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Madhya Pradesh High Court · body

2008 DIGILAW 983 (MP)

BASANT KUMAR VERMA v. STATE OF M P

2008-08-07

R.K.GUPTA, R.S.GARG

body2008
Judgment ( 1. ) IT is not in dispute before us that Gram Panchayat Sihora, tahsil Kareli, District Narsinghpur, invited applications for appointment to the post of Panchayat Karmi and the appellant/petitioner came to be appointed as panchayat Karmi vide resolution dated 17. 8. 07. The said resolution passed by the Gram Panchayat was challenged by the present respondent no. 6 before the sub Divisional Officer Gadarwara. It appears that some enquiry report was filed by Chief Executive Officer, Janpad Panchayat Chanwarpatha, District narsinghpur, before the Sub Divisional Officer, Narsinghpur, who after receiving the report and hearing the parties came to the conclusion that the resolution dated 17. 8. 07 was illegal; in accordance with the findings recorded by him, he set aside the resolution. ( 2. ) BEING aggrieved by the said order passed by the Sub Divisional Officer, dt. 24. 3. 08 (Annexure P. l to the petition), the present appellant filed WP No. 4618/08 before this Court with a submission that the order passed by the Sub divisional Officer was contrary to the provisions of Section 85 of the M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. ( 3. ) IT is also contended that in view of the authoritative pronouncements made by this Court, an appeal before the SDO challenging the correctness, validity and propriety of the resolution passed by the Gram Panchayat was not maintainable. ( 4. ) THE learned single Judge on facts/found that no appeal was preferred against the resolution dated 17. 8. 07 and the Sub Divisional Officer had no suo. moto power to cancel the order of appointment. However, being persuaded by the arguments of the learned Government Advocate, placing reliance upon section 85 of Adhiniyam 1993, the learned single Judge directed that the prescribed authority/sub Divisional Officer would forward the matter to the state Government or the officer nominated by the State Government for purposes of Section 85 and the authority may confirm, set aside, reverse or modify the order after giving reasonable opportunity of being heard to the parties concerned. ( 5. ( 5. ) SHRI Sharma, learned counsel for the appellant in support of the appeal submitted that so far as Section 85 (1) is concerned, it clearly says that a prescribed authority would be entitled to suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by Panchayat but after passing such an order suspending the execution of the resolution, the prescribed authority would be obliged to refer the matter to the state Government or the officer so that the State Government or the officer nominated may. confirm, the order etc. According to him, such a reference is required to be made within 10 days from the order passed by the prescribed authority and if reference is not forwarded in accordance with Section 85 (2), then the order passed by the prescribed authority would lose its efficacy. ( 6. ) SHRI Jaideep Singh and Shri Manish Jain, learned counsel for respondents on the other hand contended that from a perusal of the order passed by the learned single Judge it would clearly appear that the appointment of the petitioner was contrary to the scheme and in such a case if the High Court directed SDO to forward the order to the State Government or the officer concerned then this court in its appellate jurisdiction should not interfere. ( 7. ) WE have heard the parties at length and have perused the pleadings, order passed by the learned single Judge and the provisions contained in Section 85 of the Act. Section 85 of the Adhiniyam 1993 reads as under :-85. ( 7. ) WE have heard the parties at length and have perused the pleadings, order passed by the learned single Judge and the provisions contained in Section 85 of the Act. Section 85 of the Adhiniyam 1993 reads as under :-85. Power to suspend execution of orders, etc.- (l) The state Government or the prescribed authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit tie performance of any act by a Panchayat, if in his opinion (a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorized; (b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or (c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely (i) to cause loss, waste or misapplication of any money or damage to any property vested in the Panchayat; (ii) to be prejudicial to the pubic health, safety or convenience; (iii) to cause injury or annoyance to the public or any class or body of persons; or (iv) to lead to a breach of peace. [ (2) Whenever an order is made by the prescribed authority under sub-section (1) it shall forthwith in no case later than ten days from the date of order, forward to the State Government or the officer nominated by the State Government for this purpose, copy of the order with the statement of reasons for making it, and the State Government or the officer nominated by it [may confirm, set aside, revise or modify the order] or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit. Provided that no order of the prescribed authority passed under sub-section (1) shall be confirmed, [set aside], revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order]. ( 8. Provided that no order of the prescribed authority passed under sub-section (1) shall be confirmed, [set aside], revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order]. ( 8. ) FROM a perusal of sub Section (1) of Section 85 it would clearly appear that on availability of the factual foundation and on recording of the opinion, the state Government or the prescribed may by an order in writing and for the reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by panchayat. ( 9. ) IN case the State Government passes the order, then such order would attain finality but in case order is passed by the prescribed authority, then according to sub-section (2) of Section 85, the prescribed authority would be obliged to forthwith in no case, later than 10 days from the date of the order forward to the state Government or the officer nominated by the State Government for the purpose, so that the State Government or the officer nominated by it may confirm, set aside, reverse or modify the order or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit. ( 10. ) THE Scheme of sub-section (2)of Section 85 appears to be to put the prescribed authority under a check and control. The Legislature has given certain powers to the prescribed authority so that looking to the urgency, emergency and exigency of the situation, it may immediately suspend the execution of the order etc. but may not finally set aside but forward the matter to the State government or the officer so nominated so that the State Government or such officer after going through the order and after being stock of the situation decide that whether order should be confirmed, set aside, revised, or modified. The scheme of sub-section (2) of Section 85 clearly clothes the prescribe authority, the Sub Divisional Officer in this case, with the power to take immediate action but does not authorize him to pass final orders. The final orders on the reference are to be made by the State Government which in its own satisfaction may modify, confirm, set aside etc. The final orders on the reference are to be made by the State Government which in its own satisfaction may modify, confirm, set aside etc. The rider put by Section 85 is to see that such prescribed authority does not usurp the jurisdiction of the State Government or the nominated officer or does not sit over resolution etc after suspending the execution of the same, for no good reasons. The period of 10 days fixed in section 85 (2) of the Adhiniyam is to remind the authority that if he does not forward the case within the period so prescribed, then his order would lose its efficacy. In such a case, the prescribed authority would not be entitled to rely upon the order which has lost its efficacy. A prescribed authority has to act in accordance with its powers and jurisdiction. Unfortunately the prescribed authority u/s 85, in general is sitting aside the resolution passed by the Panchayat, which power it does not have. This Court has reminded the authorities that an appeal against the resolution would not lie to the SDO but despite such authoritative pronouncements by this Court the SDOs are exercising the appellate powers. Should we remind them that if they do not observe the spirit of law as interpreted by this Court, they are inviting risk. ( 11. ) UNDISPUTEDLY, the order impugned (Annexure P. 1 to the petition) was passed by the SDO Gadarwara, on 24. 3. 08 but for the reasons best known to him and in violation of sub-section (2) of Section 85 the said SDO did not forward the matter/order to the State Govt or the officer nominated by the State Govt for further action. If an action is to be taken in a particular manner, then such an action must be taken in that manner only and not at all. If the SDO, without reading the provisions of Section 85 thought that he was entitled to set aside the resolution then he was belabouring under a misconception and was assuming the authority which he did not possess. ( 12. ) IT is trite to say that against a resolution passed by the Panchayat, an appeal would not lie to the SDO. ( 12. ) IT is trite to say that against a resolution passed by the Panchayat, an appeal would not lie to the SDO. The SDO as already observed can only exercise powers u/s 85 (1) of the Adhiniyam subject to the rider fixed by the sub section (2) of Section 85 of the Adhiniyam. ( 13. ) IN the present case as the order was not forwarded or the reference was not made to the State Govt or the officer nominated by the State Govt within 10 days , the order dated 24. 3. 08 lost its efficacy and became nonest. Once an order loses its efficacy, becomes nonest loses its life then such order cannot be revived even for purposes of its forwarding to the State Govt. ( 14. ) THE learned single judge in our humble opinion should not have exercised his powers under Article 226 of the Constitution of India contrary to the provisions contained in Section 85 (2) of the Adhiniyam. ( 15. ) THE order dated 9. 5. 08 passed by the learned single Judge in WP No. 4618/08 deserves to and is accordingly set aside. The order dated 24. 3. 08 passed by the Sub Divisional Officer Gadarwara, is also held to be a dead letter and it is further observed that as order dated 24. 3. 08 passed by the SDO has lost its efficacy and has run out of its life, it cannot now be forwarded to the State Govt or the officer so nominated u/s 85 (2) for its confirmation etc. ( 16. ) AS the order passed by the learned single judge and the SDO are being set aside, the position of the petitioner would be restored back. ( 17. ) IT is further made clear that if the law still permits the Sub Divisional Officer prescribed authority to take an action in accordance with law, then he would certainly be free to proceed with the matter but, however, in accordance with law. ( 18. ) THE appeal is allowed. There shall be no order as to costs. Appeal allowed.