Mohan Ajabrao Telkhade Vs. the State of Maharashtra, Department of Rural Development and Water Conservation and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 3. i have heard the learned counsel for the petitioner as well as respondents. (1) if, in the opinion of the state government a panchayat exceeds or abuses its power or is incompetent to perform, or makes persistent default in the performance of, the duties imposed on it or functions entrusted to it under sub-section (1) of section 45 or any other provision of this act or by or under any other law for the time being in force [or has failed to levy taxes referred to in clauses (i) and (1a) of sub-section (1) of section 124] [or has failed to levy taxes referred to in clauses (viii) and (xii) of sub-section (1) of section 124 when it was compulsory to levy such taxes under sub-section (1) of section 124] or fails to obey an order made by the [panchayat samiti] under section 128 of persistently disobeys any of the orders of the [standing committee] or commissioner under section 142 [or wilfully disregards any instructions given by the zilla parishad or panchayat samiti under section 152 or by any competent authority arising out of audit of accounts under this act o knowing fully well that order under challenge is passed by very same authority, the revision/appeal was filed before the same authority.c.l. pangarkar, j.1. by this writ petition the petitioner challenges the order passed by the hon'ble minister whereby he set aside the order of commissioner under village panchayat act dissolving the gram panchayat, and directing byelections for vacant posts to be held.2. facts giving rise to the petition are as follows:there is a gram panchayat at village rama which consists of 9 members. petitioner submits that out of the nine, four members were disqualified on the ground that they had deliberately remained absent during the meeting of the gram panchayat. one of the members of the gram panchayat was disqualified under section 14 of the bombay village panchayat act and as such total five members out of nine were disqualified from holding the office of the member of the gram panchayat. accordingly the chief executive officer of the zilla parishad had submitted a report to the additional collector on 20.12.2006 informing him that out of nine, five posts have fallen vacant. proposal was submitted for the dissolution of the said panchayat. additional collector thereafter submitted a proposal to the commissioner i. e. respondent no. 3 to dissolve the panchayat. thereafter respondent no. 3 commissioner passed an order on 08.01.2007 dissolving the said gram panchayat. respondents 5 to 8 felt aggrieved by the said order of dissolution and they preferred a revision application under section 154 before the commissioner i. e. respondent no. 3 for quashing and setting aside the said order. respondents 5 to 8 also preferred an application for stay along with said application under section 154 of the village panchayat act. although the said application was not maintainable the petitioner submits that respondent no. 3 commissioner registered the said application and revision application and granted stay on 23.01.2007 to the order passed by him on 08.01.2007. the said stay order continued for a period of almost one year. on 06.12.2007 the said application preferred by the respondents 5 to 8 came to be dismissed on the ground that it was not maintainable. that order was passed on 01.01.1008. after the said revision was dismissed by the commissioner respondents 5 to 8 preferred a revision before the respondent no. 2, the minister for rural development. respondent no. 2 granted stay to the order of dissolution. thereafter the petitioner had challenged the said order of stay by filing writ petition no. 1412 of 2008. the said writ petition was listed before this court on 17.06.2008. all respondents except respondent no. 7 were shown to be served. the petitioner submits that respondents 1 to 5 including the minister were aware of the stay granted by the high court. inspite of such stay having been granted, it is alleged that respondent no. 2 passed an impugned order dated 10.06.2008 setting aside the dissolution of the gram panchayat and directing byelections to be held. the petitioner mainly contends that order passed by the minister is illegal because the minister could not have entertained the revision against the order of the commissioner since the minister's powers have been delegated to the commissioner.3. i have heard the learned counsel for the petitioner as well as respondents.4. order is challenged mainly on the ground that once the state government delegates the powers to the commissioner under section 145 of the village panchayat act the state could not have entertained the revision under section 145 of the village panchayat act.section 145 of the village panchayat act reads as follows:145. dissolution of panchayat: (1) if, in the opinion of the state government a panchayat exceeds or abuses its power or is incompetent to perform, or makes persistent default in the performance of, the duties imposed on it or functions entrusted to it under sub-section (1) of section 45 or any other provision of this act or by or under any other law for the time being in force [or has failed to levy taxes referred to in clauses (i) and (1a) of sub-section (1) of section 124] [or has failed to levy taxes referred to in clauses (viii) and (xii) of sub-section (1) of section 124 when it was compulsory to levy such taxes under sub-section (1) of section 124] or fails to obey an order made by the [panchayat samiti] under section 128 of persistently disobeys any of the orders of the [standing committee] or commissioner under section 142 [or wilfully disregards any instructions given by the zilla parishad or panchayat samiti under section 152 or by any competent authority arising out of audit of accounts under this act or inspection of the office and work of the panchayat or instructions given or directions issued by the state government under section 153a], the state government may, after consultation with the [zilla parishad] and after giving the panchayat an opportunity of tendering an explanation, by order in the official gazette.i. dissolve such panchayat 3***ii 4***[1a] if more than half the total number of seats in a panchayat have become vacant, the state government may, by order in the official gazette, dissolve such panchayat.]it is obvious from section 145(1a) that the power to dissolve is to be exercised by the state government. state government has admittedly delegated its powers to the commissioner as can be seen from the circular issued by the government of maharashtra on 01.06.1983. shri kilor learned counsel for the petitioner submits that once the power is delegated by the state to the commissioner any order that is passed by the commissioner would be deemed to be passed by the state government, commissoner having stepped into the shoes of the government. shri kilor learned counsel further submits that if that order of the commissioner is treated as an order of government, government cannot revise its own order at all and exercise powers under section 154 of the village panchayat act. he relied on a decision of the supreme court in ocl india ltd. v. state of orissa and ors. : [2002]supp5scr496 , supreme court has observed:13. thus, it is clear that the power conferred on the assistant commissioner was under clause (a) of sub-section (4) of section 23 of the act read with rule 80 of the rules. the commissioner has revisional power to call for the records and revise the orders not only of the sales tax officer but also of the assistant commissioner. additional commissioner and special additional commissioner, the power that was delegated to the assistant commissioner was confined to the orders passed by the sales tax officers. in the result the commissioner retained his power to revise the orders passed by the assistant commissioner, additional commissioner and special additional commissioner,. however, in regard to the orders passed by the sales tax officer, after the delegation, the assistant commissioner was competent to revise and in fact, he did exercise the power to revise the order of the sales tax officer, after issuing a show cause notice dated december 13, 1995. if that be so, the power of the commissioner (the delegator) under the aforequoted provisions has been exhausted by the assistant commissioner and the commissioner cannot, in law, exercise the delegated power over again.14. it is no doubt true that the commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power or cancel the delegation of revisional power to the assistant commissioner. that, by no stretch of imagination, can be construed to mean that once the orders have been examined under the revisional power by the assistant commissioner (the delegatee) the same orders can again be subjected to the revisional jurisdiction by the commissioner.in the reported case also the power to hear the revision against order of sales tax officer was delegated by the commissioner to assistant commissioner and therefore the commissioner could not exercise the powers of revision himself against the order of the sales tax officer. in the instant case what has been delegated is power to dissolve the gram panchayat under section 145. that power cannot now be exercised by the state, it will have to be exercised by the commissioner alone. the order passed by the commissioner is deemed to be passed by the state. shri kilor learned counsel for the petitioner submits that if the order that is passed by the commissioner is deemed to be order of state, then the state cannot revise its own order. the submission appears to be sound. if the state entertains revision against the order of commissioner it would amount to sitting in appeal against its own order. such a power cannot now be exercised by the state under section 154 or 155. hon'ble minister therefore could not have entertained the revision against the order of the commissioner. order of the minister therefore is patently illegal.5. shri vaishnava learned counsel for the respondents submits that order passed by the commissioner is illegal and therefore even if it is set aside by the minister having no jurisdiction still this court need not interfere into same in its writ jurisdiction. he relied on a decision of this court in madhukar baburao deshmukh v. jalgaon jullha maratha vidya prasarak coop. samaj ltd., jalgaon and ors. : 2002(3)mhlj201 :the provisions of law contained in section 154 therefore, apparently requires compliance of basic principles of natural justice before any order of lower authority is being interfered with. here is a case where the order in favour of the respondent no. 2 was set aside without hearing him. the apex court in maharaja chintamani saran nath shahdeo v. state of bihar and ors. reported in : air1999sc3609 , has held that where setting aside an order on the ground of lack of jurisdiction would result in the revival of an illegal order, then refusal to interfere even with the order lacking jurisdiction would be justified. interference in the impugned order in the case in hand, even if the impugned order is without jurisdiction, would virtually amount to revival of illegal order dated 31.12.1999. in the facts and circumstances of the case, therefore, it is preferable to refrain from interfering in the impugned order.6. chief executive officer had sent a proposal to the commissioner on 20.12.2006 to dissolve the gram panchayat. he had informed that out of nine members four had remained absent continuously for a period of six months unauthorisingly and have been disqualified, while one more member has been disqualified under section 114 of the village panchayat act and therefore 5 seats have fallen vacant. commissioner exercising power under section 145(1a) dissolve the gram panchayat by order dated 08.01.2007. this order was challenged before the commissioner himself by an application purporting to be one under section 154 of the village panchayat act. the said application which can be either treated as revision or appeal was filed (decided) by the commissioner by order dated 01.01.2008 apparently without hearing the respondent herein and holding that appeal was not maintainable. this is challenged before the hon'ble minister . the hon'ble minister apparently sets aside both the order dated 08.01.2007 and 01.01.2008 under section 155. shri vaishnava learned counsel for the respondent submits that this order of minister be not set aside as order was passed by the commissioner without hearing respondent and that order is therefore illegal. he submits that if the order of minister is set aside that would revive the illegal order of the commissioner and that is not permissible in writ jurisdiction. he had relied on the decision of madhukar deshmukh's case. the court may not interfere when the result is of revival of order which is illegal. the question is whether the order of the commissioner passed on 01.01.2008 could be said to be illegal. the only ground for contending that said order is illegal is breach of the principles of natural justice i. e. hearing. the order seems to be passed without hearing. the order however to my mind cannot be said to be illegal. the revision/appeal was filed in fact before the same authority who had passed the order under challenge. it is a simple proposition of law that one cannot be a judge in his own cause. knowing fully well that order under challenge is passed by very same authority, the revision/appeal was filed before the same authority. to my mind an order becomes illegal when the authority entitled to hear and decide the appeal or revision does not hear the party and decides it. this will be in breach of principles of natural justice but when an authority before whom no appeal or revision could lie files that appeal so that it had entertained does not commit any breach of principles of natural justice. particularly in this case the appeal/revision was presented to the very same authority whose order was under challenge. in this particular case therefore even if the respondent was not heard it could not be said that the order passed by the commissioner was illegal. commissioner in any case could not have entertained the appeal or revision and stay his own order. such an act of entertaining appeal and granting stay initially by the commissioner itself was illegal and he corrected his own order by vacating the stay order and holding that he could not entertain the appeal/revision. in fact initial order of entertaining the appeal and grant of stay as said earlier was illegal and nonest. the order of the hon'ble minister is non est as he did not have the power to entertain the revision once power to dissolve was exercised by the commissioner for and on his behalf. in fact that order being an illegal order needs to be set aside.7. order of the commissioner in not entertaining the revision and vacating the stay was perfectly justified in the circumstances. the minister should not have entertained the appeal/revision and set aside the order dated 08.01.2007 when that order was not under challenge before him. the order under challenge was dated 01.01.2008 as can be seen from the prayer clause in the revision application before the minister. the hon'ble minister in fact has set aside the order dated 08.01.2007 though not under challenge. this is another reason why the order of the hon'ble minister can be said to be illegal. in fact if the order of the hon'ble minister which is illegal is not set aside and that illegal order would still continue to hold a field which this court cannot allow. in the circumstances the writ petition must succeed. the order passed by the hon'ble minister is set aside. writ petition is allowed. no order as to costs.