.Kia HIGH COURt OF CHHATtISGARH AT BILASPUR W.P.(C.lNo. 272/2008 PETmONERS Smt. Savitri Bai Versus RESPONDENTS State of Chhattisgarh and others POSTFORORDERON5<-4-2008 i^a- 'iT'T Sd/- Dhirendra Mishra Judge v^ m<mGOURTC C!HHATtISCrARHATBII.ASPUR W.P.fG.tNo. 27272008 PETITIONEftS Versus RESPONDENTS 1 2. 3. 4. 5. SHlt. Savitn Bai, W/o Shri Lakhan Jaiswal, aged about 49 years, R/o Gram Panehayat Accholi, Tahsil Palari, District Raipur (CG) State pf ehhattisgarh, through Collector, Raipur [CG) Additianal Collector, Balodabazar, District Raipur (£:G) Sub Divisional Officer (Revenue), Balodabazar, Distt. Raipur (CG) (Prescribed Officer) Tahsildar Palari, Distt. Raipur (CG) (F'residing Officer) Gram Panchayat Accholi, through Secretary, Gram Panchayat Acholi, Tahsil Palari, Distt. Raipi.ir (CG) Suml Kuniar S/o Balaram Jalhare, aged about25years,S/o village and Gram Panchayat Accholi, Tahsil Palari, Distt. Raipur (CG) Shri Virendra Shrama, Adv. for the petitioner. Shri N.K. Agrawal, Dy. Adyocate General with Sliri SushilDubey, Govt.AdyocatelbrtheState. 1 Shri H.P. Agrawal, Advocate fbr the TespondentsNo. 5 arid 6. | WRIT PETmON UNDER ARTICUE 226 OF THEGONSTITUTION OFINDIA : ' : :\ :'11^'!J ORDBR J0-4-2008 Dhirendra Mishra. J. (1) With GOrisent of the partdes, heard firially. i ! [2] By this petition under Article 226 ofthe Constifution ofIndia, the petitioner has ittipughed the order dated i :: 2-1-2008 passed by the respondent Np. 2i|- Additional Gollecfpr wKereb^ the applicationof ilflpje petitioner under sub-section. (4) pfJSection 21 6f;M^ II:, )~ (3) (4) (5) Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short, the Act of 1993) has been rejected. The petitioner was Sarpanch of Gram Panchayat Accholi. Up Sarpanch and other Panchas ofthe Gram. Panchayat presented notice of no-confidence motion against the petitioner. The Prescribed Authority- respondent No. 3 taking cognizance of fhe above notice, fixed the date ofholding a meeting to consider the no confidence motion and appointed respondent No. 4 as Presiding Officer to preside the above meeting. On 10-10-2007, 14 members of the Gram Panchayat out of 15 participated and voted in the meeting. Twelve ineinbers voted in favoi-u- of the motion whereas two tnembers opposed the motion. Tjhe respondent No. 4 recorded the proceeding vide Annexure P-4 and held that the motion of cpnfidence against the petitioner is carried out. no He forwarded the copy ofthe proceeding to the Collect&r, Panchayat and the Prescribed Officer. The petitioner raised the dispute under sub-section (4) of Seetion 21 of the Act of 1993 against the resolution ofthe no confidence motion vide Annexure P-8 before the CoUector, Raipur. The Collector Raiipur vide order dated 22-1-2007 transfen'ed application for adjudication tb Upper Colleqior-, his :!l-1 ^fl^&:!BP^<6&: b'- ¥-.. Raipur. The Upper Collector vide impugned order dated 2-1-2008 rejected the dispute on the ground of limitation. (6) Shri Virendra Shanna, leamed counsel for the petitioner subinits that sub-section (4) of Section 21 ofthe Act of 1993 specificatly authorizes the Collector ^y as an authority to whom the dispute is to be referred and who alone is competent to decide it. Upper CoUector had no jurisdiction to decide any dispute referred under sub-section (4) of Section 21 oftheAct of 1993. He further contended that reference has been rejected on the ground that the same is barred by limitatipn and the petitioner did not file any application for condonation of delay in filing the reference. The Upper Colleetor has not considered the fact that the petitioner applied for certified copy of the resolution ofArinexure P-4 on 11-10-2007 whieh was provided to him on 15-10-2007 arid thereafter, he Eled the reference before the ColleGtar, Raipur on 22-10-2007 well within the prescribed period ofthe limitation. Govt (7) On the other hand, Shri N.K. Agrawal, leamed Advocate "General with Shn Sushil Dubey, > ' ~ ..•• • • - Advocate appearing on behalf of the State and H.P. Agrawal, leamed counsel appearing on behalf| respondents No. 5 and 6 have questiohed Dy of JIF^ maintainability of the instant petition on the ground that the petitioner has a remedy to approach the Director Peinchayat against the order passed by the Upper Collector. The petitioner did not raise any disputeregardmgjurisdictibnof Che Upper CoUector to decide fhe reference and the petitioner partieipated in the proceeding before the Additional Collector without raisirig any objeetion regarding jurisdiction of the Upper Collector and, therefore, the petitioner cannot be permitted to raise the dispute regarding jurisdietion first tim.e in this writ petition. (8) RelyinR upori the judgment in the matter of Kaiishal PrasadKashyap AP-v-State of M.P. and otllers I, and Snat. Johai^t Daval —v-State 6f M.P. and others2. it was argued that Section 17 of the C.G. Land Revenue Code fead with Section 17 of the General Clauses Act empowers the Additioiiial Gollecfor to perform the functions of the ColIeGtor conferred upon him by any enactm.ent for the time beingin force. (9) I haveheard fhe leamedcoi.mselfortheparties. (10) So far asthe groxindthatthe UpperCollectorhad|no jurisdiction to entertain the refer^ce under s'ljib- section (4) ofSection 21 is concemed, sub-section envisages thus:- w ' 1999(1)MPu 455 22001(1)MPHT154 ^ '-^ ::^' ''21. No-cbnfiderice motion against Sarpaach and Up-Sarpaach.- (1) (2) (3) xxx XXX XXX XXX XXX XXX xxx XXX XXX (4) If the Sarpanch or fhe Upsarpanch, as the case may be, desires to challenge the validity of the niotion carried out under, sub-section (I), he shall, within seven days from the date on whieh such motion was carried, refer the dispute to the Collector who shall decide it, as far as pOSsible, within fhirty days from the date on which it was receivedby him, and his decision shall be final." (11) In the matter of Kaushal Prasad Kashyap1, Sarpanch was suspended by the F'rescribed Authority imder Section 39(2) of the Act, The order pf suspension requires confinnation by the State Govemment under Section 39(2) of theAct ahd the order of fionfirmation was passed by the Additional Collector. The State CrovertlHlerit in exercise df powers of delegation under Section 93 of the Act df 1993 delegated the said power of confirmation to tl'ie Collector by notification. In these circumstances, ijt was held thus:- "6. In the notification, of delegation th Statp Govemmenf has 'delegated the Ipower 1 to ttife ^ 'Collector' and ^tHe word 'Collector' has to Ufe understood feom th& provisions df the Code.^^tt relation to provision of the Code and ,also | |n relation of any atherienactiilen|t ^Ollector' w^ include 'Additiolial CoUector': as provfdsS 4- section 17(2), (3) ofthe Code. It cannot, therefore, be said that ynder the notification of delegation the CoUector has made any further delegatiion in favour of Additional Collector. Under the notification of delegation itself, the word 'Collector' would include 'Additional Collector', in accordance with the work distribution memo, issued under section 17 of the Code. This Coiu-t in the unreported decision (supra) has taken a similar view while deciding the competence of 'Additional Commissioner' to exercise powers of 'Commissioner' in deciding £in election petition. The two decisions cited on behalf of the respondents fuUy support them where provisions of the Code and of M.P. General Clauses Act were resorted to for rejectinga su-nilar contention. The decisions cited on behalf of the petitioner are distinguishable. In the instant case there is no case of a delegatee further delegatirig his powers. The maxim reUed is mainly attracted t;o subordinate legislation and not to exercise of statutoiy or administrative powers." s; (12) In the matter of Smt. Johara Dayal2 also, question before the High Court ofMadhya Pradesh was whether the Additional Collector had any jurisdiction to hear the appeals against the ordecs passed under sub-section 40(1) of the Act by the Su|3 Divisional Officer against Sarpanch. Learned Single Judge relying upon the decision in the matter of Kaushal Prasad Kashyap1, held thus ;.•{;; 3, -^ 1. "-V;; :;'%:KSB3HKBI^S! "....the Additional CoUector can mter aKa gxereise powers of Collector conferred by an enactment or a rule framed fhereunder subject to restriction, if any, made in the general order notified by the State in respect ofcases 6r class of cases. Section 17(3) of the M.P. Land Revenue Code inter alia says that any other enactmerat for the time being in force or rule made fhereunder shall apply to the Additional Collector except where expressly directed otherwise. This Court does not find any restriction made in the general order or in the Adhiniyam. debarring the Additional Collector frora hearing the appeal." (13) In the instant case also, the CoUector Raipur as per works distribution memo, accordihg to which, Upper Collectors have been authorized fo hear the appeals under Panchayat Act, traiisferred the case to tHe Upper Gollector for adjudication. In these circunistances, it is held that the Upper CoUeGtor had fhe jurisdiction to entertain the dispute referred by the petitioner against the resolutionofno-confidence inotion. i (14) Resolution wasadmittedly carried out on 10-10-2007 and the dispute was raised against the above resolution on 22-10-2007. Sub-section (4) of Section 21 specificaUy provides that if the SEirpanch or IjJp 'aii:; ^ h m? )-! *w' Sarpanch desires to challenge the vsdidity of the motion carried out under Sub-section (1), shall, within seven days froin the date on whieh such inotion was carried, refer the dispute to the CoUector. The Act does not yest any diseretion with the Collector to condone the delay in making referenee. It is clear from the provisions of the Act of 1993 that the provisions of the Limitation Act have not been made appUcable to the proeeedings under the Act of 1993. There is no provision under sub-section (4) of Section 21 that for the purpose of Gomputing seven days, the time required for obtaining certified copy shall beexcluded.In the matter of Ravi Khullar and another-v- UnioB; oflndia andothers3, the Hon'ble Supreme Court while considering the proyisions of Section ll-A of fhe Land Acquisition Act, 1894, held that:- | ''In the matter of computing the periQdl of limitation three situations may be visualizbd, naraely (a) where the Limitation Act applies bylits own force; (b) where the provisions of the Lrmitation Actwith or without modifications are made applicable tp a special stEiti-tte; and (c) whjere the special statute rtself preseribes the period of limitation and the prQvides for extension of time emd or condonation ofdelay. The instant casp is not one which is govemed by the provisidns of|tlie ' Limitation Act. The Land Acquisition Collector ini (2007) 5 SCC 231 f- •-^ ''ttisS making an award does not act as a ceurt 'wiQaiii ? the meaning of the Limitation Act. It is also elear from the provisions of the Lalid Acquisition Act that the provisions of the Limitation Act have not been made appHcable to proceedings under the Land AcquisitionAct in the matter of making an award under Section Il-A of the Act. However, Seetion 11-A of fheAct does provide a period of lunitation within which the^ColleGtor shall make his award. The Explanation fhereto also provides for exclusipn of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an Qrder of a court. Such being the provision, there is no scope for importing into Section 11-A of the Land Acquisition Act the provisions ofSection 12 ofthe Liinitation Act. TUe applicatiQii of Section 12 of the Liinitation Act is also Gonfined to niatters enumerated therein, The time taken for bbtaining a certiGed copy of the judgment is exeluded because a certified copy is required to tae filed while prefemng an appeal/reviosion/review, etc. chaltenging the impugned order. Thus a coiirt is not pennitted to read into Section 11-A ofjthe Act a provision for exclusiori of time taken to ^btaiiija certified copy of the jud@-nent and order. The Coilrt has, therefbre, no option but to comfpute the period of lunitatiori for inaking an award! in accordance 'wiy'i the provisipns pf Sectiofa;l l-A 6f the Act after exGluding such penod a^ cari be i exckided under the Explanation to Sectign 11-A of j theAct." ; : . : ' . • • • ;F • ;"1:' ';; (15) Section 91 of^the Aet of 1993 provides for ^ppeal andj; revisidn against the orders 6r proceedingsijof ^ irfi/; VI • eii *-• 10 Panchayat. The Ghhattisgarh Panchayats (Appeal and Revision) Rules, 1995 (for short, rules of 1995) specifically provides for limitation of appeal and revision and also confers discretion with the appellate authority to admit appeal or revision after expiry of limitation. Rule 7 of the Rules of 1995 provides that memo of appeal or revision shall be accompanied by certifled copy ofsuch order, however sub-section (4) of Section 21 of the Act of 1993 confers no discretion on the Collector to condone the delay in entertaining the reference beyond the period of seven days and it also does not envisage that the certificate copy of the resolytion is necessary for entertairung any reference, on the eontrary Rule 8 of the Madhya Pradesh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpan.ch, Janapad Panchayat Tatha Zila Paaehayat Ke President Tatha Vice President Ke Virudh Avishwas Prastav) Niyeun, 1994 casts a duty upon the Presiding Officer that he shall conununicate forthwith a copy of the proceeding drawn zinder rule 6 to the prescnbed authority anjd the CoUector. (16) Therefore, in the considered opinion pf this Coiut, as per Scheme of the Panchayat Act, filing of cerdfted eopy of the resolution of no-confidence motion aloiig with reference under sub-section (4) of Section 21]|jof ^;! a + fe^tL b- II fhe Act of 1993 is not the requirement of law and, therefore, the argument of learned counsel for the petitioner that the period required for obtaining certified copy of the resolution ought to have beeri excluded for the purpose of coinputing liniitation of seven days cannot be accep^d. (17) No other grounds were pressed by Shri Virendra Sharma, learned counsel for the petitioner. (18) In the result, there is no substance in the petition. The same deserves to be dismissed and is accordingly dismissed. (19) There shall be no order as to cost. Sd/- Dhirendra Mishra Judge