Madhya Pradesh High Court
Nagar Palika Parishad Dabra Thr vs Satyaprakashi Parsedia on 26 May, 2017
1 WA 261/17
Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia &
Anr.
26/5/2017
Shri Prashant Sharma, Advocate for the appellant.
Shri N.K.Gupta, Sr. Advocate with Shri S.D.Singh, Advocate for
the caveator/respondent No.1.
Shri Praveen Newaskar, Govt. Advocate for the respondent No.2/State.
1. This Intra Court Appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the interim order passed by the writ court in W.P.No. 2943/17 passed on 9/5/2017 whereby while entertaining the said petition challenging the order of removal of petitioner from the office of the President, Municipal Council, Dabra, operation and effect of the order of removal has been stayed.
2. Learned counsel for the rival parties are heard.
3. Learned counsel for the rival parties have confined their arguments to the legal aspects and therefore this court need not enter into the factual matrix involved.
4. Learned counsel for the appellant primarily raises the following legal grounds:-
(i) That, the impugned order is though of interlocutory nature but in effect, essentiality and repercussions assumes the shape of final order and therefore the bar contained in Sec. 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 for brevity 2005 Act, would not apply rendering the present appeal maintainable;
(ii) That, the petitioner/respondent No.1 herein has been found to be guilty of misconduct and suffered removal after detailed enquiry conducted by affording due and sufficient opportunity of being heard and therefore unless the order of removal is finally set aside, the same cannot be stayed;
(iii) Though, an application for vacating stay filed by 2 WA 261/17 Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia & Anr.
the appellant herein has been moved before the writ court but the said proceedings of vacating stay are independent of the right of the appellant to move this court against the impugned order which is manifestly against the settled principles of law.
(iv) In support of the above grounds, learned counsel for the appellant relies upon the decisions of the Apex court in the cases of Assistant Collector of Central Excise Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & others reported AIR 1985 SC 330 (para 15), Union of India Vs. Era Educational Trust and another reported in 2000(5) SCC 57 and State of U.P. & others Vs. Ram Sukhi Devi reported in 2005(9) SCC 733.
5. Per contra, learned counsel for the respondent No.1 raises the following grounds:-
(i) That the present appeal is not maintainable on account of the statutory bar contained in Sec. 2(1) of 2005 Act.
(ii) That, the present intra court appeal on behalf of the Municipal Council, Dabra which is not the aggrieved party in the matter is not maintainable. The only aggrieved party in the given facts and circumstances is the State Government which passed the order impugned in the writ petition. However, since the State of M.P., has not chosen to come forth this writ appeal on behalf of the Municipal Council is not maintainable;
(iii) That, the impugned order is not of final nature as it merely suspends the order of removal assailed in the writ petition and does not set it aside.
(iv) In support of the above said grounds, learned counsel for the respondent No.1 has placed reliance on the decisions reported in 2004(4) MPHT 937 (para 8), 2016 (3) SCC 304.
6. The first and foremost preliminary objection as regards maintainability of this appeal in view of the statutory bar contained in Sec. 2(1) of 2005 Act deserves consideration before proceeding ahead.
6.1 The Full Bench of this court in the case of Arvind Kumar Jain 3 WA 261/17 Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia & Anr.
Vs. State of M.P., reported in 2007(3) MPLJ 565, has held while interpreting the term "order" used in proviso to Sec. 2(1) of 2005 Act, that the same is not confined to final order u/Art. 226 of the Constitution but can include within it's sweep and ambit, such orders which ostensibly may appear to be interim in nature, but in effect and repercussion adversely affect the rights and obligation of the parties to the extent of rendering their real nature to be akin to a final order. Relevant para 26 of the said judgment is reproduced below:-
"26. From the aforesaid enunciation of law there remains no scintilla of doubt that interlocutory orders on certain circumstances, could be appealed against under the Letters Patent. Despite the fact they are interlocutory in nature they can be put into the compartment of judgment if it affects the merits of the case between the parties by determining some rights or liabilities. There can be three categories of judgments, final judgment, preliminary judgment and intermediary judgment or interlocutory judgment. If the order finally decides the question and directly affects the decision in the main case or an order which decides the collateral issue or the question which is not the subject matter of the main case or which determines the rights and obligation of the parties in a final way indubitably they are appealable."
6.2 When the order impugned is tested on the anvil of the law laid down by the Full Bench of this court in the case of Arvind Kumar Jain (supra), it is seen that the writ court has stayed the effect and operation of the order dated 9/5/17 by which the petitioner/respondent No.1 herein had been removed from the office of President Municipal Council, Dabra by invoking provision of Sec. 41A of M.P.Municipalities Act, 1961. Undoubtedly, the said order of removal was passed after holding an enquiry in which prima faice the petitioner/respondent No.1 was afforded opportunity of being heard. Whether the said opportunity afforded was a reasonable one or not is 4 WA 261/17 Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia & Anr.
a question to be decided at the time of final hearing. 6.3 The effect of staying the operation of the order of removal is that the person who has been found to be unfit to hold the elective office for having committed misconduct involving financial irregularities, shall be reinstated and allowed to occupy the same office, misuse of which resulted in removal. The said scenario which may arise owing to the impugned interim order may not be desirable in public interest.
6.4 Looked at from the angle of propriety of passing an interim order which resulted into grant of final/substantial relief to the petitioner/respondent No.1, this court may refer to some of the decisions of the Apex court starting from cases of Samaries Trading Company Pvt. Ltd. v. S. Samuel & Ors.reported in AIR 1985 SC 61, reported in AIR 1984 SC 653, Titagur Paper Mills Co. Ltd. State of Orissa reported in AIR 1983 SC 603,Union Of India v. Oswal Woollen Mills Ltd., reported in AIR 1984 SC 1264, Union of India v. Jain Shud Vanaspati and Assistant Collector of Central Excise Chandan Nagar, West Bengal Vs Dunlp India Ltd. & others reported in AIR 195 SC 330.
6.4.1 In Union of India v. Jain Shudh Vanaspati (supra), their Lordships of the Apex Court while allowing an appeal against an interim order made the following observations:-
"After hearing learned counsel for the rival parties, we are of the opinion that the interim order passed by the High Court on Nov. 29, 1983 is not warranted since it virtually grants to the respondents a substantial part of the relief claimed by them in their writ petition. Accordingly, we set aside the said order. "
6.4.2 Similarly, in the case of Asstt. Collector C.E.Chandar Nagar (supra), in para 5 it has been held as under:-
5 WA 261/17Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia & Anr.
"5. We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations."
6.4.3 Though, the above cases of the Apex court deal with the field of taxation but the principle of law laid down is of generic nature applicable in rem.
6.4.4 The above said principle of law laid down by the Apex court has been followed in the case of Super Cassettes Industries Limited Vs. Music Brodcast Private Limited reported in 2012(5) SCC 488. Para 76 of the judgment being relevant is reproduced below:-
"76. The often stated principle that Courts would not, normally, grant a relief by way of an interim measure, which is either identical with or substantially the same as the final relief sought in the proceeding, is based on the ground that indiscriminate grant of such interim reliefs are capable of producing public mischief see Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited and others, (1985) 1 SCC 260. This Court opined that the injury, if any, to the party approaching the Court is reversible and the public interest in certain instances should outweigh the temporary inconvenience of individuals."
7. From the above discussion of the legal aspects it becomes crystal clear that the interim order impugned herein will invariably result into the petitioner/respondent No.1 herein staking claim of occupying the office of the President of Municipal Council, Dabra, despite having been removed from that very office for proved misconduct u/S. 41A of 1961 Act. Meaning thereby that the grant of interim order in substance, in essence and in effect grants the final relief to the petitioner/respondent No.1 herein at the very initial stage 6 WA 261/17 Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia & Anr.
of the writ petition without adjudication of various legal aspects and without affording opportunity to respondents to file reply to the contentions raised in the petition.
8. In view of the above, this court has no hesitation to hold that the impugned order which is though of interlocutory nature, but essentially and in effect grants final relief to the petitioner/respondent no.1 herein. Thus, the objection of the maintainability of this appeal in view of the statutory bar in proviso to Sec. 2(1) of the 2005 Act fades into insignificance.
9. As regards other grounds of the appellant Municipal Council not being the aggrieved person, this court cannot loose sight of the fact that the interim impugned order would enable the petitioner/respondent No.1 to occupy the office of the President Municipal Council, Dabra. The Municipal Council, Dabra is a statutory body constituted u/S. 5 of 1961 Act and the President is the most important office of the said local body. The reputation and the goodwill of the Municipality if not entirely is essentially and substantially relatable to the reputation, character and conduct of the person occupying the office of the President. Thus to say that the Municipal Council is not aggrieved does not appear to be true. More so, the right to file writ appeal under the Act of 2005 is not confined to the petitioner or respondents arrayed as party in the writ petition but is available to a non-party who is aggrieved by the order of the writ court. In the instant case, admittedly the order of removal has been passed by the State of M.P., and not by Municipal Council, Dabra but in view of the discussion made above, the Municipal Council, Dabra is an aggrieved person as it would suffer in reputation and goodwill, if tainted individual continues to occupy the office of President. More so, the said Municipal Council is very much a party in 7 WA 261/17 Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia & Anr.
shape of respondent No.2 in the writ court.
10. In view of the fact that this court has found that the impugned interim order satisfies the colour and character of a final order, other submissions of the learned counsel for the rival parties are not being dealt with as the same fade into insignificance.
11. Consequently, the present writ appeal deserves to be and is therefore allowed. The impugned interim order dated 9/5/2017 in W.P.No.2943/17 so far it stays the operation and effect of the order of removal dated 1/5/2017 (P/1 in W.P.) is set aside.
No cost.
(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
26/5/2017 26/5/2017
(Bu)