Madhya Pradesh High Court
Sagar Machhua Sahakari Samiti vs Chief Executive Officer, Janpad ... on 11 January, 2008
Equivalent citations: 2008(1)MPHT254, AIR 2008 (NOC) 1388 (M. P.)
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. Perceiving two sets of opinions one rendered in Ramlakhan Rawat v. State of M.P. and Ors. 2000 (2) MPLJ 176 and S.K. Shrivastava v. Collector (Mining), Bhind, 2001 (2) Vidhi Bhaswar 103, laying down the law that appeal or revision does not lie against a resolution passed by the Gram Panchayat and the other in Hem Lata v. State of M.P. 1997 (2) Vidhi Bhaswar 113 and Om Prakash Verma v. State of M.P. 2001(2) Vidhi Bhaswar 30, enunciating the principle that against the resolution of the Panchayat the remedy available is revision, the learned Single Judge thought it appropriate to refer the matter to a Larger Bench and framed two questions of law which are reproduced below:
(1) Whether a resolution passed by the Panchayat or its Standing Committee is revisable?
(2) Whether the law laid down in Hem Lata and Om Prakash or in Ram Lakhan and Sanjay Kumar Shrivastava decides the correct interpretation of Section 91 of the Act?
2. It is worth noting that a reference has been made in the order passed in W.P. No. 4520/2006. To appreciate the terms of reference it would be apt to state the facts bereft of unnecessary details. Janpad Panchayat, Seoni issued an advertisement on 17-6-2005 inviting applications for grant of contract for fisheries for three years for Payalee Reservoir situated in District, Seoni. The second respondent applied for the lease on 14-7-2005. The Standing Agricultural Committee of the Janpad Panchayat passed a resolution in favour of the said respondent. Being dissatisfied with the aforesaid resolution the petitioner preferred a revision before the Additional Collector, Seoni, which was registered as Case No. 19-A/89 (A21) 04-05. Upon hearing the parties, the Additional Collector set aside the resolution passed by the said Committee by order 17-10-2005 contained in Annexure P-2. Being aggrieved by the aforesaid order, the respondent No. 2 preferred a revision before the Additional Commissioner, Jabalpur, who, by order dated 18-1-2006, passed an interim order of stay. The writ petitioner appeared before the said authority filing an application that the second revision was not maintainable against the revisional order passed by the Additional Collector and prayed for vacation of stay and dismissal of the revision. The Additional Commissioner as per order dated 28-1-2006 expressed the opinion that against the resolution passed by the Standing Committee of the Janpad Panchayat an appeal does lie and, therefore, the order passed by the Additional Collector is to be treated as an order passed in appeal and hence, the revision against the same was entertainable. Being of this view he rejected the application preferred by the present petitioner.
3. It was contended before the learned Single Judge that against the resolution passed by the Janpad Panchayat no revision was. maintainable and further no second revision is conceived under the Scheme of M.P. Panchayats (Appeal and Revision) Rules, 1995 (for brevity 'the 1995 Rules').
4. At that juncture a stand was taken by the respondent No. 2 that no revision was maintainable against the resolution passed by the Panchayat and the Additional Collector committed serious error by entertaining the revision and setting aside at naught the resolution passed by the Committee of the Panchayat.
5. Before we advert to the scheme of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the 1993 Act') and scrutinise the provisions therein and the 1995 Rules, it is seemly to refer to various decisions rendered in this context.
6. In Ram Charan Ahirwar v. Sub-Divisional Officer, Jatara and Ors. 1998(2) JLJ 267, the learned Single Judge after scanning the provision under Section 91 of the 1993 Act and Rule 3 of the 1995 Rules expressed the view as under:
9. Here, I must answer an ancillary submission of Shri Nagu, representing the State, that Section 91 of the Act, although uses the expression orders or proceedings, Appeal and Revision Rules, framed under the aforesaid Act do not use the expression 'proceeding' but the same has to be read in Rule 3 of the Appeal and Revision Rules. It is submitted that it is apparent omission and this Court is not precluded from substituting the word 'proceeding' in Rule 3 of the aforesaid rule. There is no quarrel about the proposition that--
Where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words. A departure from the rule of literal construction may be legitimate so as to avoid any part of the statute becoming meaningless. Words may also be read to give effect to the intention of the Legislature which is apparent from the Act read as a whole. Application of the mischief rule or purposive construction may also enable reading of words by implication when there is no doubt about the purpose which the Parliament intended to achieve. But before any words are read to repair an omission in the Act; it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law.
Source: Principles of Statutory Interpretation by justice G.P. Singh, Sixth Edition at Page 51.
10. Here in the present case, I do not find any compelling reason to read the word resolution in the order. In my opinion Section 91 of the Act uses the expression order or proceeding and the rule making authority having provided for appeal against the order of the Gram Panchayat clearly shows that omission is not accidental but deliberate, prohibiting appeal against the order.
7. Another learned Single Judge in Ramnath Kaushik v. State of M.P. and Ors. 1992(2) MP1J 67, scanning the provisions of the Act and the Rules and placing reliance on the decision rendered in Ram Charan Ahirwar (supra), expressed the opinion that the resolution and order carry different and distinct meanings and no appeal lies under Rule 3 of the 1995 Rules to the Appellate Authority against the resolution passed by the Gram Panchayat.
8. In Ram Lakhan Rawat (supra), the learned Judge has adverted to both the English and Hindi versions of the 1993 Act as well as the 1995 Rules and placing reliance on the decision rendered in Satyabhan Singh Jadon v. State of M.P. 1997(2) MPLJ 487, and the Notification issued under Section 4 of the Madhya Pradesh Official Language Act, 1957 has expressed the opinion that the orders, rules, regulations and bye-laws issued by the State Government under the Constitution of India or under any law made by the Parliament or Legislature of the State shall be in the official language, i.e., Hindi. Thereafter, the learned Single Judge proceeded to express the opinion as under:
27. Rules framed under Section 91 of the Adhiniyam in Hindi text do not provide any remedy of appeal or revision against the proceedings of the Panchayat. Under the rules any order passed by Gram Panchayats in pursuance of the resolution is appealable and no revision is maintainable against the proceedings of Panchayat. I am fortified in my view from the judgment in the case at Ramnath Kaushik v. State of M.P. and Ors. 1999(2) MPLJ 62 : 1999(1) JLJ 146. The question as to 'Resolution' or 'Order' was also considered by this Court in the case of Ram Charan Ahirwar v. Sub-Divisional Officer, Jatara 1998 (2) JLJ 267.
28. On considering the intent of the Legislature, the Legislature has not empowered the Authorities to cancel or set aside any resolution of Panchayat in appeal or revision. Section 85 of the Adhiniyam provides for suspension of execution of any resolution passed. For this purpose, Section 84 of the Adhiniyam provides for inspection of works of Panchayats. Rules framed for inspection of works of panchayats are known as Madhya Pradesh (Inspection of Proceedings) Rules, 1995. Under Section 3(2)(a) of the aforesaid Rules, on receiving complaint, in the case of a Gram Panchayat, the Panchayat and Social Education Organizer the Sub-Divisional Officer in whose jurisdiction the Gram Panchayat falls is empowered to inspect the proceedings and works of Panchayat. Rule 4 of the aforesaid Rules relates to power of Inspecting Officer. Rule 5 provides for inspection report. However, if inspection is given to any officer subordinate to Collector as may be nominated by the Collector, the report shall be furnished to the Officer or Authority directing inspection. After the report, if it is felt that the resolution or execution of resolution deserves to be suspended, then orders under Section 85 of the Adhiniyam can be passed. Sub-section (2) of Section 85 of the Adhiniyam provides that the authority passing any order under Sub-section (1), shall forthwith and in no case later than ten days from the date of order, forward to the State Government or the Officer nominated by the Slate Government for this purpose, copy of the order with the statement of reasons for making it, and the State Government or the officer nominated by it may confirm, set aside, revise or modify the order or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit. It further provides that no order of the Prescribed Authority passed under Sub-section (1) shall be confirmed, set aside, revised or modified by the State Government or the Officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order.
29. Thus from the intent of the Adhiniyam, no powers are conferred upon the authorities for cancelling the resolution in a proceeding under Section 91 of the Adhiniyam. However, any order passed by the Authority under Sub-section (2) of Section 85 of the Adhiniyam, which is subordinate to the Officers mentioned in Rule 3 of the M.P. Panchayats (Appeal and Revision) Rules, the order shall be appealable and thereafter revision shall lie against the appellate order.
30. From the scheme of the Adhiniyam, it is apparent that any resolution passed by the Panchayat is neither appealable nor revisable. Resolutions of Panchayats cannot be set aside. However orders passed by Panchayats shall be appealable under Rule 3 of the Rules and after order in appeal, shall be revisable under Rule 5 of the Rules.
9. In Hemlata (supra), the learned Single Judge referred to Section 91 of the Act and Rule 3 of the Rules and thereafter expressed the opinion as follows:
4. It is, therefore, very clear that revision shall lie against the irregularity of the proceedings. Revision shall lie against the resolution passed by the Panchayat. The petitioner is challenging the resolution. Counsel for the petitioner submitted that Rule 5 of the Rules nowhere provides for revision against the resolution. Learned Counsel submitted that revision can lie as to legality and propriety of any order passed or regularity of proceedings of the Authority subordinate to it. Since the resolution has not been passed by Authority subordinate, no revision shall lie and Rule 3 nowhere provides for an appeal. He submitted that the regularity of the proceedings means the proceedings of Subordinate Authority.
5. Section 91 of the M.P. Panchayat Raj Adhiniyam provides that an appeal or revision shall lie against the orders or proceedings of the Panchayat, therefore, meaning of proceedings in Rule 5 shall mean the proceeding of the Panchayat. No further interpretation can be inferred. Therefore, revision shall lie under Section 91 against the resolution of the Panchayat.
10. In Om Prakash (supra), the learned Single Judge after referring to Section 91 of the Act and Rules 3 and 5 of the Rules has expressed the view as under:
Learned Counsel submitted that Section 91 of the M.P. Panchayat Raj Adhiniyam (hereinafter referred to as 'the Adhiniyam') provides for appeal and revision according to the rules framed under the Adhiniyam. Under Section 91 of the Adhiniyam rules known as M.P. Panchayat (Appeal and Revision) Rules (for short 'the Rules') have been framed. Rule 3 of the Rules provides that appeal shall lie against the orders passed by any Authority of the Panchayat. However, Rule 3 of the Rules which relates to appeal do not provide appeal against the resolution. Rule 5 of the Rules provides for filing of revision. Rule 5 provides that the orders which are not included in Rule 3 shall be revisable. On going through the provisions of Section 91 of the Adhiniyam it is apparent that proceedings of the Panchayat can also be challenged under the provisions of Section 91 of the Adhiniyam.
Since proceedings are not included in Rule 3 of the Rules, therefore, revisions shall lie against the resolution. The Sub-Divisional Officer is not empowered to hear revisions. As such, the order dated 26-6-96 (Annexure P-1) is without jurisdiction and is therefore, quashed. The petition succeeds and is accordingly allowed.
11. Thus, from the perusal of the aforesaid decisions it is perceptible that in certain cases a distinction has been made between an order and a resolution and in certain cases an opinion has been expressed that no appeal lies but a revision lies. Further, in certain decisions it has been ruled that neither an appeal nor a revision lies, as the same is not provided under the Rules.
12. Learned Counsel for the petitioners submitted that a resolution would stand on a different footing from an order and, therefore, a resolution cannot be challenged in an appeal or a revision and, hence, the set of decisions which express the opinion that no appeal or revision lies against a resolution should be accepted to be correct. It is contended by them that the Gram Panchayats have been conferred a different status under Chapter IX of the Constitution by introduction of Articles 243A to 243ZG and, therefore, the power of the Gram Panchayat cannot be scuttled and abridged by interference by any officer in the rank of Sub-Divisional Officer or Commissioner as that would affect the autonomy of the Gram Panchayat in a democratic body polity.
13. Learned Counsel appearing for the respondent, per contra, submitted that when Section 91 of the Act provides for appeal or revision the benefit conferred under the said provision cannot be nullified and has to be given effect to. It is urged by them that an apposite interpretation has to be placed under the Rules to confer power on the authorities so that a person grieved would have a statutory remedy.
14. Chapter III of the Act deals with establishment of Panchayats. Section 8 makes a provision for constitution of Panchayats. Section 10 envisages establishment of Gram Panchayat, Janpad Panchayat and Zila Panchayat. Section 11 lays a postulate with regard to incorporation of Panchayat. The said provision is reproduced below:
11. Incorporation of Panchayat.--Every Gram Panchayat, Janpad Panchayat and Zila Panchayat shall be body corporate by the name specified, there for in the order under Section 3 for village or notification under Section 10 for Janpad Panchayat and Zila Panchayat as the case may be, having perpetual succession and a common seal and shall by the said name, sue and be sued and shall subject to the provisions of this Act and the Rules thereunder, have power to acquire, hold or transfer property movable or immovable, enter into contracts and to do all other things necessary for the purpose of this Act.
15. On a reading of the aforesaid provision there is no trace of doubt that Panchayat is a body corporate. A body corporate has a different connotation and meaning in law. It is not merely a body of persons. By virtue of incorporation of the Panchayat having perpetual succession and a common seal the statute confers powers on it with a different legal status.
16. In the case of Daman Singh v. State of Punjab , the Constitution Bench has expressed the opinion that a Co-operative Society under the Co-operative Societies Act is a corporation as commonly understood and the scheme of the Constitution does not make any difference. Regard being had to the aforesaid enunciation of law and the language employed under Section 11 of the 1993 Act, there can be no trace of doubt that Gram Panchayat is a body corporate.
17. In view of the aforesaid, there can be no shadow of doubt that a Panchayat being a body corporate has to act by passing resolutions. There can be no doubt that certain resolutions can be fruited and ripened and become orders. Some basically shall remain strictly in the frame or compartment of resolutions.
18. The question would be whether a resolution is a proceeding because Section 91 of the Act, which is relevant for the present purpose, uses the term 'proceedings'. To appreciate the issue that has emanated to be dwelled upon, it is apposite to refer to certain provisions of the 1993 Act. We think it apt to reproduce Section 91 of the 1993 Act, which reads as under:
91. Appeal and revision.--An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such Authority and in such manner as may be prescribed.
19. Section 91 of the Act clearly stipulates that an appeal or revision would lie against a proceeding of a Panchayat and other authorities to such Authority and in such manner as may be prescribed.
20. On a scrutiny of Section 91 of the 1993 Act, it is clear as day that a proceeding of the Gram Panchayat is assailable in an appeal or revision. The Gram Panchayat functions by passing resolutions which eventually may fructify and become orders but there cannot be denial of the fact that a resolution is a proceeding of the Gram Panchayat. It is worth noting that certain resolutions of the Gram Panchayat are assailable in a different manner as provided in other provisions of the statute. To give an example, under Section 21(4) of the 1993 Act it has been provided that if the Sarpanch or the Upsarpanch, as the case may be, desires to challenge the validity of the motion carried out under Sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide, it as far as possible, within thirty days from the date on which it was received by him, and his decision shall be final. The resolutions which would have been specifically challengeable in a different manner under the 1993 Act would not come under the purview of Section 91 but other proceedings of the Gram Panchayat can be challenged by the substantive provision.
21. Thus, from the aforesaid analysis, there can be no doubt that a resolution can be challenged in an appeal or a revision as per substantive provision. But, an eloquent and fertile one, Rules 3 and 5 of the 1995 Rules when read properly, it is difficult to hold that an appeal or revision is provided against the resolution to the said authorities. To appreciate the factual matrix in proper perspective it is apposite to reproduce Rules 3 and 5 of the 1995 Rules. They read as under:
3. Appeal and Appellate Authorities.--Save where it has been otherwise provided in the Act or Rules by Bye-laws made thereunder, an appeal shall lie,--
(a) in the case of an order passed by the Sub-Divisional Officer under any provision of the Act or Rules or Bye-laws made thereunder to the Collector.
(b) in the case of an order passed by the Collector under any provisions of the Act or Rules or Bye-laws made thereunder to the Commissioner.
(c) in the case of an order passed by the Commissioner or Director of Panchayat to the State Government.
(d) in the case of an order passed by the Panchayat specified in column (1) of the Table below, to the Authority specified in the corresponding entry in column (2) thereto.
5. Revision.--(1)(a) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of the Authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by such authority and may pass such order in reference thereto as it/he may think fit:
Provided that it/he shall not vary or reverse any order unless notice has been served on the parties interested and opportunity given to them for being heard:
Provided further that no application for revision shall entertained against an order appealable under the Act.
(b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts.
(2) Notwithstanding anything contained in Sub-rule (1)-
(i) Where proceedings in respect of any case have been commenced by the State Government under Sub-rule (1) no action shall be taken by other officer mentioned in the said sub-rule in respect thereof, and
(ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in Sub-rule (1) the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit.
22. Though in Rule 5 the word 'proceedings' has been used which deals with a revision or the proceeding has been used but the said term is confined and restricted as to the regularity of the proceedings of the authorities subordinate to it and further the same pertains to a case. Thus, the rules as such do not prescribe for filing of any appeal or revision. However, the problem does not rest here. In Arti Dutta v. Eastern Tea Estate (P) Ltd. , a two Judge Bench of the Apex Court has held as under:
8. In our opinion this position is clear from the observation of this Court in Shankar Lal Aggarwal v. Shankar Lal Poddar (supra), that the appeal lies to the same High Court irrespective of the powers under the Letters Patent. Sections 397 and 398 read with Section 483 indicate that the appeal would lie in the same manner to the same Court and naturally and logically an appeal from the decision of the Single Judge would lie to the Division Bench. This is our opinion follows logically from the ratio of decision of this Court in Shankarlal Aggarwal v. Shankarlal Poddar (supra), as well as other decisions referred hereinbefore. It is true that there is perhaps no procedure to file an appeal from the decision of the learned Single Judge of the Gauhati High Court. If that is so rules should be framed by the High Court in its jurisdiction of Rule making power for filing and disposal of such appeals. But absence of the procedure rules do not take away a litigant's right to file such appeals when the statute confers such a right specifically and the jurisdiction of the High Court to dispose of such an appeal if so filed.
23. From the aforesaid enunciation of law it is luminescent that when the statute confers a right specifically mere absence of the procedural rules, does not abrogate the right of litigant. To elaborate when Section 91 confers substantive right to prefer an appeal or revision, there has to be remedy for a person aggrieved and the same cannot be totally nullified because of the absence of forum. In view of the aforesaid it is to be seen whether in the 1993 Act there is any provision which can be taken aid of.
24. Section 85 of the 1993 Act deals with power to suspend execution of orders, etc. It reads as under:
85. Power to suspend execution of orders etc.--(1) The State Government or the Prescribed Authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a Panchayat, if in his opinion,--
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised;
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or
(c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely--
(i) to cause loss, waste or misapplication of any money or damage to any property vested in the Panchayat;
(ii) to be prejudicial to the public health, safety or convenience;
(iii) to cause injury or annoyance to the public or any class or body of persons; or
(iv) to lead to a breach of peace.
(2) Whenever an order is made by the Prescribed Authority under Sub-section (1), it shall forthwith and in no case later than ten days from the date of order, forward to the State Government or the Officer nominated by the State Government for this purpose, copy of the order with the statement of reasons for making it, and the State Government or the officer nominated by it may confirm, set aside, revise or modify the order or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit:
Provided that no order of the Prescribed Authority passed under Sub-section (1) shall be confirmed (set aside), revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order.
25. On a keener scrutiny of Section 85 it is evincible that the power has been conferred on the State Government or the Prescribed Authority can suspend the resolution, order, etc. on the conditions precedent or such action being satisfied. That apart, the said order is subject to further scrutiny for the purpose of confirmation by the State Government.
The language employed under Section 91 provides an appeal or revision against an order or proceeding of the Panchayat or other authorities under the Act. It also stipulates that said appeal shall lie to such Authority and in such manner as may be prescribed.
26. If the language of Section 85 is understood properly it is evincible that power has been conferred on the State Government or the Prescribed Authority. The power is of the wide amplitude. The State Government has the authority to suspend the execution of any resolution. It also prohibits to perform any act by Panchayat. Many a ground has been enumerated empowering the State Government for interference. The term used is 'resolution' as well as 'order', etc. Though the language employed under Section 85 does not use the term suo motu but it is virtually the suo motu exercise of power because the State Government can take up the issue by itself. Suo motu power can also be invoked by a person aggrieved. In the absence of the rules it will be difficult to hold that the power of appeal or revision can be exercised by the said Authorities but Court cannot be oblivious of the fact that an appeal or revision is provided in the substantive provision of the Act. The State Government has not framed rules by providing a forum. Under these circumstances it would be apposite and seemly to hold that the person grieved can bring his grievance to the notice of the State Government and the State Government should take a decision under Section 85 of the Act. While taking the said decision the State Government shall be guided by the concept of promptitude which is an intrinsic and inseggregable facet of suo motu exercise of jurisdiction. Be it noted, while exercising suo motu power under Section 85 of the Act the State Government shall be guided by the parameters provided therein and the nomenclature given to a proceeding under Section 85 of the Act.
27. The reference is answered accordingly. Matter be placed before the Appropriate Single Bench.