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Dhana Saste vs The State Of Madhya Pradesh on 20 February, 2018

W.P. No.8461/2014 1

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
W.P. No.8461/2014
Dhanna Saste v/s State of Madhya Pradesh Others
Indore, dated 20.02.2018
Parties through their counsel.
The petitioner before this Court has filed the present
petition being aggrieved by order dated 12.11.2014 passed by
the Competent Authority under Section 40 of Madhya
Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993.
Learned counsel at the outset has argued before this
Court that a show cause notice was issued on 06.08.2014 and
a final order has been passed on 12.11.2014 after completion
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 24 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 there is any violation of
aforesaid provision, the order does not cease to be in
W.P. No.8461/2014 2

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.
W.P. No.8461/2014 3

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 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
W.P. No.8461/2014 4

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 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
W.P. No.8461/2014 5

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 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
W.P. No.8461/2014 6

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 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
W.P. No.8461/2014 7

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 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
W.P. No.8461/2014 8

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 petition in accordance
with law.

Resultantly, the present petition stands allowed.
No order as to costs.

Certified copy as per rules.

(S.C. Sharma)
Judge
Ravi

Digitally signed by Ravi Prakash
Date: 2018.02.21 15:39:10 +05’30’

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