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2022 Supreme(MP) 454
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
MANINDER S. BHATTI, J.
Sunil Kumar Sharma S/o Babulal Sharma – Petitioner
Versus
Sarpanch Gram Panchayat, Anuppur – Respondent
Writ Petition No. 5155 of 2007
Decided On : 28-09-2022
Advocate Appeared:
For the Petitioner: Shashank Upadhyay.
For the Respondent: Sanjeev Kumar Singh.
The central legal point established in the judgment is that the exercise of suo moto power by the SDO under Section 91 of the Adhiniyam 1993 was found to be unsustainable, as the appeal can only be entertained when agitated by a person aggrieved, and the said power cannot be exercised suo moto.
Headnote:
Panchayat Karmi - Jurisdiction of SDO under Adhiniyam 1993 - Section 91, Rule 3 - The court quashed the impugned orders dated 31/05/2003, 29/11/2004, and 13/02/2007 as the SDO's exercise of suo moto power under Section 91 of the Adhiniyam 1993 was found to be unsustainable.
Fact of the Case:
The petitioner was appointed as Panchayat Karmi and later notified as Panchayat Secretary. A complaint was filed alleging manipulated resolution for the appointment, leading to orders recommending cancellation of the notification. The petitioner appealed against these orders, which were subsequently dismissed, leading to the filing of this petition.
Finding of the Court:
The court found that the SDO's exercise of suo moto power under Section 91 of the Adhiniyam 1993 was not permissible, as the appeal can only be entertained when agitated by a person aggrieved. The SDO's jurisdiction to exercise suo moto power was not available under the relevant statutory provisions.
Issues: The issues revolved around the legality of the SDO's exercise of suo moto power under Section 91 of the Adhiniyam 1993 and the subsequent orders recommending cancellation of the notification.
Ratio Decidendi: The court held that the SDO's exercise of suo moto power under Section 91 of the Adhiniyam 1993 was unsustainable, as the appeal can only be entertained when agitated by a person aggrieved, and the said power cannot be exercised suo moto.
Final Decision: The impugned orders dated 31/05/2003, 29/11/2004, and 13/02/2007 were quashed, and the petition was allowed.
ORDER
1. This petition has been filed by the petitioner praying for the following reliefs:
“(i) That, the Hon'ble Court may kindly be pleased to quash the impugned order vide Annexure P/5 being illegal and bad in law.
(ii) That, the Hon'ble Court be further pleased to set aside the orders vide Annexure P/3 and P/4 being illegal and without jurisdiction.
(iii) That, the Hon'ble Court be further pleased to direct the respondent authorities to allow the petitioner to perform the duties of a Panchayat Karmi in Gram Panchayat, Pachouha, forthwith.
(iv) Any other relief which this Hon'ble Court may deems fit and proper, including the cost of the litigation.”
2. The facts as elaborated in the petition reflect that the petitioner herein was appointed as Panchayat Karmi on the strength of a resolution dated 13/09/2002. Thereafter, the petitioner herein was further notified as Panchayat Secretary, Gram Panchayat, Pachouha in terms of Section 69(1) Madhya Pradesh Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Adhiniyam 1993 for the sake of brevity) vide order dated 24/03/2003 (Annexure P/3). Later on Sarpanch of the concerned Gram Panchayat moved a complaint before the Collector, while alleging that on the basis of manipulated resolution, appointment has been secured by the petitioner as Panchayat Karmi. The said complaint was forwarded to Sub Divisional Office, (SDO) Anuppur, District Shahdol. Vide order dated 31/05/2003, the SDO while exercising suo moto power under Section 91 of the Adhiniyam 1993 has set aside the resolution dated 13/09/2002 and recommended the Collector to cancel the notification dated 24/03/2003 by which the petitioner herein was notified as Panchayat Secretary in terms of Section 69(1) of the Adhiniyam 1993. The order of SDO was challenged by the petitioner by filing an appeal before the Collector and the same was dismissed vide order dated 29/11/2004. Against the order of Collector, the petitioner then preferred a Revision before the Commissioner Division Rewa which was also dismissed vide order dated 13/02/2007. Hence, assailing the orders passed by Sub Divisional Officer, Collector as well as the Commissioner, this petition has been filed.
3. Learned counsel for the petitioner contends that the order impugned dated 31/05/2003 passed by the Sub Divisional Officer is nullity inasmuch as the Section 91 of the Adhiniyam 1993 does not extend suo moto power to SDO to entertain the appeal against the resolution. The powers under Section 91 of the Adhiniyam 1993 can only be invoked by an aggrieved party whereas in the present case, paragraph 2 of order impugned, unequivocally reflects that the SDO has exercised suo moto power which is not permissible under Section 91 of the Adhiniyam 1993. This aspect though highlighted before the Collector, however, the Collector without dealing with the same proceeded to dismiss the appeal. The said aspect was not even taken into consideration by the Commissioner as well while passing the impugned order dated 13/02/2007. Thus, submits that the order impugned deserves to be quashed on this ground alone.
4. Per contra, learned counsel for the State submits that as per the scheme of Section 91 of the Adhiniyam 1993, the SDO was within competence to invoke suo moto powers of appeal and therefore, no fault can be attributed to the SDO. Learned counsel for the respondent submits that while taking into consideration that there was a bogus resolution on the basis of employment secured by the petitioner thus the same was rightly interfered with by the SDO by passing the impugned order therefore no interference is warranted.
5. Heard rival submissions of the parties and perused the record.
6. In order to mull over the controversy it would be appropriate to refer to the provisions of Section 91 of the Adhiniyam 1993 which is reproduced herein-below:
“91. Adhiniyam and Revision: An ap
