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2006 DIGILAW 896 (MP)

Balu Singh v. State of M. P.

2006-07-21

A.K.PATNAIK, N.K.MODY

body2006
ORDER Patnaik, C.J. --1. This is an appeal filed against the order dated 27.6.2006, passed by learned Single Judge of this Court, by which learned Single Judge while admitting the Writ Petition No. 2907/2006 filed by the appellant, has refused to stay the operation of the orders dated 26.5.2006 and dated 8.6.2006 impugned in the said writ petition filed by the appellant. 2. Facts as stated in the writ petition briefly are that in the panchayat elections held in the year 2004, the appellant was declared elected as Sarpanch of Gram Panchayat Bandwa, Tahsil Jaora, District Ratlam. He took charge of office of Sarpanch in the year 2005 and continued to function as Sarpanch. The Collector, Ratlam, then sent a letter dated 4.3.2006 to the Sub-Divisional Officer, Jaora instructing him to take action against the petitioner under section 36 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short "the Adhiniyam, 1993"), or in the alternative under section 39 of the Adhiniyam, 1993. Thereafter, the SDO (Revenue) informed the Collector that charges have been framed against the petitioner in Criminal Case No. 380/1999 by his letter dated 29.3.2006. The Collector then instructed the SDO to act in the capacity of prescribed authority under the Adhiniyam, 1993 and the SDO, acting as prescribed authority suspended the appellant from the office of Sarpanch by order dated 26.5.2006. Aggrieved by the said order dated 26.5.2006 suspending him from the office of the Sarpanch, the appellant filed the aforesaid Writ Petition No. 2907/2006 and prayed for interim stay of the operation of the impugned order dated 26.5.2006, and also the order dated 8.6.2006 by which the prescribed authority had directed that on account of suspension of the appellant from the office of Sarpanch, an election will be held for electing a temporary Sarpanch in terms of section 39 (3), who shall perform all the duties and exercise all the powers of Sarpanch during the period the suspension of the appellant. Learned Single Judge passed the order dated 27.6.2006, admitting the writ petition, but refused to stay the operation of the aforesaid impugned orders dated 26.5.2006 and 8.6.2006 after holding that no prima facie case was made out for stay of impugned order. Learned Single Judge passed the order dated 27.6.2006, admitting the writ petition, but refused to stay the operation of the aforesaid impugned orders dated 26.5.2006 and 8.6.2006 after holding that no prima facie case was made out for stay of impugned order. Learned Single Judge while taking the aforesaid view had referred to the decision of Supreme Court in Bipinchandra Parshottamdas Patel v. State of Gujarat and others, reported in (2003) 4 SCC 642 . 3. Mr. Mathur, learned counsel for the appellant, submitted that a reading of section 36 of Adhiniyam 1993 shows that a person would be disqualified to be an office bearer of a panchayat, only if he has been convicted either before or after the coming into force of this Act, of an offence mentioned in clause (a) of sub-section (1). He submitted that a Criminal Case No. 380/1999 under sections 420, 467, 468, 471 r/w section l20A of the IPC had been instituted against the appellant during the period when the wife of the appellant was a Sarpanch, but since the Court had not passed any order of conviction against the appellant, the appellant was not disqualified to hold office as an office bearer or panchayat. He further submitted that in the said criminal case, charges were framed on 14.8.2000 by the JMFC, Ratlam, and thereafter no action was taken against the appellant even after he assumed charge as Sarpanch in the year 2005 after the panchaya1 elections in 2004 and it was only in May 2006 that the impugned order was passed by the SDO, as prescribed authority, suspending the appellant from the office of Sarpanch. He vehemently submitted that the plain language of section 39 of the Adhiniyam shows that the prescribed authority may suspend any office bearer against whom charges have been framed in any criminal proceedings under the chapters of the IPC and other laws mentioned therein and therefore on the basis of the said section 39, the prescribed authority may suspend from office any office bearer, if such charges have been framed against the office bearer after he became such office bearer of the panchayat. 4. Mr. Mathur submitted that in the decision of Supreme Court in Bipinchandra Parshottamdas Patel (supra), the Supreme Court was not called upon to interpret the provisions similar to section 36 and 39 of the Adhiniyam, 1993. 4. Mr. Mathur submitted that in the decision of Supreme Court in Bipinchandra Parshottamdas Patel (supra), the Supreme Court was not called upon to interpret the provisions similar to section 36 and 39 of the Adhiniyam, 1993. He explained that in the said decision, the Supreme Court interpreted the provisions of section 40 of Gujarat Municipalities Act, 1963, which were differently worded than section 39 of the Adhiniyam, 1993. He submitted that the view taken by the learned Single Judge in the impugned order, on the basis of the said decision of the Supreme Court is, therefore, not a correct view and going by the plain language of sections 36 and 39 of the Adhiniyam, 1993, the appellant had a strong prima facie case and was entitled to stay of the order of suspension, particularly when the consequences of suspension of the appellant from the office of Sarpanch, as provided in sub-section (3) and (4) of section 39 of the Adhiniyam, were very grave and serious for the appellant. 5. When confronted with the proviso to section 2 (1) of M.P. Uchcha Nyalalaya (Khan Nyaypeeth Kd Appeal) Adhiniyam, 2005, which provides that no appeal shall lie against the interlocutory order passed by learned Single Judge of the High Court in exercise of jurisdiction under Article 226 of Constitution of India, Mr. Mathur, learned counsel for the appellant, submitted that the impugned order dated 27.6.2006, in so far as it refuses to stay the operation of the impugned orders dated 26.5.2006 and dated 8.6.2006, is not an interlocutory order because the refusal to stay the two impugned orders would have the effect of ousting the appellant from the office of the Sarpanch, as provided under sub-section (3) of section 39 of the Adhiniyam, 1993 and of disqualifying him from contesting the panchayat elections during the period of suspension under subsection (4) of section 39 of the Adhiniyam, 1993. He cited the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another, reported in (1981) 4 SCC 8 , in which Supreme Court, after having considered at length the authorities on the distinction between interlocutory order and final order, has held that an order which affects the valuable rights of the parties and which causes serious injuries to the party concerned would not constitute an interlocutory order, but a final order. He also cited the decision of the Supreme Court in Deorai v. State of Maharashtra and others, reported in (2004) 4 SCC 697, wherein it has been held inter alia in some exceptional cases, withholding an interim relief would amount to dismissal of the main petition itself because by the time the main matter comes up for hearing, there is nothing left out to be allowed as relief to the petitioner, though all the findings may be in his favour. Relying on the aforesaid decision of the Supreme Court, Mr. Mathur submitted that a Sarpanch is elected to the office for a specified period and he is therefore entitled to function as Sarpanch for the specified period and if he is ousted from his office for a particular period by an illegal or arbitrary order and the Court does not pass an interim order staying the operation of such order by the time the writ petition is decided, a substantial period for which he has been elected as Sarpanch would have expired and the Court would not be in position also to extend the period of term of Sarpanch, even if the appellant succeeds in the writ petition. 6. Mr. Umesh Gajankush, learned counsel for the respondents, on the other hand, submitted that the impugned order passed by learned Single Judge refusing to stay the operation of the impugned orders dated 26.5.2006 and 8.6.2006 is an interlocutory order inasmuch it does not decide finally the rights of the parties. He cited the decision of the Supreme Court in M/s. Tarapore & Company, Madras v. M/s. V/o. Tractors Export, Moscow and another, reported in AIR 1970 SC 1168 , in which it has been held that an order refusing to grant an injunction passed by the High Court in appeal which does not finally dispose of a suit and leaves the right and obligations of the parties for determination in the suit from which the appeal has arisen, is not final within the meaning of Art. 133 (1)(a) and (b) of the Constitution. He next submitted that the learned Single Judge has held in the impugned order that no prima facie case has been made out for stay of the impugned orders. He next submitted that the learned Single Judge has held in the impugned order that no prima facie case has been made out for stay of the impugned orders. He referred to the provisions of section 39 of the Adhiniyam, 1993 to show that the prescribed authority had the power to suspend the appellant from the office of Sarpanch because charges have been framed against him in a criminal case for offences mentioned in section 39 (1) (a) of the Adhiniyam, 1993. He also submitted that subsections (3) and (4) of section 39 of the Adhiniyam, 1993 show that suspension of the appellant is only temporary and in case he is cleared of the charges in the criminal case, suspension order would be revoked and the appellant can resume charge of the office of the Sarpanch. 7. We have perused the provisions of subsections (3) and (4) of section 39 of the Adhiniyam, 1993 and we find that sub-section (3) of section 39 provides that in the event the Sarpanch of the Gram Panchayat is suspended under sub-section (1) of section 39, a special meeting of the panchayat is to be called immediately to elect a person from themselves to hold the office of Sarpanch and such officiating Sarpanch shall exercise all the powers during the period for which such suspension continues. Sub-section (4) of section 39 of the Adhiniyam provides that a person who has been suspended under subsection (1) shall also forthwith stand suspended from the office of member or office bearer of any other panchayat of which he is a member or office bearer and such person shall also be disqualified for being elected, during the period of suspension. 8. Thus, the order of suspension once passed by the competent authority under subsection (1) of section 39 has serious and grave consequences affecting vitally the rights of the Sarpanch. Accordingly, an order which refuses to stay an order of suspension from the office of Sarpanch would have serious and grave consequences for him in as much as he has no right to function as Sarpanch till the writ petition challenging the order of suspension is decided by the Court and also he will be disqualified from contesting any election as per the provisions of the Adhiniyam, till writ petition is decided by the Court. The impugned order of the learned Single Judge cannot be held to be one which is interlocutory, since it has the consequences of a final order. In our considered opinion, therefore, this writ appeal against the impugned order of the learned Single Judge is maintainable and the proviso to section 2 (1) of the Adhiniyam, 2005 does not bar the writ appeal against the impugned order. 9. Considering the adverse consequences of the order of suspension on the appellant, which we have discussed above, balance of convenience is in favour of passing an interim order staying the order of suspension. Further, even if the petitioner succeeds in the writ petition, the Court will not be able to restore to the appellant the office of Sarpanch for the period during which he will not be able to function on account of temporary suspension under sub-section (3) of section 39, the injury that the appellant would suffer on account of refusal to stay the order of suspension would be an irreparable injury. The only question which remains to be considered is whether the appellant has made out a strong prima facie case. It is not disputed that a criminal case was instituted against the appellant way back in 1999 and it is stated in the writ petition that the charges were framed by the JMFC, Ratlam, in the said case against the appellant on 14.8.2000 much before the panchayat election took place on 2004. Under section 36 of the Adhiniyam, 1993, it is only after conviction of an offence, that a person becomes ineligible to become an office bearer of the panchayat and for this reason, the appellant was not disqualified for contesting election for the post of office bearer of the panchayat in the panchayat elections in 2004. The appellant after being elected as Sarpanch took charge of his office in the year 2005. It is not the case of the respondents that after his assuming charge as office bearer (Sarpanch) some criminal charges were framed against him. It is alleged in the writ petition that because of political influence, the appellant was suspended. The appellant after being elected as Sarpanch took charge of his office in the year 2005. It is not the case of the respondents that after his assuming charge as office bearer (Sarpanch) some criminal charges were framed against him. It is alleged in the writ petition that because of political influence, the appellant was suspended. From the correspondence annexed to the writ petition and in particular Annexures-P-4, P-5 and P6, it appears that the Sub-Divisional Officer acting as prescribed authority under the instructions of the Collector suspended the appellant from the office of Sarpanch under sub-section 39 of the Adhiniyam, 1993 after having realized that no action could be taken against the appellant under section 36 of the Adhiniyam, 1993. In the case of Bipinchandra Purshottamdas Patel (supra), the Supreme Court did not interpret provisions similar to section 36 and 39 of the Adhiniyam, 1993. From these facts as alleged in the writ petition and the provisions of the Adhiniyam, 1993, we find a strong prima facie case in favour of the appellant. However, considering the fact that charges under sections 420, 467, 468, 471, read with section 120 (a) of the IPC had been framed in the Criminal Case No. 380/1999 against the appellant, while staying the order of suspension, some restrictions should be imposed on the appellant as Sarpanch, so that the interest of the panchayat is taken care of. 10. In result we allow this appeal and direct that the operation of the order dated 26.5.2006 (Annexure-P-10) and the order dated 8.6.2006 (Annexure-P-11) shall remain stayed and the appellant will continue to function as Sarpanch in the panchayat till disposal of the Writ Petition No. 2907/2006, subject to the condition that he will not incur any expenditure which is not sanctioned by the panchayat in resolution. We also hope that the learned Single Judge will finally decide the writ petition within a period of two months from today.