Madhya Pradesh High Court
Omkar Singh vs The State Of Madhya Pradesh on 20 October, 2017
THE HIGH COURT OF MADHYA PRADESH
WP-17152-2017
(OMKAR SINGH Vs THE STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 20-10-2017
Shri Aditya Adhikari, learned senior counsel with Shri Rashid
Suhail Siddiqui, Advocate for the petitioner.
Shri Samdarshee Tiwari, learned Additional Advocate General
with Shri Girish Kekre, Government Advocate for the
respondent/State.
Heard on IA No.14289/2017.
At the outset, learned Additional Advocate General raised an objection that there is no urgency in this matter and; therefore, this matter may go before regular Bench after holidays.
Contention is opposed by Shri Adhikari by submitting that the petitioner, an elected President of Panchayat, has been removed unceremoniously without following the "due process". In addition, petitioner intends to submit his candidature for Chitrakoot State Assembly (By Poll). The last date for submission of nomination is 23.10.2017. The impugned order may be a legal hurdle or it may be a reason to deprive him to submit his candidature. Thus, there exists a pressing urgency in this matter.
I find substance in the argument of learned senior counsel for the petitioner. If an elected office bearer is removed from his post, its certainly a case of urgency and; therefore, the preliminary objection raised by the State is rejected. The IA is allowed.
Heard on admission.
Learned senior counsel submits that pursuant to a complain preferred by respondent No.7 dated 10.9.2015, the Collector issued a show cause notice dated 28.9.2016 to the petitioner. In the opening paragraph of this notice, it was mentioned that notice was issued by invoking Section 87 of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Adhiniyam") whereas in the last paragraph, the said authority directed the petitioner to show cause as to why he should not be removed by invoking Section 40 of the Adhiniyam. In turn, the petitioner filed his reply Annexure P/6 and contended that the notice under Section 40 of the Adhiniyam is not tenable. Shri Adhikari also placed reliance on show cause notice dated 4.11.2016 Annexure P/8 and contended that both the aforesaid show cause notices are verbatim same. In view of petitioner's objection about the tenability of notice under Section 40 of the Adhiniyam, the Collector opined that the proceedings should be treated as a proceeding under Section 87 of the Adhiniyam in lieu of Section 40. The bone of contention of Shri Adhikari is that the proceedings continued under Section 87 of the Adhiniyam and no notice and proceeding by prescribed authority were ever initiated and concluded under Section 40 of the Adhiniyam. Learned senior counsel submits that the Collector submitted his recommendation dated 11.11.2016 Annexure P/10 before the competent authority i.e. Director/Commissioner, Panchayat Raj. The said authority by detailed order dated 8.8.2017 Annexure P/13 opined that no case is made out for dissolution of Janpad Panchayat by invoking Section 87 of the Adhiniyam.
Aggrieved, the respondent No.7 preferred an appeal under Section 91 of the Adhiniyam before the State Government. The State Government, in turn, passed the order dated 12.10.2017. By taking this court to this order, it is argued that the Government in no uncertain terms made it clear that Section 87 of the Adhiniyam cannot be pressed into service and to that extent did not interfere with the appellate order passed by the Director/Commissioner. The State Government, however, at appellate stage converted the proceedings as a proceeding under Section 40 of the Adhiniyam and decided to remove the petitioner from the post of President, Janpad Panchayat, Majhgawan. In addition, petitioner was disqualified to contest the election under the Adhiniyam for six years.
Learned senior counsel contended that the impugned order suffers from serious procedural impropriety and perversity. No proceedings of any nature under Section 40 of the Adhiniyam was ever initiated, conducted and completed, yet the said show cause notice was treated as a notice under Section 40 of the Adhiniyam.
Shri Adhikari has taken pains to contend that all the allegations mentioned in the show cause notice are factually incorrect and legally unsustainable against the petitioner. By taking this court to various rules framed by the Government under the Adhiniyam, it is canvassed that petitioner cannot be subjected to any charge nor he can be punished for any misconduct under the Adhiniyam. Shri Adhikari by placing reliance on 2012 (4) SCC 407 (Raviyashwant Bhoir vs. District Collector, Raigad and others) contended that even if a procedural irregularity in calling meetings had taken place, in absence of any allegation of malice or motive against the petitioner, the said irregularity will not fall within the ambit of 'misconduct'. It is urged that in the manner the respondents proceeded and decided against the petitioner, it amounts to malice in law. Reference is made to paragraph 62, 63 and 64 of said judgment to contend that at best, the action of not calling the meetings in desired intervals can be treated as an irregularity but it cannot be treated as a 'misconduct' attracting removal of the petitioner.
Shri Adhikari placed reliance on 2016 (2) SCC 640 (Edara Haribabu vs. Tulluri Venkata Narasimham and others) to contend that even in election matters this court can grant interim relief. Lastly, it is submitted that the scope of operation of Section 40 and Section 87 of the Adhiniyam are different. Section 40 of the Adhiniyam can be pressed into service if an individual office bearer is required to be removed whereas Section 87 of the Adhiniyam is applicable for the purpose of dissolution of the concerned panchayat. In support of this contention, Shri Adhikari, learned senior counsel for the petitioner relied on 2012 (2) MPLJ 90 (Maya Choudhary Vs. State of M.P. and others). It is submitted that when later on, the learned Collector intended to proceed against the petitioner under Section 40 of the Adhiniyam and sufficient time was not granted to the petitioner to file reply, the petitioner filed W.P. No.4687/2017 before this Court. This Court by order dated 19.04.2017 (Annexure-P/12) permitted the respondents to proceed with the proceedings initiated under Section 40 of the Adhiniyam, but restrained them to pass a final order till next date of hearing. It is fairly submitted that although on the next date of hearing, nobody appeared for the petitioner in the said case and stay was not continued for this reason, the stay was not specifically vacated by this Court. In nutshell, it is prayed that the impugned order may be stayed.
Per contra, Shri Samdarshi Tiwari, learned Addl. Advocate General opposed the said contention. He submits that the Collector misdirected himself while holding that he is treating the proceeding as a proceeding under Section 87 of the Act whereas considering the nature of allegations, it is clear that he intended to proceed against the petitioner by invoking Section 40 of the Adhiniyam.
Learned Addl. Advocate General strenuously contended that if Section 50 and Rule 4 of the Madhya Pradesh Panchayat (Powers and Function of Sarpanch and Up-Sarpanch of Gram Panchayat, President and Vice President of Janpad Panchayat and Zila Panchayat) Rules, 1994 are examined, it will be crystal clear that the petitioner cannot escape from his responsibility to implement the aims and objects of the Adhiniyam. In addition, he will be responsible to implement the resolution of the Janpad Panchayat. Reliance is placed on Rule 4(2)(c) of the said Rules.
Shri Samdarshi Tiwari further submits that since necessary ingredients for attracting Section 40 of the Adhiniyam were available and the petitioner was put to notice on these aspects, it cannot be said that the principles of natural justice were not followed. He further submits that the State Government has taken into consideration the necessary material which falls within the four corners of Section 40 of the Adhiniyam and, therefore, at this stage, it cannot be said that the order is bad in law. By placing reliance on a Division Bench order passed in W.A. No.261/2017 (Nagar Palika Parishad Dabra Vs. Smt. Satyaprakashi Parsedia and another) dated 26.05.2017, Shri Tiwari submits that if the impugned order is stayed, it will amount to giving final relief to the petitioner. Reference is made to 1985 AIR 330 (Assistant Collector of Central Vs. Dunlop India Ltd. and others). On a specific query from the Bench, learned counsel for the State fairly admitted that in view of Section 9 of the Representation of Peoples Act, the impugned order can be a reason for not accepting the nomination/candidature of the petitioner by the competent authority. However, Shri Tiwari submits that the Election Commission is not a party respondent in the present case. Article 191 of the Constitution will be the governing provision to decide whether the petitioner is disqualified or not. Whether the petitioner is holding the office of profit or not, is also a question which may be decided after receiving the reply of the respondents.
No other point is pressed by learned counsel for the parties. I have heard learned counsel for the parties on admission and interim relief.
Admit.
Issue notice to the respondents on payment of process fee within three working days, failing which this petition shall stand dismissed without reference to the Court. Shri Samdarshi Tiwari prays for and is granted four weeks time to file reply.
INTERIM RELIEF The aforesaid factual backdrop makes it crystal clear that the learned Collector initially issued a show-cause notice dated 28.09.2016 (Annexure-P/5) by mentioning both the provisions, namely, Section 40 and Section 87 of the Adhiniyam. However, on an objection being raised by the petitioner, the Collector clearly opined that the proceedings will be treated as proceedings under Section 87 of the Adhiniyam in place of Section 40 of the said Adhiniyam. This order makes it absolutely clear that the proceedings against the petitioner were treated to be a proceeding under Section 87 of the Adhiniyam.
Interestingly, this proceeding was taken upto the level of the Director/Commissioner who passed the order dated 08.08.2017 and found that no case is made out for exercising power under Section 87 of the Adhiniyam. The respondent No.7 assailed this order in an appeal before the State Government. The State Government, as noticed, treated the proceeding as the proceeding under Section 40 of the Adhiniyam and decided to remove the petitioner by invoking sub-section (2) of Section 40 of the Adhiniyam. I prima facie find substantial force in the argument of Shri Adhikari that the procedure adopted by the State Government is totally unknown to law. If a proceeding was started under one provision specifically (Section 87), it outcome/result cannot be in a different penal provision. The penal provisions must receive strict construction.
Admittedly, the proceedings under Section 40 of the Adhiniyam were not initiated and concluded by the competent authority. Prima-facie, the Appellate Authority cannot be permitted to entirely change the nature of proceedings and pass an order which may result into removing a democratically elected office bearer of a Janpad Panchayat. The constitutional mandate is that a democratically elected office bearer can be removed only by strictly following the procedure laid down by law [See; 2016 (2) SCC 640 (Edara Haribabu Vs. Tulluri Venkata Narasimham and others)].
The Gwalior Bench in the case of Nagar Palika Parishad Dabra (supra) was dealing with a case where the allegations of corruption were established against an elected office bearer. Thereafter the said office bearer was removed by the competent authority by passing a specific order. In this factual backdrop, the Division Bench opined that if the order of removal is stayed, it will result into continuance of elected office bearer who has committed misconduct involving financial irregularities etc. (Para 6.3). This Court is unable to read the judgment of Municipal Council Dabra and Dunlap Ltd. (supra) in the manner suggested by learned Additional Advocate General. As a thumb rule, it cannot be said that in no circumstances, interim orders can be granted against removal of an elected Officer Bearer. In the peculiar facts and circumstances of the said cases, the courts opined that interim order cannot be granted. This is settled in law that precedent or decision of a court should be understood in the facts situation of a particular case. Putting it differently, the factual context needs to be kept in mind. [See: Padma Sunder Rao vs. State of Tamil Nadu [(2002) 3 SCC 533], Ram Prasad Sarma vs. Mani Kumar Subha [2003 (1) SCC 289], Ashwani Kumar Singh and others vs. U.P. Public Service Commission and others [2003 (11) SCC 584], Union of India vs. Major Bahadur Singh [2006 (1) SCC 368], U.P. State Electricity Board vs. Pooran Chandra Pandey and others [2007 (11) SCC 92], Bihar School Examination Board vs. Suresh Prasad Sinha [2010 (1) MPLJ 321], Sushil Suri vs. CBI and another [2011 (5) SCC 708], Indian Performing Rights Society Ltd. vs. Sanjay Dalia and others [2015 (10) SCC 161], Vishal N. Kalsaria vs. Bank of India [2016 (3) SCC 762].
In my considered view, where a very strong prima facie case is made out establishing serious procedural impropriety, jurisdictional error or illegality, interim relief can be granted. In the peculiar facts of this case, the learned Collector made it clear that his proceedings are not under Section 40 of the Adhiniyam and this order of Collector, to that extent, was not interfered with by any higher forum. Thus, no proceeding under section 40 were initiated and concluded by the prescribed authority. The elected representative can be removed only as per procedure laid down in law. If a statute provides a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden. {See : Dhananjay Reddy Vs. State of Karnataka-(2001) 4 SCC-9}.
This is also trite law that a judgment or order cannot be construed as a statute and blind reliance on the judgment without considering the fact situation is bad. [See. 2003 (11) SCC 584 (Ashwani Kumar Singh Vs. U.P. Public Service Commission and others), 2003 (2) SCC 111 (Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd and others), 2010 (1) MPLJ 321 (Bihar School Examination Board Vs. Suresh Prasad Sinha)].
This is equally well settled that a singular different fact may change the precedential value of a judgment [See : 2003 (2) SCC 111 (Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd and others)].
In the peculiar facts and circumstances of the case, prima facie it appears that the impugned order suffers from serious procedural impropriety and perversity.
Considering the aforesaid, in the interest of justice, this Court is inclined to stay the effect and operation of the impugned order dated 12.10.2017. Accordingly, the effect and operation of the order dated 12.10.2017 (Annexure-P/15) shall remain stayed.
It is made clear that this Court has not expressed any opinion about the entitlement/eligibility of the petitioner to submit his candidature regarding Chitrakoot bye-polls. C.C. today.
(SUJOY PAUL) JUDGE Biswal