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Arun Kumar Singh Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 383 of 1983
Judge
Reported inAIR1985MP205
ActsMadhya Pradesh Panchayat Act, 1981 - Sections 2, 16, 16(2), 16(3), 18, 81, 87, 87(1) and 87(2); Constitution of India - Article 226
AppellantArun Kumar Singh
RespondentState of M.P. and ors.
Appellant AdvocateB.D. Tiwari, Adv.
Respondent AdvocateM.A. Shah, Dy. Govt. Adv.
DispositionPetition allowed
Excerpt:
.....also contended by the learned deputy government advocate that even if the order passed by the sub-divisional officer is found to be bad in law, still it could not be said that it was passed mala fide as the sub-divisional officer initially submitted his report of non-compliance under section 16 to the collector but the collector returned it back to the sub-divisional officer to proceed in accordance with section 87. it is under these circumstances that the sub-divisional officer proceeded under section 87 and passed the impugned order. this, therefore, clearly indicates that the prescribed authority under section 87 ought to be a superior officer and therefore by notification the prescribed authority under section 87 has been notified to be the collector of the district. 13. under these..........declaring him disqualified for five years. it was contended on behalf of the petitioner that the prescribed authority under section '87( 1) is the collector of the district according to the notification issued by the state government and not the sub-divisional officer and, therefore, the order passed by the sub-divisional officer sending the petitioner to custody is absolutely without jurisdiction. it was also contended that while passing the order the sub-divisional magistrate did not consider even a legitimate prayer of the petitioner that on the day he was called upon to hand over charge, he was busy and therefore he will hand over the charge a day after and even this prayer was not considered and without considering this prayer the order passed is not an order which a.....
Judgment:
ORDER

1. This is a petition filed by the petitioner seeking a direction to quash the order dt. 24th Sept. 1983 passed by the respondent 2 directing the detention of the petitioner in civil prison for thirty days and also an order declaring him disqualified under the M. P. Panchayat Adhimyam, 1981 for holding the post of a Ranch for five years.

2. This petition was filed by the petitioner as a petition for habeas corpus as he was in detention under the orders passed by respondent 2.

3. According to the petitioner, he is a permanent resident of village Chandrokhar, tahsil Gohad, district Bhind and he was a Sarpanch of the Gram Panchayat, Chandrokhar, before the recent elections. It is also alleged that the petitioner is a political worker and he claims to be an active member of Lok Dal, one of the political parties in India. It is also alleged by the petitioner that as a political worker he has criticised the work and conduct of respondent 2 and has also made complaints against him and it is alleged that, therefore, respondent 2 carried prejudice in his mind against the petitioner and as he has even conveyed to him that he should withdraw his complaints against him, otherwise he may suffer consequences.

4. According to the petitioner, on 21st Sept. 1983 respondent 2 served a notice on the petitioner purporting to be a notice under Sections 16 and 87(1) of the M.P. Panchayat Adhiniyam, 1981, asking the petitioner to hand over charge of the Sarpanch of Gram Panchayat, Chandrokhar, to Shri Babu Singh, newly elected Sarpanch, on 23rd Sept. 1983. It was also stated in the notice that if the petitioner fails to hand over charge, action will be taken against him under Section 87(2) of the Panchayat Adhiniyam. It is alleged that the petitioner, when this notice was served on him, wrote on the notice itself that as he is busy in his political activities on 23rd Sept. 1983 it will not be possible for him to hand over charge on that date. However, he stated that he will hand over charge on or before 25th Sept. 1983 and it is alleged that in spite of this prayer made by the petitioner, respondent No. 2, on 24th Sept. 1983 itself, without considering this prayer of the petitioner, out of malice and prejudice against the petitioner, passed the impugned order sending him to custody for thirty days and also declaring him disqualified for five years. It was contended on behalf of the petitioner that the prescribed authority under Section '87( 1) is the Collector of the district according to the notification issued by the State Government and not the Sub-Divisional Officer and, therefore, the order passed by the Sub-Divisional Officer sending the petitioner to custody is absolutely without jurisdiction. It was also contended that while passing the order the Sub-Divisional Magistrate did not consider even a legitimate prayer of the petitioner that on the day he was called upon to hand over charge, he was busy and therefore he will hand over the charge a day after and even this prayer was not considered and without considering this prayer the order passed is not an order which a quasi-judicial tribunal is expected to pass and therefore also it deserves to be quashed.

5. It was also contended that this order was passed mala fide and even a notice alleged to have been issued to the petitioner for handing over charge was not served on him, and there is no material on the basis of which it could be said that the notice for handing over charge was served on the petitioner, and, therefore, this order is passed without affording an opportunity to the petitioner to show cause. Consequently, it is contended that this order deserves to be quashed on this ground also. It is also contended that all these circumstances indicate that respondent 2 passed the impugned order with prejudice as he had malice against the petitioner and the order being mala fide also is sought to be quashed.

6. Learned Deputy Government Advocate appearing for the respondents contended that the prescribed authority under Section 16(1) is the Sub-Divisional Officer whereas the prescribed authority under Section 87( 1) is the Collector of the district, but it is contended that as Section 87(1) only provides a procedure for further action as contemplated under Section 16 of the Panchayat Adhiniyam, the language in Section 87(1) has to be interpreted to mean the prescribed authority as contemplated under Section 16(1) and not the prescribed authority under Section 87(1). As regards the contention about the prayer made by the petitioner for handing over charge on or before 25th Sept 1983, it was contended that although this endorsement the petitioner wrote on the notice itself but the Sub-Divisional Officer did not consider it fit, as notice was already served on the petitioner for handing over charge earlier. Although learned counsel frankly conceded that there is an affidavit to the effect that notice was served but there are no papers in the file to indicate that it was served except that the result of election was notified by affixtures.

7. Learned Deputy Government Advocate also contended that although the order passed is for detention for thirty days but the petitioner has been released by an interlocutory order passed by this Court on 25th Oct. 1983 and as the petitioner has already been released no useful purpose will be served by entertaining the petition as the respondents have now no desire to send him to jail as he has already handed over charge and returned the papers and the property of the Panchayat to the newly elected Sarpanch.

8. It was also contended by the learned Deputy Government Advocate that even if the order passed by the Sub-Divisional Officer is found to be bad in law, still it could not be said that it was passed mala fide as the Sub-Divisional Officer initially submitted his report of non-compliance under Section 16 to the Collector but the Collector returned it back to the Sub-Divisional Officer to proceed in accordance with Section 87. It is under these circumstances that the Sub-Divisional Officer proceeded under Section 87 and passed the impugned order. As regards the declaration about disqualification it was contended that it is a consequence of the order passed under Section 87 and the Sub-Divisional Officer having passed an order under Section 87 has no power to pass an order under Section 16(4) as a consequence of the order passed under Sub-section (3).

9. Learned counsel for the petitioner contended that the release of the petitioner by an interlocutory order of this Court does not make the petition infructuous as the order detaining the petitioner in civil prison is an order for a fixed period and it says that the petitioner shall be detained in civil prison for thirty days. It is not an order which prescribes that he will be detained till he hands over charge and in the language of Sub-section (2) of Section 87 an order for detention for thirty days could be passed. It was contended that the interlocutory order passed by this Court also reads: 'it is directed that the petitioner Arun Kumar Singh shall be released immediately on his furnishing an undertaking that if ultimately it is found that his detention was lawful, he will surrender to custody.' It was, therefore, contended that this interlocutory release of the petitioner itself was conditional and if the order is maintained he will have to go to jail to serve the remaining part of the term for which he was sent to civil prison and therefore the petition has to be decided as the legality of the order passed by the Sub-Divisional Officer is challenged. It was contended by the learned Deputy Government Advocate that although in the order of detention while signing, the Sub-Divisional Officer's designation has been described as 'Sub-Divisional Magistrate' and an attempt has been made in the return to justify the designation 'Sub-Divisional Magistrate' but it was contended that it appears only to be a clerical error and the justification sought in the return is not justified.

10. Section 16(1), (2) and (3) reads :-

'16. Handing over charge by the outgoing Sarpanch -- (1) As soon as may be after taking over the charge of the office by the new sarpanch, the outgoing sarpanch shall hand over the charge of his office to the new sarpanch.

(2) If the outgoing sarpanch fails or refuses to hand over charge of his office in accordance with Sub-section (1), the prescribed authority may, by order in-writing, direct the outgoing sarpanch to hand over forthwith charge of his office and all papers and property in his possession as sarpanch, to the new sarpanch.

(3) If an outgoing sarpanch fails to comply with the direction under Sub-section (2), the prescribed authority shall proceed against him in accordance with Section 87.'

The scheme of this section, therefore, it appears, is that first an outgoing sarpanch shall be noticed to hand over charge to the new incumbent. Sub-section (2) of this section provides that if the outgoing sarpanch fails or refuses to hand over charge, then he will be directed by the prescribed authority to hand over charge of his office and the property and papers of the panchayat in his possession, and Sub-section (3) provides that even after a direction under Sub-section (2) if the outgoing sarpanch fails to comply, the prescribed authority shall proceed against him in accordance with Section 87.

11. It is, therefore, clear that a direction to hand over charge as contemplated under Sub-section (2) although is alleged to have been issued, but there is no material on the basis of which it could be said that it was served on the petitioner. Learned Deputy Government Advocate also was not in a position to produce any paper to show that such a direction was ever served on the petitioner. It appears that respondent 2, the Sub-Divisional Officer, on an assumption that an order under Sub-section (2) has already been served wanted to proceed under Sub-section (3) and therefore he first submitted his report to the Collector for action under Section 87 as in Section 87 of the Act it is provided that action under Sub-section (1) could be taken by the prescribed authority notified by the State Government. It is not in dispute that under Section 87(1) the prescribed authority is the Collector, whereas the prescribed authority under Sub-section (2) of Section 16 is the Sub-Divisional Officer and the prescribed authority under Section 16(3) is also the Sub-Divisional Officer. It is because of this that it was contended that when the Sub-Divisional Officer proceeds under Sub-section (3), he is the prescribed authority as contemplated under Section 87 and, therefore, he could proceed under Section 87(1) and (2). This argument advanced by the learned Deputy Government Advocate appears to be fallacious. Section 16(3) provides that when an outgoing sarpanch fails to comply with the direction issued under Sub-section (2), the prescribed authority may choose to proceed against him in accordance with Section 87. It, therefore, appears that the decision as to whether proceedings under Section 87 should or should not be started against the outgoing sarpanch is the jurisdiction of the prescribed authority under Sub-section (3) but as soon as he chooses to take action, Section 87 comes into operation and Section 87(1) provides that when the prescribed authority is of the opinion that any person has unauthorisedly kept in his custody any record or article or money belonging to the panchayat, he may require that the record or article or money be delivered or paid forthwith to the panchayat in the presence of such officer as may be appointed by the prescribed authority in this behalf. Section 87(1) reads : --

'87. Power to recover records, articles and money.-- (1) Where the prescribed authority is of the opinion that any person has unauthorisedly in his custody any record or article or money belonging to the panchayat, he may by a written order require that the record or article or money be delivered or paid forthwith to the panchayat in the presence of such officer as may be appointed by (he prescribed authority in this behalf.'

This section talks of a prescribed authority and it is not disputed that the prescribed authority under Section 87(1) is the Collector of the district. If the argument of the learned Deputy Government Advocate is accepted that the prescribed authority under Section 16 could proceed under Section 87 also, there was no reason why it has not been stated in Section 87(1) that the prescribed authority under Section 16 is the prescribed authority under Section 87. In fact, by a notification the prescribed authority under Section 87 has been notified to be the Collector.

This notification has been issued in exercise of delegated functions under Section 2(e) and it appears that the State Government while discharging these legislative functions under the delegated authority notified that the prescribed authority under Section 87(1) will be the Collector of the district. This, therefore, is the legislative notification which conferred powers under Section 87 on the Collector of the district and it appears to be logical that the Legislature in their wisdom chose that when drastic action under Section 87 is to be taken, the authority should be a higher authority and therefore the Collector is notified to be the authority under Section 87(1). There is no problem of interpretation as it is clear that the prescribed authority under Section 16 has only to take a decision as to whether action under Section 87 should or should not be taken. As soon as the prescribed authority under Section 16 comes to a conclusion that an action under Section 87 has to be taken, the only course open to him is to submit the papers to the prescribed authority so notified to exercise powers under Section 87. As the language of Section 87(1) indicates, this prescribed authority has again to examine the matter and to form an opinion that any person has unauthorisedly kept in his custody any record or article or money belonging to a panchayat. This scheme of Section 87 therefore indicates that the Legislature intended that even after a decision is taken by a prescribed authority under Section 16, the matter should be examined by the prescribed authority under Section 87 afresh. This, therefore, clearly indicates that the prescribed authority under Section 87 ought to be a superior officer and therefore by notification the prescribed authority under Section 87 has been notified to be the Collector of the district. This also appears to be logical because under Section 87 a drastic action to the extent of depriving a citizen of his liberty could be taken and therefore it appears that the Legislature in its wisdom chose that this authority should be with a senior officer i.e. the Collector of the district. The scheme of the Act as discussed above does not leave any manner of doubt about the interpretation of the words 'prescribed authority' as mentioned in Section 16(3) and in Sub-section (1) of Section 87. The two are different functions and therefore the two different authorities have been notified as authorities under the two sections. In this view of the matter, therefore, it is clear that the order passed by the Sub-Divisional Magistrate detaining the petitioner in civil prison for thirty days could not be justified as he had no jurisdiction under Section 87(1) to pass the impugned order of detention.

12. It is also apparent that initially a direction under Section 16(2) was not served on the petitioner. Therefore there was no occasion for the Sub-Divisional Officer to proceed under Sub-section (3) and when he chose to proceed under Sub-section (3) on the notice itself a request was made by the petitioner that on account of certain activities it was not possible for him to hand over charge on 23rd Sept. 1983 itself but he wanted a day's accommodation but unfortunately the Sub-Divisional Officer did not read this part of the notice nor considered it and chose to proceed under Section 87 for which he had no jurisdiction. Under these circumstances, therefore, even an order passed by the Sub-Divisional Officer deciding to proceed under Section 87 also is not justified as it has been passed without affording a reasonable opportunity to the petitioner.

13. Under these circumstances, therefore, the initial stage of proceeding under Section 16(3) itself is bad in law and therefore subsequent proceedings are also not justified. The contention advanced by the learned Deputy Government Advocate that the petitioner has been released by an interlocutory order and therefore the petition should not be entertained also cannot be accepted as the order itself is an order for detention for a fixed period.

14. As regards the mala fides, although the allegations made in the petition coupled with the circumstances indicated above and the manner in which the Sub-Divisional Officer proceeded with the matter and the justification sought in the return for using the designation 'Sub-Divisional Magistrate' do to some extent indicate that the learned Sub-Divisional Officer was not acting in a manner in which a quasi judicial tribunal is expected to function but as the order is not justified and is found to be without jurisdiction, it is not necessary for us to go into the question of mala fides any further.

15. As regards the order passed by the Sub-Divisional Officer in consequence of an action under Section 16(3) read with Section 87(2) declaring the petitioner disqualified for five years, as the order passed by the Sub-Divisional Officer under Section 16(3) and Section 87(1) and (2) is held to be without jurisdiction, the consequent order is also without jurisdiction and cannot be maintained.

16. The learned Deputy Government Advocate drew our attention to an order passed by the Sub-Divisional Officer wherein it has been mentioned that when the petitioner was arrested and produced before him in compliance with the order sending him to civil prison, the petitioner refused to hand over charge and the learned Deputy Government Advocate attempted to contend that this clearly shows that the petitioner was not prepared to comply with the directions but this contention cannot be accepted as admittedly this was a situation when the petitioner was in fact arrested and was produced before him under handcuffs. That apparently was to humiliate the petitioner and under these circumstances his denial at that stage is of no consequence when in fact initially under Section 13(2) even notice to hand over charge was not served on the petitioner and when the notice under Section 87(1) was served on him he wrote on the notice itself that he wanted one day's time which was not considered by the Sub-Divisional Officer. In the light of the discussion above, therefore, the orders passed against the petitioner detaining him in civil prison for thirty days and also declaring him disqualified for five years are clearly without jurisdiction and cannot be maintained.

17. It was also contended by the petitioner that in such a situation where the petitioner was detained unlawfully, he should be compensated. As regards the order of detention it has already been held to be without jurisdiction and therefore it will be open to the petitioner if he is so advised to take appropriate action for damages on account of wrongful detention.

18. The petition is allowed. Both the orders passed against the petitioner are hereby quashed. In the circumstances of the case, parties are directed to bear their own costs.


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