Smt. Dulorin Bai Sahu vs Collector and Others

L.C. Bhadoo, J.—The petitioner who was the elected Sarpanch of Gram Panchayat, Thathapur in the 2000, has preferred this writ petition under Article 226/227 of the Constitution of India questioning the legality, correctness and propriety of the order dated 29-4-2004 (Annexure P-7) passed by the prescribed authority, Sub Divisional Officer, Kabirdham, in Revenue Case No. 263/B/121/2003-04 whereby the learned Prescribed Authority exercising the power u/s 40 of the Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ''the Act''), removed the petitioner from the post of Sarpanch, and also the order dated 22-7-2004 passed by the Collector, Kabirdham, in Revision Petition No. 31/B-121 year 2003-2004.

Brief facts leading to filing of this writ petition are that the petitioner contested the election for the post of Sarpanch, Gram Panchayat, Thathapur in the month of February, 2000 and she was elected in the said general elections. Consequently, she took over the charge of the said post vide Annexure P-1. However, on 20-5-2004 six persons of the Gram Panchayat made a complaint before the S.D.O., Kabirdham (hereinafter referred to as ''the Prescribed Authority), that the petitioner herein had encroached upon the Government grassland area of 0.05 decimal out of the area 10.70 of Khasra No. 335 and she has constructed a house. Accordingly, a case was registered by the Naib Tehsildar, Lohara, for removal of the said encroachment. As per the provisions of Section 56 (1) (d) of the Act, the petitioner was supposed to stop and take action against the encroachers, whereas, the petitioner herself has encroached upon the Government land which constitutes misconduct on the part of the petitioner as per the provisions of Section 40 (1) (a) of the Act, hence, she be removed from the post. On receiving this complaint, the Prescribed Authority registered a case and ordered for issuance of show-cause notice to the petitioner on the same day u/s 40 of the Act and fixed the case on 8th of March, 2004. On 8th March, 2004, the Advocate for the petitioner appeared and sought for adjournment for filing reply. The Prescribed Authority adjourned the matter for filing reply for 22nd March, 2004. However, on 22nd March, 2004 and also on the next date of hearing, i.e., 27th March, 2004, the Prescribed Authority was on tour. On 29th March, 2004 also the Prescribed Authority was on tour. On 6th April, 2004, the Prescribed Authority was not in Office and was on tour, therefore, the matter was fixed for 26th April, 2004. On 26th April, 2004, a legal objection about the maintainability of the complaint was filed on behalf of the petitioner mentioning therein that regarding the same land a case was initiated against her father-in-law by the Naib Tehsildar in which fine was imposed and a receipt was also submitted, therefore, for the same act and for the same land no action can be initiated against the petitioner, therefore, there is no gross negligence on the part of the petitioner herein and further time was sought to file a detailed reply. However, the learned S.D.O. mentioned that since an opportunity to file reply has already been given, therefore, no further opportunity can be given and closed the right of the petitioner herein to file reply. The learned S.D.O. further mentioned that the arguments heard and the matter was closed for orders. Next date, i.e., 29th April, 2004 was given and vide the impugned order dated 29th April, 2004, the learned Prescribed Authority reached the conclusion that the petitioner herein herself has committed misconduct by encroaching upon the Government land. The petitioner herein ought to have removed the encroachment as per the provisions of Section 56 (1) of the Act, whereas, she herself has encroached upon the Government land, therefore, this amounts to misconduct, as such she be removed from the post of Sarpanch. In between, the petitioner herein moved a revision against the order of the closure of the right of the petitioner to file reply, before the Collector, but, before the revision could be decided, the learned Prescribed Authority passed the impugned order against which the petitioner herein filed this writ petition on 19-8-2004. However, thereafter, she also preferred an appeal before the Collector on 1-9-2004, which was dismissed as withdrawn on 18-10-2004. The main grievance raised by the petitioner in this writ petition is that no opportunity for fair hearing was given to the petitioner and the impugned order has been passed prejudicial to the interest of the petitioner, therefore, the impugned order is liable to be quashed.

On the other hand, in reply of respondent Nos. 1 and 2/State and other respondents it has been mentioned that since the petitioner herself has filed the receipt (Annexure R-1/2) in which the Naib Tehsildar imposed fine of Rs. 50/- on her regarding encroachment, therefore, she herself admitted before the Prescribed Authority by filing this receipt and no appeal was preferred by her against the fine imposed by the Naib Tehsildar, therefore, the fact of encroachment by the petitioner herein was admitted, as such the order of the Prescribed Authority based on that is legal.

Further argument raised by learned Counsel for the respondents was that since the alternative remedy was available to the petitioner to file appeal before the Collector against the impugned order which was availed by the petitioner and ultimately the same was dismissed as withdrawn, therefore, the impugned order passed by the Prescribed Authority stood merged in appeal order dated 18-10-2004 and the order of the Collector dated 18- 10-2004 has not been challenged, as such this writ petition is not maintainable.

Before adverting to the grounds raised by the parties it would be profitable to look into the provisions of Section 40 of the Act, which envisages the procedure of enquiry to be conducted by the Prescribed Authority before removing an office bearer of the Panchayat. Sub-section (1) of Section 40 of the Act envisages that the State Government or the Prescribed Authority may "after such enquiry as it may deem fit" to make at anytime, remove an office bearer, proviso to sub-section further lays down 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.

Therefore, a duty has been cast upon the Prescribed Authority that before removal of office bearer of the Panchayat and Prescribed Authority has to first hold an enquiry for the purpose of finding out whether the office bearer has indulged himself or herself in the misconduct which makes him or her liable to be removed from the said post. The consequences mentioned in Section 40 of the Act are such which prescribe removal of an elected representative of the public at the Gram Panchayat level. Therefore, the consequences are very serious. It should be kept in mind by the Prescribed Authority that office bearer of a Panchayat is duly elected by the general public/voters of the Gram Panchayat, he is a representative of the general public, and he should not be removed from the post by holding an enquiry in a casual and cavalier manner. The Prescribed Authority is required to give a reasonable opportunity of being heard in respect of the allegations levelled against the office bearer an the principles of natural justice should be applied depending upon the facts and circumstances of the case and the rule of audi alteram partem incorporated therein, same should be complied with. A party should have the opportunity of adducing all relevant evidence on which he/she relies, that the evidence of the opponent should be taken in his/her presence, and the party should be given an opportunity of cross-examining the witnesses examined by that party and that no materials should be relied on against that party without his/her being given an opportunity of explaining them, as has been held by the Hon''ble Apex Court in the matter of Union of India (UOI) Vs. T.R. Varma, and Khem Chand Vs. The Union of India (UOI )and Others, .

The words "after such enquiry as it may deem fit to make" used in Section 40 (1) of the Act would mean an inquiry which is held in the presence of the office-bearer and not behind his back. He should be allowed to inspect and explain the documents which are to be relied upon against him or her and should have the right to adduce his or her own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the Prescribed Authority to get an inquiry held of any kind. It does not envisage a secret inquiry or a preliminary inquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. The words "as it may deem fit" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case. Some of the facets of the inquiry may be excluded if the facts are not very much in dispute or there are other circumstances to dispense with them. But the office bearer has a right of fair hearing, i.e., person must be given a reasonable opportunity of hearing before passing any penal order of effecting the rights of that party and if on account of that some drastic action is ordered to be taken against the person.

The principles of natural justice are used to supplement statutory procedures which themselves provide for a hearing or inquiry, with or without detailed regulation of the procedure. It is not proper to start with a pre-conceived notion that the person against whom the action is proposed is guilty. Conclusion of guilt can be drawn only after fair hearing.

In State Bank of Patiala and others Vs. S.K. Sharma, , the Supreme Court after exhaustive survey of the earlier precedents has formulated the test of prejudice, that is, whether the person has received a fair hearing considering all things. Rule (5) formulated in this decision aptly applies to the present case though it is not a case of a disciplinary action against an employee but against an office bearer of a Panchayat on the ground of her misconduct involving serious consequences. That rule is as under :--

"(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principle of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of facet of the said rule. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing"; (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query."

Now, if we look into the facts and circumstances of the present case on the test laid down by the Apex Court regarding fair hearing and reasonable opportunity to the petitioner herein, it is an admitted position that the allegations which were levelled against the petitioner herein for encroaching upon the Government land, a case was initiated for encroachment as back as in the year 1988 against the father-in- law of the petitioner and a fine of Rs. 25/- was imposed on him on 4-1-1992 vide Annexure R-1/1, and again on 17-2-1994 a fine of Rs. 50/- was imposed upon him under Annexure R-1/1. Further, in the year 1999-2000 a fine of Rs. 50/- was imposed upon the petitioner herein under Annexure R-1/2. When the show- cause notice was issued to the petitioner herein a legal objection (Annexure R-4C) was raised by her mentioning therein that she never encroached upon the land in question. In fact, a case was initiated against her father-in-law and a fine was imposed upon him, he deposited that fine and he was in peaceful possession of that land since last 20-22 years. On 5-8-1996 a declaration was issued by the Naib Tehsildar, Lohara, and within 15 days nobody raised any objection and the land was in possession of her father-in-law since long and now, on account of political bias and in order to grab her post a complaint in the year 2004 was made against the petitioner. Further time was sought by Counsel for the petitioner to file detailed reply, which was refused by the Prescribed Authority and passed the impugned order.

Perusal of the impugned order shows that it has been held by the prescribed authority that since the petitioner herself has admitted regarding the trespass by filing receipt of fine imposed on her, therefore, the trespass stands proved. The finding of the learned Prescribed Authority is wholly perverse particularly looking to the legal objection raised by the petitioner herein. She had categorically mentioned that her father-in-law was in possession of the land in question since last more than 20-22 years and he was in peaceful possession, constructed a house and for that purpose fine was imposed upon him. Therefore, in the year 2000, no such case could not been instituted against the petitioner. This is on record. Therefore, merely on the basis of receipt of fine imposed upon her it can not be automatically considered to be proved that she has admitted that she is a trespasser looking to the legal objection raised by the petitioner herein. In view of the legal objection raised by the petitioner, even if no further time was allowed to the petitioner to file detailed reply, at least the prescribed authority ought to have conducted enquiry into the fact that whether the father- in-law of the petitioner is in possession or trespasser or the petitioner herein is the trespasser and for that purpose, the concerned Department ought to have been asked to adduce evidence before the Prescribed Authority to prove trespass by the petitioner. The petitioner herein should have been given opportunity to cross-examine those witnesses and explain the documents and thereafter, the petitioner ought to have been allowed to adduce evidence in order to prove and establish the stand taken by her, then and then only the Prescribed Authority ought to have passed the order, in accordance with law. Therefore, it is clear from the facts that in the case the principle of natural justice has been violated and the enquiry as envisaged u/s 40 (1) of the Act was not conducted by the Prescribed Authority before arriving at the decision that the petitioner herein is trespasser. In the circumstances, the impugned order can not be allowed to be existed as if the same is allowed to exist and continue that will amount to failure of justice.

Now, coming to the question of alternative remedy, it is true that after passing the impugned order by the Prescribed Authority the petitioner filed this writ petition on 19-8-2004 and in the meantime, she also preferred an appeal before the Collector on 1-9-2004, but during the pendency of this writ petition, she withdrew that appeal on 18-10-2004. The law on the point of alternative remedy is that alternative remedy before the writ will be issued is not a rule of law but is a rule of policy, convenience and discretion. The High Court will readily issue a writ of certiorari in a case where there has been a denial of natural justice, as has been held by the Division Bench of Madhya Pradesh High Court in the case of Sukhlal Sen v. Collector, Distt. Satna and Ors., reported in AIR 1969 MP 176. Same view was taken by the Hon''ble Apex Court in the matter of State of U.P. v. Mohd. Nooh, reported in AIR 1958 SC 86. In Sukhlal Sen''s (supra) case the Court held that observance of natural justice is necessary and if the same is not followed then the defect is fundamental and it would not be a sound exercise of discretion to refuse to interfere simply on the ground that the petitioner could have gone up in appeal.

In the matter of Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, , the Hon''ble Apex Court held that :--

"The rule of exclusion of writ of 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."

In the present case, as has been held above that the principles of natural justice has been violated, therefore, in view of the above law and facts, the objection raised by learned Counsel for the respondents about the alternative remedy is concerned, it can not be permitted and the writ petition can not be thrown out merely on this ground as the petitioner has been removed from the post of Sarpanch by the impugned order without following the procedure as envisaged in Section 49 (1) of the Act, and as the principle of natural justice and fair enquiry has not been followed.

Learned Counsel for the respondents further submitted that as the order of the S.D.O. stands merged in the order dated 18-10-2004 passed by the Collector in appeal, whereby the appeal was dismissed as withdrawn and the same has not been challenged in this writ petition, therefore, this writ petition is not maintainable on this ground. For this purpose, he placed reliance on decisions of the Hon''ble Apex Court in Kunhayammed and Others Vs. State of Kerala and Another, , S. Shanmugavel Nadar Vs. State of Tamil Nadu and Another, , and Chandi Prasad and Others Vs. Jagdish Prasad and Others, .

I have perused the above case laws and principles laid down by the Hon''ble Apex Court. The above decisions are of no help to the respondents herein for the reason that principle of merger can not be applied in this case, because, the petitioner filed the writ petition before filing the appeal and the appeal was merely dismissed as withdrawn on 18-3-2004, no reasoned order was passed by the Appellate Authority confirming or varying or modifying the order of the Prescribed Authority. Any order passed without assigning any reasons can not be termed as a final order. It has been held by the Apex Court in number of judgments that even such judgments can not be applied as a residual. Even in the judgment cited by learned Counsel for the respondents, i.e., S. Shanmugavel Nadar (supra), the Hon''ble Apex Court held that "Effect of summary dismissal of SLP on technical grounds on High Court judgment under appeal - Doctrine of merger not applicable". The Apex Court further held that :--

"When a judgment or order has been dealt with by a superior forum resulting in confirmation, reversal or modification held, what merges is the operative part, i.e., the mandate or decree issued by the lower forum, expressed either in positive or negative form - Clarified that the reasons given in the judgment of the lower forum can only be said to have merged if the Superior Court either adopts or reiterates the reasoning or expressly records its approval of the reasoning."

Similarly, same view taken by the Apex Court in the matter of Kunhayammed (supra), wherein it has been held that :--

"The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter."

Similar view has been taken in the matter of Chandi Prasad (supra).

In the present case also the learned Collector has not passed any order on merits giving reasons and affirming the judgment, rather the appeal was disposed of being withdrawn. Therefore, the principle of merger does not apply in the present case and the writ petition is maintainable.

In the result, the writ petition of the petitioner is allowed and the impugned order dated 29-4-2004 passed by the Prescribed Authority is quashed. No costs.