Rajasthan High Court - Jaipur
Guman Singh vs State Of Rajasthan And Anr. on 3 December, 1987
Equivalent citations: 1988(1)WLN260
JUDGMENT S.S. Byas, J.
1. This civil special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of a learned Single Judge dated November 26, 1986, by which the appellant's writ petition, challenging the validity of orders Annexure-10 dated March 13, 1986 and Annexure-11 dated March 31, 1986 passed by the State Government was dismissed.
2. Briefly recounted, the material facts are that the petitioner presented a petition under Article 226 of the Constitution with the averments that he was the Sarpanch, Gram Panchayat, Sandwa district Churu right from the year 1956 to March, 1986. On complaints being filed, an inquiry was conducted against him by the State and ultimately he was exonerated from all the charges on October 15, 1985 by the concerned Hon'ble Minister. The petitioner applied for the copy of the order passed by the Hon'ble Minister, but the same was not supplied to him. At about 8.00 a.m. on March 4, 1986, he received the telegram Annexure-12 asking him to appear on March 4, 1986 before the concerned Minister for Panchayat Rajya. He left his village by bus at 8.30 a.m. on the same day and reached Jaipur at about 3.30 p.m. From the bus-stand, Jaipur, he reached the Rajasthan Government Secretariat at about 4.00 p.m. He submitted the application Annexure-9 on that very day to adjourn the matter. No order was passed on it. On March 13, 1986 he was informed by the State Government that a finding has been recorded against him under Section 17(4) of the Rajasthan Panchayat Act, 1953 (for short the Act here in after) and that he has been disqualified for holding any office for a period of five years. He was required to show cause as to why the office of Sarpanch held by him be not declared to be vacant. He was asked to appear on March 27, 1986. He could not appear before the Minister concerned on March 27, 1986 and ultimately order Arinexure-11 was passed on March 31, 1986, removing him from the office of Sarpanch and declaring the said office vacant. The validity of order Annexure-10 dated March 13, 1986 regarding the finding on the charges levelled against him and the order Annexure-11 dated March 31, 1986, by which he was removed from the office of the Sarpanch and the office of the Sarpanch was declared vacant, was challenged on the ground that once he was exonerated by the Hon'ble Minister on October 15, 1985, he could not be removed. The powers of review, under which orders Annexure-10 and Annexure-11 were passed, were wrongly exercised by the State Government under Section 70-B of the Act. The powers under Section 70 B were a limited nature which could be exercised only to correct any mistake of law or fact or when then the original order was passed in ignorance of any material fact. This was not the situation in the instant case. Some other grounds were also urged relating to the denial of opportunity of hearing etc.
3. In the return filed by the State, all these facts were more or less admitted, but it was denied that the powers under Section 70-B were wrongly exercised. It was submitted that under Section 70-B of the Act, any order could be reviewed. It was also stated that on October 15, 1985, the petitioner was exonerated of the charges, but no formal order was issued by the State Government in consequence of the note-sheet prepared on October 15, 1985. The matter was subsequently reviewed by the State Government on March 13, 1986 and March 31, 1986. The petitioner is guilty of suppressing the material facts and putting forward wrong and incorrect facts. The telegram was delivered to the son of the petitioner in the noon on March 3, 1986. Application Annexure-9 was submitted not on March 4, 1986 but on March 5, 1986. The petitioner, therefore, being guilty of suppressing the material facts, was not entitled to any relief.
4. The learned Single Judge, by the impugned order, dismissed the writ petition on two grounds, namely, (1) the petitioner was guilty of suppressing the material facts. The telegram Annexure-12 was delivered to the petitioner through: his son on March 3, 1986 and (2) the impugned orders Annexure-10 and Annexure-11 were passed under Section 17 and not under Section 70-B of the Act. It was not a case of review where the impugned orders were passed.
5. A joint request was made by the learned Counsel for the parties to decide the matter finally on merits at the admission stage. We have heard them at length.
6. In assailing the impugned judgment, the first contention raised by Mr. M.L. Garg learned Counsel for the petitioner is that the entire approach of the learned Single Judge in holding that the impugned orders Annexure-10 and Annexure-11 were not passed by way of review, is clearly erroneous and untenable. In the return filed by the State Government, it was clearly admitted that the impugned orders were passed by way of review under Section 70 B of the Act. It was not the case of any party that the impugned orders Annexure-10 and Annexure-11 were not passed under Section 70-B of the Act The learned Single Judge made out a new case which was never projected before him by the parties. In reply, the condition of the learned Government Advocate Mr. R.C. Maheshwari is that the impugned orders were not passed by way of review. He strived his best to support the view taken by the learned Single Judge. It was also submitted by him that though the petitioner was exonerated-of all the charges on October 15, 1985 by the Hon'ble Minister, the order was only in the note-sheet and it was never communicated to the petitioner. As such, there was no case of review before the State Government when the impugned orders Annexure-10 and Annexure-11 were passed. We have taken the respective submissions into consideration. We feel no hesitation in stating that the impugned orders were passed by way of review under Section 70-B of the Act. In para 13 of the petition, a clear averment was made by the petitioner that he was exonerated of all the charges by the Hon'ble Minister on October 15, 1985. In reply to this averment, the respondents submitted (vide page 9) that the order, exonerating the petitioner of all the charges, was passed by the Hon'ble Minister on October 15, 1985 but that was only the note-sheet of the file. No formal order was issued by the State Government in consequence of the order passed by the Hon'ble Minister in the note-sheet. It is, therefore, an admitted position that the petitioner was exonerated from the charges on October 15, 1985 by the Hon'ble Minister by passing an order in the note-sheet of the file. This order, passed by the Hon'ble Minister, does not become ineffective, inoperative or non-est only because it was not formally issued or communicated to the petitioner. We persistently asked Mr. Maheshwari, the learned Government Advocate to show us any provision that the order passed by the Minister does not become valid till it is issued or communicated to the party. Mr. Maheshwari could not show us any such provision. The fact, therefore, remains that the petitioner was exonerated of the charges by the Hon'ble Minister on October 15, 1985.
7. In the return filed by the respondents, clear stand has been taken that the impugned orders Annexure-10 and Annexure-11 were passed by way of review of the matter under Section 70-B of the Act. We may refer to paragraphs 13 and 19 (ii), (iii), (iv), (vi), (vii) and (viii) in this connection where in clear stand has been taken by the respondents that the State Government was empowered to review the entire matter and the impugned orders were passed by way of review under Section 70-B of the Act. On page 18 of the return, the entire Section 70-B has been reproduced to reinforce the contention that the impugned orders were passed by way of review and the State Government was competent to pass such orders in review jurisdiction. Nowhere in the reply, the respondents have taken the plea that the impugned orders Annexure-10 and Annexure-11 were passed under Section 17 of the Act. In fact, a defence could not have been taken by them that the impugned orders were passed under Section 17 of the Act because of the earlier order passed by the Minister on October 15, 1985 exonerating the petitioner of all the charges. It is nobody's case in the pleadings that the impugned orders were not passed by way of review under Section 70-B of the Act. In view of all these facts, we are unable to agree with the learned Single Judge that the impugned orders were passed under Section 17 and not by way of review under Section 70-B of the Act. In our considered opinion, the impugned orders Annexure-10 and Annexure-11 were passed by the State Government in review jurisdiction under Section 70-B of the Act.
8. The next contention raised by Mr. Garg is that though the State Government has powers under Section 70-B to review an order under Sub-section (4) of Section 17 or the proviso thereto, these powers were wrongly exercised in the instant case. It was argued that the power of review granted to the State Government under Section 70-B are of limited nature. The review is permissible only when the earlier order under Sub-section (4) of Section 17 or the proviso thereto was passed under any mistake whether or of law of fact; or ignorance of any material fact. The impugned orders Annexure-13 and Annexure-11 do not at all, show that the earlier order exonerating the petitioner was passed under any mistake whether of law or fact, or in ignorance of any material fact. It was, on the other hand, contended by Mr. Maheshwari that under Section 70-B, the State Government has powers to re view any order passed under Sub-section (4) of Section 17 or the proviso thereto. We have taken the respective submissions into consideration.
9. It would be useful to read Sub-section (4) of Section 70-B of the Act which grants the power to review to the State Government. It runs as under:
Section 70-B: Power of review by Government-(1) The State Government may of its own motion at any time or on an application received from any person affected within ninety days of the passing of an order under Sub-section (4) of Section 17 or the proviso thereto, as the case may be, review any such order if it was passed under any mistake, whether of law or of fact or in ignorance of any material fact.
10. The language used in Sub-section (1) is plain and unambiguous. It is amply clear from a bare reading of it that the State Government has power to review an order passed under Sub-section (4) of Section 17 or the proviso thereto. But this power is not unlimited and cannot be exercised in a general way. The order passed under Sub-section (4) of Section 17 or the proviso thereto can be reviewed only if it was passed (1) under any mistake, whether of law or fact, or (2) in ignorance of any material fact. This Sub-section does not confer unlimited powers on the State Government to review its order. The para-meters of review have been Laid down in Section 70-B and the State Government should act within these para-meters. The power of review is certainly there, but is subject to the conditions enumerated above as (1) and (2). Unless the case is covered by any of these conditions, the power of review cannot be exercised.
11. The Legislature was quite conscious while granting the limited powers of review to the State Government under Section 70-B of the Act. Where the Legislature intended to grant unlimited powers of review to the State Government, it did so by defining the para-meters of review. We may quote Section 85-A of the Rajasthan Land Revenue Act, 1956 as an instance. It reads as under:
85-A: Review by the State Government--The State Government may of its own motion or on the application of a party to a proceeding, review and may rescind, alter or confirm any order made by it under this Act.
12. Section 85-A of the Land Revenue Act empowers the State Government to review any order. Section 85 does not lay down any conditions or para-meters within which the power of review is to be exercised by the State Government. On the contrary, Section 70-B of the Act grants very limited powers of review to the State Government.
13. Reverting to the case in hand, the impugned orders Annexure-10 and Annexure-11 do not show, at all, that the earlier order of exonerating the petitioner was passed under any mistake, whether of law or fact or in ignorance of any material fact. The impugned orders Annexure 10 and Annexure-11 show that they were passed afresh and not to correct any mistake whether of law or of fact occurred in the earlier order, or that the earlier order was passed in ignorance of any material fact. In fact the earlier order exonerating the petitioner was not at all taken into consideration while issuing the impugned orders Annexure-10 and Annexure-11. We are unable to read, from Annexure-10 and Annexure-11 that they were passed to review the earlier order by which the petitioner was exonerated. Section 70-B is not intended to pass a fresh order on merits. It is intended to correct any mistake, whether of law or of fact occurred in the earlier order or when the earlier order was passed in ignorance of any material fact.
14. It is, thus manifest from the impugned orders Annex. 10 and 11 that the State Government did not act in the matter of review within the defined parameters. The State Government impugned orders in excess of jurisdiction & in contravention of clear provisions of law contained in s. 70B of the Act. This error of law is apparent on the face of the impugned orders. The impugned orders, thus, being bad in law, should be quashed. The learned Single Judge has not dealt with the scope of Section 70-B of the Act as in his opinion it was not a case of review. We have already held above that Annexure-10 and Annexure-11 were passed under Section 70-B by way of review.
15. The learned Single Judge took the view that the petitioner was guilty of alleging false facts. The petitioner alleged that he received the telegram Annexure-12 at 8.00 a.m. on March 4, 1986 and that he submitted the application Annexure-9 (also Annexure-R/12) on March 4, 1986. The real facts are that the telegram Annexure-12 was delivered to the petitioner's son at 12.00 hours in the noon on March 3, 1986 and Annexure-9 was presented by the petitioner on March 5, 1986. May that be, this averment has no material consequence on the merits of the case. It is the suppression of the material facts, having a bearing on the merits of the case, which is fatal. It is interesting to note that according to respondents. Annexure 9 (also Annexure-R/12) was presented on March 5, 1986. The impugned order Annexure-10 was passed on March 13, 1986. No order was passed on the application Annexure-9 on March 5, 1986. It bears an endorsement that the concerned file was with the Hon'ble Minister and had not been received back. It is, thus, apparent that Annexure-9 (also Annexure R/12) was submitted long before the impugned order Annexure-10 was passed. We find no malafides on the part of the petitioner simply because he wrongly mentioned to have presented Annexure-9 (also Annexure R/12) on March 4, 1986 instead of March 5, 1986.
16. In the result, the appeal of the petitioner is allowed and the judgment of the learned Single Judge dated November 26, 1986 is set aside. We allow the writ petition and quash the impugned orders Annexure-10 dated March 13, 1986 and Annexure-11 dated March 31, 1986. We direct the respondents to allow the petitioner to hold the office of the Sarpanch of Gram Panchayat, Sandwa District Churu till he is removed in accordance with law. No order as to costs.