Madhya Pradesh High Court
Mantar Singh vs Panchayat Evam Social Justice ... on 16 July, 2018
1 WP No. 8661/2018
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
WP No. 8661/2018
(Mantar Singh Vs.State of M.P.)
INDORE dt. 16-07-2018
Parties through their counsel.
The petitioner before this Court has filed this present
petition for quashment of order dated 27.03.2018 passed by
the competent authority under Section 40 of Madhya
Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993.
Undisputedly, in the present case, the show-cause
notice was issued by the respondent No.2 Chief Exeucitive
Officer on 08.09.2017 and thereafter, and final order has been passed on 27.03.2018, meaning thereby, after expiry of 90 days from the date of issuance of show cause notice. His contention is that in light of the judgment delivered by the Division Bench in the case of Dhanwanti v/s State of M.P. & Others reported in M.P.L.J. 2013 (1) 549, the impugned order deserves to be set aside.
This Court has carefully gone through the judgment delivered by the Division Bench and paragraph 6 to 23 of the aforesaid judgment reads as under:-
"6. Learned counsel for the appellant has contended that beyond the period of 90 days as prescribed under the proviso, the prescribed authority has no power and jurisdiction to continue the proceeding of removal. Hence, beyond the aforesaid period, if the extension of time has not been taken, the proceeding come to an end. In support of his contentions, learned counsel relied on the following judgments :--
(i) Bhuvaneshwar Prasad @ Guddu Dixit vs. State of M.P. and others, 2009 (1) MPL J 434 : 2008 (5) MPHT 72. (ii) Chandra Kishore Jha vs. Mahavir Prasad and others, AIR 1999 SC 3558.
7. Contrary to this, learned Dy. Advocate General has contended that the proviso to provisions of section 40(c) of the Adhiniyam of 1993 is procedural in nature, hence, if 2 WP No. 8661/2018 there is any violation of aforesaid provision, the order does not cease to be in existence. In support of this contention, learned Dy. Advocate General relied on following judgments:
(i) Topline Shoes Ltd. vs. Corporation Bank, MANU/SC/0558/2002 : 2002 (6) SCC 333. (ii) Balwant Singh and others vs. Anand Kumar Sharma and others, 2003 (3) SCC 433. (iii) Bhuvaneshwar Prasad @ Guddu Dixit vs. State of M.P. and others, 2009 (1) MPLJ 434 : 2008 (5)MPHT 72.
8. In the present case, a show cause notice to the appellant was issued by the prescribed authority on 6-2-2012. The order of removal was passed on 4-7-2012 admittedly beyond the period of 90 days.
9. Section 40 of the Adhiniyam of 1993 prescribes provision of removal of office bearers of Panchayat, which is 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) if he has been guilty of misconduct in the discharge of his duties; or
(b) if his continuance in office is undesirable in the interest of the public:
Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office.
Proviso to section 40(c) of the Adhiniyam of 1993 prescribes a rider in regard to passing of final order in the inquiry by the prescribed authority, which is as under :-
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. The aforesaid proviso was substituted by Act No. 20 of 2005. Earlier the proviso was as under :-
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.
10. After reading the aforesaid proviso, unambiguous and clear meaning is that the prescribed authority has no power and jurisdiction to continue the proceeding beyond 3 WP No. 8661/2018 the period of 90 days because it is mentioned that if the final order in the inquiry is not passed within a period of 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. It means that beyond the period of 90 days from issuance of show cause notice, the prescribed authority has no jurisdiction to continue the inquiry proceedings.
11. Hon'ble Supreme Court of India in the case of Gursahai Saigal vs. Commissioner of I.T. Punjab, : AIR 1963 SC 1062 relying on the judgment of the Privy Council in the case of Commissioner of Income Tax, Bengal vs. M/s Mahaliram Ramjidas, : AIR 1940 PC 124, and in the case of Nelson Motis vs. Union of India and another,: AIR 1992 SC 1981, Gurudevdatta VKSSS Maryadit and others vs. State of Maharashtra and others, : AIR 2001 SC 1980, State of Jharkhand and another vs. Govind Singh,: AIR 2005 SC 294 has held that when the words of a statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. The Hon'ble Supreme Court further in the case of State of Uttar Pradesh and others vs. Dr. Vijay Anand Maharaj, AIR 1963 SC 946, Thakur Amar Singhji and others vs. State of Rajasthan and others, AIR 1955 SC 504, Suraj Mal Kailash Chand and others vs. Union of India and another,: AIR 1982 SC 130, Jitender Tyagi vs. Delhi Administration and another AIR 1990 SC 487, Nelson Motis vs. Union of India and another, AIR 1992 SC 1981, M/s Oswal Agro Mills Ltd. vs. Collector of Central Excise and others, AIR 1993 SC 2288 has held that when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself. 12 . Hon'ble Supreme Court further in the case of Union of India and others vs. Brigadier P.S. Gill, reported in (2012) 4 SCC 463, has held as under :-
17. Each word used in the enactment must be allowed to play its role howsoever significant or insignificant the same may be in achieving the legislative intent and promoting legislative object. Although it is unnecessary to refer to any decisions on the subject, we may briefly recount some of the pronouncements of this Court in which the expression "subject to" has been interpreted.
13. Hon'ble Supreme Court further in the case of Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc., reported in (2012) 9 SCC 552, has 4 WP No. 8661/2018 held as under :-
80. We do not agree with the learned counsel for the appellants that there would be no need for the provision contained in section 2(2) as it would merely be stating the obvious i.e. the Arbitration Act, 1996 applies to arbitrations having their place/seat in India. In our opinion, the provisions have to be read as limiting the applicability of Part I to arbitrations which take place in India. If section 2(2) is construed as merely providing that Part I of the Arbitration Act, 1996 applies to India, it would be ex facie superfluous/redundant. No statutory provision is necessary to state/clarify that a law made by Parliament shall apply in India/to arbitrations in India. As submitted by Mr. Sorabjee, another fundamental principle of statutory construction is that courts will never impute redundancy or tautology to Parliament. See observations of Bhagwati, J. in Umed vs. Raj Singh, wherein it is observed as follows : (SCC p.103, para 37)
37...It is well-settled rule of interpretation that the court should, as far as possible, construe a statute so as to avoid tautology or superfluity. The same principle was expressed by Viscount Simon in Hill vs. William Hill (Park Lane) Ltd.
in the following words : (AC pp. 54647) "...it is to be observed that though a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which has not been said immediately before...."
14. The earlier proviso was that the final order in the inquiry shall as far as possible be passed within a period of 90 days from the date of issuance of show cause notice.
Now the present proviso has been substituted. The object of the proviso is that if an office bearer of the Panchayat has committed misconduct, then it is necessary for the prescribed authority to complete the inquiry within a period of 90 days and beyond the aforesaid period, he has to take permission from his senior officer in writing and request extension of time and time shall not be extended more than 30 days. It means that even the higher officer is not competent to grant more than 30 days time to complete 5 WP No. 8661/2018 the inquiry. It is in consonance with the object that if there are allegations of misconduct against the office bearer of a Panchayat, on which he could be removed, the inquiry must be completed within specific time and if it is held that this is a procedural requirement and on this ground the inquiry would not be vitiated, then the prescribed authority may take indefinite time to conclude the inquiry, it would be against the intention and specific unambiguous intention of the statute. In our opinion, it would amount to rewriting the statute.
15 . Learned Single Judge has observed that the proviso to section 40(c) of the Adhiniyam of 1993 is procedural in nature and it is a procedural law. In our opinion, after reading the whole of section 40 including the proviso of the section, it is not only a procedural law but it is a substantive law because it gives power of removal to the prescribed authority of office bearers of the Panchayat. When a particular power has been given in regard to removal of an elected office bearer, it would be exercised in the same manner as prescribed under the Statute and the proviso of section 40(1) (c) of the statute does not give power to the prescribed authority to continue the inquiry beyond the period of 90 days because it mandates that the final order shall be passed within 90 days and the period could be extended further 30 days with the approval and extension by the higher officer. The words which are used are that "such extension of time shall not be more than 30 days." In the present case, the prescribed authority has not taken any extension from the higher officer.
16. Learned Dy. Advocate General for the respondents/State has relied on the judgment of the Hon'ble Supreme Court in Tope line Shoes Ltd. vs. Corporation Bank, reported in (2002) 6 SCC 33. This decision has been rendered by the Hon'ble Supreme Court in regard to section 13(2)(a) of Consumer Protection Act, 1986, where the time limit has been prescribed for filing of opposite party version to the Consumer Forum. But this section does not deal with the proviso that the Consumer Forum has to decide the application within a particular time.
17. Learned Dy. Advocate General further relied on the judgment of the Hon'ble Supreme Court in Balwant Singh and others vs. Anand Kumar Sharma and others, reported in (2003) 3 SCC 433. In this case, Hon'ble Supreme Court observed that for a public functionary who is required to perform a public function within a time limit, it shall be held to be directory. This case is also not applicable in the present case because the statute has prescribed time limit 6 WP No. 8661/2018 for quasi judicial adjudication.
18. Division Bench of this court in the case of Bhuvaneshwar Prasad @ Guddu Dixit vs. State of M.P. and others, reported in : 2009 (1) MPL J 434 : (2008) 5 MPHT 72 has held that the prescribed authority has no jurisdiction to condon delay in presentation of election petition because section 125 prescribes a bar to this effect.
19. In our opinion, the proviso to section 40(c) of the Adhiniyam of 1993 prescribes a bar of continuing inquiry beyond a particular period.
20. The matter has to be seen from another angle. If we hold that the time limit is not mandatory, then the inquiry may be continued for unlimited period and that would be against the intention of the legislature because in that circumstance the office bearer, who is eligible for removal on account of misconduct, would continue to Work as office bearer of the Panchayat. It would hamper the functioning of the Panchayat and adversely affect the working of the Panchayat. This is also against the principle of good governance and negate the amendment in the proviso of section 40(c) of the Adhiniyam of 1993.
21. In regard to availability of alternative remedy, it is an admitted position of law that for writ of certiorari the alternative remedy is not a bar. In regard to the alternative remedy, Hon'ble Supreme Court in the case of M/s Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad, reported in AIR 1969 SC 556 has held as under :-
When an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds thereof. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted.
There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where 7 WP No. 8661/2018 proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Art. 226 for issuing appropriate writ for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.
22 . Hon'ble Supreme Court in the case of Union of India and others vs. Mangal Textile Mills India Pvt. Ltd. and others, reported in (2010) 14 SCC 553, quoted the observations of the earlier judgment of the Hon'ble Supreme Court in Harbansal Sahnia vs. Indian Oil Corpn. Ltd. (2003) 2 SCC 107 and has held as under :-
9. In Harbansal Sahnia vs. Indian Oil Corpn. Ltd., enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus :-
7...that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
23 . Apart from this, in this case, there is interpretation of section 40(c) of the Adhiniyam of 1993. In such circumstances, petition of the appellant could be entertained without availing alternative remedy. Consequently, the appeal of the appellant is allowed. The order passed by the learned Single Judge and the order passed by the prescribed authority dt. 4-7-2012 are hereby quashed. Petition filed by the appellant/petitioner is hereby allowed. However, it is observed that since we have quashed the order of removal of appellant on technical ground, hence, the prescribed authority is at liberty to initiate the fresh proceeding for removal of the appellant in accordance with law. No order as to costs."
In light of the aforesaid, as the order has been passed after completion of 90 days, the impugned order is set aside, however, the prescribed authority shall be free to initiate fresh proceeding for removal of the present petitioner in accordance with law.
8 WP No. 8661/2018Resultantly, the present petition stands allowed. No order as to costs.
Certified copy as per rules.
(S.C. SHARMA) JUDGE Rashmi Digitally signed by Rashmi Prasahant Date: 2018.07.18 14:43:19 +05'30'