HC snub for Guj govt, Guv to take final decision on sanction

The court, however, rejected the contempt plea against Chief Minister Narendra Modi over the state government`s refusal to give sanction without the approval of the Governor.

Ahmedabad: In a snub to the state government, the Gujarat High Court on Friday directed that Governor Kamla Beniwal will take the "final decision" on granting sanction to prosecute Minister Purshottam Solanki for his alleged role in a Rs 400 crore fishing contracts scam.

The court, however, rejected the contempt plea against Chief Minister Narendra Modi over the state government`s refusal to give sanction without the approval of the Governor.

The government had on June 29 decided against granting sanction to prosecute Solanki, the Minister of State for Fisheries, on a plea in this regard.

The directions were given on a contempt petition against Modi and his Council of Ministers for rejecting sanction to prosecute Solanki without leaving it to the Governor to take the decision.

A Division bench of Justice Jayant Patel and Justice C L Soni ordered dropping of names of Modi and other eight members of the state Council of Ministers from the contempt petition, saying they cannot be personally shown as party for the contempt, but the state Chief Secretary should be made the respondent on behalf of the state.

The court directed the state government to forward all the papers, based on which they have taken a decision not to prosecute Solanki, to the Governor within a week and asked the Governor to decide on the issue in the next two weeks after she receives the papers.

"The final decision on the issue will be that of Governor," the court said.
The court criticised the manner in which whole issue had been handled by the state. "Earlier order has specified how the decision should have to be taken, and you have not taken it in such a way," it said.

In its March 30 order, the High Court had directed the Gujarat government to decide the plea seeking sanction to prosecute Solanki under Section 19 of the Prevention of Corruption Act, stating that Governor would be the competent authority to take a final decision with aid and advice of the Council of Ministers.

Rejecting the state`s contention that it was right in
denying sanction for prosecution, the court specifically expressed that as per the earlier order, power for the final decision in this case is vested with the Governor.

"Issue is not of the prosecution by the state government, but about the sanctioning of it. And as per the order, the final authority on whether one minister is to be prosecuted or not, rests with Governor," it observed.

"What was expected by the court is that the Council of Ministers have to form a proposal on the basis of its opinion but final decision has to be taken by Governor," the court said.

The letter conveying decision of the Council refusing the permission was earlier received by advocate Rajesh Mankad, who represents petitioner Ishaq Maradia.

Maradia had alleged that Solanki, by granting fishing contracts in 2009 without any tender process, caused loss to the tune of Rs 400 crore to state exchequer.

After the petitioner received the letter, he had filed a contempt plea in the High Court against Modi and his Council of Ministers on Tuesday last.

Defending the state government and particularly the Chief Minister and Council of Ministers, state Advocate General Kamal Trivedi had vehemently argued that they have not violated earlier order of the High Court.

"As per the order we have taken the decision not to grant sanction for the prosecution of the concerned minister on June 27 and conveyed it to the Honourable Governor next day," said Trivedi.

"Petitioner is alleging contempt by entire Cabinet and the CM himself. This is preposterous. What have we done which amounts to violation of earlier order? Have we not taken any decision, have we not conveyed it to the Honourable Governor?" he asked.

Maradia had also demanded filing of an FIR against the minister under the Prevention of Corruption Act.

On October 20, 2010, when his request was declined by the order of Deputy Secretary, Agriculture and Co-operation Department, Maradia moved the High Court contending that the deputy secretary was not the appropriate authority to decide.

On March 30, Justice Harsha Devani, while setting aside the deputy secretary`s order, directed the government that the matter be decided by the Council of Ministers within three months with the Governor`s approval.