Ramji Singh Dangi vs The State Of Madhya Pradesh

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Present :-

Shri D.K. Tripathi, Advocate for the petitioner.

Shri K.N. Bundela, Government Advocate for the respondent No.1/State.

Shri Naveen Dubey, Advocate for the respondent No.2.

ORDER

(Passed on this the 06th day of May, 2019)

This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 31.12.2018 passed by the Commissioner, Sagar (M.P.) whereby the Commissioner has allowed the application filed by the respondent No.2 herein under Order 1 Rule 10 of CPC to implead him as a party respondent in a proceeding initiated under Section 40 and 92 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (in short 'the Panchayat Act ').

2. In brief the facts of the case are that the petitioner is

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an elected Sarpanch of Gram Panchayat Jhagri, Janpad Panchayat Banda, District Sagar (M.P.). However one Omkar Singh who also contested the election of Sarpanch and lost against the petitioner lodged a complaint against him, on the basis of which the Chief Executive Officer, Jila Panchayat, Sagar initiated proceeding under Section 40(1) i.e. removal of office bearers of Panchayat and Section 92 i.e. power to recover records articles and money of the Panchayat Act 3. A show cause notice was issued to the petitioner wherein it was alleged that the petitioner, while posted on the said post did not complete certain works, however money was still withdrawn, hence in the show cause notice dated 29.11.2017 the petitioner was asked as to why he should not be removed from the said post of Sarpanch. A reply to the said show cause notice was submitted by the petitioner but on 09.03.2018, the prescribed authority removed the petitioner from the post of Sarpanch and also restrained him from contesting the election for the next six years.

4. An appeal against the aforesaid order was preferred by the petitioner before the Commissioner, Sagar (M.P.).

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In the aforesaid appeal, since the stay application was rejected by the Commissioner vide order dated 13.03.2018 against which the petitioner had filed W.P. No.6571/2018 and this Court set aside the order dated 13.03.2018 and directed the Commissioner to pass the order afresh on the question of stay application and this time after remand the stay order was granted in favour of the petitioner on 22.03.2018.

5. Against the interim order dated 22.03.2018 passed by the learned Commissioner, the respondent No.2 who was not a party before the Commissioner filed W.P.

No.8063/2018 before this Court, however, this Court declined to entertain the petition and disposed of the same with liberty to the respondent no.2 to file appropriate application for impleadment before the Commissioner along with the application for vacation of stay order dated 22.03.2018. Thereafter, the respondent No.2 filed an application under Order 1 Rule 10 of CPC for impleading him as a necessary party which was allowed on 31.12.2018.

6. Counsel for the petitioner has vehemently argued before this Court and has submitted that only because the

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respondent No.2 was a complainant, he was not a necessary party as the role of the complainant was to bring certain facts to the knowledge of the authorities. The counsel has also relied upon the judgment rendered by the coordinate Bench of this Court in the case of Omprakash Uike vs. State of M.P. and others passed in W.P.

No.1191/2017 decided on 06.02.2019. The counsel has also relied upon the judgment of the Apex Court in the case of Bhogadi Kannababu and others vs Yuggina Pydamma and others, (2006) 5 SCC 532. Thus it is submitted that the impugned order be set aside and the petition be allowed.

7. Counsel for the respondent No.1/State on the other hand has opposed the prayer and has submitted that no illegality has been committed by the learned Commissioner and has submitted that the proceeding under Section 40 of the Panchayat Act was initiated against the petitioner only on a complaint made by the respondent No.2 and the other person, hence his presence is also necessary in the case for its proper adjudication.

8. Learned counsel for the respondent No.2 has submitted that since the respondent State had not taken any

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action against the petitioner on its own, hence he had filed a complaint which resulted in exposing the corruption of the petitioner, hence, although he was not a party before the Chief Executive Officer who passed the initial order dated 09.03.2018, but still he was the complainant in the said case and was very much interested in the outcome of his complaint. It is further submitted that the respondent No.2 being the complainant, is well aware of the facts and circumstances of the case which has exposed the petitioner and thus it cannot be said that he is not a necessary party in the litigation.

9. Learned counsel for the respondent No.2 has further drawn the attention of this court to the fact that in the memo of appeal also the petitioner has made allegations against the present respondent No.2 and thus it is submitted that in the absence of respondent No.2 being made a party to the litigation, his interest would be prejudiced. The counsel has also submitted that in the Writ Petition No.8063/2018 filed by respondent No.2 against the interim order passed by the Commissioner in favour of the petitioner herein, this Court although declined to interfere but it was observed that if the

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petitioner wants to participate in the proceeding before the Commissioner, he may file appropriate application for impleadment as a party and on the basis of which only he had filed an application under Order 1 Rule 10 of CPC and no illegality has been committed by the Commissioner in allowing the said application.

10. Heard learned counsel for the parties and perused the record.

11. From the perusal of the impugned order dated 31.12.2018 it is found that the Commissioner, while allowing the application filed by the respondent No.2 Omkar Singh for his impleadment as a party has noted that only on a complaint filed by the respondent No.2, a proceeding was initiated against the petitioner under Section 40(1) of the Panchayat Act and in the aforesaid proceeding vide order dated 09.03.2018, the petitioner was found to be involved in the defalcation, hence it is held that he is a necessary party.

12. From the order dated 09.03.2018 this Court finds that a detailed order has been passed by the Chief Executive Officer wherein the present respondent No.2 is referred to as the complainant and whose evidence has also been

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recorded.

13. This Court in the case of Omprakash Uikey (supra) while dislodging the claim of a complainant has also relied upon the decision rendered by the Apex Court in the case of Ravi Yashwant Bhoir Vs. District Collector, Raigad and other (2012) 4 SCC 407, the relevant paras of the same read as under:-

"58. Shri Chintaman Raghunath Gharat, ex-

President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.

59. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons.

60. Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a

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proprietary right which has been or is

threatened to be violated, for the reason that

a legal injury creates a remedial right in the

injured person. A person cannot be heard as a

party unless he answers the description of

aggrieved party. (Vide Adi Pherozshah Gandhi

v. Advocate General of Maharashtra, Jasbhai

Motibhai Desai v. Roshan Kumar47, Maharaj

Singh v. State of U.P., Ghulam Qadir v.

Special Tribunal and Kabushiki Kaisha Toshiba

v. Tosiba Appliances Co.) The High Court

failed to appreciate that it was a case of

political rivalry. The case of the appellant has

not been considered in the correct perspective

at all."

(emphasis supplied)

14. Reliance is also placed on the judgment of the Apex Court in the case of Bhogadi Kannababu (supra) wherein in para 11 of the judgment the Apex Court has held as under :

"11. It is true, as noted hereinabove,

that in an application for impleadment

under Order 1 Rule 10 CPC, the court

would only decide whether the presence

of the applicant before the court may be

necessary in order to enable the court

effectually and completely to adjudicate

upon and settle all the questions

involved in the proceedings."

15. In the case of Bhogadi Kannababu (supra) also the relevance of a party seeking to be impleaded in a lis is emphasized only when it is held that the presence of the said applicant before the Court may be necessary in order order to enable the Court effectually and completely to

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adjudicate upon and settle all the questions involved in the proceedings and finally it is held that the petitioner 's locus was not as would entitle her to intervene in the matter.

16. Thus, considering the facts of the case on hand on the touchstone of the aforesaid dictums of the Apex Court, this Court finds that in the present case also the respondent no.2 is claiming the right of audience on the basis of his being the complaint only. Which, in the considered opinion of the this court cannot be allowed.

17. As a result, the petition stands allowed and the impugned order dated 31.12.2018 whereby the respondent No.2 has been allowed to be impleaded as a party is hereby quashed 18. No costs.

(Subodh Abhyankar)

Judge

06/05/2019

DV Digitally signed by

DINESH VERMA

Date: 2019.05.07 13:38:36 +05'30'