause notice dated 22/05/1992 calling upon him to show cause as to why he should not be removed as Chairman of Dwarka Nagar Panchayat and also as member of the said Panchayat for the reasons mentioned in the notice. The notice has been issued under the provisions of Section 49 (1) of the Gujarat Panchyats Act 1961 The respondent-plaintiff was required to submit reply on 19/06/1992 Without filing reply before the appropriate authority respondent-plantiff filed suit on 9/06/1992 and challenged the legality and validity of the show cause notice and also prayed that the defendants (petitioners herein) be restrained from proceeding further with adjudication of the show-cause notice and from further implementing and operating the impugned show cause notice. The suit was filed during summer vacation and appears to have been filed as vacation suit. The respondent-plaintiff also filed application Exh. 5 and prayed for interim relief to the effect that the defendants be directed not to operate the show-cause notice dated 22/05/1992 and they be restrained from taking any further action pursuant to the show-cause notice. The petitioners-defendants appeared in the suit. After hearing the parties learned Joint Civil Judge (SD) passed order dated 17/06/1992 and granted interim relief restraining the petitioner (original defendants) from operating and implementing the show-cause notice dated 22/05/1992 and from taking any further action pursuant thereto. The petitioners have challenged the legality and validity of this order by filing this petition.

(2.) Learned Counsel for the respondent- original plaintiff submitted that the petitioners have alternative remedy by way of appeal against the impugned order and therefore the petition is not maintainable under Article 227 of the Constitution of India. The contention cannot be accepted in view of the decision of the Supreme Court in the case of Ram and Shyam Company v. State of Haryana and Others reported in (1985) 3 SCC 267 wherein the Supreme Court has inter alia observed that exhaustion of alternative remedies is a rule of convenience and discretion a self- imposed restraint on the court rather than a rule of law. It does not oust the jurisdiction of Court. Where the order complained against is alleged to be illegal or invalid as being contrary to law a petition at the instance of person adversely affected by it would lie to the High Court. Similar principle has been laid down by the Supreme Court in the case of U.P. State v. Mohammad Nooh reported in AIR 1958 SC 86 wherein the Supreme Court inter alia observed that there is no rule with regard to certiorari as there is with mandamus that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute. In the case of. The Ahmedabad Mfg. & Calico Ptg. Co. Led. v. Ramtahel Ramanand and Others reported in AIR 1972 SC 1598 in para 13 of the judgment the Supreme Court observed that as such the power under Article 227 may also be exercised suo motu. This Court has allowed the aforesaid principles of law laid down by the Supreme Court in the case of Kandla Port Trust v. M/s Mulraj Mathreja reported in 27(1) GLR 442. The reliance placed by the learned Counsel for the respondent on the decision of the Supreme Court in the case of Mohd. Yunus v. Mohd. Mustaqim reported in AIR 1984 SC 38 is required to be read in the factual background and the context in which the observations have been made. The Supreme Court has not diluted or modified the principle laid down in the aforesaid decisions. Therefore the contention that simply because remedy by way of appeal is available petition under Article 227 would not be maintainable has no merits Again it may be noted that revision to this Court would not be maintainable under Section 115 of the Code of Civil Procedure in view of the provisions of Section 115(2) of the Code of Civil Procedure. Therefore it cannot be contended that before this Court any other alternative remedy is available to the petitioners

(3.) Learned Counsel for the respondent- plaintiff submitted that the basis of the suit filed by the resondent-plaintiff was malice alleged against one of the members of the Executive Committee of the District Panchayat. The said member is Mr. Patralambha who has engineered and got initiated the inquiry against respondent- plaintiff. It is further submitted that the trial court has prima facie believed the allegations of mala fides. Therefore it this court should not entertain the petition under Article 227 of the Constitution of India