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2022 DIGILAW 35 (CHH)

Judawan Gabel v. State of Chhattisgarh

2022-01-17

P.SAM KOSHY

body2022
JUDGMENT : P. Sam Koshy, J. 1. The challenge in the present writ petition is to the impugned order Annexure P/1 dated 15.12.2021, whereby the respondent No. 2 has passed an interim order in favour of the respondent No. 5 so far as staying the effect and operation of the order passed by the Sub-Divisional Officer dated 25.06.2021 and the order dated 08.11.2021 passed by the District Collector in an appeal. 2. The facts of the case in brief is that the respondent No. 5 was an elected Sarpanch against whom a Section 40 proceedings were drawn. The Sub-Divisional Officer vide Annexure P/2 dated 25.06.2021 had ordered for removal of the said Sarpanch. The matter was put to challenge before the Collector and the Collector vide order dated 02.07.2021 had stayed the effect and operation of the Sub-Divisional Officer's order. 3. The petitioner preferred a revision before the Additional Commissioner against the order dated 02.07.2021 passed by the Collector. The Additional Commissioner vide order dated 11.08.2021 quashed the order of the District Collector dated 02.07.2021. However, later on i.e. on 23.08.2021 the Additional Commissioner reviewed and recalled his earlier order dated 11.08.2021. 4. The said order was subjected to challenge in WPC No. 3730/2021. The Writ Court at the admission stage itself disposed of the writ petition on 15.09.2021 staying the order of the Additional Commissioner dated 23.08.2021 and further directed the Collector to decide the appeal itself on its own merits. The Collector finally vide order dated 08.11.2021 decided the appeal by rejecting the same upholding the order of the Sub-Divisional Officer. 5. The petitioner-complainant had immediately filed a caveat before the office of the Additional Commissioner to oppose the revision petition if any preferred by the respondent No. 5. The respondent No. 5 meanwhile preferred a revision petition before the Additional Commissioner and it is the decision on the interim application which stood decided on 15.12.2021 (Annexure P/1), which has led to the filing of the present writ petition. 6. The substantial ground of challenging the impugned order is that the petitioner have not been granted a fair and reasonable opportunity of hearing. According to the petitioner, the petitioner having filed a caveat ought to had been granted an opportunity of hearing before the impugned order was passed staying the effect and operation of the order dated 08.11.2021. 6. The substantial ground of challenging the impugned order is that the petitioner have not been granted a fair and reasonable opportunity of hearing. According to the petitioner, the petitioner having filed a caveat ought to had been granted an opportunity of hearing before the impugned order was passed staying the effect and operation of the order dated 08.11.2021. According to the petitioner, the authorities concerned have followed a wrong procedure in conducting the case in as much as, it is ordered that notice to the petitioner-caveator was sent by mobile through Whatsapp. However, the petitioner denies having received any such message as noticed from the office of the Additional Commissioner. It is the contention of the petitioner that the respondent authorities ought to have issued a proper notice to the petitioner and thereafter could have fixed the case for being considered on the interim application that the respondent No. 5 had filed along with the revision. 7. Having heard the contentions put forth by the petitioner and on perusal of the impugned order (Annexure P/1), this Court is of the opinion that the power which has been exercised by the Additional Commissioner is purely a discretionary power exercised by him. The scope of interference by the Writ Court in an order in which the discretionary power has been is exercised is too minimal. Further, from the proceedings what is also evident is that the right of the petitioner does not seem to have been closed. The petitioner can still approach the office of the Additional Commissioner and move an appropriate application for getting the stay vacated and also can file their objections, if any, opposing the revision of the respondent No. 5. Only because at the time of considering of the interim application preferred by the respondent No. 5 in a revision petition, without hearing the petitioner, who is in fact a complainant, by itself would not permit this Court under writ jurisdiction to subject the order to judicial review and take a different view. Since the petitioner has a remedy available still open to him by moving before the Additional Commissioner himself, the writ petition at this juncture stands disposed of permitting the petitioner to approach the Additional Commissioner and to submit their objections and contentions either by way of an application for vacating stay or by way of reply to the revision itself. Since the petitioner has a remedy available still open to him by moving before the Additional Commissioner himself, the writ petition at this juncture stands disposed of permitting the petitioner to approach the Additional Commissioner and to submit their objections and contentions either by way of an application for vacating stay or by way of reply to the revision itself. Upon such steps being taken by the petitioner the Additional Commissioner is expected to take an appropriate decision on its own merits and also taking into consideration the merits of the revision petition, which the respondent No. 5 has preferred. Let an appropriate decision be taken by the Additional Commissioner within an outer limit of two months from the date the matter is next fixed before the Additional Commissioner for further hearing on the revision itself. 8. It would also be open for the petitioner to apprise the Additional Commissioner, so far as the interim protection which this Court had already granted and certain restrains which this High Court had imposed upon the respondent No. 5 in its order dated 15.09.2021 in WPC No. 3730/2021. 9. With the aforesaid observations, the present writ petition stands disposed of.