A.K. Gohil, J.
1. The appellant has filed this Writ Appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, against the order dated 29-8-2007 passed by the learned Single Judge in Writ Petition No. 2941/04(S).
2. Brief facts of the case are that the respondent No. 1 was appointed as Panchayat Karmi and thereafter he was also notified as Panchayat Secretary by the prescribed authority i.e., the Collector. A show cause notice was issued to the petitioner/respondent No. 1 on 8-7-2004 by Joint Director, Panchayat and Social Welfare that why his powers as Panchayat Secretary be not withdrawn and he be de-notified to function as Panchayat Secretary. Reply of the aforesaid show cause notice was filed and thereafter on the basis of the order given by the Collector, the Joint Director communicated the order on 20-7-2004 denotifying the powers of the respondent No. 1 as Panchayat Secretary. Appeal against the aforesaid order was preferred before the Commissioner, Gwalior Division, Gwalior under Section 91 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter shall be referred as 'Adhiniyam 1993'), which was dismissed, against which the respondent No. 1 filed a Writ Petition No. 2941/ 04. By order dated 29-8-2007, learned Single Judge allowed the Writ Petition, set aside the impugned order passed by the Collector dated 20-7-2004 and Annexure P-4 as well as order dated 12-10-2004 (Annexure P-6) passed by the Commissioner in appeal, against which the Gram Panchayat Bamrol through its Sarpanch has filed this appeal.
3. We have heard the learned Counsel for the parties and perused the record.
4. Shri Arvind Dudawat, learned Counsel for the respondent No. 1 raised an objection about the maintainability of the appeal. His submission is that though the appeal has been filed by the Gram Panchayat Bamrol through its Sarpanch, but there is no resolution about the filing of the appeal by Sarpanch on behalf of Gram Panchayat. Therefore, his submission is that without taking authority from the Gram Panchayat and without resolution of the Gram Panchayat, the Sarpanch has no power to file an appeal. It was submitted by Shri Dudawat that the executive power of the Panchayat vests in the Secretary and Gram Panchayat means the whole Panchayat and not its Sarpanch.
5. Section 11 of the Adhiniyam, 1993 reads as under:
11. Incorporation of Panchayat.- Every Gram Panchayat, Janpad Panchayat and Zila Panchayat shall be body corporate by the name specified, therefor in the order under Section 3 for village or notification under Section 10 for Janpad Panchayat and Zila Panchayat as the case may be, having perpetual succession and a common seal and shall by the said name, sue and be sued and shall subject to the provisions of this Act and the rules made thereunder, have power to acquire, hold or transfer property movable or immovable, to enter into contracts and to do all other things necessary for the purpose of this Act.
Section 49 of the Adhiniyam 1993 deals about the function of Gram Panchayat. Rules have been framed regarding the power and functions namely- 'Madhya Pradesh Panchayat (Powers and Functions of Sarpanch and Up-Sarpanch of Gram Panchyayat, President and Vice-President of Janpad Panchayat and Zila Panchayat) Rules, 1994' (for short 'the Rules of 1994'), but in these rules, it is nowhere provided that who will sue on behalf of the Panchayat. On the basis of Section 11 of the Adhiniyam, 1993, Gram Panchayat being body corporate can sue and can be sued. As per the general interpretation of Section 11, the power shall not vest in the Sarpanch but it will vest in the whole body of the Gram Panchayat and if the Panchayat wants to sue or to file an appeal, the Panchayat has to pass a resolution authorising either to Sarpanch or Up-Sarpanch or to any Panch or to file appeal or Writ Petition or any other petition. Rule 3 of the M.P. Gram Panchayat (Powers and functions of the Secretary) Rules, 1999 provides that executive power of Gram Panchayat shall vest in the Panchayat Secretary, who will exercise the executive power, but in these rules also it is nowhere provided that who will sue on behalf of the Panchayat. Therefore, we are of the view that Gram Panchayat is a body corporate, having power to sue or to be sued, and the Gram Panchayat has to authorise somebody to act on its behalf and without the resolution by authorising any person to sue on behalf of the Panchayat, the Sarpanch cannot sue and file an appeal independently.
6. During the course of arguments, learned Counsel for the appellant was unable to point out any resolution with regard to filing of the appeal by Gram Panchayat in favour of Sarpanch. Therefore, in our considered opinion, this appeal without the resolution of the Panchayat filed by Sarpanch is incompetent and the same is liable to be dismissed on this ground also.
7. Learned Counsel for the parties vehemently argued on the question whether the Joint Director, Panchayat and Social Welfare can issue show cause notice regarding the withdrawal of power of Panchayat Secretary. As per the provisions of the Section 69 (1) of the Adhiniyam, 1993, the State Government or the prescribed authority i.e., the Collector will have the power to appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats. Therefore, if the power vests in the Collector to appoint a Secretary, then certainly under the provisions of General Clauses Act, he can also remove a person from the post. Admittedly, in this case, a show cause notice was issued by the Joint Director, who does not have any power under Section 69 (1) of the Adhiniyam 1993. The power can only be exercised by the prescribed authority i.e., by the Collector. Therefore also we further hold that the show cause notice issued by the Joint Director is illegal. So far as the final order Annexure P-4 passed by the Collector and communicated by the Joint Director is concerned, it is not an illegal order on this ground because if the order is passed by the Collector it can be communicated by the Joint Director and there is no illegality therein. Therefore, this finding of the learned Single Judge that the order communicated by Joint Director is illegal is not a proper one.
8. By circular dated 22-9-2003, State Government has issued instructions to all the Collectors and have laid down a procedure regarding the removal or withdrawal of power of Panchayat Secretary. It is directed by the State Government that before de-notifying a Panchayat Secretary from the post of Secretary, a show cause notice should be issued to the Panchayat Secretary and thereafter there should be an enquiry. Opportunity of hearing should also be provided to him and on the basis of the findings of enquiry action should be taken and resolution should be passed by the general body of the Gram Panchayat. Resolution should be passed in the quorum in the meeting of general body of Gram Panchayat having the quorum of the meeting. In this case, though show cause notice was issued to the respondent No. 1. Reply was also submitted by him, but from the impugned order dated 20-7-2004 (Annexure P-4) it is not clear that whether the reply as submitted by the respondent No. 1 was considered or not and if it was considered then whether charges were found to be proved against him or not. The impugned order is vague and nothing has been mentioned therein, whether the reply was considered or not. Therefore, it cannot be held that the order dated 20-7-2004 (Annexure P-4) is a speaking order or has been passed with application of mind. Therefore, the same is illegal, as has been passed in violation of the instructions issued by the Government as well as principles of natural justice. State Government has issued directions, which are in consonance of the principle of natural justice.
9. In view of the aforesaid discussion, the learned Single Judge therefore, has rightly held that the order has been passed without giving opportunity of hearing and without considering the reply of show cause notice. It was also found that the aforesaid factual aspect was not taken into consideration by the Commissioner. In our opinion, the learned Single Judge was not unjustified in quashing the order and allowing the petition. Therefore, we are also of the view that no ground is made out for any interference in the impugned order passed by the learned Single Judge. The appeal being incompetent, devoid of merits and substance is hereby dismissed.