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2011 DIGILAW 154 (MP)

Makhano Kori v. State of M. P.

2011-02-03

ALOK ARADHE

body2011
ORDER 1. With the consent of the parties, the matter is heard finally. 2. In this writ petition, the petitioner has challenged the validity of the order dated 16.11.2010 by which Collector has directed the Sub-Divisional Officer to take action for removal of the petitioner under section 40 of the Madhya Pradesh Panchayat Raj Evan Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Act). 3. Facts giving rise to the filing of the writ petition briefly stated are that the petitioner was elected as Sarpanch of Gram Panchayat, Mevli, District Data on 11.2.2010. It is the case of the petitioner that she belongs to reserved category and since in the elections, she defeated the candidate for the post of Sarpanch belonging to the rival belongs, he is not cooperating with the petitioner and is not handing over the records. It has been averred in the writ petition that petitioner has made several complaints to the authorities which have been annexed as Annexure P/5 with the writ petition however instead of taking any action on the complaints submitted by the petitioner, the Collector by order dated 16.11.2010 has directed the Sub-Divisional Officer that since on account of personal dispute the petitioner is not taking interest in the work of Gram Panchayat and implementation of various welfare schemes, therefore the action for her removal should be taken under Section 40 of the Act. 4. Learned counsel for the petitioner submits that the Sub-Divisional Officer is the prescribed authority in whom discretion is vested to take the action under section 40 of the Act. He has to act independently. It has further been submitted that Collector being the appellate authority ought not to have issued the impugned direction contained in order dated 16.11.2010 as light of the petitioner to file an appeal would be jeopardised. In support of his submission, learned counsel for the petitioner has placed reliance on decision of Supreme Court in Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank and others, (1995) 2 SCC 474 and Mansukhlal Vithaldas Chauhan v. State of Gujrat, (1997) 7 SCC 622 . 5. On the other hand, learned Additional Advocate General submitted that the direction contained in the order of the Collector to the S uh- Divisional Officer be set aside and the Sub-Divisional Officer be directed to take proceedings under Section 40 of the Act against the petitioner. 5. On the other hand, learned Additional Advocate General submitted that the direction contained in the order of the Collector to the S uh- Divisional Officer be set aside and the Sub-Divisional Officer be directed to take proceedings under Section 40 of the Act against the petitioner. It was further submitted that apprehension of the petitioner that her right to file an appeal against the order would be jeopardised, is misconceived. 6. I have considered the submission made on both sides. Section 40 of the Act deals with removal of office bearers of the Panchayat Sub-section (1) of section 40 of the Act provides that the State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time remove an office bearer if he has been guilty of misconduct in discharge of his duties or his continuance in office is undesirable in the interest of public. Thus, the statute confers the discretion on the prescribed authority to order removal of an office bearer subject to fulfillment of conditions mentioned in clause (a) and (b) of sub-section (1) of section 40 of the Act. 7. It is well settled rule of Administrative Law that when the statute confers a discretion on the authority to take action in the prescribed manner, the authority has to exercise the discretion independently on its own. If an authority exercises the discretion vested in it by law under dictation from or at the behest of the superior authority in a specific manner, the same would tantamount to non-exercise of discretionary power by the authority and such an action or decision cannot have any sanctity in law. In State of U.P. v. Maharaj Dharmendra Prasad Singh (1989) 2 SCC 505 , the Supreme Court has held that statutory authority cannot permit its discretion to he influenced by the dictation of others as the same would amount to abdication and surrender of its discretion. Similarly, in Anirudhsinghji V. Karansingji Jadeja v. State of Gujrat AIR 1995 SC 2390 , Supreme Court has held that discretion exercised under the dictates or instructions of a higher authority amounts to failure to exercise the discretion altogether. Similarly, in Anirudhsinghji V. Karansingji Jadeja v. State of Gujrat AIR 1995 SC 2390 , Supreme Court has held that discretion exercised under the dictates or instructions of a higher authority amounts to failure to exercise the discretion altogether. In Panchamchand v. State of Himachal Pradesh, (2008) 7 SCC 117 , the Supreme Court has held that an authority has to act within the four corners of the Act and not under on the dictates of a superior authority. 8. In the backdrop of well settled legal position, facts of the case may be seen. In the instant case. the Collector vide Annexure P/1 inter alia has issued a direction to the Sub-Divisional Officer who is the prescribed authority under Section 40 of the Act to take action against the petitioner for her removal as the petitioner on account of personal dispute, is not taking interest in the work of Gram Panchayat and for implementation of various welfare schemes. On the basis o1'lhe direction contained in the order of the Collector dated 16.1/.2010 the Sub-Divisional Officer on 27. 12.2010 has registered the proceedings against the petitioner. The initiation of proceedings at the instance of the Collector amounts to abdication and surrender of its discretion under section 40 of the Act. The same therefore cannot be sustained in the eye of law. 9. For the aforementioned reasons, the direction of the Collector in so far as it directs the Sub-Divisional Officer to take action against the petitioner under Section 40 of the Act contained in Annexure P/2 and the initiation of proceedings by the Sub-Divisional Officer on the basis of the order of the Collector dated 10.11.2010 are hereby quashed. 10. However. It would be open to the Sub-Divisional Officer to proceed against the petitioner in accordance with law In the result, the writ petition succeeds and is hereby allowed.