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2003 DIGILAW 409 (MP)

Dinesh Kumar Awasthy v. State of M. P.

2003-03-12

K.K.LAHOTI

body2003
JUDGMENT Learned counsel for respondents Nos. 1 and 4 raised a preliminary objection that the impugned order dated 23.7.1997 (Annexure P-5) was passed by Chief Executive Officer, Janpad Panchayat, Jabalpur and consequent, order dated 24.1.2002 (Annexure P-10) was passed by Gram Panchayat, Sagra Jhapni. The aforesaid order is appealable under the provision of M.P. Panchayats (Appeal and Revision) Rules, 1995. He placed reliance on three judgments of this Court in W.P. No. 1604/1997 (Dhum Singh v. State of M.P.) decided on 4.11.1997 [ 1998(II) MPWN 23 ], in W.P. No. 2564/2001 (Latori Ram Yadav and others v. State of M.P. and others) decided on 9.7.2001 and W.P. No. 180/2001 (Yogesh Pandey and others v. Rajiv Gandhi Primary Shiksha Mission and others) decided on 17.1.2003 and contended that, statutory remedy of appeal is available to the petitioner. In the circumstances, writ petition cannot be entertained. Learned counsel for petitioner contends that this Court in various cases has exercised jurisdiction under Article 226/227 of the Constitution of India, whereas the matter relating to Guruji has been decided. But none of the case has been placed in which this question of alternative remedy has been decided. This Court in Dhum Singh (supra) has considered this question and held: "At the out-set, Shri Piyush Mathur, learned Government Advocate appearing for respondent Nos. 1 and 2, raised a preliminary objection, with regard to maintainability of the petition, on the ground that against the impugned order, petitioner has a right to file' 'an appeal before the Collector under Rule 3 of M.P. Panchayats (Appeal and Revision) Rules, 1995 (hereinafter referred to as the 'Rules, 1995'). Rule 3(a) makes it abundantly clear that against any order passed by Sub-Divisional Officer, an appeal would lie to the Collector, Rule 4 contemplates the period of limitation for filing an appeal. The period of 30 days has been fixed under this rule, but, sub-rule 2 of rule 4 gives power to the Appellater Authority to condone the delay, if goods and sufficient cause is shown by the appellant in not presenting the appeal within the prescribed period of limitation. The period of 30 days has been fixed under this rule, but, sub-rule 2 of rule 4 gives power to the Appellater Authority to condone the delay, if goods and sufficient cause is shown by the appellant in not presenting the appeal within the prescribed period of limitation. On pointing out this to the learned counsel for petitioner, he· submits' 'that he would prefer an appeal against this order, but, the question of limitation shall come in his way." In the case of Latori Ram Yadav (supra) this Court held: "A learned Single Judge of this Court in W.P. No. 229/2001 (Vijay Bahadur Singh v. State of M.P. and 3 others) by order dated 9.4.2001 observed as follows: "Thus, any action or order of the Gram Panchayat or Janpad Panchayat referable to the scheme would be an order or proceeding of the Panchayat under the Panchayat Raj Adhiniyam and subject to the provisions of Appeal and Revision under section 91 thereof." Petitioners, without availing the remedy as available to them under the M.P. Panchayat (Appeals and Revision) Rules, 1995 has rushed with this writ petition. On this ground alone, I am not inclined to enter into the merits of the case. Petition stands dismissed in limine. However, dismissal of the petition shall be stand in the way of the petitioners in taking recourse to the remedy available to them under law." In the case of Yogesh Pandey (supra) this Court has followed the aforesaid judgments and held that the remedy of appeal is available under the M.P. Panchayats (Appeal and Revision) Rules, 1995 and petitioner is having efficacious alternative remedy of appeal, in the circumstances, writ jurisdiction was not exercised. In view of settled position of this Court in the case of Guruji, against the order passed by Janpad Panchayat and Gram, remedy lies under the provision of M.P. Panchayats (Appeal and Revision) Rules, 1995 and unless and until, the petitioner makes out some case for exercising wit jurisdiction, the aforesaid jurisdiction cannot be exercised. In the present case nothing has been pointed out to exercise writ jurisdiction. Consequently, petitioner is directed to file appeal before the appellant authority challenging orders Annexure P-5 and Annexure P-10. Learned counsel for petitioner contends that the petitioner may be permitted to file appeal within a time bound in time bound period to that petitioner may avail the remedy of appeal. Consequently, petitioner is directed to file appeal before the appellant authority challenging orders Annexure P-5 and Annexure P-10. Learned counsel for petitioner contends that the petitioner may be permitted to file appeal within a time bound in time bound period to that petitioner may avail the remedy of appeal. This petition is disposed of with following directions: 1. Petitioner may avail remedy of appeal within a period of thirty days from today and in case the aforesaid appeal is filed, challenging the orders Annexure P-5 and Annexure P-10 within the aforesaid period, the appeal will be decided on merits and will not be defeated on the question of limitation. 2. The appellate authority will expedite the hearing of appeal as the matter relates to appointment of Guruji, which needs individual attention of the authority. C.C. as per rules.