S. S. BYAS, J. - (1.) THIS civil special appeal under section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of a learned Single Judge dated November 26, 1986, by which the appellant's writ petition, challenging the validity of orders Annexure-10 dated March 13, 1986 and Annexure-11 dated March 31, 1986 passed by the State Government, was dismissed.
(2.) BRIEFLY recounted, the material facts are that the petitioner presented a petition under Article 226 of the Constitution with the averments that he was the Sarpanch, Gram Panchayat, Sandwa district Churu right from the year 1956 to March, 1986 On complaints being filed, an inquiry was conducted against him by the State and ultimately he was exonerated from all the charges on October 15, 1985 by the concerned Hon'ble Minister. The petitioner applied for the copy of the order passed by the Hon'ble Minister, but the same was not supplied to him. At About 8. 00 a. m. on March 4, 1986, he received the telegram Annexure-12 asking him to appear to March 4. 1986 before the concerned Minister for Panchayat Rajya. He left his village by bus at 8. 30 a. m. on the same day and reached Jaipur at about 3. 30 P. M. From the bus-stand Jaipur, he reached the Rajasthan Government Secretariat at about 4. 00 p. m. He, submitted the application Annexure 9 on that very day to adjourn the matter. No order was passed on it. On March 13, 1986 he was informed by the State Government that a finding has been recorded against him under section 7 (4) of the Rajasthan Panchayat Act, 1953 (for short 'the Act' hereinafter) and that he has been disqualified for holding any office for a period of five years. He was required to show cause as to why the office of Sarpanch held by him be not declared to be vacant. He was asked to appear on March 27, 1986. He could not appear before the Minister concerned on March 27, 1986 and ultimately order Annexure 11 was passed on March 31, 1986, removing him from the office of Sarpanch and declaring the said office vacant. The validity of order Annexure-10 dated March 13, 1986 regarding the finding on the charges levelled against him and the order Annexure - 11 dated March 31, 1986, by which he was removed from the office of the Sarpanch and the office of the Sarpanch was declared vacant, was challenged on the ground that once he was exonerated by the Hon'ble Minister on October 15, 1985, he could not be removed. The powers of review, under which orders Annexure-10 and Annexure-11 were passed, were wrongly exercised by the State Government under section 70-B of the Act. The powers under section 70-B were of limited nature which could be exercised only to correct any mistake of law or fact or when the original order was passed in ignorance of any material fact. This was not the situation in the instant case. Some other grounds were also urged relating to the denial of opportunity of hearing etc. In the return filed by the State, all these facts were more or less admitted, but it was denied that the powers under section 70-B were wrongly exercised. It was submitted that under section 70-B of the Act, any order could be reviewed. It was also stated that on October 15,1985, the petitioner was exonerated of the charges, but no formal order was issued by the State Government in consequence of the note-sheet prepared on October 15, 1985. The matter was subsequently reviewed by the State Government on March 13, 1986, and March 31, 1986. The petitioner is guilty of suppressing the material facts and putting forward wrong and incorrect facts. The telegram was delivered to the son of the petitioner in the noon on March 3, 1986. Application Annexure-9 was submitted not on March 4, 1986 but on March 5, 1986. The petitioner, therefore, being guilty of suppressing the material facts, was not entitled to any relief. The learned Single Judge, by the impugned order, dismissed the writ petition on two grounds, namely, (1) the petitioner was guilty of suppressing the material facts. The telegram Annexure-12 was delivered to the petitioner through his son on March 3, 1986 and (2) the impugned orders Annexure-10 and Annexure 11 were passed under section 17 and not under section 70-B of the Act. It was not a case of review where the impugned orders were passed. A joint request was made by the learned counsel for the parties to decide the matter finally on merits at the admission stage. We have heard them at length. In assailing the impugned judgment, the first contention raised by Mr. M. L. Garg-learned counsel for the petitioner is that the entire approach of the learned Single Judge in holding that the impugned orders Annexure-10 and Ann-exure-11, were not passed by way of review, is clearly erroneous and untenable. In the return filed by the State Government, it was clearly admitted that the impugned orders were passed by way review under section 70-B of the Act. It was not the case of any party that the impugned orders Annexure-IO and Ann-exure-11 were not passed under section 70-B of the Act. The learned Single Judge made out a new case which was never projected before him by the parties. In reply, the contention of the learned Government Advocate Mr. RC Mahesh-wari is that the impugned orders were not passed by way of review. He strived his best to support the view taken by the learned Single Judge. I was also, submitted by him that though the petitioner was exonerated of all the charges on October 15, 1985 by the Hon'ble Minister, the order was only in the note-sheet and it was never communicated to the petitioner. As such, there was no case of review before the State Government when the impugned orders Annexure-10 and Annexure-11 were passed. We have taken the respective submissions into consideration. We feel no hesitation in stating that the impugned orders were passed by way of review under section 70-B of the Act. In para 15 of the petition, a clear averment was made by the petitioner that he was exonerated of all the charges by the Hon"ble Minister on October 15, 1985. In reply to this averment, the respondents submitted (vide page 9) that the order, exonerating the petitioner of all the charges, was passed by the Hon'ble Minister on October 15, 1985 but that was only the note-sheet of the file. No formal order was issued by the State Government in consequence of the order passed by the Hon'ble Minister in the note-sheet. It is, therefore, an admitted position that the petitioner was exonerated from the charges on October 15, 1985 by the Hon'ble Minister by passing an order in the note-sheet of the file. This order, passed by the Hon'ble Minister does not become ineffective, inoperative or no-nest only because it was not formally issued or communicated to the petitioner. We persistently asked Mr. Maheshwari the learned Government Advocate-to show us any provision that the order passed by the Minister does not become valid till it is issued or communicated to the party. Mr. Maheshwari could not show us any such provision. The fact, therefore, remains that the petitioner was exonerated of the charges by the Hon'ble Minister on October 15, 1985.
(3.) IN the return filed by the respondents, a clear stand has been taken that the impugned orders Annexure-10 and Annexure-11 were passed by way of review of the matter under section 70-B of the Act. We may refer to paragraphs 13 and 19 (ii), (iii), (iv), (vi), (vii) and (viii) in this connection wherein a clear stand has been taken by the respondents that the State Government was empowered to review the entire matter and the impugned orders were passed by way of review under section 70-B of the Act. On page 18 of the return, the entire section 70-B has been reproduced to reinforce the contention that the impugned orders were passed by way of review and the State Government was competent to pass such orders in review jurisdiction. Nowhere in the reply, the respondents have taken the plea that the impugned orders Annexure- 10 and Annexure-11 were passed under section 17 of the Act. IN fact, a defence could not have been taken by them that the impugned orders were passed under section 17 of the Act because of the earlier order passed by the Minister on October 15, 1985 exonerating the petitioner of all the charges. It is nobody's case in the pleadings that the impugned orders were not passed by way of review under section 70-B of the Act. IN view of all these facts, we are unable to agree with the learned Single Judge that the impugned orders were passed under, section 17 and not by way of review under section 70-B of the Act. IN our considered opinion, the impugned orders Annexure-10 and Annexure-11 were passed by the State Government in review jurisdiction under section 70-B of the Act. The next contention raised by Mr. Garg is that though the State Government has powers under section 70-B to review an order passed under sub section (4) of section 17 or the proviso thereto, these powers were wrongly exercised in the instant case. It was argued that the powers of review granted to the State Government under section 70-B are of limited nature. The review is permissible only when the earlier order under sub-section (4) of section 17 or the proviso thereto was passed under any mistake whether of law or fact, or ignorance of any material fact. The impugned orders Annexure 10 and Annexure-11 do not, at all, show that the earlier order exonerating the petitioner was passed under any mistake whether of law or fact, or in ignorance of any material fact. It was, on the other hand, contended by Mr. Maheshwari that under section 70-B. the State Government has powers to, review any order passed under sub-section (4) of section 17 or the proviso thereto. We have taken the respective submissions into consideration. It would be useful to read sub-section (1) of section 70-B of the Act which grants the power to review to the State Government. It runs as under:- "sec. 70-B: Power of review by Government- (l) The State Government may of its own motion at any time or on an application received from any person affected within ninety days of the passing of an order under sub-section (4) of section 17 or the proviso thereto, as the case may be, review any such order if it was passed under any mistake, whether of law or of fact or in ignorance of any material fact. " ;