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2013 DIGILAW 999 (MP)

Rajendra Singh Parmar v. State of M. P.

2013-08-23

SHEEL NAGU, SUJOY PAUL

body2013
JUDGMENT : Sheel Nagu, J.:- The instant writ appeal and WA 342/13 filed u/S 2(1)a of M.P. Uchcha Nyalaya (Khand Nyay Peeth Ko Appeal) Act 2005 arising out of the same Judgment dated 11.07.2013 passed in W.P. No. 3921/2013 by the learned single judge being based on the same set of facts and circumstances, are being heard and decided together by this order. 2. W.A. 320/13 has been filed by the President of the Janpad Panchayat, Gohad District, Bhind. The petitioner was ousted from his office by passing of a no confidence motion against him. Aggrieved by the ouster, petitioner initially assailed the resolution of no confidence in WP no. 3921/2013 which was decided by impugned order dated 11.07.2013 whereby the learned single judge while quashing the order of the prescribed authority dated28.05.2013 passed in a Dispute filed u/S 28(4) of the Act of 1993 (Act of 1993 for brevity) directed affording of one opportunity to petitioner to adduce oral evidence of the persons, who had filed affidavits in favour of the Dispute. The learned single judge while passing the impugned order clarified that not more than one opportunity shall be afforded to the petitioner for the purpose of adducing oral evidence. 3. It is informed by the learned counsel for the appellant that for reasons beyond the control of the petitioner his witnesses could not be produced in support of the affidavit on the date fixed by the Commissioner, which led to the Commissioner reserving the case for passing final order. 4. The W.A. 342/13 has been filed by assailing the same impugned order on the ground that the Single Bench misdirected itself by granting an opportunity to the ousted President of Janpad Panchayat of adducing oral evidence in support of the affidavits filed in of the Dispute, on the ground of absence of any enabling provision, either in Sec 28(4) of the Act of 1993 or in Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 (Niyam of 1994 for brevity). It is thus contended by the appellant in W.P 342/13 that the direction issued in the impugned order is de horse the statutory provisions in the Act of 1993 and the Rules of 1994. 5. It is thus contended by the appellant in W.P 342/13 that the direction issued in the impugned order is de horse the statutory provisions in the Act of 1993 and the Rules of 1994. 5. The learned counsel for the appellant in WA No. 320/13 contends that in the case of Kandhilal Patel and Others Vs.State of M.P. and Others reported in 1999 Vol 2 JLJ 102 (Para 15) which was attended with similar circumstances, this Court has held that where Dispute u/S 28(4) of the Act of 1993 read with Niyam of 1994 is raised more on facts than law, then before deciding the Dispute, the prescribed authority is obliged to afford an opportunity to adduce evidence in support of the Dispute. 6. On the other hand, the learned counsel for the respondent placing reliance on 1998 Vol 1 MPWN 233, 1999 Vol 2 MPLJ Pg 97,2004(2) MPLJ 2004 (1) MPHT 312 (Para 17), 2008 (1) MPHT 413 contends that the impunged order has been rightly passed leaving no reason for interference in the matter. 7. The issue in question is no more res-integra as the single judge of this Court in the case of Kandhilal Patel (Supra) has already held that a reasonable opportunity is required to be afforded to the person filing Dispute u/S Sec 21(4) of the Act of 1993 which is pari materia to Section 28(4) of the Act 1993, and therefore this Court has no hesitation to hold that before deciding the Dispute , it is incumbent upon the prescribed authority to afford a reasonable opportunity to be heard. 8. Though the term “reasonable opportunity” or even“opportunity” does not find place in Sec 28(4) but in view of the decision of this Court in the case of Kandhilal Patel (Supra) there is no manner of doubt that opportunity is required to be afforded before deciding a Dispute involving questions of fact. An opportunity without being “reasonable” is a mere perfunctory opportunity which would not satisfy the requirement of the salutary principle of natural justice i.e.audi alteram partem. An“opportunity” matures into a “reasonable opportunity” when the authority concerned who affords it, is armed with the discretion to be liberal enough to cater to the eventualities arising out of normal human failings and unforeseen circumstances having arisen for reasons not attributed to the litigant seeking opportunity. An“opportunity” matures into a “reasonable opportunity” when the authority concerned who affords it, is armed with the discretion to be liberal enough to cater to the eventualities arising out of normal human failings and unforeseen circumstances having arisen for reasons not attributed to the litigant seeking opportunity. If such a discretion is not bestowed upon the executive or judicial authority, whether by an express provision or by implication, then the authority would merely pass an order without doing justice. The element of “reasonable opportunity” is the heart-beat which instills life and vitality to any proceedings rending the final order just and proper. 9. It is this element of “reasonable opportunity” which is one of the primary constituents of “due process of law”. As such restricting the grant of opportunity of adducing oral evidence in support of Dispute in question, to only one hearing, would be denying reasonable opportunity which is otherwise available to the writ appellant in W.A No. 320/13 especially when the Dispute in question (vide P-2A at Page 27 of W.A 320/13) appears to involve disputed issues of fact. As regards the challenge made in W.A. No. 342/13, it has to be held, in view of the discussion supra, that the term “decide”employed in Sec 28(4) inherently casts obligation on the Commissioner to afford reasonable opportunity of adducing oral evidence in support of factual contentions contained in the Dispute, before deciding the same. The Apex Court in the case of Transmission Corporation of A.P.Ltd Vs. Sri Rama Krishna Rice Mill (2006) 3 SCC 74 has aptly reproduced pages 3959 and 3968 of Vol 4 3rd Edition of Advance Lexicon of P. Ramanatha Ayar to describe the term “reasonable”as follows: i) “[What is] fair, proper or moderate under the circumstances....” ii) “The expression 'reasonable' is not susceptible of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it means most suitable in a given set of circumstances.” iii)“There is no point on which a greater amount of decision is to be found in courts of law and equity than as to what is reasonable: It is impossible a priori to state what isreasonable as such in all cases. Reasonable does not mean the best, it means most suitable in a given set of circumstances.” iii)“There is no point on which a greater amount of decision is to be found in courts of law and equity than as to what is reasonable: It is impossible a priori to state what isreasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is meant by reasonable under the circumstances-Lord Rimly, M.R., Labourchere v. Dawson.” 10. In view of the above, this Court is of the considered view that granting only one opportunity and no more to the petitioner/appellant in W.A 320/13 for adducing oral evidence in support of his Dispute u/S 28(4) would be an empty formality as it would not cater to the unforeseen eventualities which may arise on the day fixed for adducing evidence where petitioner may be prevented by reasons beyond his control to bring forth his witnesses. 11. Consequently, this Court is inclined to allow W.A No. 320/13 by directing the prescribed authority i.e. Commissioner, Revenue, Chambal Division, Morena, respondent no. 2, to afford a reasonable opportunity to the petitioner to adduce evidence in support of his Dispute preferred under Sec 28(4) of the Act of 1993 by keeping the principle of law laid down Supra and also the principles of natural justice. 12. In view of the above, W.A 320/13 is allowed by modifying the impugned order of the learned Single Judge to the extent indicated above and W.A 324/13 is dismissed with no order as to cost.