Lalita Dhanraj Jadhav v. State of Maharashtra & Ors.

2. The Petitioner herein has challenged the order dated 16/06/2020 passed by the learned Additional Commissioner, Nashik Division, Nashik (Respondent No.5) in Gram Panchayat Appeal No.75 of 2019. By the impugned order, the Respondent No.5 has dismissed the Appeal for having been filed beyond the period of 15 days stipulated in Section 16(2) of the Maharashtra Village Panchayats Act,

1959. (hereinafter referred to as ‘the Panchayat Act’). Relying upon the decision of this Court in Annapurna w/o. Jagdish Dode v/s The State of Maharashtra and ors. (Writ Petition 8727 of 2012), learned Commissioner has held that the authorities under the Panchayat Act are not 'Courts' and have no power to condone the delay.

3. Mr. Sachin Gite, learned counsel for the Petitioner submits that learned Additional Collector had closed the matter for orders without fixing any specific date for pronouncement of the order. He submits that the date on which the order was passed was not communicated to the Petitioner. The Petitioner learnt about the said order only on 28/08/2019, which was the starting point of limitation. He submits that the appeal was filed within 15 days from the date of knowledge of the order and was therefore within the period of limitation contemplated under Section 16(2) of the Act. On literal construction of the Section, there was delay of 18 days in filing the appeal and hence as an abundant caution, the Petitioner filed an application for condonation of delay. Relying upon the decision of the Division Bench of this Court in Sangitabai Vasudeo Rajput vs. State of Maharashtra and Ors. 2018 (1) Bom.C.R. 588, and of a Co-ordinate Bench of this Court in Swapnil Narayan Malke vs. Additional Commissioner, Nagpur Division, Nagpur, 2019 (2) ALL M.R., 423, he submits that the learned Additional Commissioner has grossly erred in dismissing the Appeal as barred by limitation.

4. Per contra, Mr. Ameya Deshpande, learned counsel for Respondent No.2 submits that in case of disqualification, Section 16 (2) contemplates filing of Appeal within 15 days from "the date of the order". Whereas in case of removal, Section 39(3), expressly provides for filing of the Appeal within 15 days from the date of the receipt of the order. He submits that on comparative analysis of Section 16(2) and Section 39(3) of the Panchayat Act, it is manifestly clear that the limitation period for filing of an Appeal under Section 16(2) is 15 days from the date of the order. He submits that the legislative intent is clear, explicit and unambiguous. Hence, as per the well settled and cardinal rule of interpretation of statute, the words used in the Act must be given their plain, ordinary and natural meaning. He submits that the legislature in its wisdom has not conferred any power on the Commissioner to condone the delay. Relying upon the decision of the Hon'ble Supreme Court in M.P. Steel Corporation v/s. Commissioner of Central Excise (2015) 7 SCC 58, he submits that the Appellate Authority under the Panchayat Act not being a "Court", the provisions under the Limitation Act are not applicable. He submits that the Division Bench of this Court, in Anjanabai Shinde v/s. The State of Maharashtra in Writ Petition No.1962 of 2018, has questioned the applicability of the provisions of the Limitation Act to the proceedings before the Authority under the Panchayat Act and has referred the issue to the Larger Bench. He submits that the Appeal, which was filed beyond the prescribed period of limitation, has been rightly dismissed.

5. The singular question that emanates for consideration is whether the learned Commissioner was justified in dismissing the Appeal filed by the Petitioner is barred by limitation.

6. It is to be noted that the Petitioner is a duly elected Sarpanch of Gram Panchayat Dharde Began, Taluka-Kalwan, District- Nashik on a seat reserved for woman from Scheduled Tribes, for a term 2016-2021. The Respondent No.2 had filed Gram Panchayat Dispute Application No.15 of 2019 before the Additional Collector, Malegaon, District-Nashik for disqualification of the Petitioner under the provisions of Section 14 of the Panchayat Act. The Petitioner denied the allegations leveled against her. Learned Additional Collector, Malegaon heard the respective parties and closed the matter for orders. By order dated 03/08/2019, learned Additional Collector allowed the Dispute Application and disqualified the Petitioner to the remaining period of her tenure. The Petitioner claimed that she had learnt about the said order for the first time on 28/08/2019. The Petitioner applied for a copy of the order on 29/08/2019 and filed the Appeal on 05/09/2019. The Appeal was filed within 15 days from the date of knowledge of the order, but on literal construction of Section 16(2), the Appeal was beyond the period of 15 days from the date of the order.

7. The question whether the period of limitation for filing the Appeal has to be strictly calculated from the date of the decision of the Collector and the powers of the State Government to entertain and decide an Appeal which is filed beyond the period of fifteen days has been considered by the Division Bench of this Court in Sangitabai v/s. The State of Maharashtra (supra). In this case, the Division Bench has endorsed the observation and conclusions drawn in the case of Maruti Vasant Kashid v/s. The Divisional Commissioner, Pune Division and Ors. in Writ Petition No.1213 of 2011 on 8th & 11th July, 2011, which are as follows: “ 37. Resultantly, it will have to be held that the appeal which is to be filed against the decision of the Collector may be filed within fifteen days from the decision but that is not rule of limitation as understood by the Limitation Act and in general. That a limit is prescribed but non adherence to the same is a matter not dealt with by the Legislature at all. It has not been provided by the Legislature that if the appeal is not preferred within fifteen days, that no appeal can be filed thereafter or if filed will not be entertained and heard. The consequences having not been provided by law, it is possible to hold that the appeal even if filed beyond the period of fifteen days can be dealt with and decided by the State Government or its delegate. Ultimately, it is not filing of the appeal but appealing to the State Government is what is stated. It is not filing and institution of any other proceeding but it is an appeal to the State Government by a person aggrieved and that would be the relevant factor. The appeal is not to be made in any prescribed form. The proceedings are styled as an appeal to the State Government and obviously the word “Appeal” has some definite meaning in law. It is a request to the higher forum or authority to correct the errors and defects in the proceedings held at the stage of trial or before an inferior authority. It means opportunity to be heard or to present one’s side of a case. An appeal, therefore, means actively or carefully listening to the grievance of the appellants in regard to the decision of a subordinate Tribunal. It, therefore, postulates rehearing of the grievance on merits. [(See A.I.R. 1996 Rajasthan 119 (FB)]. The power of appeal is being exercised by the State Government. In these circumstances, to hold that the State Government is powerless to entertain and decide an appeal which is filed beyond the period of fifteen days would amount to overlooking and ignoring the intent of the Legislature. The Legislature intends that the appeal can be entertained after this period. However, it must be borne in mind that even if the appeal can be entertained beyond a period of fifteen days, ultimately the State Government is the authority which is to pass a final order in the appeal. It may refuse to do so in a given case because a person has approached it at the fag end of the term of the elected councilor or that it would not be reasonable and appropriate to exercise the said appellate power on account of the time factor. The State Government, depending upon the facts and circumstances of each case, can take a view that the appeal need not be allowed because the Appellant has been unable to explain as to why he approached it belatedly. If the delay is caused deliberately or by utter negligence, total carelessness or in a given case demonstrates lack of bonafides, then, the State Government may refuse to exercise its powers and put an end to the proceedings. However, merely because the appeal has been filed beyond the period of fifteen days is no ground to reject it and particularly by applying the logic that the appellate authority is not a court and, therefore, section 5 of the Limitation Act is inapplicable. xxx

42. In the view that I have taken, it is clear that the Commissioner was in error in rejecting the appeal preferred by the petitioner. He should have entertained it and the application for condonation of delay ought to have been decided in accordance with law. Rejecting it only on the ground that he is functioning as a statutory authority and not a court and, therefore, Limitation Act is inapplicable is a view which cannot be said to be sustainable in law. In the light of the aforestated discussion, Rule is made absolute. The order of the Commissioner dated 24th December 2010 is quashed and set aside. However, in the facts and circumstances of this case, there will be no order as to costs. ”

8. In Swapnil Narayan Malke (supra), a Co-ordinate Bench of this Court derived support from the forestated observations in Sangitabai (supra) and rejected the preliminary objection that the Commissioner had no power to condone the delay under Section 16(2) of the Act. It would be relevant to note here that in Anjanabai Ashok Shinde (supra), the Division Bench of this Court (Aurangabad Bench), upon considering the decision of the Honb'le Supreme Court in M. P. Steel (supra) and the other decisions of the Apex Court as well as of this court held that the State Government deciding an Appeal under the Panchayat Act cannot be considered to be a 'Court' and has thus questioned the applicability of provisions of Section 5 of the Limitation Act to the proceedings of Appeal under the Village Panchayat Act before the State Government and has referred the issue for consideration to a Larger Bench.

9. The question relating to the applicability of the provisions under the Limitation Act to the proceedings before the Authorities under the Panchayat Act, would be relevant only when such proceedings are filed beyond the prescribed period of limitation. In the instant case, the Petitioner had filed the appeal within 15 days from 'the date of knowledge of the order' when the appeal, as provided by section 16(2) of the Panchayat Act, was required to be filed within 15 days from 'the date of the order'. This gives rise to the question whether the period of limitation as stipulated in Section 16(2) of the Panchayat Act has to be reckoned from the date of the order or from the date of knowledge of the order. This question has been considered by the Hon'ble Supreme Court in Raja Harish Chandra Raj Singh v/s. The Deputy Land Acquisition, 1961 AIR 1500 and Madan Lal v/s. State of U. P (AIR 1975 SC 2085). In Raja Harish Chandra (supra), the Apex Court has considered the question of limitation under the proviso to Section 18 of the Land Acquisition Act, whereunder a person who has not accepted the Collector's award, can apply to the Collector requiring him to refer the matter for the determination of the Court. This application has to be made within Six months from the date of the Collector's award in the case where person interested was not present or represented before the Collector at the time when he made his award or had received no notice from the Collector of the award. Construing the expression "the date of the award" the Apex Court held that "The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's award " used in the proviso to s. 18 in a literal or mechanical way."

10. The Supreme Court also referred with approval to the decisions of the Madras High Court in O.A.O.A.M. Muthia Chettiar v/s. The Commissioner of Income-tax, Madras I.L.R 1951 Mad. 815 and K.V.E. Swaminathan alias Chidambaram Pillai v/s. Letchmanan Chettiar (1930) I.L.R.53 Mad. 491. In O.A.O.A.M. Muthia Chetiyar (supra), while construing clause under Sec.33A(2) of the Indian Income-tax Act, the Madras Court had held that "If a person is given right to resort to a remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order, and therefore must be presumed to have the knowledge of the order".

11. Similarly in K.V.E. Swaminathan (supra), it was held that in a case where an order was not passed in the presence of the parties or after notice to them of the date when the order would be passed, then the expression " within thirty days after the making of the order " used in Sections 73(1) and 77(1) of the Indian Registration Act, 1908, meant within thirty days after the date on which the communication of that order reached the parties affected by it. Referring to these decisions, the Apex Court has observed that "These decisions show that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order must mean either actual or constructive communication of the said order to the party concerned.''

12. In Madan Lal v. State of U. P (AIR 1975 SC 2085), the Hon'ble Supreme Court while construing the expression "date of order'' for the purpose of computing limitation for filing Appeal under Section 17 of the Indian Forest Act, 1927 has held that "It is a fundamental principle of justice that a party whose rights are effected by an order must have notice of it. This principle is embodied in Order 20, Rule 1 of the Code of Civil Procedure; though the Forest Settlement Officer adjudicating on the claims under the Act is not a court, yet the principle which is really a principle of fair play and is applicable to all tribunals performing judicial or quasi-judicial functions must also apply to him."

13. The law as declared by the Honb'le Supreme Court in the aforesaid decisions make it amply clear that a party whose rights are affected must have either actual or constructive notice of the order. In the absence of such notice, his right to appeal cannot be taken away without there being any fault on his part. The Collector, Commissioner or any other Authority under the Panchayat Act is therefore under an obligation either to pronounce the order on a prefixed date or to communicate the order to the concerned parties. It is only when such obligation is discharged that the period of limitation will commence from the date of the order but on failure to discharge such obligation, limitation for filing appeal would run from the date the party acquires knowledge of the order.

14. In the present case, it is not in dispute that the Additional Collector had not pronounced the order immediately after conclusion of the hearing but had closed the matter for orders, without fixing a date for pronouncement of order. The order was pronounced on 03/08/2019, which was not a previously fixed date of which due notice was given to the parties or to their counsel. It is also pertinent to note that the order was not communicated to the Petitioner so as to enable her to Appeal against the decision within time. The statement of the Petitioner that she had learnt about the said order for the first time on 28/08/2019 has not been controverted. It is thus evident that the Petitioner had absolutely no knowledge, either actual or constructive, of pronouncement of order on 03/08/2019, which is an essential requirement for invoking statutory remedy of Appeal. The Petitioner had acquired knowledge of the order for the first time on 28/08/2019 and acting diligently, she applied for a copy of the order on 29/08/2019 and filed the Appeal on 04/09/2019, which was within 15 days from the date of knowledge of the order. Under the facts and circumstances, literal and mechanical construction of the provisions under Section 16(2), viz to reckon the 15 days from the date of the order, would render the statutory remedy of appeal nugatory or otiose. This certainly cannot be the legislative intent.