Smt. Savitri Bai vs State of Chhattisgarh and Others

Dhirendra Mishra, J.—With consent of the parties, heard finally.

By this petition under Article 226 of the Constitution of India, the petitioner has impugned the order dated 2-1-2008 passed by the respondent No. 2, Additional Collector whereby the application of the petitioner under Sub-section (4) of Section 21 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short, ''the Act of 1993'') has been rejected.

The petitioner was Sarpanch of Gram Panchayat Accholi. Up Sarpanch and other Panchas of the Gram Panchayat presented notice of no-confidence motion against the petitioner. The Prescribed Authority-respondent No. 3 taking cognizance of the above notice, fixed the date of holding a meeting to consider the no confidence motion and appointed respondent No. 4 as Presiding Officer to preside the above meeting.

On 10-10-2007, 14 members of the Gram Panchayat out of 15 participated and voted in the meeting. Twelve members voted in favour of the motion whereas two members opposed the motion. The respondent No. 4 recorded the proceeding vide Annexure P-4 and held that the motion of no confidence against the petitioner is carried out. He forwarded the copy of the proceeding to the Collector, Panchayat and the Prescribed Officer.

The petitioner raised the dispute under Sub-section (4) of Section 21 of the Act of 1993 against the resolution of the no confidence motion vide Annexure P-8 before the Collector, Raipur. The Collector Raipur vide order dated 22-1-2007 transferred his application for adjudication to Upper Collector, Raipur. The Upper Collector vide impugned order dated 2-1-2008 rejected the dispute on the ground of limitation.

Shri Virendra Sharma, learned Counsel for the petitioner submits that Sub-section (4) of Section 21 of the Act of 1993 specifically authorizes the Collector as an authority to whom the dispute is to be referred and who alone is competent to decide it. Upper Collector had no jurisdiction to decide any dispute referred under Sub-section (4) of Section 21 of the Act of 1993. He further contended that reference has been rejected on the ground that the same is barred by limitation and the petitioner did not file any application for condonation of delay in filing the reference. The Upper Collector has not considered the fact that the petitioner applied for certified copy of the resolution of Annexure P-4 on 11-10-2007 which was provided to him on 15-10-2007 and thereafter, he filed the reference before the Collector, Raipur on 22-10-2007 well within the prescribed period of the limitation. On the other hand, Shri N.K. Agrawal, learned Dy. Advocate General with Shri Sushil Dubey, Govt. Advocate appearing on behalf of the State and Shri H.P. Agrawal, learned Counsel appearing on behalf of respondent Nos. 5 and 6 have questioned the maintainability of the instant petition on the ground that the petitioner has a remedy to approach the Director Panchayat against the order passed by the Upper Collector. The petitioner did not raise any dispute regarding jurisdiction of the Upper Collector to decide the reference and the petitioner participated in the proceeding before the Additional Collector without raising any objection regarding jurisdiction of the Upper Collector and, therefore, the petitioner cannot be permitted to raise the dispute regarding jurisdiction first time in this writ petition.

Relying upon the judgment in the matter of Kaushal Prasad Kashyap Vs. State of M.P. and Others, and Smt. Johara Dayal Vs. State of M.P. and others, , it was argued that Section 17 of the C.G. Land Revenue Code read with Section 17 of the General Clauses Act empowers the Additional Collector to perform the functions of the Collector conferred upon him by any enactment for the time being in force.

I have heard the learned Counsel for the parties.

So far as the ground that the Upper Collector had no jurisdiction to entertain the reference under Sub-section (4) of Section 21 is concerned, subsection (4) envisages thus:

No-confidence motion against Sarpanch and Up-Sarpanch.:

(1) XXX XXX XXX

(2) xxx xxx xxx

(3) xxx xxx xxx

(4) If the Sarpanch or the Up-sarpanch, as the case may be, desires to challenge the validity of the motion carried out under Sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, and his decision shall be final.

In the matter of Kaushal Prasad Kashyap (supra), Sarpanch was suspended by the Prescribed Authority u/s 39 (2) of the Act. The order of suspension requires confirmation by the State Government u/s 39 (2) of the Act and the order of confirmation was passed by the Additional Collector. The State Government in exercise of powers of delegation u/s 93 of the Act of 1993 delegated the said power of confirmation to the Collector by notification. In these circumstances, it was held thus:

In the notification of delegation the State Government has delegated the power to the ''Collector'' and the word ''Collector'' has to be understood from the provisions of the Code. In relation to provision of the Code and also in relation of any other enactment ''Collector'' would include ''Additional Collector'' as provided in Section 17 (2), (3) of the Code. It cannot, therefore, be said that under the notification of delegation the Collector has made any further delegation in favour of Additional Collector. Under the notification of delegation itself, the word ''Collector'' would include ''Additional Collector'', in accordance with the work distribution memo, issued u/s 17 of the Code. This Court in the unreported decision (supra) has taken a similar view while deciding the competence of ''Additional Commissioner'' to exercise powers of ''Commissioner'' in deciding an election petition. The two decisions cited on behalf of the respondents fully support them where provisions of the Code and of M.P. General Clauses Act were resorted to for rejecting a similar contention. The decisions cited on behalf of the petitioner are distinguishable. In the instant case there is no case of a delegatee further delegating his powers. The maxim relied is mainly attracted to subordinate legislation and not to exercise of statutory or administrative powers.

In the matter of Smt. Johara Dayal (supra) also, the question before the High Court of Madhya Pradesh was whether the Additional Collector had any jurisdiction to hear the appeals against the orders passed u/s 40 (1) of the Act by the Sub Divisional Officer against Sarpanch. Learned Single Judge relying upon the decision in the matter of Kaushal Prasad Kashyap (supra), held thus:

...the Additional Collector can inter alia exercise powers of Collector conferred by an enactment or a rule framed thereunder subject to restriction, if any, made in the general order notified by the State in respect of cases or class of cases. Section 17 (3) of the M.P. Land Revenue Code inter alia says that any other enactment for the time being in force or rule made thereunder shall apply to the Additional Collector except where expressly directed otherwise. This Court does not find any restriction made in the general order or in the Adhiniyam debarring the Additional Collector from hearing the appeal.

In the instant case also, the Collector Raipur as per works distribution memo, according to which, Upper Collectors have been authorized to hear the appeals under Panchayat Act, transferred the case to the Upper Collector for adjudication. In these circumstances, it is held that the Upper Collector had the jurisdiction to entertain the dispute referred by the petitioner against the resolution of no-confidence motion.

Resolution was admittedly carried out on 10-10-2007 and the dispute was raised against the above resolution on 22-10-2007. Sub-section (4) of Section 21 specifically provides that if the Sarpanch or Up-Sarpanch desires to challenge the validity of the motion carried out under Sub-section (1), shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector. The Act does not vest any discretion with the Collector to condone the delay in making reference. It is clear from the provisions of the Act of 1993 that the provisions of the Limitation Act have not been made applicable to the proceedings under the Act of 1993. There is no provision under Sub-section (4) of Section 21 that for the purpose of computing seven days, the time required for obtaining certified copy shall be excluded. In the matter of Ravi Khullar and Another Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court while considering the provisions of Section 11-A of the Land Acquisition Act, 1894, held that:

In the matter of computing the period of limitation three situations may be visualized, namely- (a) where the Limitation Act applies by its own force; (b) where the provisions of the Limitation Act with or without modifications are made applicable to a special statute; and (c) where the special statute itself prescribes the period of limitation and the provides for extension of time and or condonation of delay. The instant case is not one which is governed by the provisions of the Limitation Act. The Land Acquisition Collector in making an award does not act as a Court within the meaning of the Limitation Act. It is also clear from the provisions of the Land Acquisition Act that the provisions of the Limitation Act have not been made applicable to proceedings under the Land Acquisition Act in the matter of making an award u/s 11-A of the Act. However, Section 11-A of the Act does provide a period of limitation within which the Collector shall make his award. The Explanation thereto also provides for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of a Court. Such being the provision, there is no scope for importing into Section 11-A of the Land Acquisition Act the provisions of Section 12 of the Limitation Act. The application of Section 12 of the Limitation Act is also confined to matters enumerated therein. The time taken for obtaining a certified copy of the judgment is excluded because a certified copy is required to be filed while preferring an appeal/revision/review, etc. challenging the impugned order. Thus a Court is not permitted to read into Section 11-A of the Act a provision for exclusion of time taken to obtain a certified copy of the judgment and order. The Court has, therefore, no option but to compute the period of limitation for making an award in accordance with the provisions of Section 11-A of the Act after excluding such period as can be excluded 14. under the Explanation to Section 11-A of the Act.

Section 91 of the Act of 1993 provides for appeal and revision against the orders or proceedings of a Panchayat. The Chhattisgarh Panchayats (Appeal and Revision) Rules, 1995 (for short, ''rules of 1995'') specifically provides for limitation of appeal and revision and also confers discretion with the appellate authority to admit appeal or revision after expiry of limitation. Rule 7 of the Rules of 1995 provides that memo of appeal or revision shall be accompanied by certified copy of such order, however Sub-section (4) of Section 21 of the Act of 1993 confers no discretion on the Collector to condone the delay in entertaining the reference beyond the period of seven days and it also does not envisage that the certificate copy of the resolution is necessary for entertaining any reference, on the contrary Rule 8 of the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyam, 1994 casts a duty upon the Presiding Officer that he shall communicate forthwith a copy of the proceeding drawn under Rule 6 to the prescribed authority and the Collector.

Therefore, in the considered opinion of this Court, as per Scheme of the Panchayat Act, filing of certified copy of the resolution of no-confidence motion along with reference under Sub-section (4) of Section 21 of the Act of 1993 is not the requirement of law and, therefore, the argument of learned Counsel for the petitioner that the period required for obtaining certified copy of the resolution ought to have been excluded for the purpose of computing limitation of seven days cannot be accepted.

No other grounds were pressed by Shri Virendra Sharma, learned Counsel for the petitioner.

In the result, there is no substance in the petition. The same deserves to be dismissed and is accordingly dismissed.

There shall be no order as to cost.