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Madhya Pradesh High Court · body

2012 DIGILAW 705 (MP)

Dhanwanti v. State of M. P.

2012-07-13

SUJOY PAUL

body2012
ORDER 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 4.7.2012 passed by Sub-Divisional Officer, Dabra under section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (Adhiniyam). 2. Shri Gaurav Samadhiya, learned counsel for the petitioner fairly submits that the impugned order is an appealable order but since the order is without jurisdiction, he has chosen to file this writ petition directly before this Court. The learned counsel submits that a complaint was filed against the petitioner on 4.9.2011 and on the strength of which a show cause notice was issued on 6.2.2012. This show cause notice was issued under secttion 40 of the Adhiniyam. The petitioner submitted his reply on 6.3.2012. Thereafter, the impugned order is passed on 4.7.2012. The learned counsel heavily relied on proviso to section 40(1)(c) which reads as under : “40. Removal of office bearers of Panchayat. -- (1) 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 -- (a) (b) (c) [Provided further that the final order in the inquiry shall be passed within 90 days from the date of issue of show cause notice to the concerned office bearer and where the pending case is not decided within 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but such extension of time shall not be more than 30 days]. 3. Shri Gaurav Samadhiya, learned counsel for the petitioner submits that this proviso is substituted for the following by M.P. Act 20 of 2005 : “Provided that the final order in the inquiry shall as far as possible be passed within 90 days from the date of issue of show cause notice to the concerned office bearer.” 4. Shri Samadhiya submits that earlier the proviso contained the words “as far as possible”. The Legislature has chosen to substitute this proviso by the new proviso which shows that there is a deliberate omission of the words “as far as possible”. To elaborate, Shri Samadhiya submits that the earlier language of the proviso was couched in a directory language whereas the new proviso w.e.f. 2005 contains a mandatory provision. The Legislature has chosen to substitute this proviso by the new proviso which shows that there is a deliberate omission of the words “as far as possible”. To elaborate, Shri Samadhiya submits that the earlier language of the proviso was couched in a directory language whereas the new proviso w.e.f. 2005 contains a mandatory provision. He also relied on the word “shall” repeatedly used in the said proviso to submit that the entire proviso is mandatory in nature. By pressing this proviso into service, Shri Samadhiya submits that admittedly the proceedings under section 40 of the Adhiniyam is started on issuance of show cause notice on 6.2.2012 and final order is passed on 4.7.2012. He submits that the final order was required to be passed within 90 days and at the best, time could have been extended beyond 90 days only for another 30 days. In total the final order in all situations could have been passed within 120 days. The learned counsel submits that the final order is passed much after 120 days and, therefore, by operation of the proviso the impugned action has to be held as null and void. In other words, the learned counsel submits that after 120 days, by operation of proviso aforesaid, no final order was permissible or could have been passed. He further fairly submits that in 2006(2) BLJ 242=2006(4) MPHT 76 (CG) (Manjeet Ram Kewat v. State of Chhattisgarh and others), the Chhattisgarh High Court had an occasion to consider unamended proviso in para 8. He submits that Chhattisgarh High Court has interpreted the unamended proviso which contained the words “as far as possible”. Because of availability of those directory words, Shri Samadhiya submits that the provision was held to be directory by Chhattisgarh High Court. He submits that after deleting those words, the provision became mandatory. 5. Shri Samadhiya submits that once those words “as far as possible” are omitted, the intention of the Legislature and context of the statute is crystal clear that it is mandatory in nature and if final order is not passed within 90+30 days, no proceedings can continue and no order can be passed. Shri Samadhiya fairly submits that if this point is decided against him, the question of jurisdiction goes and then he will have an alternative remedy of filing appeal under the Adhiniyam. 6. Shri Samadhiya fairly submits that if this point is decided against him, the question of jurisdiction goes and then he will have an alternative remedy of filing appeal under the Adhiniyam. 6. Per contra, the learned Government Advocate supported the order and submits that the proviso cannot be read in a manner suggested by the petitioner. 7. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 8. The arguments advanced by Shri Samadhiya appears to be attractive on its face value. However, the pivotal question is what would be the effect if enquiry is not completed and final order is not passed within 90/120 days. It is noteworthy that proviso does not prescribe any consequence of not passing final order within the stipulated time. Thus, it has to be seen whether the deletion of the words “as far as possible” and repeated employment of the word “shall” will have an effect of treating the enquiry as null and void after the stipulated time. 9. Justice G.P. Singh in his celebrated book “Principles of statutory interpretation” (12th edition) opined that while considering the non-compliance with a procedural requirement, it has to be kept in view that such requirement is designed to facilitate justice and further its ends, therefore, if the consequences of non-compliance is not provided it is to be held as directory. This conclusion was drawn on the basis of Sangram Singh v. Election Tribunal [ AIR 1955 SC 425 ], Topline Shoes Ltd. v. Corporation Bank [ (2002)6 SCC 33 ], and Kailash v. Nanhku and others [ (2005)4 SCC 480 ]. 10. In Topline Shoes (supra), the apex Court dealt with section 13 of the Consumer Protection Act, 1986. In the said provision it was mentioned that the opposite party shall give his version within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The question was whether the provision prescribing time limit is directory or mandatory in nature. In the said provision it was mentioned that the opposite party shall give his version within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The question was whether the provision prescribing time limit is directory or mandatory in nature. The apex Court by relying on AIR 1959 SC 198 (Siraj-ul-Haq Khan v. Sunni Central Board of Waqf), held that where the literal meaning of the words used in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative. Reliance is also placed on Sangram Singh (supra), wherein it is held that while considering a procedural law which designed to facilitate justice, too technical construction of section is impermissible because the same leaves no room for reasonable elasticity and such interpretation should be in furtherance of justice and not to frustrate the main provision. Para 17 of the said judgment was quoted : “17. Next, there must be even present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that it reasonably possible, in the light of that principle.” 11. On the basis of aforesaid principles, it was laid down in Topline Shoes (supra), that if the time extended exceeding 15 days, it should not be a kind of illegality which may deny or deprive the respondents to file its reply. In Kailash (supra), the apex Court dealt with Order 8, rule 1, Civil Procedure Code to decide whether it is mandatory or directory. In Kailash (supra), the apex Court dealt with Order 8, rule 1, Civil Procedure Code to decide whether it is mandatory or directory. The apex Court in Kailash (supra), opined as under : “The provisions of Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. It is also to be noted that though the power of the Court under the proviso appended to rule 1, Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.” No forms or procedure should ever be permitted to exclude the presentation of the litigant’s defence unless there be an express provision to the contrary. As stated earlier, Order 8, rule 1 is a provision contained in Civil Procedure Code and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8, rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the Court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow. The Court further held that the provision is more by way of procedure to achieve the object of speedy disposal of such disputes. From these two features certain consequences follow. The Court further held that the provision is more by way of procedure to achieve the object of speedy disposal of such disputes. The strong terms in which the provision is couched are an expression of “desirability” but do not create any kind of substantive right in favour of the complainant by reason of delay so as to debar the respondent from placing his version in defence in any circumstances whatsoever.” (Emphasis supplied) 12. On the basis of judgments of Supreme Court aforesaid, it is clear that section 40 prescribes a procedure for holding enquiry. Thus, the use of words “shall” and also words “as far as possible” will not change the nature of the procedural law from directory to mandatory. No consequences are prescribed in the proviso if time limit is not adhered to. 13. In the considered opinion of this Court, even deletion of the words “as far as possible” is to strengthen the desirability to complete the enquiry procedure within time. However, in the given facts and circumstances of the case, if enquiry is not completed within the stipulated time, whole enquiry will not become void ab initio or impermissible technically. However, it will always be open for the litigant to demonstrate that in a given facts and circumstances of the case there is an inordinate delay which may vitiate enquiry in a given fact situation. However, this is not the situation here. 14. In the light of aforesaid judgments, I am unable to hold that even new proviso aforesaid has an impact of attaching impermissibility to passing of final order beyond stipulated time. It cannot be forgotten that section 40 is inserted in the statute book to take action against the office bearers of the Panchayat, who were guilty of misconduct and whose continuance is undesirable in the interest of public. Thus, in public interest and with a view to ensure accountability, section 40 was inserted in the statute book. If a too technical and too narrow interpretation is adopted, the very purpose and power of conducting the enquiry will be frustrated after the stipulated time. This can neither be the intention of the Legislature, nor the object behind provision of section 40. If a too technical and too narrow interpretation is adopted, the very purpose and power of conducting the enquiry will be frustrated after the stipulated time. This can neither be the intention of the Legislature, nor the object behind provision of section 40. Thus, it can be safely concluded that proviso aforesaid is part of the procedure and at best it has to be read as “desirable” provision for conducting enquiry within a stipulated time. Non-compliance of enquiry and non-passing of final order within the stipulated time will not lead to conclusion of impermissibility of enquiry after the stipulated time. 15. On the basis of aforesaid analysis, I am of the view that even after insertion of new proviso by M.P. Act 20 of 2005, it does not have any mandatory force as suggested and argued by learned counsel for the petitioner. Consequently, I am unable to hold that the order impugned is without jurisdiction because it is passed beyond the time limit prescribed in the proviso itself. Since it is held that the order is not without jurisdiction, admittedly the petitioner has an alternative and efficacious remedy to prefer appeal under the Adhiniyam. In view of availability of the statutory remedy, I am not inclined to interfere in this matter any further. Thus, after deciding the aforesaid question with regard to the interpretation of proviso, the petition is not entertained. Liberty is reserved to the petitioner to avail the alternative remedy available to him under the Adhiniyam. It be noted that this Court has not expressed any opinion on the merits of the case. 16. Petition stands disposed of. No costs.