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HIGH COURT OF MADHYA PRADESH
S.K. Gangele and G.D. Saxena, JJ.
Dhanwanti v. State of M.P. and others
Writ Appeal No.432 of 2012 (Gwalior) : against the order of
Single Judge, passed in Writ Petition No.4719 of 2012
[published in 2013(1) JLJ 156]; Decided on 17.1.2013.
Held : After reading the aforesaid proviso, unambiguous and clear meaning is that the prescribed authority has no power and jurisdiction to continue the proceeding beyond the period of 90 days because it is mentioned that if the final order in the inquiry is not passed within a period of 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but such extension of time shall not be more than 30 days. AIR 1963 SC 1062, AIR 1963 SC 946, AIR 1955 SC 504, AIR 1982 SC 130, AIR 1990 SC 487, AIR 1992 SC 1981 and AIR 1993 SC 2288 followed. 2008(3) JLJ 64 referred to. (2002)6 SCC 33 and (2003)3 SCC 433 distinguished.
(2) Interpretation of Statutes -- words of statute unambiguous -- reasonably susceptible to only one meaning -- Courts bound to give effect to that meaning irrespective of consequences -- no question of construction of that statute arises. AIR 1963 SC 1062, AIR 1963 SC 946, AIR 1955 SC 504, AIR 1982 SC 130, AIR 1990 SC 487, AIR 1992 SC 1981, AIR 1993 SC 2288, (2012)4 SCC 463 and (2012)9 SCC 552 followed. [Paras 11 to 13
(3) Constitution of India -- Art.226 -- availability of alternative remedy -- not a bar for taking recourse of writ jurisdiction -- such recourse can be taken in some contingencies. AIR 1969 SC 556, (2010)14 SCC 553 and (2003)2 SCC 107 followed. [Paras 21 & 22
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 40 && ljiap dks gVkus dk vkns'k dkj.k crkvks lwpuk tkjh gksus ls fofgr dkykof/k ds i'pkr~ fd;k tkus ds dkj.k vfHk[kafMr && rFkkfi] fofgr izkf/kdkjh fof/k ds vuqlkj u, fljs ls dk;Zokgh izkjaHk djus ds fy;s Lora= gSA
vfHkfu/kkZfjr % iwoksZDr iajrqd dks i<+us ds i'pkr~ lqLi"V rFkk Li"V vFkZ ;g gS fd fofgr izkf/kdkjh dks 90 fnu dh dkykof/k ds i'pkr~ dk;Zokgh tkjh j[kus dh dksbZ 'kfDr ;k vf/kdkfjrk ugha gS D;ksafd ;g mYys[k fd;k x;k gS fd ;fn tk¡p esa 90 fnu dh dkykof/k ds Hkhrj vafre vkns'k ikfjr ugha fd;k tkrk] rc fofgr izkf/kdkjh fyf[kr esa lHkh rF;ksa ls vius vxys T;s"B vf/kdkjh dks voxr djk,xk rFkk tk¡p fuiVkus ds fy;s le; dh o`f) dh izkFkZuk djsxk ijarq ;g le; o`f) 30 fnu ls vf/kd ugha gksxhA , vkb vkj 1963 ,l lh 1062] , vkb vkj 1963 ,l lh 946] , vkb vkj 1955 ,l lh 504] , vkb vkj 1982 ,l lh 130] , vkb vkj 1990 ,l lh 487] , vkb vkj 1992 ,l lh 1981 rFkk , vkb vkj 1993 ,l lh 2288 vuqlfjrA 2008 ¼3½ ts ,y ts 64 fufnZ"VA ¼2002½ 6 ,l lh lh 33 rFkk ¼2003½ 3 ,l lh lh 433 izHksfnrA ¼iSjk 10½
¼2½ fof/k dk fuoZpu && dkuwu ds 'kCn lqLi"V && ;qfDr;qDr :i ls dsoy ,d vFkZ gksus dh xqatkb'k && U;k;ky; ifj.kkeksa ls fujis{k ml vFkZ dks izHkko nsus ds fy;s vkc) && ml dkuwu ds vFkkZUo;u dk dksbZ iz'u mRiUu ughaA , vkb vkj 1963 ,l lh 1062] , vkb vkj 1963 ,l lh 946, , vkb vkj 1955 ,l lh 504] , vkb vkj 1982 ,l lh 130] , vkb vkj 1990 ,l lh 487] , vkb vkj 1992 ,l lh 1981] , vkb vkj 1993 ,l lh 2288] ¼2012½ 4 ,l lh lh 463 rFkk ¼2012½ 9 ,l lh lh 552 vuqlfjrA ¼iSjk 11 ls 13½
¼3½ Hkkjr dk lafo/kku && vuq-226 && oSdfYid mipkj dh miyC/krk && fjV vf/kdkfjrk dk vkJ; ysus ds fy;s otZu ugha && dqN vfuf'pr ifjfLFkfr;ksa esa ;g vkJl fy;k tk ldrk gSA , vkb vkj 1969 ,l lh 556] ¼2010½ 14 ,l lh lh 553 rFkk ¼2003½ 2 ,l lh lh 107 vuqlfjrA
¼iSjk 21 ,oa 22½
Gangele, J. -- 1. The appellant has filed this appeal against the order dated 13.7.2012 passed by the learned Single Judge in Writ Petition No.4719/2012 [Published in 2013(1) JLJ 156].
2. The appellant was elected as Sarpanch from Gram Panchayat. A show cause notice dated 6.2.2012 was issued by the Sub-Divisional Authority, Dabra, an authority prescribed under section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the ‘Adhiniyam of 1993’) for removal of office bearers of Panchayat. It is mentioned in the show cause notice that the appellant had made construction of a road and spent Rs.3 lacs on construction out of sanctioned amount of Rs.4,75,000/- unnecessarily. Hence, she had mismanaged the public fund. The appellant filed reply to the show cause notice and denied the allegations. The statements of the witnesses were recorded. Finally the prescribed authority-SDO vide order dated 4.7.2012 ordered removal of the appellant from the post of Sarpanch and further ordered that a recovery of Rs.3 lacs be made from the appellant as an arrears of land revenue.
3. The appellant challenged the aforesaid order in a writ petition on the ground that in accordance with the proviso to section 40(c) of the Adhiniyam of 1993, the competent authority had no power and jurisdiction to pass the order of removal beyond the period of 90 days from issuing the show cause notice because the order was passed beyond the prescribed period, hence, it is null and void and contrary to the proviso to section 40(c) of the Adhiniyam of 1993.
4. Learned Single Judge dismissed the writ petition on the ground that the proviso to section 40(c) of the Adhiniyam of 1993 does not have any mandatory force and the appellant could avail alternative remedy available to her under the Adhiniyam.
5. The main question for consideration before the Court in the writ appeal is that whether prescribed authority can pass order of removal beyond the period of 90 days from the date of issuance of show cause notice in regard to removal of office bearers of a Panchayat as prescribed by the proviso to section 40(c) of the Adhiniyam of 1993.
6. Learned counsel for the appellant has contended that beyond the period of 90 days as prescribed under the proviso, the prescribed authority has no power and jurisdiction to continue the proceeding of removal. Hence, beyond the aforesaid period, if the extension of time has not been taken, the proceeding come to an end. In support of his contentions, learned counsel relied on the following judgments :
(i) Bhuvaneshwar Prasad @ Guddu Dixit v. State of M.P. and others [2008(3) JLJ 64=2008(5) MPHT 72].
(ii) Chandra Kishore Jha v. Mahavir Prasad and others [AIR 1999 SC 3558].
7. Contrary to this, learned Deputy Advocate General has contended that the proviso to provisions of section 40(c) of the Adhiniyam of 1993 is procedural in nature, hence, if there is any violation of aforesaid provision, the order does not cease to be in existence. In support of this contention, learned Deputy Advocate General relied on following judgments :
(i) Topline Shoes Ltd. v. Corporation Bank [(2002)6 SCC 333];
(ii) Balwant Singh and others v. Anand Kumar Sharma and others [(2003)3 SCC 433];
(iii) Bhuvneshwar Prasad @ Guddu Dixit v. State of M.P. and others [2008(3) JLJ 64=2008(5) MPHT 72].
8. In the present case, a show cause notice to the appellant was issued by the prescribed authority on 6.2.2012. The order of removal was passed on 4.7.2012 admittedly beyond the period of 90 days.
9. Section 40 of the Adhiniyam of 1993 prescribes provision of removal of office bearers of Panchayat, which is as under :
“40. Removal of office bearers of Panchayat. -- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer --
(a) if he has been guilty of misconduct in the discharge of his duties; or
(b) if his continuance in office is undesirable in the interest of th
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