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2012 DIGILAW 505 (MP)

Jitendra Singh v. Rambabu

2012-05-08

SHEEL NAGU, SUJOY PAUL

body2012
JUDGMENT Nagu, J. -- 1. This writ appeal filed under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 assails the order dated 13.10.2010 passed by learned Single Judge in Writ Petition No.4899/2008, whereby while allowing the writ petition and quashing the impugned order, the writ Court has remitted the matter to the Gram Panchayat to pass appropriate resolution in regard to recruitment and appointment of Panchayat Karmi after considering the comparative merits of the candidates who had applied pursuant to the advertisement in terms of the circulars issued by the State Government. 2. The primary ground of challenge raised by the appellant herein is that the writ Court while rendering the impugned order has misapplied the law laid down by the judgment of this Court in the case of Dhyanendra Singh v. State of Madhya Pradesh [2007(2) Vidhi Bhasvar 216= 2007(1) MPHT 291 ], and the question of locus of the petitioner Rambabu and Rajendra Singh (respondents No.1 and 2 herein) has not been considered. 3. The arguments of learned counsel of the rival parties are heard and the record of the writ appeal as well as writ petition are perused. 4. Taking the issue of locus first, it is noticeable that in the return filed by the respondents No.1, 6 and 7, objection of petitioners having no locus to agitate the issue was specifically taken and therefore, it is necessary for this Court to deal with the same, especially when the said issue was not dealt with by the writ Court. 5. Admittedly the petitioners before writ Court were not personally aggrieved by the appointment of Jitendra Singh (appellant herein) as Panchayat Karmi of Gram Panchayat Kundol, District Guna. To consider as to whether the petitioners before the writ Court had any right to file appeal before the appellate authority (SDO) and other higher authorities, it would be appropriate to scrutinize provisions of M.P. Panchayat (Appeal and Revision) Rules, 1995 (Rules of 1995 in brevity), rule 3 of which pertaining to appeal and appellate authorities is reproduced below : “3. Appeal and appellate authorities. -- 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. Appeal and appellate authorities. -- 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) in the case of an order passed by the Collector under any provision of the Act or Rules or bye-laws made thereunder -- to the Commissioner. (c) in the case of an order passed by the Panchayat specified in column (1) of the Table below -- to the authority specified in the corresponding entry in column (2) thereto.” A plain reading of the rule 3 of Rules of 1995 discloses that it merely provides for an appeal to the higher authorities against certain orders passed by subordinate authorities but is silent in respect of the identity of the person who may file an appeal. 6. The Rules of 1995 derive strength from section 91 of the M.P. Panchayat Ram Evam Gram Swaraj Adhiniyam, 1993 (Adhiniyam of 1993 in brevity) which also does not mention about the person entitled to file appeal or revision as is evident from said section which is reproduced below : “91. Appeal and revision. -- An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such authority and in such manner as may be prescribed.” 7. Some indication as to the identity of a person entitled to file an appeal is provided in rule 5 of Rules 1995 providing for revision which is reproduced below : “5. Revision. Some indication as to the identity of a person entitled to file an appeal is provided in rule 5 of Rules 1995 providing for revision which is reproduced below : “5. Revision. -- (1)(a) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own mention 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 of by, such authority and may pass such order in reference thereto as it/he may think fit : Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard : Provided further that no application for revision shall be entertained against an order appealable under the Act. (b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts; (2) Notwithstanding anything contained in sub-rule (1) : (i) Where proceedings in respect of any case have been commenced by the State Government under sub-rule (1) no action shall be taken by other Officer mentioned in the said sub-rule in respect thereof, and (ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit.” Perusal of the provision of rule 5 relating to revision discloses that an application can be preferred by any party which necessarily meant that a person interested or a person aggrieved and not a person who is a mere stranger to the lis. The power of revision is exercised either suo motu by the authorities mention in rule 5 to verify the legality and propriety of the order or proceedings of subordinate authorities.The revisional power is exercised by the authorities when invoked by an application preferred by any party. The power of revision is exercised either suo motu by the authorities mention in rule 5 to verify the legality and propriety of the order or proceedings of subordinate authorities.The revisional power is exercised by the authorities when invoked by an application preferred by any party. The term “party” used in rule 5 implies a party adversely affected by the order or proceedings which are proposed to be made subject-matter of revisions. The term “party” will also include the person who is aggrieved by the appellate order passed under rule 3. Thus, the rule framing authority has not used the term “party” in rule 3 as used in rule 5. The absence of term “party” in rule 3 may or may be a conscious act on the part of the rule making authority and therefore, cannot compel this Court to take a view that the term “party” has been consciously not used in rule 3 thereby leaving scope even for an uninterested and stranger to prefer an appeal under rule 3. If it is held otherwise then flood gates will be opened for even strangers to any order or proceedings passed under the Adhiniyam, 1993 to file an appeal thereby creating a chaotic situation for the appellate authorities to deal with exceptionally by large number of appeals filed by strangers and busy bodies who have no personal interest in the dispute. 8. Non-mention of the person who may have right to appeal under the provisions provided for appeal is not a new concept. The Code of Civil Procedure in section 96 providing for first appeal also does not mention as to who would be entitled to prefer an appeal. For convenience section 96 of CPC is reproduced below : “96. Appeal from original decree. -- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie, except on a question of law from a decree in any suit of the nature cognizable by Courts of Small Causes, when the original suit does not exceed.” 9. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie, except on a question of law from a decree in any suit of the nature cognizable by Courts of Small Causes, when the original suit does not exceed.” 9. The apex Court and various High Courts till date have taken unanimous view that it is only a person/party which is adversely affected by the decree who can prefer an appeal under section 96 of CPC. It is profitable to refer to some of these decisions as under : (I) Babanna Gurusangappa v. Channappa Chanmallappa [AIR 1947 Bombay 141]; (II) Smt. Ponnalagu Ammal v. The State of Madras, represented by the Secretary to the Revenue Department, Madras [AIR 1953 Madras 485]. The apex Court in paragraphs No.18 and 19 has inter alia held as follows : “Under the practice consistently followed by the Engl,ish Courts which is a just and equitable practice and is in no way inconsistent with the doctrine that a right of appeal can only be created by statute, a person who is not a party to the suit may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. It would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree of judgment. Ordinarily leave to appeal should be granted to persons who, though not parties to the proceeding, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings. (III) Executive Officer, Sri Padmanabhjaswamy Temple v. Raghavan Pillai [AIR 1961 Kerala 114]. The apex Court in paragraph No.6 has inter alia held as follows : “Thus the rule seems to be well settled that while a party to a suit against whom the judgment is given can appeal against it as of right, a person who is not on the party array but who is bound by the decree or whose interests are prejudicially affected by it may appeal with the leave of the appellate Court.” (IV) Shivaraya v. Siddamma [AIR 1963 Mysore 127]. The apex Court in paragraph No.4 has inter alia held as follows : “Leave to a person to appeal from a decree or order in a proceeding to which he was not a party should not be ordinarily granted unless he establishes that he has an interest which is affected by the order or decree from which he proposes to appeal.” (V) Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd. [ AIR 1971 SC 374 ]. The apex Court in paragraph No.3 has inter alia held as follows : “It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.” (VI) State of Punjab (now Haryana) v. Amar Singh [ AIR 1974 SC 994 (1016)]. The apex Court in paragraph No.84 has inter alia held as follows : “Firstly there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co. (1894)2 Ch.410 have laid down the rule that a person who is not a party to a decree or order may withthe leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.” (VII) Seth Loonkaran Sethiya v. Ivan E. John [AIR 1975 Allahadbad 113]. (VIII) Maharaj Singh v. State of Uttar Pradesh [ AIR 1976 SC 2602 (2609)]. The apex Court in paragraph No.20 has inter alia held as follows : “20. In this wider perspective, who is a person aggrieved? Dabholkar [ (1976)1 SCR 306 = AIR 1975 SC 2092 ] gives the updated answer : “The test is whether the words ‘person aggrieved’ include ‘a person who has a genuine grievance because an order has been made which prejudicially affects his interests.” (p.315 of SCR=at p.2098 of AIR). “American jurisprudence has recognized, for instance, the expanding importance of consumer protection in the economic system and permitted consumer organizations to initiate or intervene in actions, although by the narrow rule of ‘locus standi’, such a course could not have been justified (see p.807 New York University, Law Review, Vol.46, 1971). “American jurisprudence has recognized, for instance, the expanding importance of consumer protection in the economic system and permitted consumer organizations to initiate or intervene in actions, although by the narrow rule of ‘locus standi’, such a course could not have been justified (see p.807 New York University, Law Review, Vol.46, 1971). In fact,citizen organizations have recently been campaigning for using legal actions for protection of community interest, broadening the scope of ‘standing’ in legal proceedings (see p.403 Bosten University Law Review, Vol.51, 1971). In the well-known case of Attorney General of the Gambia v. Peirra Serr N’Jie (1961 AC 617), Lord Denning observed about the attorney General’s standing thus : “..... The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.” (pp.324-325 of SCR)=(at p.2105 of AIR). (IX) Fakir Mohamed Abdul Razak v. The Charity Commissioner, Bombay [AIR 1976 Bombay 304]. The apex Court in paragraph No.20 has inter alia held as follows : “The well-settled position in law appears to be that normally any party to the suit adversely affected by the decree or a transferee of the interest of such party, or even an auction purchaser may appeal.” (X) Banarsi v. Ram Phal [ (2003)9 SCC 606 ]. The apex Court in paragraph No.8 has inter alia held as follows : “8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lall, Jatan Kumar Golcha v.Golcha Properties (P) Ltd. and Ganga Bai v. Vijay Kumar).” 10. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lall, Jatan Kumar Golcha v.Golcha Properties (P) Ltd. and Ganga Bai v. Vijay Kumar).” 10. This Court thus can very well borrow the ratio of the judicial pronouncements in regard to right of the person to file an appeal rendered by various Courts while interpreting section 96 of CPC for the purpose of deciding the question involved hereinabove. 11. In view of the discussion made above this Court is of the considered view that an appeal contemplated under rule 3 of the Rules of 1995 can be filed only by a person/party who is adversely affected by a decision under appeal, and not by a stranger or a busy body. 12. The above said view gets bolster when looked at from another angle. If a busy body or a stranger is permitted to file an appeal under rule 3 then it would amount to bestowing powers upon the appellate authorities mentioned in rule 3 of Rules of 1995 which are akin to powers exercised by the High Courts and the apex Court under Articles 226 and 32 of Constitution of India while dealing with public interest litigation. Such an intention can neither be read from the provisions of Rules of 1995 nor can it be imputed into it. 13. Having so interpreted rule 3 of Rules of 1995, this Court is compelled to hold that the appeal before the SDO Guna, preferred by Rambabu, Bundel Singh and Rajendra Singh s/o Sardar Singh and Rajendera Sindh s/o Laljiram, was not maintainable under rule 3 of Rules 1995 since none of these four persons were aggrieved by the recruitment and appointment of Jitendra Singh as Panchayat Karmi of Gram Panchayat Kundol District Guna. It is undisputed that these four persons had not even applied for recruitment to the said post of Panchayat Karmi and were not even remotely aggrieved by any of the process of recruitment initiated by the Gram Panchayat for the said post. Thus, the said four appellants before the SDO were busy bodies and total strangers to the dispute raised by them in appeal under section 3 of Rules of 1995 before the SDO, Guna. 14. Thus, the said four appellants before the SDO were busy bodies and total strangers to the dispute raised by them in appeal under section 3 of Rules of 1995 before the SDO, Guna. 14. The writ Court while passing the impugned order has not dealt with the question of locus which was categorically raised by the respondents. 15. Since, from the very initiation, the challenge to the appointment of Jitendra Singh (appellant herein) was not maintainable in view of the findings recorded supra, this Court without commenting about the merits of the appointment of Jitendra Singh, allows this writ appeal with the following directions : (1) The order of writ Court dated 13.10.2010 passed in Writ Petition No.4899/2008 is set aside by upholding the order dated 26.9.2008 passsed by Additional Commissioner, Gwalior Division, Gwalior in Case No.276/2007/Revision. (2) No order as to cost. Certified copy as per rules. .............