Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-1-)

W.P. No.22373/2017
(Ku. Preeti Patidar Vs. State of Madhya Pradesh)
Indore, dated: 19.06.2018
Parties through their counsel.
The petitioner before this Court has filed this present
petition for quashment of order dated 05.12.2017 passed by
the competent authority under Section 40 of Madhya Pradesh
Panchayat Avam Gram Swaraj Adhiniyam, 1993.
Undisputedly, in the present case, first show-cause
notice was issued by the Sub Divisional Officer on
13.04.2017 and thereafter, the competent authority has also
issued show-cause notice 06.06.2017 and final order has
been passed on 05.12.2017, 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 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 :–
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-2-)

(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 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
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-3-)

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 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
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-4-)

(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
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
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-5-)

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 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
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-6-)

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 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
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-7-)

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 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
Kr. Preeti Patidar Vs. State of Madhya Pradesh (W.P. No.22373/17) (-8-)

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)
N.R. Judge

Digitally signed by NARENDRA
KUMAR RAIPURIA
Date: 2018.06.23 13:37:48
+05’30’