Ashish Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 127 MP

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                            IN    THE    HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                            ON THE 3 rd OF JANUARY, 2023
                                          REVIEW PETITION No. 1304 of 2022

                           BETWEEN:-
                           ASHISH SINGH S/O LATE ARUN PRATAP SINGH, AGED
                           ABOUT 39 YEARS, OCCUPATION: AGRICULTURIST R/O
                           GRAM PANCHAYAT, PANCHUHA, VILLAGE PANCHUHA,
                           P.O. LEHARPUR, DISTRICT ANUPPUR (MADHYA
                           PRADESH)

                                                                              .....PETITIONER
                           (BY SHRI AKSHAY PAWAR - ADVOCATE )

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 SECRETARY PANCHAYAT AVAM GRAMIN VIKAS
                                 MANTRALAYA VALLABH BHAWAN, BHOPAL
                                 (MADHYA PRADESH)

                           2.    COMMISSIONER REWA SAMBHAG DISTRICT
                                 REWA (MADHYA PRADESH)

                           3.    THE COLLECTOR ANUPPUR ANUPPUR (MADHYA
                                 PRADESH)

                           4.    SUB DIVISIONAL OFFICER ANUPPUR DISTRICT
                                 ANUPPUR (MADHYA PRADESH)

                           5.    SARPANCH GRAM PANCHAYAT PANCHUHA
                                 JANPAD PANCHAYAT JAITHARI, DISTRICT
                                 ANUPPUR (MADHYA PRADESH)

                           6.    SUNIL KUMAR SHARMA S/O BABULAL SHARMA,
                                 AGED ABOUT 45 YEARS, R/O GRAM PANCHAYAT,
                                 PANCHUHA,   TAHSIL    JAITHARI, DISTRICT
                                 ANUPPUR (MADHYA PRADESH)

                                                                            .....RESPONDENTS
                           (BY SHRI SHASHANK UPADHYAY - ADVOCATE)

Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 1/7/2023
2:27:52 PM
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                                 T h is petition coming on for orders this day, t h e cou rt passed the
                           following:
                                                               ORDER

The review petitioner has filed this review petition seeking review of order dated 28.09.2022 in W.P.No.5155/2007 Annexure RP/1.

It is contended by the counsel for the review petitioner that the review petitioner was appointed as Panchayat Karmi vide order dated 21.08.2004 Annexure RP/2 in place of respondent No.6 after his dismissal from service but respondent No.6 while filing W.P.No.5155/2007 did not implead the review petitioner as a party. It is further contended by the counsel that in the present

case, this Court has allowed the writ petition filed by the respondent No.6 (Sunil Kumar Sharma) solely on the ground that the Sub-Divisional Officer exercised the suo motu power under Section 91 of the Madhya Pradesh Panchayat Raj and Gram Swaraj Adhiniyam, 1993 whereas such jurisdiction to exercise suo motu power under Section 91 of the said Adhiniyam, 1993 was not available with the SDO. It is also contended by the counsel that the order by Sub- Divisional Officer dated 31.05.2003 was in fact passed under Section 85 of the Adhiniyam of 1993 and the Sub-Divisional Officer was empowered to pass an order under Section 85 of the Adhiniyiam at his own volition. It is further contended by counsel for review petitioner that the present case ought to have been decided in the light of decision of this Court in the case of Machhali Udyog Sahakari Samiti Maryadit vs. State of M.P. and Others reported in I.L.R. (2017) M.P. 555 . It is contended by the counsel that in that case, this Court issued direction that the order of quashing of the resolution be treated as an order of suspending the resolution, thus, submits that the same course ought to have been adopted in the present case as well. It is further contended by the Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/7/2023 2:27:52 PM

counsel for the review petitioner that merely quoting of a wrong provision i.e. Section 91 of said Adhiniyam, 1993 in the present case, does not vitiate the order and accordingly has placed reliance upon the decision of this Court in the case of Amit Roshan Suryavanshi vs. State of M.P. and Others reported in 2018 SCC OnLine MP 427 and also in the decision of Apex Court in the case o f Vikram Singh Junior High School vs. District Magistrate (FIN. & REV.) and Others reported in (2002) 9 SCC 509. The counsel has also placed reliance upon the decision of Supreme Court in the case of Kamlesh Verma vs. Mayawati and Others reported in (2013) 8 SCC 320 to demonstrate that the scope of review extend to the eventuality which have been summarized by the Apex Court in paragraph 20 of the said judgment. The reliance is also on the decision of the Supreme Court in the case of Union of India vs. Nareshkumar Badrikumar Jagad and Others reported in (2019) 18 SCC 586 to buttress the contention regarding locus of the review petitioner to file the review petition.

Heard the submissions advanced on behalf of the review petitioner. In the present case, this Court, while evaluating the order dated 31.05.2003 which was passed by the Sub-Divisional Officer, came to a conclusion that the said order was passed in exercise of suo motu powers under Section 91 of the Adhiniyam, 1993. While passing the said order, the

authority had quashed the resolution and order which were passed by the concerned Gram Panchayat.

This Court while considering the scope of Rule 3 of the Madhya Pradesh Panchayat (Appeal & Revision) Rules, 1995 and also Section 91 of the Adhiniyam, 1993, observed that the powers under Section 91 of the Adhiniyam, 1993 cannot be exercised suo motu and this Court also observed that instead of Signature Not Verified Signed by: SAVITRI PATEL Signing time: 1/7/2023 2:27:52 PM

invoking the powers under Section 85 of the Adhiniyam, 1993, Sub-Divisional Officer invoked the suo motu powers under Section 91 of the Adhiniyam, 1993 which was not permissible. Accordingly, quashed the order passed by the Sub- Divisional Officer.

Therefore, in the present case, the order passed by the Sub-Divisional Officer was taken into consideration by this Court and as the order in unequivocal terms was passed in exercise of powers under Section 91 of the Adhiniyam, 1993, this Court quashed the said order as there was suo motu exercise of powers. It is also noteworthy that while passing the said order the resolution of Gram Panchayat dated 20.08.2002 and order of the Gram Panchayat Pachouha dated 13.09.2002 were quashed by the Sub-Divisional Officer. Thus, the Sub-Divisional Officer while passing the aforesaid order apparently did not exercise the powers which were conferred under Section 85 of the Adhiniyam, 1993 inasmuch as, in exercise of powers under Section 85 of the Adhiniyam, 1993 the prescribed authority can only suspend the resolution.

The reliance as being placed upon by the counsel for the review petition on the decision of this Court in Machhali Udyog Sahakari Samiti Maryadit (supra) is also misplaced inasmuch as, in that particular case there was a direction by this Court to treat the order impugned therein to be an order of suspension of resolution.The order in Machhali Udyog Sahakari Samiti Maryadit (supra) is not a case where the ratio is to the extent that every order by which a resolution is set aside should be treated as an order suspending the resolution. The directions in Machhali Udyog Sahakari Samiti Maryadit (supra) were confined to the facts of that case only. Therefore, the reliance on the said decision is ill founded.

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So far as the contention of the review petitioner that there is wrong quoting of provision, the same is also grossly misconceived inasmuch as, the perusal of the order passed by the Sub-Divisional Officer, reflect that the same is unequivocal expression of the venture taken recourse to by the Sub- Divisional Officer and the Sub-Divisional Officer consciously exercised the powers under Section 91 of the Adhiniyam, 1993 and also eventually set aside not only the resolution but also the order passed by the Gram Panchayat. Both the courses are not available under Section 85 of the Adhiniyam, 1993. Thus, this was not a case of incorrect quoting of the statutory provisions, and therefore, the said contention is rejected.

In the present case, the petitioner undisputedly is not is working against the post of Panchayat Karmi and the counsel fairly submits that despite the order dated 21.08.2004 contained in Annexure RP/2, the petitioner was not permitted to perform the duties and therefore, in the considered view of this Court even otherwise the review petition at the instance of the present petitioner is not maintainable.

The judgment as relied upon by the counsel for the petitioner on the case o f Nareshkumar Badrikumar Jagad and Others (supra) is also distinguishable inasmuch as, there is a failure on the part of the review petitioner to demonstrate as to how he is aggrieved by the order passed by this Court.

The contention of the petitioner that had there been a process for appointment of Panchayat Karmi, the review petition would have applied for the same is also a ground which depends upon the contingency and if such a course is made available to the petitioner then obviously any other person can also project himself to be aggrieved.

Signature Not Verified Thus, since the scope of review is very limited and it is also trite that Signed by: SAVITRI PATEL Signing time: 1/7/2023 2:27:52 PM

review can only be entertained when there is an error apparent on the face of record and the same has resulted in miscarriage of justice.

The Apex Court in paragraph 9 in the case of Meera Bhanja (Smt)Vs. Nirmala Kumari Choudhary reported in 1995 (1) SCC 170 has held as under:

"9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully

refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [AIR 1960 SC 137 : (1960) 1 SCR 890] wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

A n error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and

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complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."

Apart from the issue of locus, in the considered view of this Court as there is failure on the part of the petitioner to point out the error apparent on the record, no interference is warranted.

Accordingly, the review petition stands dismissed. No order as to costs.

(MANINDER S. BHATTI) JUDGE sp

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