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Mantar Singh vs Panchayat Evam Social Justice … on 16 July, 2018

1 WP No. 8661/2018

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

WP No. 8661/2018
(Mantar Singh Vs.State of M.P.)
INDORE dt. 16-07-2018

Parties through their counsel.

The petitioner before this Court has filed this present
petition for quashment of order dated 27.03.2018 passed by
the competent authority under Section 40 of Madhya
Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993.

Undisputedly, in the present case, the show-cause
notice was issued by the respondent No.2 Chief Exeucitive

Officer on 08.09.2017 and thereafter, and final order has
been passed on 27.03.2018, 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 23 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
2 WP No. 8661/2018

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 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
3 WP No. 8661/2018

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 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
4 WP No. 8661/2018

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 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
5 WP No. 8661/2018

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 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
6 WP No. 8661/2018

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 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
7 WP No. 8661/2018

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 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 petitioner in
accordance with law.

8 WP No. 8661/2018

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

Certified copy as per rules.

(S.C. SHARMA)
JUDGE

Rashmi

Digitally signed by Rashmi
Prasahant
Date: 2018.07.18 14:43:19
+05’30’

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