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2004 DIGILAW 316 (MP)

Shahzad Ahmed v. State of M. P.

2004-03-31

K.K.LAHOTI

body2004
Judgment ( 1. ) PETITIONER has filed this petition challenging the order (Annexure P-4), by which Additional Commissioner, Jabalpur in Revision Case No. 500/a-89/2002-03, dated 31-12-2003 allowed the revision of respondent No. 4 Ganesh Prasad Sareyam and the case has been remitted back to the Sub-Divisional Officer for holding enquiry after affording opportunity of hearing to the respondent No. 4 Ganesh Prasad Sareyam, and to pass a fresh order. ( 2. ) RESPONDENT No. 4 Ganesh Prasad Sareyam is a Sarpanch of Gram Panchayat, Dongaria. A complaint was made to the Collector, Chhindwara, in respect of some allegations against him. The Collector, Chhindwara vide letter dated 25-10-2002 initiated proceedings against him and the matter was sent to Sub- Divisional Officer for enquiry. The Sub-Divisional Officer after enquiry removed him from the office of Sarpanch and also disqualified him for six years from contesting election on the aforesaid post. This order (Annexure P-1), dated 22-7-2003 passed by Sub-Divisional Officer, was challenged by Ganesh Prasad Sareyam before the Additional Commissioner, Jabalpur in revision. ( 3. ) BEFORE the revisional authority a preliminary objection was raised by the petitioner that the order passed by Sub-Divisional Officer is appealable under the M. P. Panchayats (Appeal and Revision) Rules, 1995 (hereinafter referred to as rules for short) and the revision filed before the Additional Commissioner was not maintainable. The Additional Commissioner considered this objection and found that the proceedings were initiated against Ganesh Prasad Sareyam at the instance of Collector. In the circumstances the revision was entertained and decided. The Additional Commissioner found that proper opportunity was not afforded to respondent Ganesh Prasad Sareyam and the enquiry report of Naib Tehsildar is also not specific and is lacking on material particulars. After recording aforesaid findings, the Additional Commissioner remanded the case to Sub-Divisional Officer with a direction to him to form an Enquiry Committee and the matter be enquired by the Enquiry Committee. The Enquiry Committee will also afford opportunity of hearing to both the parties and thereafter the Sub Divisional Officer shall pass the order. The aforesaid order has been assailed by the petitioner solitarily on the ground that revision before the Additional Commissioner was not maintainable and the Additional Commissioner erred in exercising his jurisdiction in revision, while appeal was maintainable before the Collector. The aforesaid order has been assailed by the petitioner solitarily on the ground that revision before the Additional Commissioner was not maintainable and the Additional Commissioner erred in exercising his jurisdiction in revision, while appeal was maintainable before the Collector. Contending aforesaid, learned Counsel for petitioner submitted that the order (Annexure P-4) passed by Additional Commissioner may be quashed or this petition may be allowed and respondent No. 4 may be directed to file appeal against the order passed by Sub-Divisional Officer. ( 4. ) TO appreciate the contention of learned Counsel for petitioner, it is not in dispute that an appeal lies against the order passed by the Sub Divisional Officer, before the Collector. But the Commissioner entertained the aforesaid revision on the ground that enquiry against the Sarpanch was initiated at the instance of Collector. In the circumstances, it would not be appropriate that the Collector, at whose instance the enquiry was initiated shall hear the appeal filed by respondent No. 4. In these circumstances, the revision was entertained. The Apex Court in the case of Smt. Vidya Vati v. Shri Devi Das ( AIR 1977 SC 397 ) considering the maintainability of revision before higher authority, though the order passed by lower authority is appealable before the lower forum, held :- "when the hearing of the appeal commenced, a contention of a preliminary nature was advanced on behalf of the respondent and it was that since the order of the learned Sub- Judge impugned in revision before the High Court was an order allowing the review application, it was appealable under Order XLIII, Rule 1, Clause (w) of the Code of Civil Procedure and hence no revision was competent to the High Court under Section 115 of the Code of Civil Procedure and the High Court was right in rejecting the revision application. Now, there can be no doubt that under Section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a Subordinate Court only if no appeal lies from that order to the High Court. Now, there can be no doubt that under Section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a Subordinate Court only if no appeal lies from that order to the High Court. The words of limitation used in Section 115 are "in which no appeal lies thereto" and these words clearly mean that no appeal must lie to the High Court from the order sought to be revised, because an appeal is a much larger remedy than a revision application and if an appeal lies, that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction. The question, therefore, here is whether an appeal against the order made by the learned Sub-Judge allowing the review application lay to the High Court. If it did, the revision application would be clearly incompetent. Now Order XLIII, Rule 1, Clause (w) undoubtedly provides an appeal against an order allowing a review application, but the order allowing the review application in the present case was made by the learned Sub-Judge, and hence an appeal against it lay to the District Court and not to the High Court, and, obviously, since no appeal lay against the order of the learned Sub-Judge to the High Court, the revision application could not be rejected as incompetent. The preliminary contention must, in the circumstances, be decided against the respondent. " ( 5. ) IN view of the law laid down by the Apex Court, the revision before the higher authority was maintainable. It is not in dispute that no appeal lies before the Additional Commissioner against the order passed by Sub Divisional Officer, but the aforesaid authority is vested with the power of revision. The relevant provision is Rule 5 of the Rules, which reads :- "5. It is not in dispute that no appeal lies before the Additional Commissioner against the order passed by Sub Divisional Officer, but the aforesaid authority is vested with the power of revision. The relevant provision is Rule 5 of the Rules, which reads :- "5. Revision.-- (1) (a) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any part, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of, the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/he may think fit : Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard : Provided further that no application for revision shall be entertained against an order appealable under the Act. (b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts. (2) Notwithstanding anything contained in Sub-rule (1),- (i) Where proceedings in respect of any case have been commenced by the State Government under Sub-rule (1) no action shall be taken by other Officer mentioned in the said Sub-rule in respect thereof, and (ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in Sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit. " The aforesaid rule specifically empowers the Commissioner either on his own motion or on the application by any party, at any time for the purpose of satisfying himself as to the legality or propriety of any order passed or by the authority subordinate to it, may call for the record and examine any case and may pass such orders as he may think it fit. The proviso of this provides that no application for revision shall be entertained against an order, appealable under the Act. The proviso of this provides that no application for revision shall be entertained against an order, appealable under the Act. Though the aforesaid provision provides that no revision shall be entertained against the order against which appeal is provided under the Act, but when the circumstances warrants so in place of filing appeal before appellate authority, the revisional authority may entertain the revision. In the present case, when the circumstances are such that the appellate authority himself has initiated proceedings in the case against the Sarpanch, then it was not appropriate to file appeal before him and in that circumstances, if the revision was entertained by the revisional authority, invoking powers under Rule 5 of the Rules, then it can not be said that the aforesaid revision was not entertainable before the revisional authority. Though the aforesaid power should be used sparingly and with cogent reasons, but in the present state of facts, if the aforesaid powers are used by the authority, then it can not be said that the authority was having no jurisdiction to entertain the revision, ( 6. ) IN the circumstances, when the revisional authority found it appropriate to entertain the revision in the peculiar facts and circumstances of the case, I do not find any jurisdictional error, committed by the authority in entertaining the revision. ( 7. ) CONSEQUENTLY, this petition has no merit and is accordingly dismissed with no order as to costs.