Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 151 (MP)

Rambaran v. Chandra Prakash Sharma

2007-02-08

SUBHASH SAMVATSAR

body2007
ORDER 1. With the consent of the parties, matter is finally heard. 2. This petition is filed by the petitioner challenging order dated 31.5.2006 passed by Commissioner, Chamba1 Division, Morena in Appeal No.10/2005-06/ Appeal whereby the Commissioner has allowed the appeal filed by respondent No.1 and remanded the matter back to the Collector, Bhind for rehearing of the case. 3. The brief facts of the case are that respondent No. 1 was elected as Sarpanch of Village Jaari, District Bhind. An application was filed by the present petitioner under section 36 (1) (m) of the Panchayat Raj Evam Gram Swaraj Adhiniyam alleging that respondent No. 1 is not qualified to hold the post of Sarpanch on the ground that he has given birth to fourth child after 26th January, 2001 and according to the petitioner, respondent No.1 had three daughters and one son. In addition to this, his fourth child was born on 11.7.2002 that is after the cut-off date and, therefore, as per the provisions of section 36 (1) (m), he is not entitled to hold the post of Sarpanch. 4. On the basis of this application, a show cause notice dated 21.7.2005 was served on respondent No.1. The respondent No. 1 filed his reply, copy of which has been filed as Annexure R-6 in which he has alleged that out of his three daughters, two daughters have gone in adoption and thus, he has only two issues left and, therefore, he is not disqualified from holding the post of Sarpanch. The Collector after hearing the parties allowed the application filed by the present petitioner under section 36 (1) (m) and held that respondent No.1 is not eligible to hold the post of Sarpanch. 5. This order was challenged by the present petitioner by filing an appeal before the Commissioner. The Commissioner remanded the matter back to the Collector for deciding the question about the adoption. According to the Commissioner, the Collector has not afforded proper opportunity to the respondent No. 1 to prove the adoption. The Commissioner also found that number of writ petitions were filed before the High Court at Jabalpur and interim orders were passed in those petitions. He has also held that some petitions were pending before the Supreme Court and the result of the petition which is pending before the Supreme Court is not available with him. The Commissioner also found that number of writ petitions were filed before the High Court at Jabalpur and interim orders were passed in those petitions. He has also held that some petitions were pending before the Supreme Court and the result of the petition which is pending before the Supreme Court is not available with him. So, he has directed the Collector to examine the judgment of the apex Court and pass order after affording opportunity of hearing and opportunity to lead evidence on the question of adoption. This order is under challenge in this petition. 6. The main contention raised by counsel for the petitioner is that the order of remand, on the face of it, is without jurisdiction and, therefore, is liable to be set aside. He submitted that the apex Court has already decided the matter and the said judgment is reported in 2003 (2) JLJ 334 [Javed v. State of Haryana]. Therefore, it was not necessary for the Commissioner to remand the matter for deciding this question. The question involved in this petition is squarely covered by Para 61 of the aforesaid judgment. He further submitted that respondent No.1 has given his two daughters in adoption to someone else. This will not affect the legal position in adoption which has taken place after the cut-off date and has no legal consequences on the question of disqualification under section 36 (1) (m) and this question is covered by the judgment of this Court in Pradeep Kumar Tiwari v. State of M.P. and others [2007 (1) Vidhi Bhasvar 23 = 2006 (3) MPLJ 276]. Thus, both these questions are squarely covered by the judgment of this Court and apex Court and, therefore, the remand was totally unwarranted and, therefore, the remand order deserves to be set aside. 7. In reply to this argument, counsel for the respondents submitted that the petitioner has filed under section 226 and 227 of the Constitution of India challenging a remand order and, therefore, this petition is not maintainable. 7. In reply to this argument, counsel for the respondents submitted that the petitioner has filed under section 226 and 227 of the Constitution of India challenging a remand order and, therefore, this petition is not maintainable. He relied on the Division Bench judgment of this Court in case of Anant Singh and others v. Govind Singh and others reported [1999 RN 99] wherein the Division Bench of this Court has held that by simple remand of the matter, nothing is decided in favour of any of the parties and, therefore, such remand order is not amenable to writ jurisdiction whether it is a writ under Article 226 or 227 of the Constitution of India. 8. In the present case, after hearing the parties, I find that it is true that normally this Court should not interfere in the remand order as nothing is decided in favour of either of the parties. But where the appellate Court has passed an order which on the face of it is illegal and without any basis or where order is totally without jurisdiction, this Court can interfere in a writ jurisdiction because the person who is challenging the remand order had an order from the lower Court in his favour and he has right to defend that order. In the present case, I find that both the reasons assigned by the Commissioner for remanding the matter are totally irrelevant and, therefore, the remand order deserves to be set aside. 9. Hence, this petition is allowed. The order of remand is set aside and the Commissioner is directed to hear the appeal afresh and decide the same on merits. The Commissioner shall decide the appeal within 15 days from the date of appearance of the parties. Parties shall appear before the Commissioner on 19th February, 2007. The Commissioner itself positively decide the appeal within 15 days from that date in accordance with law. He shall also consider the question of applicability of the amendment in section 36 (1) (m) of the Act. Till then, parties are directed to maintain status quo as on today.