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Namdeo Ragho Arote Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1718 of 1978
Judge
Reported inAIR1979Bom285; (1979)81BOMLR303; 1979MhLJ363
ActsBombay Village Panchayats Act, 1959 - Sections 41(1); Constitution of India - Articles 14 and 226; Bombay Village Panchayats Act, 1958 - Sections 41(1); Defence of India Act - Sections 7; Indian Penal Code (IPC), 1860 - Sections 504 and 506; Protection of Civil Rights Act, 1976; Protection of Civil Liberties Act
AppellantNamdeo Ragho Arote
RespondentState of Maharashtra and ors.
Appellant AdvocateB.R. Naik and ;Y.R. Naik, Advs.
Respondent AdvocateA.C. Agarwal, Asstt. Govt. Pleader
DispositionRule made absolute
Excerpt:
.....of discretion.;where the collector in exercise of his power under section 41(1) of the bombay village panchayat act, 1958 suspended the petitioner from the office of sarpanch till the decision of two criminal crises launched against him as charge-sheets, had been sent to the court under section 7 of the 'india defence act' and sections 504 and 506 of the indian penal code.;that since the order was passed without giving an opportunity to the petitioner to show cause, the discretion vested in the collector had not been exercised as it should have been exercised in law. the legislature must surely have expected that the collector would exercise discretion in a judicial manner and reasonably after taking care to see that the prosecutions in questions are not frivolous or vexatious...........of nasik dated july 13, 1978 purporting to have been passed under s. 41 (1) of the bombay village panchayats act, 1958, suspending the petitioner from the office of the sarpanch of village panchayat of agashkhinde, taluka sinnar, district nasik. in the absence of any affidavit in reply being filed, the undisputed facts giving rise to this petition are briefly these. there is a village pan-chayat for agashkhinde village in the sinnar taluka of the nasik district constituted under the bombay village panchayats act, 1958. there are three wards in this village. there are ten members elected to the respondent no. 3 panchayat, out of whom two belonged to the scheduled tribes, three belonged to the harijan community and the remaining five belonged to the other communities. there is a.....
Judgment:

Naik, J.

1. By this writ petition under Art. 226 of the Constitution the petitioner challenges the order of the Collector of Nasik dated July 13, 1978 purporting to have been passed under S. 41 (1) of the Bombay Village Panchayats Act, 1958, suspending the petitioner from the office of the Sarpanch of Village Panchayat of Agashkhinde, taluka Sinnar, district Nasik. In the absence of any affidavit in reply being filed, the undisputed facts giving rise to this petition are briefly these. There is a village pan-chayat for Agashkhinde village in the Sinnar taluka of the Nasik district constituted under the Bombay Village Panchayats Act, 1958. There are three wards in this village. There are ten members elected to the respondent No. 3 Panchayat, out of whom two belonged to the Scheduled Tribes, three belonged to the Harijan community and the remaining five belonged to the other communities. There is a constant rivalry between two groups -- one group consisting of the Harijans and the other group consisting of all the other communities put together. The petitioner has been a member of respondent No. 3 Panchayat since the year 1971. He was the Sarpanch in 1971-72 for about nine months. In January, 1978, because of the steps taken by the petitioner, the then Sarpanch and the Deputy Sarpanch, both of whom belonged to the Harijan community, were dislodged from their respective offices as a result of a vote of no confidence. Thereafter the petitioner was elected as the Sarpanch. In April, 1978. fresh elections were held. After the elections, elections were held for the offices of the Sarpanch and the Deputy Sarpanch, and they being contested between the two groups, the petitioner succeeded in being re-elected as the Sarpanch.

2. The petitioner's contention is that having regard to the long standing rivalry between the Harijan group on the one side and the other group of the panchayat on the other, and the fact that the petitioner was responsible for dislodging in January, 1978. the Harijan Sarpanch and Upsarpanch by getting the Panchayat to pass a no confidence motion against them, the Harijan community, including the elected members of the Panchayat, are out to take revenge against him. It is further his version that one Chaitram Pimple, Gram Sevak of respondent No. 3, who is also a Harijan is hostile to the petitioner and it is his complaint, that the Harijan members of the Panchayat and the said Gram Sevak have together conspired to dislodge him from the office of the Sarpanch to which he was elected in April, 1978.

3. It is as against that background, complains the petitioner, that in about March, 1978, one Hari Bapu Tribhavane lodged a complaint against the petitioner and one Malhari Barkale, alleging inter alia that when the complainant had been to the hotel to purchase Beedi, the petitioner and the said Barkale abused the complainant. The second complaint was lodged against the petitioner on 9th May, 1978 by the Gram Sevak of respondent No. 3, wherein the said Gram Sevak alleged that on or about 4th Oct. 1977, during the meeting of respondentNo. 3 Panchayat the petitioner abused him. After receipt of these complaints, it appears that the Police Sub Inspector, Sinnar, by his letter dated July, 11, 1978 reported to the Collector that two criminal cases had been launched against the petitioner and that charge-sheets had been sent to the Court on March 9, 1978 and May 6, 1978 respectively under Section 7 of the Defence of India Act. The petitioner's grievance is that the sole object of the said false complaints was to dislodge him from the office of the Sarpanch of respondent No. 3 Village Panchayat. It further appears that on receipt of the said report, the Collector passed the impugned order on July 13, 1978 in purported exercise of the powers under Section 41(1) of the Bombay Village Panchayats Act, 1958, suspending the petitioner from the office of Sarpanch till the decision of the cases launched against him. It is the petitioner's grievance that the said order was passed without giving him an opportunity or without issuing a show cause notice to him. He, therefore, contends that the order is passed in exercise of the jurisdiction not vested in the Collector and that the Collector acted with material irregularity in flagrant violation of the principles of natural justice without applying his mind and without giving, any opportunity to the petitioner. The order is also challenged on the ground that S. 41 (1) of the Act is violative of the provisions of Article 14 of the Constitution.

4. Immediately after we were taken through the record, by Dr. Naik we called upon the Assistant Government Pleader flow he could support the order. Mr. Agarwal supported the order of the Collector -- firstly, on the ground that the order is passed in exercise of the power of the Collector vested in him under Section 41 (1) of the Act. Secondly, he submitted that it was after-all for the Collector to decide on the material placed before him whether he should take action under that provision or not, and if he felt that there was sufficient material before him to take the action, since -this is not a Court of Appeal, this Court cannot interfere with the order passed by the Collector in the exercise of its extraordinary jurisdiction.

5. Now, Section 41 (1) of the Act reads as under:

'The Collector may suspend from office any Sarpanch or UpSarpanch against whom any criminal proceedings have been instituted or who has been detained in a prison during trial under the provisions of any law for the time being in force.'

Now, let us at this stage set out for ready reference the impugned order, which reads as under:

'The Police Sub-Inspector Sinnar under his No. 1156 dated 11-7-1978 has reported that two criminal cases have been launched against Shri Namdeo Ragho Arote of Agaskhind Taluka Sinnar, and the charge-sheets have been sent to that Court on 9-3-1978 and 6-5-1978 under Sec. 7 of the Defence of India Act and Ss. 504 and 506 Of the Indian Penal Code respectively.

In exercise of the powers conferred under Section 41 (1) of the Bombay Village Panchayat Act, 1958, the Collector of Nasik hereby orders that the Sarpanch Shri Namdeo Ragho Arote of Agashkhinde Village Panchayat, Taluka Sinnar should be suspended from the office till the decision of the cases launched against him by the Police authorities.

Sd/-

Ashoke Basak

Collector of Nasik.'

Undoubtedly in passing the impugned order the Collector may be said to have acted within the letter of law inasmuch as the first and primary rule of construction is that a statute must be construed literally in the normal course. But it is significant to remember that we are here concerned with the power, which has got to be exercised in the discretion of the Collector. When power has been vested to be exercised in the discretion of an authority, the authority is expected to act, reasonably with justice and after applying its mind to the facts of the case. Evidently, when discretion is given, it is not expected that power should be exercised by the authority as an automaton, merely because the requirements of the statute are complied with. The very fact that a discretion has been conferred, shows that it has got to be exercised judicially. It is not in every case that an action under the section could be taken. Now, ininstant case we find that as against the undisputed facts leading to this litigation, as set out by us while setting the case of the petitioner the background of the case was such, that if the Collector had applied his mind, we do not know what his decision would have been. The material on record shows that the Collector does not seem to have applied his mind and he seems to have acted as an automaton merely on receipt of a report of the Police Sub-Inspector stating, inter alia, that two criminal cases had been launched against the petitioner and charge-sheets had been sent to the Court on March 9, 1978 and May 6, 1978 under S. 7 of the India Defence Act and Ss. 504 and 506 of the I.P.C. respectively. When we called upon Mr. Agarwal to enlighten us as to what is the Act referred to in this order, Mr. Agarwal submitted that there is no such Act as India Defence Act concerned with the case and that what was probably meant was the Protection of Civil Rights Act, 1976. Mr. Agarwal submitted that after receipt of the report of the Sub-Inspector, the Collector had called for the charge-sheets and it is on reading these charge-sheets, Mr. Agarwal could make out that the reference to the offences was, under the Protection of Civil Liberties Act. No return was filed to show that any charge-sheets were called for. Even if they were called, there is intrinsic material to show in the order itself, that the Collector has not applied his mind before passing the. impugned order, which has serious consequences prejudicial not only to the petitioner but also to the Village Panchayat. The very fact that an Act, which was not at all concerned with the case, is mentioned in the impugned order would furnish intrinsic material about the non-application of mind to the case of the petitioner.

6. It is not disputed that the petitioner was not at all heard in the matter. When a discretion is given to an authority, as we have observed earlier, the exercise of that discretion necessarily involves the application of mind and acting reasonably and with justice, which in turn necessarily involves the observance of natural justice, which means that the other party must beheard before any adverse order is passed. Since this order was passed without giving an opportunity to the petitioner to show cause, we are of the view that the discretion vested in the Collector has not been exercised, as it should have been exercised in law. We do not know what would have been the decision of the Collector, if he were to give an opportunity to the petitioner and to hear from him, as appears from the petition, that the prosecutions seem to have been launched against him in a bid to avenge the petitioner's conduct of dislodging two Harijans from the offices of Sarpanch and UpSarpanch in Jan., 1978. To us, it is not the literal meaning but the spirit under the section, which gives such discretion to the Collector has to be given effect to. The Legislature must have surely expected that the Collector would exercise the discretion in a judicial manner and reasonably after taking care to see that the prosecutions in question are not frivolous or vexatious. The facts go to show that there was a clear non-application of mind by the Collector as well as disregard of natural justice and therefore, the order cannot be sustained. In this connection, we are fortified by the ratio of the decided cases as laid down in Maxwell on the Interpretation of Statutes, Twelfth Edition. At page 146, it is observed that the modern tendency seems to be against construing statutes so as to leave the person or body upon whom a power is conferred absolutely untrammelled in the exercise of it. At pages 147 and 148 we have the following observations:

'Even though an act done is ostensibly in execution of a statutory power and within its letter, it will nevertheless be held not to come within the power if done otherwise than honestly and within the spirit of the enactment. A discretion is to be 'regulated according to known rules of law' and not the mere whim or caprice of the person to whom it is entrusted on the assumption that he is discreet. 'When,' said Lord Halsbury L. C., 'it is said that something is to be done within the discretion of the authorities...... that something is to be done according to the rules of reason and justice, not according to private opinion.' Further at page 148:

' 'It is true' said Lord Greene M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,' the discretion must be exercised' reasonably. Now what does that mean?....For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider.'

Applying these tests also, it would appear that the view we have taken accords with the well accepted principles of interpretation of statutes.

7. In the view we are taking on the merits of the case, we do not think it necessary to consider the question as to whether Section 41 (1) is violative of the provisions of Article 14 of the Constitution and, therefore, no arguments were heard by us on that point.

8. The impugned order is quashed and the rule is made absolute.

9. There shall be no order as toCosts.

10. Rule made absolute.


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