Madhya Pradesh High Court
The Collector Cum Specified ... vs Parmanand Sharma on 26 July, 2023
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WA No. 1043 of 2023
(THE COLLECTOR CUM SPECIFIED OFFICER AND OTHERS Vs PARMANAND SHARMA AND OTHERS)
Dated : 26-07-2023
Shri Prashant Singh - Advocate General with Shri Amit Seth - Deputy
Advocate General for the appellants.
Shri Manoj Sharma - Senior Advocate with Shri Quazi Fakhruddin -
Advocate for respondent No.1.
Shri Shyam Yadav - Advocate for respondent No.2.
Heard learned counsels on I.A. No.10990 of 2023 - an application
seeking condonation of delay of 259 days in filing the appeal.
2. Learned Additional Advocate General submits that after the impugned
order dated 03.08.2022 was passed, the matter was listed before the learned
Single Judge on as many as nine occasions between 03.09.2022 and
11.07.2023. That virtually the matter was adjourned on the ground that it is
required to be heard finally. That the appellants were under a bona fide
impression that the writ petition would be heard finally and the explanations
tendered by the respondent therein would be taken into consideration. However,
for various reasons therein, the writ petition was not taken up for final disposal
and the observations/remarks passed by the learned Single Judge continued.
During course of time, the same resulted into an adverse impact on the service
prospects of the respondent No.4 therein. That since they were under the bona
fide impression that the petition itself would be taken up for final disposal, they
did not think it appropriate to challenge the said order therein. It is only
thereafter due to the events narrated hereinabove, that they thought it
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appropriate to challenge the said order. Hence, there is a delay.
3. Shri Manoj Sharma, learned senior counsel appearing for the counsel
representing the respondent No.1 has addressed arguments. He pleads that
there is no sufficient cause to condone the delay. That if at all the appellants
intend to challenge the order dated 03.08.2022, the same should have done
immediately. It was not necessary for them to wait for a period of 259 days to
challenge the same. Furthermore, he refers to para 5 of the appeal memo to
indicate that the delay has been explained therein on the ground that since the
writ petition is pending before learned Single Judge, there is no delay in filing the
instant appeal. Such a reason cannot be accepted. Hence, he pleads that the
application be dismissed.
4. On hearing learned counsels, we are of the view that appropriate
interference is called for.
5. Even though the averment made in para 5 of the appeal memo that the
writ appeal arises out of the order passed in the writ petition which is pending
and hence there is no delay, cannot be accepted, the fact of the matter is that a
separate application seeking condonation of delay has been filed. They have
narrated various reasons therein. Even though the appellants could have
challenged the order dated 03.08.2022 at the earliest point of time, in view of the
various orders passed by the learned Single Judge between 03.09.2022 and
11.07.2023, the appellants appeared to be under the bona fide impression that
the matter will be taken up for final consideration. Under these circumstances,
we are of the view that the appellants have shown sufficient cause to condone
the delay. Hence, I.A. No.10990 of 2023 is allowed. The delay in filing the
appeal is condoned.
6. At request, IA No.10873 of 2023 filed for ignoring the defaults is
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dismissed as withdrawn.
7. Heard learned counsels on IA No.10872 of 2023 - an application filed by
the appellants seeking for an interim order to stay the effect and operation of the
order dated 03.08.2022 passed in W.P. No.17625 of 2022 to a limited extent of
expungement/deletion of adverse observation made by the learned Single Judge
and the stay of direction for impleadment of the appellant No.3 as respondent in
writ petition in his personal capacity.
8. Learned Advocate General submits that unnecessary observations have
been made by the learned Single Judge with regard to the conduct of the
Collector, District Panna. That the direction passed by the learned Single Judge
to the counsel for the writ petitioner to implead Shri Sanjay Kumar Mishra as a
party by name is wholly uncalled for. The observation that recommendation
should be made not to hand over any sensitive matter like dealing with election
petitions or conduct of elections in future and furthermore that such a
recommendation to be forwarded to all the Constitutional Authorities like the
Election Commission of India or bodies like the State Election Commission, is
wholly without context and requires to be set aside.
9. That in terms of the observations made, the same has affected not only
the career of the concerned officer but also the integrity of the State. On the
very first date when the matter was listed for consideration, these sort of
observations have been made which are wholly uncalled for. That even
assuming that the petitioner has any grievance against the same officer, he could
very well implead him as a party but he has chosen not to do so. That itself
should have been sufficient for the learned Single Judge to restrain himself from
passing such remarks. Hence, it is pleaded that the order be stayed.
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10. The same is disputed by the learned senior counsel appearing for
counsel representing the respondent No.1. He firstly contends that the writ
appeal against an interim order does not lie. He relies on Section 2 of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal)
Adhiniyam, 2005 to contend that no appeal shall lie against an interlocutory
order passed by the writ court. The same is objected to by the State by placing
reliance on the judgment of the Full Bench of this Court in the case of Arvind
Kumar Jain and others vs. State of M.P. and others reported in 2007 (3) MPLJ
565 with a specific reference to para-18 and furthermore the observations of
learned Division Bench in para 31.
11. On considering the same, we are of the view that the objections raised
on this count would not lie. Furthermore, there is no necessity for us to dwell
further on this issue which has already been concluded by the order of the
Division Bench. Such a contention cannot be accepted. Appeal is held to be
maintainable.
12. The further plea of the respondents is that a bare reading of the order
passed by the learned Single Judge does not indicate that any strictures have
been passed which require to be stayed. The only direction is to implead the
said person by name. He also relies on the application for dismissal of the writ
appeal filed in the Court today alongwith certain documents as well as a copy
of the video which have been furnished through a pen drive as well as a DVD.
He contends that the officer himself has made various statements which could
b e seen therein and hence it was justified that he be made a party. Hence, he
pleads that the plea for interim relief be rejected by dismissing the appeal.
Furthermore, the entire matter is still pending adjudication before the learned
Single Judge, and therefore, it is for that Court to decide on the writ petition.
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The same grounds cannot be urged and a parallel proceedings cannot be
initiated through this writ appeal.
13. On hearing learned counsels, we are of the view that appropriate
interference is called for. Firstly is a fact that whatever the petitioner may have
narrated in his grounds, he has chosen not to make him as a party in his
personal name. Therefore, all that is being argued by the learned counsel for
respondents on the acts committed by the said person and at the same time not
making him a party in his personal name in the writ petition, in our considered
view, is a fallacious argument. In fact, the direction to implead, is not at the
request of the petitioner but on the suo moto opinion of the Court to implead
him as a party by name. Furthermore, the person who has been directed to be
impleaded as a party by name is the Collector of District Panna. The cause title
would indicate that he has already been impleaded as the Collector as
respondent No.1. Therefore, even assuming that there were various questions
which were required to be answered, the same could have been done by
respondent No.1, the Collector. We fail to understand as to why he should be
impleaded in his personal name. Apparently, the acts committed by him are acts
done by him in his official capacity as that of the Collector. Therefore, he is
liable to answer the same. To implead him as a party by name, in our
considered view, was wholly uncalled for.
14. Furthermore, so far as the observation made by the learned Single
Judge that he should not be handed over any sensitive matters and the same
should be forwarded to the Constitutional Authorities would appear more like a
punishment even before a trial. As stated hereinabove, this was the very first
date on which the matter was listed for consideration. Even the State was not
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having complete instructions in the matter. In spite of that the learned Single
Judge exceeded his jurisdiction in passing such an order. We do not think that
such orders could be allowed to remain.
15. Furthermore, the writ appeal has been filed with a limited prayer to set
aside the observations made by the learned Single Judge. We fail to understand
as to how the respondent herein, namely, the writ petitioner can have any cause
to make any submission in this case. None of his legal rights are affected by the
prayer made in the writ appeal. The prayer is only against the observations
made against the particular officer. It was, therefore, between the Court and the
particular officer with regard to the observations. The over anxiety of the
respondent in not only objecting to the application for condonation of delay but
also filing additional application alongwith the pen drive and DVD should really
be read between the lines.
16. Normally we do not find any objection or even a contest in matters
where strictures are passed by a particular officer and are being contested. It is
left to the discretion of the Court and the concerned officer to deal with the said
issue. Since it does not affect any right of the other side, normally such
arguments are not advanced. In fact, we are really surprised that the matter is
being contested at such length with such seriousness.
17. We once again reiterate that the learned Single Judge has committed an
error in directing to implead Shri Sanjay Kumar Mishra, Collector, District
Panna as a party by name. The further direction with regard to his conduct and
as to why his name should not be forwarded to the Constitutional Authorities is
also wholly out of context and not necessary for the adjudication of the petition.
Hence, for all these grounds, there shall be an order of stay.
18. Stay of the directions, remarks and any observation made by the
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learned Single Judge in the order dated 03.08.2022 passed in W.P. No.17625 of
2022.
19. Stay of all further proceedings before the learned Single Judge.
20. Admit.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
vibha
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