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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 4313 OF 2008
Mohan Ajabrao Telkhade,
aged Major, Occu. Agriculturist,
R/o Rama, Tq. Bhatkuli,
Distt. Amravati.
ig PETITIONER.
VERSUS
1. The State of Maharashtra,
Department of Rural Development
And Water Conservation,
Mantralaya, Mumbai.
2. The Hon'ble Minister
Department of Rural Development
And Water Resources,
Mantralaya, Mumbai.
3. The Commissioner,
Amravati Division Amravati.
4. Additional Collector,
Amravati District Amravati.
5. Chief Executive Officer,
Zilla Parishad, Amravati.
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6. Sunil Digambar Junghare,
aged 34 yrs., Sarpanch,
Gram Panchayat Rama.
7. Vaijayanta Dadarao Gawai,
aged 45 yrs. Upasarpanch.
8. Pramia Baburao Damle,
aged 50 yrs. Member.
9. Pravin Madhukarrao Ghongade,
aged 32 yrs., Member.
Respondents 6 to 9 residents of
Rama Tq. Bhatukli District
Amravati. RESPONDENTS.
Shri. A. S. Kilor, Counsel for the petitioner.
Shri. Vaishnav , Counsel for the respondents.
CORAM: C. L. PANGARKAR J.
Date: 3rd JULY 2009.
ORAL JUDGMENT:
By this Writ Petition the petitioner challenges the order
passed by the Hon'ble Minister whereby he set aside the order of
Commissioner under Village Panchayat Act dissolving the Gram
Panchayat, and directing by-elections for vacant posts to be held.
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2. Facts
giving rise to the petition are as follows:
There is a Gram Panchayat at village Rama which consists
of 9 members. Petitioner submits that out of the nine, four
members were disqualified on the ground that they had deliberately
remained absent during the meeting of the Gram Panchayat. One
of the members of the Gram Panchayat was disqualified under
Section 14 of the Bombay Village Panchayat Act and as such total
five members out of nine were disqualified from holding the office
of the Member of the Gram Panchayat. Accordingly the Chief
Executive Officer of the Zilla Parishad had submitted a report to the
Additional Collector on 20.12.2006 informing him that out of nine,
five posts have fallen vacant. Proposal was submitted for the
dissolution of the said Panchayat. Additional Collector thereafter
submitted a proposal to the Commissioner i. e. respondent No. 3 to
dissolve the Panchayat. Thereafter respondent No.3 Commissioner
passed an order on 08.01.2007 dissolving the said Gram Panchayat.
Respondents 5 to 8 felt aggrieved by the said order of dissolution
and they preferred a revision application under Section 154 before
the Commissioner i. e. respondent No.3 for quashing and setting
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aside the said order. Respondents 5 to 8 also preferred an
application for stay along with said application under Section 154 of
the Village Panchayat Act. Although the said application was not
maintainable the petitioner submits that respondent No.3
Commissioner registered the said application and revision
application and granted stay on 23.01.2007 to the order passed by
him on 08.01.2007. The said stay order continued for a period of
almost one year. On 06.12.2007 the said application preferred by
the respondents 5 to 8 came to be dismissed on the ground that it
was not maintainable. That order was passed on 01.01.1008. After
the said revision was dismissed by the Commissioner respondents 5
to 8 preferred a revision before the respondent No.2, the Minister
for Rural Development. Respondent No.2 granted stay to the order
of dissolution. Thereafter the petitioner had challenged the said
order of stay by filing Writ Petition No. 1412 of 2008. The said Writ
Petition was listed before this Court on 17.06.2008. All respondents
except respondent No.7 were shown to be served. The petitioner
submits that respondents 1 to 5 including the Minister were aware
of the stay granted by the High Court. Inspite of such stay having
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been granted, it is alleged that respondent No.2 passed an
impugned order dated 10.06.2008 setting aside the dissolution of
the Gram Panchayat and directing by-elections to be held. The
petitioner mainly contends that order passed by the Minister is
illegal because the Minister could not have entertained the revision
against the order of the Commissioner since the Minister’s powers
have been delegated to the Commissioner.
3.
I have heard the learned counsel for the petitioner as well
as respondents.
4. Order is challenged mainly on the ground that once the
State Government delegates the powers to the Commissioner under
Section 145 of the Village Panchayat Act the State could not have
entertained the revision under Section 145 of the Village Panchayat
Act.
Section 145 of the Village Panchayat Act reads as follows:
145. Dissolution of Panchayat: (1)
If, in the opinion of the State Government a
Panchayat exceeds or abuses its power or is
incompetent to perform, or makes persistent
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default in the performance of, the duties
imposed on it or functions entrusted to it
under sub section (1) of Section 45 or any
other provision of this Act or by or under any
other law for the time being in force [or has
failed to levy taxes referred to in clauses (i)
and (1-a) of sub section (1) of Section 124] [or
has failed to levy taxes referred to in clauses
(viii) and (xii) of sub section (1) of Section 124
when it was compulsory to levy such taxes
under sub section (1) of Section 124] or fails
to obey an order made by the [Panchayat
Samiti] under Section 128 of persistently
disobeys any of the orders of the [Standing
Committee] or Commissioner under Section
142 [or wilfully disregards any instructions
given by the Zilla Parishad or Panchayat
Samiti under Section 152 or by any
competent authority arising out of audit of
accounts under this Act or inspection of the
office and work of the Panchayat or
instructions given or directions issued by the
State Government under Section 153-A], the
State Government may, after consultation
with the [Zilla Parishad] and after giving the
Panchayat an opportunity of tendering an
explanation, by order in the Official Gazette.
i. dissolve such Panchayat 3***
ii 4***
[1-a] If more than half the total number of
seats in a Panchayat have become vacant, the
State Government may, by order in the
Official Gazette, dissolve such Panchayat.]”
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It is obvious from Section 145(1-a) that the power to dissolve is to be
exercised by the State Government. State Government has
admittedly delegated its powers to the Commissioner as can be
seen from the Circular issued by the Government of Maharashtra
on 01.06.1983. Shri Kilor learned counsel for the petitioner submits
that once the power is delegated by the State to the Commissioner
any order that is passed by the Commissioner would be deemed to
be passed by the State Government, Commissoner having stepped
into the shoes of the Government. Shri Kilor learned counsel
further submits that if that order of the Commissioner is treated as
an order of Government, Government cannot revise its own order at
all and exercise powers under Section 154 of the Village Panchayat
Act. He relied on a decision of the Supreme Court in M/s OCL India
Ltd. Vs. State of Orissa and Others A. I. R. 2003 Supreme Court
2148, Supreme Court has observed:
“13. Thus, it is clear that the power
conferred on the Assistant Commissioner
was under clause (a) of sub section (4) ofSection 23 of the Act read with Rule 80 of the
Rules. The Commissioner has revisional
power to call for the records and revise the
orders not only of the Sales Tax Officer but
also of the Assistant Commissioner.
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Additional Commissioner and Special
Additional Commissioner, the power that
was delegated to the Assistant Commissioner
was confined to the orders passed by the
Sales Tax Officers. In the result the
Commissioner retained his power to revise
the orders passed by the Assistant
Commissioner, Additional Commissioner
and Special Additional Commissioner,.
However, in regard to the orders passed by
the Sales Tax Officer, after the delegation, the
Assistant Commissioner was competent to
revise and in fact, he did exercise the power
to revise the order of the Sales Tax Officer,
after issuing a show cause notice dated
December 13, 1995. If that be so, the power
of the Commissioner (the delegator) under
the aforequoted provisions has been
exhausted by the Assistant Commissioner
and the Commissioner cannot, in law,
exercise the delegated power over again.
14. It is no doubt true that the
Commissioner is not denuded of the
statutory power of revision after delegation,
but that, in view of the said notification, only
means that he can resume that power or
cancel the delegation of revisional power to
the Assistant Commissioner. That, by no
stretch of imagination, can be construed to
mean that once the orders have been
examined under the revisional power by the
Assistant Commissioner (the delegatee) the
same orders can again be subjected to the
revisional jurisdiction by the Commissioner.”
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In the reported case also the power to hear the revision against
order of Sales Tax Officer was delegated by the Commissioner to
Assistant Commissioner and therefore the Commissioner could not
exercise the powers of revision himself against the order of the
Sales Tax Officer. In the instant case what has been delegated is
power to dissolve the gram panchayat under Section 145. That
power cannot now be exercised by the State, it will have to be
exercised by the Commissioner alone. The order passed by the
Commissioner is deemed to be passed by the State. Shri Kilor
learned counsel for the petitioner submits that if the order that is
passed by the Commissioner is deemed to be order of State, then
the State cannot revise its own order. The submission appears to be
sound. If the State entertains revision against the order of
Commissioner it would amount to sitting in appeal against its own
order. Such a power cannot now be exercised by the State under
Section 154 or 155. Hon’ble Minister therefore could not have
entertained the revision against the order of the Commissioner.
Order of the Minister therefore is patently illegal.
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5. Shri Vaishnava learned counsel for the respondents
submits that order passed by the Commissioner is illegal and
therefore even if it is set aside by the Minister having no jurisdiction
still this Court need not interfere into same in its writ jurisdiction.
He relied on a decision of this Court in Madhukar Baburao
Deshmukh Vs. Jalgaon Jullha Maratha Vidya Prasarak Coop.
Samaj Ltd., Jalgaon and Others 2002(3) Maharashtra Law Journal
201:
“The provisions of law contained
in Section 154 therefore, apparently requirescompliance of basic principles of natural
justice before any order of lower authority is
being interfered with. Here is a case where
the order in favour of the respondent No.2was set aside without hearing him. The
Apex Court in Maharaja Chintamani SaranNath Shahdeo Vs. State of Bihar and others
reported reported in (1999)8 SCC 16, has
held that where setting aside an order on the
ground of lack of jurisdiction would result inthe revival of an illegal order, then refusal to
interfere even with the order lacking
jurisdiction would be justified. Interference
in the impugned order in the case in hand,
even if the impugned order is withoutjurisdiction, would virtually amount to
revival of illegal order dated 31.12.1999. In
the facts and circumstances of the case,
therefore, it is preferable to refrain from
interfering in the impugned order.”
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6. Chief Executive Officer had sent a proposal to the
Commissioner on 20.12.2006 to dissolve the Gram Panchayat. He
had informed that out of nine members four had remained absent
continuously for a period of six months unauthorisingly and have
been disqualified, while one more member has been disqualified
under Section 114 of the Village Panchayat Act and therefore 5 seats
have fallen vacant. Commissioner exercising power under Section
145(1-A) dissolve the Gram Panchayat by order dated 08.01.2007.
This order was challenged before the Commissioner himself by an
application purporting to be one under Section 154 of the Village
Panchayat Act. The said application which can be either treated as
revision or appeal was filed (decided) by the Commissioner by
order dated 01.01.2008 apparently without hearing the respondent
herein and holding that appeal was not maintainable. This is
challenged before the Hon’ble Minister . The Hon’ble Minister
apparently sets aside both the order dated 08.01.2007 and
01.01.2008 under Section 155. Shri Vaishnava learned counsel for
the respondent submits that this order of Minister be not set aside
as order was passed by the Commissioner without hearing
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respondent and that order is therefore illegal. He submits that if the
order of Minister is set aside that would revive the illegal order of
the Commissioner and that is not permissible in writ jurisdiction.
He had relied on the decision of Madhukar Deshmukh’s case. The
Court may not interfere when the result is of revival of order which
is illegal. The question is whether the order of the Commissioner
passed on 01.01.2008 could be said to be illegal. The only ground
for contending that said order is illegal is breach of the principles of
natural justice i. e. hearing. The order seems to be passed without
hearing. The order however to my mind cannot be said to be illegal.
The revision/appeal was filed in fact before the same authority who
had passed the order under challenge. It is a simple proposition of
law that one cannot be a judge in his own cause. Knowing fully
well that order under challenge is passed by very same authority,
the revision/appeal was filed before the same authority. To my
mind an order becomes illegal when the authority entitled to hear
and decide the appeal or revision does not hear the party and
decides it. This will be in breach of principles of natural justice but
when an authority before whom no appeal or revision could lie files
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that appeal so that it had entertained does not commit any breach
of principles of natural justice. Particularly in this case the
appeal/revision was presented to the very same authority whose
order was under challenge. In this particular case therefore even if
the respondent was not heard it could not be said that the order
passed by the Commissioner was illegal. Commissioner in any case
could not have entertained the appeal or revision and stay his own
order. Such an act of entertaining appeal and granting stay initially
by the Commissioner itself was illegal and he corrected his own
order by vacating the stay order and holding that he could not
entertain the appeal/revision. In fact initial order of entertaining
the appeal and grant of stay as said earlier was illegal and non-est.
The order of the Hon’ble Minister is non est as he did not have the
power to entertain the revision once power to dissolve was
exercised by the Commissioner for and on his behalf. In fact that
order being an illegal order needs to be set aside.
7. Order of the Commissioner in not entertaining the
revision and vacating the stay was perfectly justified in the
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circumstances. The Minister should not have entertained the
appeal/revision and set aside the order dated 08.01.2007 when that
order was not under challenge before him. The order under
challenge was dated 01.01.2008 as can be seen from the prayer
clause in the revision application before the Minister. The Hon’ble
Minister in fact has set aside the order dated 08.01.2007 though not
under challenge. This is another reason why the order of the
Hon’ble Minister can be said to be illegal. In fact if the order of the
Hon’ble Minister which is illegal is not set aside and that illegal
order would still continue to hold a field which this Court cannot
allow. In the circumstances the Writ Petition must succeed. The
order passed by the Hon’ble Minister is set aside. Writ Petition is
allowed. No order as to costs.
JUDGE
svk
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