Madhya Pradesh High Court
Nakul Kumar vs Tirath Prasad Gosai on 13 June, 2023
Author: Sujoy Paul
1
WRIT APPEAL No.585 OF 2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
JUSTICE SUJOY PAUL
&
JUSTICE ACHAL KUMAR PALIWAL
ON THE 13th OF JUNE, 2023
WRIT APPEAL No. 585 of 2016
BETWEEN :-
NAKUL KUMAR S/O SHRI GARIBDAS,
AGED ABOUT 45 YEARS, R/O.
VILLAGE VIKRAMPUR, TEHSIL AND
DISTRICT - DINDORI (M. P.)
....APPELLANT
(BY SHRI K.C. KHILDIYAL - SENIOR ADVOCATE WITH SHRI
PRADEEP DWIVEDI - ADVOCATE)
AND
1. TIRATH PRASAD GOSAI S/O SHRI
JHUNNILAL, AGED ABOUT 36 YEARS,
R/O. VILLAGE JAGITOLA,
VIKRAMPUR, TEHSIL AND
DISTRICT - DINDORI (M. P.)
2. THE STATE OF M.P. THROUGH
THE SECRETARY OF PANCHAYAT
AND RURAL DEVELOPMENT
DEPARTMENT, VALLABH BHAWAN,
BHOPAL (M.P.)
3. THE COLLECTOR DINDORI,
DISTRICT - DINDORI (M.P.)
4. THE GRAM PANCHAYAT
VIKRAMPUR THROUGH THE
SARPANCH, JANPAD PANCHAYAT
DINDORI, DISTRICT - DINDORI
(M.P.)
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 6/15/2023
4:39:46 PM
2
WRIT APPEAL No.585 OF 2016
5. MANI PRASAD, S/O THANELAL,
R/O. VILLAGE VIKRAMPUR,
TEHSIL AND DISTRICT - DINDORI
(M. P.)
.....RESPONDENTS
(BY SHRI ANKIT AGRAWAL - GOVERNMENT ADVOCATE FOR THE
STATE AND MS. NEELAM GOEL - ADVOCATE FOR RESPONDENT
NO.1)
-------------------------------------------------------------------------------------------------------
This writ appeal coming on for orders this day, JUSTICE
SUJOY PAUL passed the following:
ORDER
I.A. No.12594 of 2016 seeking leave to file the writ appeal is
taken up.
2. Since the present appellant was not a party before the writ court
in W.P. No.7273 of 2013, the present application is filed seeking leave
to appeal.
3. The admitted facts between the parties are that Gram Panchayat,
Vikrampur, District-Dindori issued an advertisement inviting
candidature for the post of Panchayat Karmi in the said Gram
Panchayat. The present appellant, respondent No.1 and other eligible
candidates submitted their candidatures. As per the outcome of
selection, one Natthulal was selected and his selection/appointment
was called in question by respondent No.1/Tirath Prasad by filing
appropriate proceedings before the Sub Divisional Officer (SDO). On
26.09.2007, the learned SDO set aside the selection of Natthulal. The
said order of SDO dated 26.09.2007 was unsuccessfully challenged by
Nattulal before learned Collector. Thereafter, the appellate order and
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 6/15/2023
4:39:46 PM
WRIT APPEAL No.585 OF 2016
original order of SDO was called in question by Natthulal in W.P.
No.3563 of 2008 before this Court. This Court on 05.03.2012 remitted
the matter back before the Sub Divisional Officer to decide the
controversy afresh. In turn, Sub Divisional Officer vide order dated
05.09.2012 directed the Gram Panchayat to re-examine the application
forms and consider the candidates for selection afresh.
4. In furtherance thereof, on 09.04.2013 a meeting of Gram Sabha
was organized and it was decided that present appellant and two more
candidates were ineligible. Gram Sabha decided to recommend the
name of one Mani Prasad for selection. Since present appellant was
declared as ineligible, he filed W.P. No.13884 of 2013 before this Court
assailing the aforesaid resolution dated 09.04.2013. This Court passed
order dated 29.08.2013 (Annexure P/6) and relegated the appellant to
avail statutory alternative remedy.
5. This Writ Appeal was heard for grant of leave on 09.11.2022
also. This Court passed a detailed order and enquired from the
appellant whether furtherance of Court order dated 29.08.2013 passed
in his W.P. No.13884 of 2013 whether he had availed any such
alternative remedy.
6. Shri Ghildiyal, learned Senior counsel fairly submits that the
appellant did not avail the alternative remedy as per Court order dated
29.8.2013 passed in W.P. No.13384 of 2013. Shri Ghildiyal submits
that the present appellant and respondent no.1 were declared ineligible
by the Gram Sabha by order dated 09.04.2013. The writ petition of
respondent no.1 (W.P. No.7273 of 2013) was entertained which
resulted into passing of impugned order 28.07.2016. The appellant
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 6/15/2023
4:39:46 PM
WRIT APPEAL No.585 OF 2016
being similarly situated should have got the same benefit but he was
relegated to avail the statutory alternative remedy.
7. This Court passed the impugned order on 28.07.2016 and
assumed that since the present appellant has not taken any action
against the impugned resolution since 2008, he is not entitled to get
any benefit and, therefore, an order was issued to appoint the
respondent no.1/original petitioner.
8. Shri Ghildiyal, learned senior counsel submits that the finding
given by learned Single Judge relating to inaction of the petitioner
from 2008 is factually incorrect. At best, it can be an inaction from
2013 when W.P. No.13884 of 2013 was decided. The time spent
between 13.02.2016 and passing of final order (order dated
28.07.2016) is not that big because of which petitioner can be called as
a sleeping litigant. The learned Single Judge has committed an error in
not considering the claim of similarly situated candidates. Thus, leave
to file present appeal may be granted.
9. The prayer is opposed by Shri Ankit Agrawal, Advocate and Ms.
Neelam Goyal for the respondent No.1.
10. Learned counsel for the respondent no.1 placed reliance on her
reply.
11. Indisputably, the present appellant as well as the original
petitioner/respondent no.1 assailed the order dated 09.4.2013 by filing
writ petitions. The writ petition of present appellant was not
entertained and he was directed to avail alternative remedy. This
remedy was never availed by the petitioner. He kept mum till the
impugned order dated 28.7.2016 is passed in favour of the respondent
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Signed by: HIMANSHU
KOSHTA
Signing time: 6/15/2023
4:39:46 PM
WRIT APPEAL No.585 OF 2016
no.1/original petitioner. He came out of his deep slumber after almost
three years and filed this application seeking leave to appeal.
11. The Apex Court in the in State of Orissa and another vs.
Mamata Mohanty, (2011) 3 SCC 436 termed such litigants as 'fence
sitters' and opined as under :-
"54. This Court has consistently rejected the
contention that a petition should be considered
ignoring the delay and laches in case the petitioner
approaches the Court after coming to know of the
relief granted by the Court in a similar case as the
same cannot furnish a proper explanation for delay
and laches. A litigant cannot wake up from deep
slumber and claim impetus from the judgment in
cases where some diligent person had approached the
Court within a reasonable time."
(Emphasis Supplied)
The ratio of above judgment is recently followed in (2021) 13
SCC 225 (U.P. Power Corpn. Ltd. vs. Ram Gopal), wherein it was
held as under :-
"Fence-sitters cannot be allowed to barge into
courts and cry for their rights at their convenience,
and vigilant citizens ought not to be treated alike
with mere opportunists. On multiple occasions, it has
been restated that there are implicit limitations of
time within which writ remedies can be enforced."
(Emphasis Supplied)
12. If the petitioner's writ petition against same resolution was not
entertained by learned single Bench by order dated 29.08.2013 and the
writ petition no.7273 of 2013 was entertained, this could have been a
ground at appropriate stage to assail the order dated 29.08.2013 before
the Division Bench. The appellant did not avail the said remedy. The
appellant was not left remediless by the order of this Court. Indeed, he
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 6/15/2023
4:39:46 PM
WRIT APPEAL No.585 OF 2016
was given liberty to avail statutory remedy. This practice is not
unknown to law where litigant is relegated to avail the statutory
alternative remedy. The appellant did not avail the said remedy and
therefore, it cannot be said that the appellant was a vigilant litigant
when his right was infringed. There is no plausible explanation for not
availing the alternative remedy. Merely because the learned single
judge has mentioned the year as 2008 in place of 2013, the order will
not become vulnerable at the instance of the petitioner a 'fence sitter'.
13. The appellant doesn't deserve any leave in view of his inaction
to assail the resolution of Gram Sabha dated 09.04.2013 despite clear
order passed by this Court on 29.8.2013. Thus, prayer for grant of
leave is declined.
14. I.A. No. 2594 of 2016 is dismissed.
15. Resultantly, W.A.No.585/2016 is also dismissed.
(SUJOY PAUL) (ACHAL KUMAR PALIWAL)
JUDGE JUDGE
Himanshu
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 6/15/2023
4:39:46 PM
