Nibarana Sendha and Three ors. Vs. State of Orissa and Three ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - subsequently, the government, by the impugned notification, fixed the headquarter of sogarposi grama panchayat at dudhukateni on the ground that the village dudhukateni is well communicated and more convenient than the other villages under the grama panchayat and it has the highest population amongst all the villages under the said grama panchayat. 100(2005)clt397 submits that it would be clearly evident from the record that the government without assigning any reason and without taking the facts existing into the consideration, issued the notification directing that the headquarters of sogarposi grama panchayat will be situated at village dudhukateni. (supra), while considering the different sets of facts, has laid down that this court should not interfere with the decision of the government in an administrative matter like an appellate authority, but while exercising power of judicial review under article 226 of the constitution, such decision if found to be made on irrelevant consideration or is an out-come of non-application of mind, this court can, while exercising its plenary jurisdiction under article 226 of the constitution, interfere with the said order by judicially reviewing the same.orderm.m. das, j.1. heard learned counsel for the petitioners and the learned counsel for the state.2. the petitioners in this writ petition have prayed for quashing the notification under annexure-4-fey which the government in its panchayati raj department ordered that the office of the headquarters of the grama sasan of grama sogarposi in dhenkanal sadar block in the district of dhenkanal shall be situated in the village dudhukateni. the case of the petitioners is that by notification no.19170/gp dated 20.10.2001 under annexure-1, the government upon reconstitution of the grama panchayats constituted sogarposi grama panchayat having the villages sogarposi, arada, parikheda, dudhukateni and nathua within its local area. the petitioners claim that in the said notification, the village sogarposi was declared as the headquarters of the grama panchayat and rightly so, as the grama panchayat was named in the name of the said village. on extraneous considerations, the government issued the notification dated 7.11.2001 under annexure-4 shifting the headquarters of the grama panchayat to village dudhukateni without any plausible reason. the petitioners have, therefore, prayed to quash the subsequent notification alleging that there was no reason for changing the headquarters from the village sogarposi to village dudhukateri.3. two counter affidavits have been filed, one by the opp.party no.l^and othjr b'y the opp.parties 2 to 4, who are the collector, sub-collector and block development officer respectively and tlie said opp.parties 2 to 4 have stated in the counter affidavit that in thejnitial notification, by which, on bifurcation, sogarposi grama panchayat was constituted, no headquarter of the said grama panchayat was fixed. subsequently, the government, by the impugned notification, fixed the headquarter of sogarposi grama panchayat at dudhukateni on the ground that the village dudhukateni is well communicated and more convenient than the other villages under the grama panchayat and it has the highest population amongst all the villages under the said grama panchayat. on the above ground, it has been pleaded that there is no illegality or infirmity in the impugned notification calling for interference of this court.4. counter affidavit on behalf of the opp.party no.1 has been filed by the deputy secretary in the panchayati raj department of the government, inter alia, stating that the government, exercising jurisdiction under section 4(3) of the orissa grama panchayat act, selected dudhukateni to be the most convenient village for situation of the headquarters of the grama panchayat of sogarposi. similar grounds for choosing dudhukateni as the headquarters have been taken as in the counter affidavit filed by the opp.parties 2 to 4.5. during the course of hearing of the writ petition, the connected record was called for from the government. on perusal of the same, it appears that considering the recommendation of the reorganization committee, the government decided to split up 33 grama panchayat by creating 25 new grama panchayats and reorganizing 7 other grama panchayats, totalling 65 grama panchayats. out of the same, bifurcation of one grama panchayat, namely, binasal was not accepted, but the same was subsequently accepted by the notification dated 29.10.2001. such reorganization and creation of new grama panchayats were notified and published in the gazette. from the said notification, it appears that sogarposi grama panchayat was newly formed containing the five villages as already stated above.6. an application for intervention has been filed by some of the villagers of dudhukateni countering the claim of the petitioners.7. learned counsel far the petitioners relying upon the decision in the case of pramod kumar bohidar and ors. v. state of orissa and ors. : 73(1992)clt692 , bijay kumar behera and ors. v. state of orissa and ors. : air2001ori164 and smt,babjta negi and ors. v. state of orissa and ors. : 100(2005)clt397 submits that it would be clearly evident from the record that the government without assigning any reason and without taking the facts existing into the consideration, issued the notification directing that the headquarters of sogarposi grama panchayat will be situated at village dudhukateni. he, therefore, submits that applying the ratio of the aforesaid decision, the impugned notification should be struck down.8. learned counsel for the state, on the contrary, relying upon the decision in the case of harihar 2003 (supp.) olr 987 i swain and ors. v. state of orissa and ors. (2003) 96 clt 454 submits that fixation of headquarters of the grama panchayat being an administrative action and within the discretion of the government, the same should not be interfered with by exercising jurisdiction under article 226 of the constitution.9. as already stated above, on perusal of the connected records produced by the learned counsel for the state, it is seen that nothing was considered by the government before taking a decision that the headquarters of the sogarposi grama panchayat should be situated at dudhukateni.10. this court, in the cases of pramod kumar bohidar and ors. {supra), bijay kumar behera and ors. (supra) and smt. babita negi and ors. (supra), while considering the different sets of facts, has laid down that this court should not interfere with the decision of the government in an administrative matter like an appellate authority, but while exercising power of judicial review under article 226 of the constitution, such decision if found to be made on irrelevant consideration or is an out-come of non-application of mind, this court can, while exercising its plenary jurisdiction under article 226 of the constitution, interfere with the said order by judicially reviewing the same. it is trite to state that such discretionary power, while being exercised by the state, can only be done on relevant considerations and devoid of any extraneous consideration. if the same is done ignoring the relevant materials or the power has been colourably exercised, such decision has to be set aside.11. the decision of the government has been attempted to be supported by assigning reasons only in the counter affidavit which does not appear from the connected record.12. in the facts and circumstances of this case, therefore, it would be just and proper to set aside the impugned notification under annexure-4 and remit the matter back to the government to reconsider the question of fixing the headquarter of the sogarposi grama panchayat. while doing so, the government should take into consideration all relevant facts as existing. till such a decision is taken, the constitution of the grama panchayat headquarter building at dudhukateni shall not be proceeded with. it is, therefore, ordered accordingly.the writ petition is accordingly allowed.

Judgment:
ORDER

M.M. Das, J.

1. Heard learned Counsel for the petitioners and the learned Counsel for the State.

2. The petitioners in this writ petition have prayed for quashing the notification under Annexure-4-fey which the Government in its Panchayati Raj Department ordered that the office of the headquarters of the Grama Sasan of Grama Sogarposi in Dhenkanal Sadar Block in the district of Dhenkanal shall be situated in the village Dudhukateni. The case of the petitioners is that by notification No.19170/GP dated 20.10.2001 under Annexure-1, the Government upon reconstitution of the Grama Panchayats constituted Sogarposi Grama Panchayat having the villages Sogarposi, Arada, Parikheda, Dudhukateni and Nathua within its local area. The petitioners claim that in the said notification, the village Sogarposi was declared as the headquarters of the Grama Panchayat and rightly so, as the Grama Panchayat was named in the name of the said village. On extraneous considerations, the Government issued the notification dated 7.11.2001 under Annexure-4 shifting the headquarters of the Grama Panchayat to village Dudhukateni without any plausible reason. The petitioners have, therefore, prayed to quash the subsequent notification alleging that there was no reason for changing the headquarters from the village Sogarposi to village Dudhukateri.

3. Two counter affidavits have been filed, one by the opp.party No.l^and othjr b'y the opp.parties 2 to 4, who are the Collector, Sub-Collector and Block Development Officer respectively and tlie said opp.parties 2 to 4 have stated in the counter affidavit that in thejnitial notification, by which, on bifurcation, Sogarposi Grama Panchayat was constituted, no headquarter of the said Grama Panchayat was fixed. Subsequently, the Government, by the impugned notification, fixed the headquarter of Sogarposi Grama Panchayat at Dudhukateni on the ground that the village Dudhukateni is well communicated and more convenient than the other villages under the Grama Panchayat and it has the highest population amongst all the villages under the said Grama Panchayat. On the above ground, it has been pleaded that there is no illegality or infirmity in the impugned notification calling for interference of this Court.

4. Counter affidavit on behalf of the opp.party No.1 has been filed by the Deputy Secretary in the Panchayati Raj Department of the Government, inter alia, stating that the Government, exercising jurisdiction under Section 4(3) of the Orissa Grama Panchayat Act, selected Dudhukateni to be the most convenient village for situation of the headquarters of the Grama Panchayat of Sogarposi. Similar grounds for choosing Dudhukateni as the headquarters have been taken as in the counter affidavit filed by the opp.parties 2 to 4.

5. During the course of hearing of the writ petition, the connected record was called for from the Government. On perusal of the same, it appears that considering the recommendation of the reorganization committee, the Government decided to split up 33 Grama Panchayat by creating 25 new Grama Panchayats and reorganizing 7 other Grama Panchayats, totalling 65 Grama Panchayats. Out of the same, bifurcation of one Grama Panchayat, namely, Binasal was not accepted, but the same was subsequently accepted by the notification dated 29.10.2001. Such reorganization and creation of new Grama Panchayats were notified and published in the gazette. From the said notification, it appears that Sogarposi Grama Panchayat was newly formed containing the five villages as already stated above.

6. An application for intervention has been filed by some of the villagers of Dudhukateni countering the claim of the petitioners.

7. Learned Counsel far the petitioners relying upon the decision in the case of Pramod Kumar Bohidar and Ors. v. State of Orissa and Ors. : 73(1992)CLT692 , Bijay Kumar Behera and Ors. v. State of Orissa and Ors. : AIR2001Ori164 and Smt,BabJta Negi and Ors. v. State of Orissa and Ors. : 100(2005)CLT397 submits that it would be clearly evident from the record that the Government without assigning any reason and without taking the facts existing into the consideration, issued the notification directing that the headquarters of Sogarposi Grama Panchayat will be situated at village Dudhukateni. He, therefore, submits that applying the ratio of the aforesaid decision, the impugned notification should be struck down.

8. Learned Counsel for the State, on the contrary, relying upon the decision in the case of Harihar 2003 (Supp.) OLR 987 I Swain and Ors. v. State of Orissa and Ors. (2003) 96 CLT 454 submits that fixation of headquarters of the Grama Panchayat being an administrative action and within the discretion of the Government, the same should not be interfered with by exercising jurisdiction under Article 226 of the Constitution.

9. As already stated above, on perusal of the connected records produced by the learned Counsel for the State, it is seen that nothing was considered by the Government before taking a decision that the headquarters of the Sogarposi Grama Panchayat should be situated at Dudhukateni.

10. This Court, in the cases of Pramod Kumar Bohidar and Ors. {supra), Bijay Kumar Behera and Ors. (supra) and Smt. Babita Negi and Ors. (supra), while considering the different sets of facts, has laid down that this Court should not interfere with the decision of the Government in an administrative matter like an appellate authority, but while exercising power of judicial review under Article 226 of the Constitution, such decision if found to be made on irrelevant consideration or is an out-come of non-application of mind, this Court can, while exercising its plenary jurisdiction under Article 226 of the Constitution, interfere with the said order by judicially reviewing the same. It is trite to state that such discretionary power, while being exercised by the State, can only be done on relevant considerations and devoid of any extraneous consideration. If the same is done ignoring the relevant materials or the power has been colourably exercised, such decision has to be set aside.

11. The decision of the Government has been attempted to be supported by assigning reasons only in the counter affidavit which does not appear from the connected record.

12. In the facts and circumstances of this case, therefore, it would be Just and proper to set aside the impugned notification under Annexure-4 and remit the matter back to the Government to reconsider the question of fixing the headquarter of the Sogarposi Grama Panchayat. While doing so, the Government should take into consideration all relevant facts as existing. Till such a decision is taken, the constitution of the Grama Panchayat headquarter building at Dudhukateni shall not be proceeded with. It is, therefore, ordered accordingly.

The writ petition is accordingly allowed.