PURSHOTTAM SOLANKI Vs. STATE OF GUJARAT
LAWS(GJH)-2012-9-124
HIGH COURT OF GUJARAT
Decided on September 20,2012

PURSHOTTAM SOLANKI Appellant
VERSUS
STATE OF GUJARAT Respondents


Referred Judgements :-

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD. V. WEDNESBURY CORPORATION [REFERRED TO]
STATE OF W.B. VS. SAILENDRA NATH BOSE [REFERRED TO]
T.GOVINDARAJA MUDALIAR ETC. VS. THE STATE OF TAMIL NADU [REFERRED TO]
PAD FIELD V. MINISTER OF AGRICULTURE,FISHERIES AND FOOD [REFERRED TO]
STATE FOR EDUCATION V. TAMESIDE METROPOLITAN BOROUGH COUNCIL [REFERRED TO]
J Y KONDALA RAO VS. ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION [REFERRED TO]
A K KRAIPAK VS. UNION OF INDIA [REFERRED TO]
SAMSHER SINGH ISHWAR CHAND AGARWAL VS. STATE OF PUNJAB [REFERRED TO]
G SARANA VS. UNIVERSITY OF LUCKNOW [REFERRED TO]
G SARANA VS. UNIVERSITY OF LUCKNOW [REFERRED TO]
STATE OF RAJASTHAN STATE OF MADHYA PRADESH STATE OF PUNJAB VS. UNION OF INDIA [REFERRED TO]
STATE OF MAHARASHTRA VS. RAMDAS SHRINIVAS NAYAK [REFERRED TO]
BAIDYANATH MAHAFATRA VS. STATE OF ORISSA [REFERRED TO]
G B MAHAJAN VS. JALGAON MUNICIPAL COUNCIL [REFERRED TO]
BEED DISTRICT CENTRAL CO OP BANK LIMITED VS. JAGANNATHS SHAHANE [REFERRED TO]
STERLING COMPUTERS LIMITED UNITED DATABASE INDIA PRIVATE LIMITED UNITED INDIA PERIODICALS PRIVATE LIMITED VS. M AND N PUBLICATIONS LIMITED:MAN PUBLICATIONS LIMITED:M AND N PUBLICATIONS LIMITED [REFERRED TO]
S R BOMMAI VS. UNION OF INDIA [REFERRED TO]
U P AVAS EVAM VIKAS PARISHAD VS. FRIENDS COOP HOUSING SOCIETY LIMITED [REFERRED TO]
B C CHATURVEDI UNION OF INDIA VS. UNION OF INDIA [REFERRED TO]
VINEET NARAIN VS. UNION OF INDIA [REFERRED TO]
SHATRUGHNA PRASAD SINHA VS. RAJBHAU SURAJMAL RATHI [REFERRED TO]
BHURI NATH SEWA COMMITTEE BARIDARAN BARIDARAN ASSOCIATION VS. STATE OF JAMMU AND KASHMIR [REFERRED TO]
MANSUKHLAL VITHALDAS CHAUHAN VS. STATE OF GUJARAT [REFERRED TO]
STATE OF KERALA VS. O C KUTTAN :STATE OF KERALA [REFERRED TO]
KUMAON MANDAL VIKAS NIGAM LIMITED VS. GIRJA SHANKAR PANT [REFERRED TO]
B R KAPUR VS. STATE OF TAMIL NADU [REFERRED TO]
G N NAYAK VS. GOA UNIVERSITY [REFERRED TO]
M P SPECIAL POLICE ESTABLISHMENT VS. STATE OF M P [REFERRED TO]
RAMESHWAR PRASAD VS. UNION OF INDIA [REFERRED TO]
PARKASH SINGH BADAL VS. STATE OF PUNJAB [REFERRED TO]
STATE OF KARNATAKA VS. AMEER JAN [REFERRED TO]
STATE OF PUNJAB VS. MOHAMMED IQBAL BHATTI [REFERRED TO]
ALKA GUPTA VS. NARENDER KUMAR GUPTA [REFERRED TO]
DINESH KUMAR VS. CHAIRMAN AIRPORT AUTHORITY OF INDIA [REFERRED TO]
SUBRAMANIAN SWAMY VS. MANMOHAN SINGH [REFERRED TO]
SUBRAMANIAN SWAMY VS. MANMOHAN SINGH [REFERRED TO]


JUDGEMENT

- (1.)The present petition has been filed by the petitioner under Article 226 of the Constitution of India and also under sec. 482 read with sec. 197 of the Code of Criminal Procedure, 1973, for the following prayers on the grounds stated in the memo of petition:
"(A) Your Lordships may be pleased to issue appropriate writ, order or direction including in the nature of mandamus or certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 26.7.2012 passed by Her Excellency, the Governor of Gujarat State (Annexure-A), in the interest of justice;

(B) Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 26.7.2012 passed by Her Excellency, the Governor of Gujarat (Annexure-A), pending admission, hearing and final disposal of this petition, in the interest of justice;

(C) Your Lordships may be pleased to grant such aid firmer communication as the nature and circumstances of the case may require, in the interest of justice."

(2.)It has been, inter alia, contended that the Her Excellency the Governor has no discretion or authority to pass the impugned order as per the provisions of Art. 163. It is contended that H.E. the Governor has no discretion or authority to take any contrary decision in any manner and the Governor acts through the Council of Ministers. It is contended that as per the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Samsher Singh V/s. State of Punjab, 1974 2 SCC 831, the Governor has a right "to be consulted, to encourage and to warn" only. Therefore, it is contended that Her Excellency the Governor has acted contrary to the aid and advice of the Council of Ministers and such a decision/impugned order is alien to the Constitution.
(3.)It is also contended that the decision of the Hon'ble Apex Court in the case of M.P. Special Police Establishment V/s. State of M.P. & ors., 2004 8 SCC 788 is not applicable as the facts of the said judgment are totally different. It is contended that the Rules of Business has already been framed by Her Excellency the Governor for the State of Gujarat and item No. 9 refers to the business of prevention of corruption and the Governor has framed the rules with the aid and advice of the Council of Ministers. After framing of such rules, the same has to be executed by the Ministers, Officers in accordance with law and the constitutional provisions. It is therefore contended that there is an inherent lack of jurisdiction on the part of Her Excellency the Governor to pass the impugned order. It is contended that our country has accepted the parliamentary system of democracy with federal structure and the Council of Ministers are the real executives.


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