Chattisgarh High Court
Rajaram Kol vs Dhirendra Vishwakarma on 4 October, 2022
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 570 of 2022
1. Rajaram Kol S/o Ramhit Kol Aged About 43 Years R/o Village-
Koldafai, Councilor Of Ward No.1, Nagar Panchayat
Khongapani, District - Koriya (Now Manendragarh-Chirmiri-
Bharatpur) (C.G.) (Res. No. 4 And 15)
2. Vijay Singh S/o Rangdev Singh Aged About 45 Years R/o
Councilor Of Ward No. 15, Nagar Panchayat Khongapani,
District Koriya (Now Manendragarh-Chirmiri-Bharatpur) (C.G.)
---- Appellants
Versus
1. Dhirendra Vishwakarma S/o Late Jawahar Lal Aged About 48
Years R/o Ward No. 9, Main Market, Khongapani, District
Koriya (Now Manendragarh - Chirmiri-Bharatpur (C.G.)
2. State Of Chhattisgarh Through Secretary Department Of Rural
And Urban Administration, Mantralay Mahanadi Bhawan,
Nawa Raipur, Atal Nagar, District - Raipur, Chhattisgarh
3. Collector District Koriya (Now Manendragarh-Chirmiri-
Bharatpur) Chhattisgarh.
4. Sub Divisional Officer (Revenue) Manendragarh, District
Koriya (Now Manendragarh- Chirmiri-Bharatpur) Chhattisgarh.
5. Sita Kol W/o Raju Kol Aged About 32 Years R/o Councilor Of
Ward No.2 Nagar Panchayat Khongapani, District Koriya (Now
Manendragarh- Chirmiri-Bharatpur) Chhattisgarh.
6. Jagdish Madukar S/o Shobharam Aged About 35 Years R/o
Councilor Of Ward No.4 Nagar Panchayat Khongapani,
District Koriya (Now Manendragarh- Chirmiri-Bharatpur)
Chhattisgarh.
7. Laxmi Yadav W/o Jitendra Yadav Aged About 32 Years R/o -
Councilor Of Ward No. 05, Nagar Panchayat Khongapani,
District - Koriya (Now Manendragarh Chirmiri Bharatpur),
Chhattisgarh.
8. Vishnu Yadav S/o Bharat Singh Aged About 32 Years R/o -
Councilor Of Ward No. 06, Nagar Panchayat, Khongapani,
District Koriya (Now Manendragarh Chirmiri Bharatpur),
Chhattisgarh.
9. Smt. Saroj Chaudhary W/o Wakil Chaudhary Aged About 33
Years R/o - Councilor Of Ward No. 07, Nagar Panchayat,
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Khongapani, District Koriya (Now Manendragarh Chirmiri
Bharatpur), Chhattisgarh.
10. Vivek Chaturvedi S/o Late Heeramani Chaturvedi Aged About
38 Years R/o - Councilor Of Ward No. 08, Nagar Panchayat,
Khongapani, District Koriya (Now Manendragarh Chirmiri
Bharatpur), Chhattisgarh.
11.Paramhans Mani S/o Laxminarayan Prasad Aged About 49
Years R/o - Councilor Of Ward No. 11, Nagar Panchayat,
Khongapani, District Koriya (Now Manendragarh Chirmiri
Bharatpur), Chhattisgarh.
12. Mamta Singh W/o Sudhir Singh Aged About 52 Years R/o -
Councilor Of Ward No. 12, Nagar Panchayat, Khongapani,
District Koriya (Now Manendragarh Chirmiri Bharatpur),
Chhattisgarh.
13. Kamal Bhan Chaudhary S/o Shivnath Chaudhary Aged About
43 Years R/o - Councilor Of Ward No. 13, Nagar Panchayat,
Khongapani, District Koriya (Now Manendragarh Chirmiri
Bharatpur), Chhattisgarh.
14. Mira Yadav W/o Janardan Yadav Aged About 38 Years R/o -
Councilor Of Ward No. 14, Nagar Panchayat, Khongapani,
District Koriya (Now Manendragarh Chirmiri Bharatpur),
Chhattisgarh.
---- Respondents
For Appellants : Mr. V.A. Goverdharn & Mr. Rakesh
Kumar Manikpuri, Advocates
For Respondent No.2 to 4 : Mr. G.Patel, Govt. Advocate
For Respondent No.1 : Mr. T.K. Jha & Mr. N.P. Thakur,
Advocates
Hon'ble Shri Parth Prateem Sahu
Hon'ble Shri Rakesh Mohan Pandey, JJ
Order On Board
Per Parth Prateem Sahu,J;
04/10/2022
1. Heard on I.A. No.1/2022, an application for exemption from
filing certified copy of impugned order. This writ appeal is filed
annexing web copy of impugned order dated 3.10.2022
passed in WPC No.4235/2022.
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2. Writ petition was filed during Dusherra holidays and listed for
hearing on a special mention being made by learned counsel
for petitioner/respondent No.1. This writ appeal is also filed
during Dusherra holidays and listed for hearing on a special
mention being made by learned counsel for appellants. In
such a situation, I.A. No.1/2022 is allowed and appellants are
exempted from filing certified copy of impugned order.
3. Challenge in this writ appeal is to the order dated 03.10.2022
passed in WPC No.4325/2022 by which learned Single Judge
stayed the effect and operation of Notice dated 26.9.2022,
fixing date as 7.10.2022 for holding meeting of 'no confidence
motion' against respondent No.1 herein, till next date of
hearing i.e. 10.10.2022.
4. Facts
relevant for disposal of this writ appeal are that
respondent No.1 herein is an elected President of Nagar
Panchayat Khongapaani, District Koriya (CG). The Vice
President and some Councillors of Nagar Panchayat
Khongapaani submitted an application under Section 43-A (2)
of the Chhattisgarh Municipalities Act, 1961 (for short 'the Act
of 1961') with respondent No.3-Collector proposing to convene
meeting of 'no-confidence motion' against respondent No.1.
Respondent No.4-SDO issued notice dated 26.9.2022 to
elected members of Nagar Panchayat Khongapani, fixing date
of meeting as '7.10.2022' to consider no-confidence motion.
Aggrieved therewith, respondent No.1 approached the High
Court by filing WPC No.4325/2022 challenging notice dated
26.9.2022 on the grounds mentioned therein. Along with writ
petition, respondent No.1 also filed an application for grant of
interim relief. Learned Single Judge after hearing learned
counsel for petitioner; learned State Counsel and learned
counsel for elected members of Nagar Panchayat
Khongapani, who filed application proposing to move no-
confidence against respondent No.1, passed an order on
3.10.2022 directing that effect and operation of notice dated
26.9.2022 (Annexure P-1 to writ petition) shall remained
stayed till next date of hearing and fixed the matter on
10.10.2022. Interim application has not been disposed off.
5. Learned counsel for appellants would submit that the learned
Single Judge passed the impugned order of stay in favour of
respondent No.1 considering the grounds which are in fact not
pleaded by him in specific terms. He contended that under
Section 43-A (2) of the Act of 1961, it is provided that in case
of a Nagar Panchayat, a meeting to consider 'no-confidence
motion' can be convened and presided over by a Class II
officer also. In case at hand, on receipt of proposal for no-
confidence motion, respondent No.3 nominated respondent
No.4-Sub Divisional Officer (R), Manendragarh to convene
and preside over meeting for no-confidence motion and
accordingly respondent No.4 had issued notice for holding
meeting of no-confidence motion. Hence, Notice dated
26.9.2022 was issued strictly in accordance with law. He also
contended that the reason assigned for staying effect and
operation of Notice dated 29.6.2022 are in fact not available to
petitioner/respondent No.1 herein and therefore, the impugned
order dated 3.10.2022 (Annexure A-1) is liable to be set aside.
6. Learned counsel for respondent No.1, at the outset, raised an
objection with regard to maintainability of this writ appeal on
the ground that order under challenge is an interlocutory order
and therefore, as per proviso to Section 2 (1) of the
Chhattisgarh High Court (Appeal to Division Bench) Act, 2006
(hereinafter shall be called as 'the Act of 2006'). He submits
that order under challenge does not decide the rights of the
parties finally and it is yet to be decided in writ petition which is
pending consideration before learned Single Judge, hence,
this writ appeal is not maintainable and in support thereof, he
places his reliance on the order dated 17.3.2017 passed by a
Division Bench of this High Court in WA No.40/2014, parties
being Abhishek Sharma & ors Vs. State of Chhattisgarh & ors.
7. Learned State Counsel would submit that application was
submitted by the elected Councillors of Nagar Panchayat
Khongapani before respondent No.3, who, in turn, nominated
respondent No.4 to convene and preside over meeting and
accordingly, respondent No.4 issued notice fixing the date of
meeting to consider no-confidence motion against respondent
No.1. Hence, the proceedings drawn are strictly as per
provisions of Section 43-A of the Act of 1961.
8. Learned counsel for appellants would submit that in view of
judgment passed in W.A. No.255/2016, Ajay Gupta vs. State
of Chhattisgarh & ors, this writ appeal is maintainable as right
of appellants is affected.
9. We have heard learned counsel for the parties and perused
the documents placed on record including order impugned.
10. By the order dated 3.10.2022 learned Single Judge has
stayed the effect and operation of impugned Notice dated
26.9.2022 till next date of hearing i.e. 10.10.2022.
11. Subject matter of writ petition is with regard to validity of the
proceedings drawn pursuant to application submitted by the
elected Councillors and Vice President of Nagar Panchayat
Khongapani proposing to move no-confidence motion against
respondent No.1, an elected President. Learned Single Judge
considering submission of learned counsel for petitioner that
"meeting has to be convened by the Collector of the District
and it can be presided over only by Class-II Officer", passed
the order of stay in favour of petitioner/respondent No.1.
Relevant portion of order impugned is extracted below for
ready reference;-
"Since in the earlier writ petition, interim order was
already granted against no confidence motion dated
30-5-2022, but it has been dismissed in default
against which MCC has been entertained and notice
have been issued and furthermore, Annexure P-1
dated 26-9-2022 which is said to have been
challenged in this writ petition is in respect of a fresh
meeting which has been convened by the SDO (R),
whereas it is the contention of learned counsel for
the petitioner that it has to be convened by the
Collector of the District and it can be presided over
only by Class-II Officer, it appears that the petitioner
has a prima facie case for grant of interim relief.
Accordingly, it is directed that effect and operation of
notice dated 26-9-2022 (Annexure P-1) shall remain
stayed, till the next date of hearing i.e. 10-10-2022.
Before that date, the State / respondents No.1 to 3
and the private respondents will file reply.."
12. Issue raised in writ petition is yet to be considered on merits
by learned Single and order is yet to be passed, deciding
rights of the parties. Section 2 of the Act of 2006 is extracted
below for ready reference;-
"2. Appeal to Division Bench of the High Court
from a judgment or order of one judge of the
High Court made in exercise of original
jurisdiction.- (1) An appeal shall lie from a judgment
or order passed by one judge of the High Court in
exercise of original jurisdiction under Article 226 of
the Constitution of India, to a Division Bench
comprising of two judges of the same High Court;
Provided that no such appeal shall lie against
an interlocutory order or against an order passed in
exercise of supervisory jurisdiction under Article 227
of the Constitution of India."
13. A Full Bench of this High Court in its order dated 25.1.2017 in
W.A. No.255/2015 (Ajay Gupta vs. State of Chhattisgarh &
ors), reliance on which has also been placed by learned
counsel for appellant, discussed in detail the issue of
maintainability of writ appeal in view of proviso to Section 2 of
the Act of 2006. Relevant portion of said judgment is
extracted below for ready reference:-
"20. However, the matter cannot end here. Though,
this matter has not been specifically referred, we
are of the view that the Full Bench must also
answer the question as to what are interlocutory
orders because the second part of the question
referred to the Full Bench deals with the scope of
the orders and whether the orders have decided
the rights of the parties and have an element of
finality attached to them. During the course of
proceedings, a Single Judge may pass many
orders. Some may be procedural in nature which
may not affect the rights of the parties, some may
marginally affect the rights of the parties but they
will still be interlocutory orders. Only those orders
would not be interlocutory order which decide
matters of moment, have an element of finality, or
affect vital and valuable rights of the parties and
which work serious injustice to the party concerned.
There may be orders which though passed at the
interim stage decide material issues and which
have great bearing on the final order to be passed.
Some of these orders may have an element of
finality attached to them. In our view, such orders
cannot be termed to be interlocutory orders. Every
order passed during pendency of the proceedings
may be an interim order but every interim order
may not necessarily be an interlocutory order.
21. The scope and ambit of the word "interlocutory
orders" has been considered by the Apex Court in
the context of the Criminal Procedure Code in a
number of cases. In Amar Nath & Others v. State of
Haryana & Another{(1977) 4 SCC 137} it was
observed as under:
"6....The main question which falls for
determination in this appeal is as to what is
the connotation of the term"interlocutory
order" as appearing in sub-section (2) of
section 397 which bars any revision of
such an order by the High Court. The term
"interlocutory order" is a term of well-
known legal significance and does not
present any serious difficulty. It has been
used in various statutes including the Code
of Civil Procedure, Letters Patent of the
High Courts and other like statutes. In
Webster's New World Dictionary
"interlocutory" has been defined as an
order other than final decision. Decided
cases have laid down that interlocutory
orders to be appellable must be those
which decide 'the rights and liabilities of the
parties concerning a particular aspect. It
seems to, us that the term"interlocutory
order" in section 397(2) of the 1973 Code
has been used in a restricted sense and
not in any broad or artistic sense. It merely
denotes orders of a purely interim or
temporary nature which do not decide or
touch the important rights, or the liabilities
of the parties. Any order which
substantially affects the right of the
accused, or decides certain rights of the
parties cannot be said to be an
interlocutory order so as to bar a revision
to the High Court against that order,
because that would be against the very
object which formed the basis for insertion
of this particular provision in section 397 of
the 1973 Code. Thus, for instance, orders
summoning witnesses, adjourning
cases,passing orders for bail, calling for
reports and such other steps in aid of the
pending proceeding, may no doubt amount
to interlocutory orders against which no
revision would lie under section 397 (2) of
the 1973 Code. But orders which are
matters of moment and which affect or
adjudicate the rights of the accused or a
particular aspect of the trial cannot be said
to be interlocutory order so as to be
outside the purview of the revisional
jurisdiction of the High Court."
22. In Madhu Limaye v. The State of Maharashtra
{(1977) 4 SCC 551} the view taken in Amar Nath
(supra) with regard to interpretation of the word
'interlocutory order' was reiterated in the following
terms:-
"10. As pointed out in Amar Nath's case
(supra) the purpose of putting a bar on the
power of revision in relation to any interlocutory
order passed in an appeal, inquiry, trial or other
proceeding is to bring about expeditious
disposal of the cases finally, More often than
not, the revisional power of the High Court was
resorted to in relation to inter-locutory orders
delaying the final disposal of the proceedings.
The Legislature in its wisdom decided to check
this delay by introducing sub-section (2), in
section397. On the one hand, a bar has been
put in the way of the High Court (as also of the
Sessions Judge) for exercise of the revisional
power in relation to any interlocutory order,on
the other, the power has been conferred in
almost the same terms as it was in the 1898
Code. On a plain reading of section 482,
however, it would follow that nothing in the
Code, which would include subsection (2) of
section 397also, "shall be deemed to limit or
affect the inherent powers of the High Court".
But, if we were to say that the said bar is not to
operate in the exercise of the inherent power at
all,it will be setting at naught one of the
limitations imposed upon the exercise of the
revisional powers. In such a situation, what is-
the harmonious way out ? In our opinion,a
happy solution of this problem would be to say
that the bar provided in sub-section (2) of
section 397 operates only in exercise of the
revisional power of the High Court,meaning
thereby that the High Court will have no power
of revision in relation to any interlocutory order.
Then inaccordance with one of the other
principles enunciated above, the inherent
power will come into play, there being no other
provision in the Code for the redress of the
grievance of the aggrieved party. But then, if
the order assailed is purely of an interlocutory
character which could be corrected in exercise
of the revisional power of the High Court under
the 1898 Code the High Court will refuse to
exercise its inherent power. But in case the
impugned order clearly brings about a situation
which is an abuse of the process of the Court
or for the purpose of securing the endsof
justice interference by the High Court is
absolutely necessary, then nothing contained
in section 397(2) canlimit or affect the exercise
of the inherent power by the High Court. But
such cases would be few and far between. The
High Court must exercise the inherent power
very sparingly. One such case would be the
desirability of the quashing of a criminal
proceeding initiated illegally,vexatiously or as
being without jurisdiction. Take for example a
case where a prosecution is launched under
the 12Prevention of Corruption Act without a
sanction, then the trial of the accused will be
without jurisdiction and even after his acquittal
a second trial after proper sanction will not be
barred on the doctrine of Autrefois Acquit. Even
assuming, although we shall presently show
that it is not so,that in such a case an order of
the Court taking cognizance or issuing
processes is an interlocutory order does it
stand to reason to say that inherent power of
the High Court cannot be exercised for
stopping the criminal proceeding as early as
possible, instead of harassing the accused
upto the end ?The answer is obvious that the
bar will not operate to prevent the abuse of the
process of the Court and/or to secure the ends
of justice. The label of the petition filed by an
aggrieved party is immaterial. The High Court
can examine the matter in an appropriate case
under its inherent powers. The present case
undoubtedly falls for exercise of the power of
the High Court in accordance with section
482of the 1973 Code, even assuming,
although not accepting,that invoking the
revisional power of the High Court is
impermissible."
26.It is thus clear that even an interlocutory order may be
final in certain respects. In Madhu Limaye (supra), the
Apex Court held that it is neither advisable nor possible to
make a catalogue of orders to demonstrate whichkinds of
orders would be merely, purely or simply interlocutory and
which kinds of orders would be final. However, we would
like to give examples of one or two orders which may be
interim in nature and do not bring the entire proceedings
to a closure but decide matters of moment and have an
element of finality attached to them. A writ Court, by way
of interim relief may grant admission to the petitioner in a
medical college. This order virtually amounts to allowing
the writ petition and could be termed as an order having
an element of finality attached to it. On the other hand,
the order refusing to grant interim relief would be an
interlocutory order.
27.In the same way, when a party files an application that
it has vital interest in the proceedings and must be heard
in the matter and if such an application is allowed, the
order would be an interlocutory order. However, if the
application is rejected and the party is ordered not to be
impleaded, then the said order has an element of finality
attached to it and as far as that party is concerned and an
appeal would lie.
28.Another example would be where an order of
demolition is challenged in a writ petition in which
demolition is to take place in a day or two. If the writ Court
does not grant an order of stay, the said petition would
virtually become infructuous. This order can also be
termed to have an element of finality attached to it. On the
other hand, if a transfer order is not stayed,that has no
element of finality because if the writ petition is allowed,
the transfer order can be quashed at a later stage also.
What flows from this discussion is that if the order has
some irreversible effect which cannot be undone at the
time of final hearing, then such order has an element of
finality attached to it and cannot be termed as
interlocutory order finality attached to it and cannot be
termed as interlocutory order.
30.We therefore answer the question referred to us by
holding that proviso to Section 2(1) of the Chhattisgarh
High Court (Appeal to Division Bench) Act,2006 bars
appeals against those interim orders which are totally
interlocutory in nature, do not decide matters of moment
and do not have an element of finality attached to them.
Conversely, if the order vitally affects rights of the parties
having bearing on the final adjudication of the case,then
even though the order is interim, it cannot be termed as
interlocutory order and an appeal would lie. An appeal
would also lie against those orders which cannot be
undone at the time of final hearing and which have an
element of finality attached to them. The orders, effect of
which cannot be undone at the time of final hearing,
cannot be termed to be interlocutory orders and in such
eventuality, an appeal would lie against such orders."
14. In Paragraph- 27 the Full Bench considered that when a party
files an application that it has vital interest in the proceedings
and must be heard in the matter and if such an application is
allowed, the order would be an interlocutory order. At the same
time, in Paragraph -30 it was held that an order, which does not
have an element of finality attached to it, is an interlocutory
order. Hence, the order under challenge cannot be termed to
be an order having element of finality attached to it, effect of
which cannot be undone at the time of final hearing. In case,
writ petition of petitioner/respondent No.1 fails, appellants
herein will get an opportunity to participate in the meeting for
consideration of no-confidence motion against respondent No.1
on a date to be fixed by authority concerned. Therefore, in the
opinion of this Court, the order under challenge is an
interlocutory order against which writ appeal is barred in terms
of proviso to Section 2 of the Act of 2006.
15. For the foregoing discussions, we are of the considered view
that this writ appeal in its form is not maintainable and
accordingly, it is dismissed as not maintainable. Consequently,
I.A. No.2/2022 & 3/2022 stand disposed of.
Sd/- Sd/-
(Parth Prateem Sahu) (Rakesh Mohan Pandey)
Judge Judge
Roshan/-
