Madhya Pradesh High Court
Bharatlal Parihar vs The State Of Madhya Pradesh on 14 January, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
W.P. No.928/2020
Bharatlal Parihar vs. State of M.P. & Ors.
Gwalior, Dated :14/01/2020
Shri S.S. Bhadoria, Counsel for the petitioner.
Shri R.K. Upadhyay, Government Advocate for the State.
This petition under Article 226 of the Constitution of India has
been filed against the notice dated 11.12.2019 passed by respondent
No.3 in Case No.7/2019-20/A-56.
2. It appears that by the impugned show cause notice, the petitioner has been informed that one Ranvir Singh has filed an application for his appointment on the post of Kotwar and, accordingly, the petitioner has been called upon to submit his reply as to why he may not be removed from the post of Kotwar.
3. It is submitted by the counsel for the petitioner that his father was working on the post of Kotwar and after his death, the petitioner was temporarily appointed on the post of Kotwar by order dated 29.3.2010.
4. It appears that the order dated 29.3.2010 was challenged by one Deeman S/o Lampu Adivasi by filing an appeal before the Sub Divisional Officer, Bhitarwar, District Gwalior and the said appeal was decided by order dated 28.8.2014 and it was held that since the petitioner was merely appointed on temporary basis, therefore, the grounds raised by the appellant therein does not require 2 THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
consideration, however, a direction was given for initiating the proceedings for appointment of Kotwar on regular basis after following the due procedure of law and it was further directed that the temporary appointment of the petitioner on the post of Kotwar shall be subject to the regular appointment. The order dated 28.8.2014 passed by the Sub Divisional Officer, Bhitarwar, District Gwalior was challenged by the petitioner by filing an appeal before the Court of Additional Commissioner, Gwalior Division, Gwalior which was registered as Case No.31/2013-14/Appeal, however, the said appeal filed by the petitioner was dismissed. The order of the Additional Commissioner, was challenged by the petitioner by filing a revision before the Board of Revenue which was registered as Revision/2682-PBR/2015 and the said revision was also dismissed by order dated 14.11.2017 with a direction to the respondents to make the appointment of Kotwar on regular basis. The order of the Board of Revenue was challenged by the petitioner by filing a W.P.No.1546/2017 and the said writ petition was also dismissed by this Court by order dated 2.1.2018.
5. It is submitted that thereafter the petitioner filed an application before the Tahsildar for his appointment on the post of Kotwar on regular basis on the ground that the Gram Panchayat has also passed a resolution in his favour.
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THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
6. From the order dated 28.3.2018 it appears that a show cause notice was issued to Deeman. However, he did not file any objection and, accordingly, the petitioner was granted appointment to the post of Kotwar on regular basis. However, it is clear from the said order dated 28.3.2018 that no advertisement was issued for inviting applications from the aspirants for appointment on the post of Kotwar of village Birgawan. It appears that on 4.12.2019 one Ranvir Singh filed an application that the Gram Panchayat by resolution No.14 dated 27.1.2018 had taken a decision to appoint a regular Kotwar of village Birgawan and the name of Ranvir Singh was also proposed and, accordingly, it was prayed that he may be appointed on the post of Kotwar. Accordingly, the impugned show cause notice dated 11.12.2019 has been issued to the petitioner which has been replied by the petitioner and has prayed for rejection of the application filed by Ranvir Singh.
7. It appears that the show cause notice dated 11.12.2019 is still pending and has not been decided so far.
8. It is submitted by the counsel for the petitioner that once the petitioner was appointed as a regular Kotwar by order dated 28.3.2018, the only remedy available to Ranvir Singh is to challenge the said appointment order but he had no authority to file an application for his appointment on the post of regular Kotwar. It is 4 THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
further submitted that the respondent No.2 has no power to initiate the proceedings for appointment of regular Kotwar unless and until the post of Kotwar is lying vacant. However, in the present case, the petitioner is already working on the post of Kotwar as a regular incumbent, therefore, initiation of proceedings for appointment of regular Kotwar is bad.
9. Heard the learned counsel for the petitioner.
10. It appears that after the death of his father, by order dated 29.3.2010, the petitioner was appointed as a Kotwar on temporary basis, which was challenged by one Deeman and the matter traveled up to this Court and the writ petition filed by the petitioner was dismissed by this Court by order dated 2.1.2018 passed in M.P.No.1546/2017 and the direction given by the Appellate Authority for initiation of proceedings for appointment of Kotwar on regular basis was upheld.
11. It is not the case of the petitioner that any advertisement was issued by the respondents inviting the applications from the aspirants for appointment on the post of Kotwar. On the contrary, it appears that merely on the basis of resolution passed by the Gram Panchayat, the petitioner himself filed an application for his appointment as a regular Kotwar which was allowed by order dated 28.3.2018 passed by Tahsildar, Tahsil Chinor, District Gwalior. 5
THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
12. The petitioner was asked as to whether the respondents had ever issued any advertisement inviting the applications from the aspirants or not, then the counsel for the petitioner could not point out any document or pleading to that effect. On the contrary, it is clear from the order dated 28.3.2018 that no advertisement was issued and in fact by a quasi judicial order dated 28.3.2018 Tahsildar, Tahsil Chinor, District Gwalior, appointed the petitioner as a regular Kotwar. From the said order, it appears that a notice was also issued to Deeman Singh only and no general public notice was issued. Appointment of regular Kotwar is an administrative work which can be challenged before the Competent Authority in an appeal. However, the petitioner could not have been appointed by the Tahsildar, Tahsil Chinor, District Gwalior by passing a quasi judicial order giving complete go bye to the procedure to be followed for appointment on regular basis. Thus it is clear that the order dated 28.3.2018 passed by Tahsildar, Tahsil Chinor, District Gwalior was without his jurisdiction.
13. It is well established principle of law that any order passed without jurisdiction is a nullity.
14. The Supreme Court in the case of Commissioner of Income Tax, Shimla vs. Greenworld Corporation, Parwanoo reported in 6 THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
(2009) 7 SCC 69 has held as under:-
63. In Mantoo Sarkar v. Oriental Insurance Co.
Ltd., this Court held: (SCC pp. 248-49, paras 18-
20) "18. The Tribunal is a court subordinate to the High Court. An appeal against the Tribunal lies before the High Court. The High Court, while exercising its appellate power, would follow the provisions contained in the Code of Civil Procedure or akin thereto. In view of sub-section (1) of Section 21 of the Code of Civil Procedure, it was, therefore, obligatory on the part of the appellate court to pose unto itself the right question viz. whether the first respondent has been able to show sufferance of any prejudice. If it has not suffered any prejudice or otherwise no failure of justice had occurred, the High Court should not have entertained the appeal on that ground alone.
19. We, however, while taking that factor into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. Objection in regard to jurisdiction may be taken at any stage. See Chief Engineer, Hydel Project v. Ravinder Nath, wherein inter alia the decision of this Court in Kiran Singh v. Chaman Paswan was followed, stating: (Ravinder Nath case, SCC p. 361, para 26) '26. The Court also relied upon the decision in Kiran Singh v. Chaman Pawan and quoted (in Harshad Chiman Lal case, SCC pp. 804-05, para
33) therefrom: (Kiran Singh case, AIR p. 342, para
6) "6. ... It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ... strikes at the very authority of the court to pass any decree, and such 7 THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
a defect cannot be cured even by consent of parties."
Though in the aforementioned decision these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity.'
20. A distinction, however, must be made between a jurisdiction with regard to the subject- matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be."
The Supreme Court in the case of Krishnadevi Malchand Kamathia & Ors. vs. Bombay Environmental Action Group & Ors. reported in (2011) 3 SCC 363 has held as under:-
18. In Sultan Sadik v. Sanjay Raj Subba, this Court took a similar view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
The Supreme Court in the case of H.V. Nirmala vs. Karnataka State Financial Corporation & Ors. reported in (2008) 7 SCC 639 has held as under:-
13. There are questions and questions in regard to the jurisdictional issues. An authority may lack inherent jurisdiction in which case the 8 THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
order passed would be a nullity......
The Supreme Court in the case of Union of India & Anr. vs. Association of Unified Telecom Service Providers of India & Ors. reported in (2011) 10 SCC 543 has held as under:-
59. Thus, the Tribunal in its order dated 7-7-2006 has not just decided a dispute on the interpretation of adjusted gross revenue in the licence agreement, but has decided on the validity of the definition of adjusted gross revenue in the licence agreement. As we have already held, the Tribunal had no jurisdiction to decide on the validity of the terms and conditions of the licence including the definition of adjusted gross revenue incorporated in the licence agreement. Hence, the order dated 7-7-2006 of the Tribunal insofar as it decides that revenue realised by the licensee from activities beyond the licence will be excluded from adjusted gross revenue dehors the definition of adjusted gross revenue in the licence agreement is without jurisdiction and is a nullity and the principle of res judicata will not apply.
60. In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir this Court relying on Chief Justice of A.P. v.
L.V.A. Dixitulu, Union of India v. Pramod Gupta and National Institute of Technology v. Niraj Kumar Singh has held: (Krishna Arjun case, SCC p. 322, para 26) "26. ... an order passed without jurisdiction would be a nullity. It will be a coram non judice [and] non est in the eye of the law. Principles of res judicata would not apply to such cases."
15. Thus in the considered opinion of this Court, no vested right has accrued in favour of the petitioner by virtue of order dated 28.3.2018 passed by Tahsildar, Tahsil Chinor, District Gwalior. 9
THE HIGH COURT OF MADHYA PRADESH W.P. No.928/2020 Bharatlal Parihar vs. State of M.P. & Ors.
Therefore, even if the said order remained unchallenged this Court would not perpetuate the illegality committed by Tahsildar, Tahsil Chinor, District Gwalior.
16. Accordingly, this Court is of the considered opinion that although the respondents have initiated the proceedings on the application filed by Ranvir Singh but the respondents must make the appointment of Kotwar on regular basis after following the rules governing the field of appointment on the post of Kotwar. Let the entire exercise be completed within a period of three months from today.
17. Accordingly, this petition is dismissed being devoid of merits.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2020.01.17
15:37:19 +05'30'