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2006 DIGILAW 460 (CHH)

Manjeet Ram Kewat v. State Of Chhattisgarh

2006-10-05

S.K.SINHA

body2006
ORDER Sunil Kumar Sinha, J. 1. The petitioner who was an elected Sarpanch has challenged the legality, validity and propriety of the order dated 12-6-2006 passed by the Upper Collector, Baloda Bazar, District Raipur (C.G.) in Revision No. 29/A/89 (A) year 2005-2006. By the aforesaid order, the Upper Collector has directed for removal of the petitioner from the post of Sarpanch exercising jurisdiction under Sub-section (1) of Section 40 of the M.P. (C.G.) Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act'). 2. The brief facts, as stated by learned Counsel for the petitioner, are that the petitioner was an elected Sarpanch of Gram Panchayat Khapridih, Tehsil Kasdol, Distt. Raipur. On some complaint being lodged by respondent Nos. 4 to 7, a proceeding under Section 40 of the said Act was initiated against the petitioner and he was issued a show-cause notice. It is stated that reply to the said show-cause notice was filed by the petitioner and the matter was pending for disposal before the Prescribed Authority, i.e., the Sub-Divisional Officer, Bilaigarh, Distt. Raipur. When this matter came up for hearing on 31-1-2006, the Sub-Divisional Officer, all of a sudden, dismissed the aforesaid Case No. 17/A/89 (A) year 2005-2006, on the ground that more than 90 days' time has elapsed from the date of issuance of show-cause notice, therefore, the said proceedings cannot be continued. However, it was also observed that after receiving a detailed enquiry report further action under Section 40 may be initiated against the petitioner. Against the aforesaid order passed by the Prescribed Authority, respondent Nos. 4 to 7 preferred a revision before the Additional Collector and the Additional Collector in the aforesaid revision passed the impugned order on 12-6-2006 giving a finding against the petitioner that he was guilty of misconduct and also directing that he should be removed under Section 40 (1) of the aforesaid Act. It is against this order, the petitioner has approached this Court by filing this writ petition. 3. Learned Counsel for the petitioner submits that the order passed by the Sub-Divisional Officer in the capacity of Prescribed Authority was an appealable order and the Collector was not justified in entertaining the revision against the said order. It is against this order, the petitioner has approached this Court by filing this writ petition. 3. Learned Counsel for the petitioner submits that the order passed by the Sub-Divisional Officer in the capacity of Prescribed Authority was an appealable order and the Collector was not justified in entertaining the revision against the said order. In the alternative, his submission is that even if there is no jurisdictional error in entertaining a revision, the Collector was not entitled to pass an order of removal of the petitioner after recording a finding in relation to the alleged misconduct and at the most, he should have remanded the matter to the Sub-Divisional Officer for its disposal in accordance with law. 4. So far as the first argument in relation to the jurisdiction is concerned, there appears to be no force in it. The provisions regarding appeal and revisions have been given under the M.P. (C.G.) Panchayats (Appeal and Revision) Rules, 1995. Rule 3 of the aforesaid Rules relates to appeal and Appellate Authorities. It provides that save where it has been otherwise provided in the Act or rules or bye-laws made thereunder, an appeal shall lie,- (a) in the case of an order passed by the Sub-Divisional Officer under any provision of the Act or Rules or bye-laws made thereunder to the Collector. (b) *** *** *** *** *** (c) *** *** *** *** *** (d) *** *** *** *** *** Rule 5 provides for revision, in which it is stated that the State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, 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 by such authority and may pass such order in reference thereto as it/he may think fit. The second proviso to Rule 5 postulates that no application for revision shall be entertained against an order appealable under this Act. 5. If we examine the order passed by the Collector, it appears that the order has been passed on merits and the Collector has exercised its appellate jurisdiction while passing such an order. The second proviso to Rule 5 postulates that no application for revision shall be entertained against an order appealable under this Act. 5. If we examine the order passed by the Collector, it appears that the order has been passed on merits and the Collector has exercised its appellate jurisdiction while passing such an order. Since the matter was filed before the Collector by respondent Nos. 4 to 7 as a revision, the Collector registered it as a revision and ultimately passed the order in the aforesaid manner. 6. It is the substantive jurisdiction, which has been entertained by the authority is to be seen and not the nomenclature used, either by the authority or by the parties to the matter, should be the decisive factor for classifying the nature of jurisdiction entertained by a particular authority under a particular head or statute. In the opinion of this Court, if the authority entertaining a particular action has statutory jurisdiction to entertain the same under the law, then merely by registering that action under any particular head or under the different nomenclature would not make any difference on the merits of the decision rendered by the said authority, so far as his jurisdiction in concerned. 7. In the present case, as per the provision of Rule 3(a), the Collector was having full authority and jurisdiction to entertain an appeal against the order passed by the Sub-Divisional Officer and the Collector has exercised that jurisdiction, but has registered the case under the head of revision and by that action only it cannot be said that the order passed by the Collector would be thrown away holding it to be without jurisdiction because no jurisdictional error has been committed, except the nomenclature which he has quoted as revision in place of appeal. There is no force in the arguments advanced by learned Counsel for the petitioner and the same is turned down. It is deemed and held that the Collector has passed the order as an Appellate Authority for which he was having jurisdiction under the provisions of Rules, 1995. 8. So far as the second point raised by learned Counsel for the petitioner is concerned, the same appears to be forceful. In this matter, the Sub-Divisional Officer who is the Prescribed Authority, has simply dismissed the proceedings, for the time being, holding that a period of more than 90 days has elapsed. 8. So far as the second point raised by learned Counsel for the petitioner is concerned, the same appears to be forceful. In this matter, the Sub-Divisional Officer who is the Prescribed Authority, has simply dismissed the proceedings, for the time being, holding that a period of more than 90 days has elapsed. It appears that the Prescribed Authority was very much impressed by proviso to Section 40, which states that the final order, in the enquiry under Section 40 shall, as far as possible, be passed within 90 days from the date of issue of show-cause notice to the concerned officer. The phrase used like "as far as possible" by the legislature without giving consequence on its failure has got a great significance. That means it does not mandate that the proceedings must be completed within a period of 90 days failing which it should be dropped. Certainly, the Sub Divisional Officer has taken a wrong view in this matter and has illegally dropped the proceedings on this ground. So far as the action of Collector is concerned, he, while hearing an appeal, though as a revision, instead of remanding the matter to the Sub Divisional Officer for necessary compliance in accordance with the provisions of Section 40(1) of the Act, has himself exercised jurisdiction by recording a finding about the alleged misconduct committed by the petitioner. The provisions of Section 40(1) would make it clear that after a detailed enquiry conducted by the Prescribed Authority, the orders were required to be passed which clearly envisages that the underlying principle embodied in Section 40 is that the fundamental principles of natural justice as well as the fundamental principles of judicial procedure are to be followed by the Prescribed Authority while passing such an order. In the opinion of this Court, in the frame work of Section 40(1) of the Act, the learned Collector was not justified in passing an order on merits and instead of doing so, he should have remanded the matter to the Prescribed Authority for a decision on merits as many statutory requirements were to be followed by the Prescribed Authority before passing an order under Section 40(1) because the consequence of such an order is stigmatic and it also creates a disqualification for a period of six years to be elected. On these grounds, the order passed by the Addl. On these grounds, the order passed by the Addl. Collector vide Annexure P-l, cannot be sustained. The same is quashed. 9. It is directed that the matter shall be remanded to the Prescribed Authority who shall dispose of the same in accordance with the provisions of Section 40(1) of the Act. The matter appears to be an old matter, therefore, it is expected that the Prescribed Authority shall conclude the proceedings of Section 40 of the Act at the earliest and he shall try to conclude the proceedings as early as possible preferably within a period of six months from the date of communication/receipt of this order by him. 10. Consequently, M.W.P. No. 2313/2006 for vacating stay stands disposed of and the Caveat Petition No. 374/2006 also stands discharged.