SUBALAL HODHRAJ SHARMA Vs. GOVT. OF MADHYA BHARAT
HIGH COURT OF MADHYA PRADESH
Subalal Hodhraj Sharma
Govt. Of Madhya Bharat
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Shinde, C.J. -
(1.) SUBALAL Sarpanch Kendra Panchayat Mihona district Bhind, has filed this petition under Art. 226, Constitution of India for the issue of a writ of certiorari against the Government of Madhya Bharat. The relevant facts as alleged in the petition are as follows:
That the petitioner was duly elected Sarpanch of the Kendra Panchayat Mihona Pargana Lahar District Bhind that in the said Panchayat Shree Raghuwardayal was employed as a Gram Sewak; that on the recommendation of the Deputy Development Commissioner, the Development Commissioner of Madhya Bharat made temporary appointment of Shri Nathuram Sharma as Gram Sevak; that on the receipt of the above letter of appointment the petitioner, as Sar Panch, passed order that the proceedings of handing over the charge to Shri Nathuram be suspended as the order did not contain any instructions regarding the permanent Gram Sewak Shri Raghuwardayal; that on 23 -12 -1953 the petitioner wrote a letter to the Development Commissioner that the new Gram Sewak Shri Nathuram Sharma being a resident of the place and also being deeply interested in the village parties and not having been possessed of the required qualifications, is not a suitable person for the Panchayat and that the Panchayat and the Sarpanch were dissatisfied with the new appointment; that the development officer Bhind wrote to the Panchayat that the order of the Commissioner should be carried out and that if the Panchayat did not want to keep Shri Nathuram they should pass a resolution to that effect; that the Kendra Panchayat Passed Resolutions on 26 -12 -1953 and 30 -12 -1953 copies of which were sent to the development Commissioner; that the petitioner received an order from the development officer requiring the petitioner to hand over the charge to Shri Nathuram which the petitioner expressed his inability to do that the panchayat was called upon to show cause why it should not be dismissed under S. 20 of the Panchayat Act; that on receiving the reply of the Panchayat, the Madhya Bharat Government ordered the dismissal of the petitioner and the Panchas on the ground that the said Kendra Panchayat had abused its powers and neglected its duties; that the said order of the Government is illegal and ultra vires the Panchayat Act as under S. 30 of the Panchayat Act it is the panchayat that has been given power to appoint its servants and hence the appointment of Shri Nathuram by the development Commissioner was illegal and without jurisdiction, non -compliance with which cannot amount to abuse of powers or neglect of duty that the order of the Government is without jurisdiction in so far as no reply of the petitioner was taken as contemplated by S. 20 of the Panchayat Vidhan.
On these allegations the petitioner prays that a writ of certiorari be issued and the order dismissing the Panchayat published in the Gazette of 22 -11 -1954 be quashed. In the return filed by the non -petitioner it is denied that the Development Commissioner has no right to appoint a Gram Sevak. It is also denied that the notice as contemplated by S. 20 of the Panchayat Vidhan was not served on the petitioner.
In the return an additional objection has been taken that the writ of certiorari cannot issue as the impugned orders were passed by an administrative authority and not by a judicial or quasi -judicial authority.
(2.) THE first question to consider in this case is whether a writ of certiorari can issue in this case or not. It is now well established that a writ of certiorari can issue only when the impugned act is either judicial or quasi -judicial and it is done without jurisdiction or in excess of jurisdiction. In - - - 'Province of Bombay v. Khushaldas S. Advani', : AIR 1950 SC 222 (A), Kania C. J. made the following observations:
It is clear that such writ (a writ of certiorari) can be asked for if two conditions are fulfilled. Firstly, the decision of the authority must be judicial or quasi -judicial, and secondly, the challenge must be in respect of the excess or want of jurisdiction of the deciding authority. Unless both those conditions are fulfilled, no application for a writ of certiorari can succeed.
In the same case Fazl Ali J. observed as follows:
It is well settled that a writ of certiorari can be issued only against inferior courts or persons or authorities who are required by law to act judicially or quasi -judicially, in those cases where they act in excess of their legal authority. Such a writ is not available to remove or correct executive or administrative acts.
Mahajan and Mukherjea JJ. in the same case made similar observations. Das J. in the same case observed as follows:
The law is now well settled that a writ of certiorari will lie to control a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, provided that on a true construction of the statute creating the body it can be said to be quasi -judicial body entrusted with quasi -judicial functions.
Again in' - - T. C. Bassappa v. Nagappa', : AIR 1954 SC 440 (B), Supreme Court held as follows:
One of the fundamental principles in regard to the issuing of a writ of certiorari, is, that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression "Judicial acts" includes the exercise of quasi -judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi -judicial tribunals or bodies is not in an appellate but supervisory capacity.
In the same decision it is further held:
Certiorari may and is generally granted when a court has acted without or in excess of its jurisdictions.
It is thus abundantly clear that a writ of certiorari lies only when the impugned decision is that of a judicial or quasi -judicial authority and the said authority acts without jurisdiction or in excess of its jurisdiction.
It is by no means easy to draw a line between an administrative act and a quasi -judicial act. In - - Khushaldas S. Advani's case (A)', cited above, the learned Chief Justice made the following succinct observations:
It seems to me that the true position is that when the law under which the authority is making decision, itself requires a judicial approach, the decision will be quasi -judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well -recognised principles of approach are required to be followed. (vide Para 7)
In the same case Fazl Ali J. threw more light on the subject. He observed as follows:
Without going into the numerous cases cited before us it may be safely laid down that an order will be a judicial or quasi -judicial order if it is made by a court or a Judge, or by some person or authority who is legally bound or authorised to act as if he was Court or a Judge. To act as Court or a Judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy before any decision affecting the rights of one or more parties is arrived at. (Vide para 16)
Applying this test it was held by a Division Bench of this Court in the case of - - 'Vishwanath Vasudeo v. State of M. B.', : AIR 1954 MP. 161 (c) that the decision of the Government under S. 11, Gwalior Municipalities Act was a quasi -judicial decision. In the present case S. 20 of the Panchayat Vidhan enjoins that before passing order of dismissal it is obligatory that the Panchayat be given an opportunity to show cause. S. 20 reads as follows:
It is thus clear from the language of the section that before the order is passed against Panchayat, it is to be given an opportunity to make representation. If the Panchayat chooses to adduce same evidence to disprove the charges levelled against them there is nothing in the section to stop them from doing so. An opportunity to show cause, therefore, may also involve making some kind of enquiry, hearing and weighing evidence and considering all the facts and circumstances bearing on the merits of the controversy, before the decision affecting the rights of the Panchayat is given. In these circumstances it appears to me that the Government is to act quasi -judicially under S. 20 of the Panchayat Vidhan.
(3.) THE first condition having been fulfilled, we have now to consider whether the act of the Government is without jurisdiction or in excess of jurisdiction. It is alleged in the petition that notice as contemplated by S. 20 was not given by the Government. It appears from the annexure to the petition that notice was given by the Collector Bhind (Vide Appendix H of the petition). Mr. Anandbihari Misra who appears for the petitioner contends that notice should have been given in the name of His Highness the Rajpramukh.
It has not, however, been shown that there is any prescribed procedure for the giving of the notice under S. 20 of the Panchayat Vidhan. There is nothing to prevent the Government from giving the requisite notice through the Collector. The notice clearly mentions that the notice is being given under S. 20 of the Panchayat Vidhan. In these circumstances there is no reason why the notice given by the Collector may not be considered to be valid notice. Consequently the allegation that no valid notice was given under S. 20 of the Panchayat Vidhan is not substantiated.;
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