SUPREME COURT OF INDIA
State of Orissa
Vs
Md. Illiyas
Civil Appeal No. 6980 of 2003
(Arijit Pasayat and Arun Kumar)
22/11/2005
ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Orissa High Court. By the impugned judgment the High Court held that the
pre-requisites for taking such action under Section 115(1) of the Orissa Gram
Panchayat Act, 1964 (in short the 'Act') were not satisfied and, therefore, the
order of Collector, Jajpur, dated 3.6.2003 directing suspension of the
respondent was illegal.
3. The factual background needs to be noted in brief:
4. The respondent was elected as Sarpanch of Neulapur Gram Panchayat in March,
2002. Purportedly acting on the basis of the allegations made by several
villagers of that gram panchayat inquiry was conducted by the Sub-Collector,
Jajpur. Several allegations were received by the Sub-Collector from the
villagers as well as the member of the Legislative Assembly. By Order dated
17.5.2003 the Collector directed Sub-Collector to inquire into the allegations
made against the respondent-Sarpanch. On 23.5.2003 the Sub-Collector conducted
inquiry and recorded statements of the complainants and thereafter the
respondent. On 27.5.2003 Sub Collector submitted his report concluding that the
respondent had misused his power as Sarpanch and had failed to discharge his
duties. Considering the report of the Sub-Collector, by order dated 3.6.2003
the Collector suspended the respondent from the office of Sarpanch in purported
exercise of powers conferred under Section 115(1) of the Act. The order was
challenged by the respondent by filing a writ petition before the High Court.
It was submitted that there was no material to show that the alleged acts of
the respondent were wilful. The State Government filed its counter pointing out
that serious allegations were made which were inquired into by the
Sub-Collector, who had categorically reported that there was truth in the
allegations clearly indicating abuses of powers, rights and privileges vested
in his (the respondent) and the acts were prejudicial to the interest of
inhabitants of Grama, and his further continuance would be detrimental to the
interest of the Grama Panchayat and inhabitants of the Grama. Hgh Court
referred to an earlier decision in Sanatan Jena vs. Collector, Balasore and
another 2001 (1) OLR 206 where reference was made to two earlier
decisions i.e. Pradeep Kumar Karji vs. Collector, Rayagada and others
1998 (2) OLR 348 and Tarini Tripathy vs. Collector, Koraput and others,
1986 (2) OLR 497. On the basis of the said judgment in Sanatan's case
(supra), the High Court held as follows:-
"This being the settled position of law and bare perusal of the report
of the Sub Collector, we are of the opinion that the same do not satisfy the
pre-requisite conditions stipulated under Section 115(1) of the Orissa Gram
Panchayat Act. For the aforesaid reasons, the order of suspension fails to
withstand the judicial scrutiny which is in our considered opinion liable to be
quashed. Accordingly, we quash the impugned order passed in Annexure-I." *
5. Portion of the judgment in Sanatan's case (supra), which was quoted by the
High Court to conclude as above reads as follows:
"Suspension of an elected representative is indeed a drastic action and
should not be taken recourse to cursorily and in a mechanical manner. This view
was adopted in an earlier decision of this Court reported in 1998 (2) OLR
348 (Pradeep Kumar Karji vs. Collector, Rayagada & others). Further while
vesting the power upon the Executive to suspend an elected representative, the
legislature thought it just and prudent to provide certain safeguards against
the arbitrary exercise of such power. As has been held in the decision of the
Court reported in 1986 (2) OLR 497 (Tarini Tripathy vs. Collector,
Koraput and others), all the ingredients stipulated under Section 115(1) of the
Act are cumulative. Absence of any of one of the said ingredients would make
the order of the suspension vulnerable. In consonance with Section 115(1) of
the Act, the Collector must have to form an opinion that the omissions or
commissions found against a Sarpanch were wilful. While bringing the tenure of
an elected representative to a premature end, either temporarily or
permanently, utmost care and circumspection ought to be exercised. In other
words, the right of an elected representative to continue in office for the
full tenure should not be lightly tinkered with by the Executive." *
6. In support of the appeal, learned counsel for the appellants submitted that
the High Court is clearly in error in its analysis of Section 115(1) of the
Act. The Sub Collector's report clearly indicates the manner in which there was
abuse of powers, rights and privileges vested in respondent no.1 and as to how
the acts were prejudicial to the interest of the Grama Panchayat and
inhabitants of the Grama. The Collector had categorically stated in his order
that the acts were wilful in nature.
7. Learned counsel for the respondent submitted that by merely referring to the
language of Section the Collector could not have concluded that acts of the
respondent were prejudicial acts or amounted to abuse of powers and rights and
privileges vested in him. It was submitted that before the inquiry was
conducted by the Sub-Collector the respondent was not granted any opportunity.
On the other hand the statement of the respondent was recorded after the
statements of the so called complainants were recorded. Even a copy of the
Sub-Collector's report was not supplied to the respondent.
8. In order to appreciate the rival submissions Section 115 needs to be quoted.
The same reads as under:
"115. Suspension and removal of Sarpanch, Naib Sarpanch and member -
(1) If the Collector, on an inquiry or inspection made by him or on the report
of the Sub-Divisional Officer is of the opinion that circumstances exist to
show that the Sarpanch or Naib-Sarpanch of a Gram Panchayat Willfully omits or
refuses to carry out of violates the provisions of this Act or the rules or
orders made thereunder or abuses the powers, rights and privileges vested in
him or acts in a manner prejudicial to the interest of the inhabitants of the
Grama and that the further continuance of such person in office would be
detrimental to the interest of the Gram Panchayat or the inhabitants of the
Grama, he may, by order, suspend the Sarpanch or Naib- Sarpanch, as the case
may be, from office and report the matter to the State Government.
(2) The State Government, on the report of the Collector under sub-section (1)
shall, or if the State Govt. themselves are of the opinion that the
circumstances specified in the said sub-section exist in relation to a Sarpanch
or Naib-Sarpanch then on their own motion, may after giving the person
concerned a reasonable opportunity of showing cause, remove him from the office
of Sarpanch or Naib-Sarpanch, as the case may be.
(3) In the case of Sarpanch or Naib-Sarpanch, if he is not already under
suspension in pursuance of an order under sub-section (1), the State Government
may, pending the disposal of the proceedings before them under sub-section (2)
suspend the Sarpanch or Naib-Sarpanch, as the case may be. *
(3a) The State Government, may, at any time during the pendency of
Proceedings before them under sub-section (2), revoke the order of suspension
of a Sarpanch or Naib-Sarpanch passed under sub-section (1) or under
sub-section (3).
(4) A Sarpanch or Naib-Sarpanch, on removal from office under sub-section (2)
shall also cease to be a member of the Grama Panchayat and such person shall
not be eligible for election as a member for a period not exceeding four years
as the State Government may specify.
(5) The provisions of this section shall, so far as may be, apply in respect of
any member of the Grama Panchayat not being a Sarpanch or Naib-Sarpanch,
provided that no such member shall be liable to be placed under suspension
under the said provisions.
(6) (a) Whenever the Collector is of the opinion that the Sarpanch of a Grama
Panchayat has failed in convening any meeting of the Grama Panchayat within a
period of three continuous months he may, after making such enquiry as he deems
fit, by order, remove the Sarpanch from office and may also declare him not be
eligible for election as a member for a period not exceeding one year as he may
specify in his order and on such order being made the Sarpanch shall cease to
be a member of the Grama Panchayat.
(b) Nothing contained in the preceding sub-sections shall apply in respect of a
default as specified above." *
The scheme of Section 115 shows that the Collector can take action either on
the basis of an inquiry or inspection made by him or on the report of the
Sub-Collector. On the basis of such inquiry or inspection or report of
Sub-Divisional Officer, as the case may be, he has to form opinion whether
circumstances exist to show that the Sarpanch has willfully omitted ore fused
to carry out or has violated the provisions of the Act or the rules or orders
made thereunder or has abused the powers, rights and privileges vested in him
or has acted in a manner prejudicial to the interest of the inhabitants of the
Grama, and that further continuance of such person in office would be
detrimental to the interest of the Grama Panchayat or inhabitants of the Grama.
On formation of such opinion he may be order suspend the Sarpanch or
Naib-Sarpanch, as the case may be, from office and report the matter to the
State Government. After the report of the Collector is received by the State
Government or if the State Government themselves is of the opinion that the
circumstances specified in sub-section (1) exist in relation to a Sarpanch or
Naib-Sarpanch then on their own motion after giving the person concerned
reasonable opportunity of showing cause remove him from the office of Sarpanch
or Naib-Sarpanch as the case may be. It is only at the stage of removal, a
reasonable opportunity to show cause is to be granted to the concerned Sarpanch
or Naib-Sarpanch, as the case may be.
9. When the Collector acts in terms of sub-section (1), there is no question of
granting an opportunity to the concerned Sarpanch or Naib-Sarpanch, as the case
may be, to have his say in the matter. Sub-section (3) empowers the State
Government to suspend the Sarpanch or Naib-Sarpanch, as the case may be, if he
is not already suspended in pursuance of order under sub-section (1) while the
proceedings before them are pending under sub-section (2). Further, during
pendency of the proceedings under sub-section (2) the State Government may
under sub-section (3-a) revoke order passed either under sub-section (1) or
under sub-section (3).
10. For bringing in application of Section 115(1) the acts complained of must
have been done wilfully by the Sarpanch or Naib-Sarpanch, as the case may be.
Order of the Collector after referring to the acts purportedly done by the
respondent categorically stated that he was satisfied that the respondent had
willfully abused the powers, rights and privileges vested in him and had acted
in the manner prejudicial to the interest of the inhabitants of the Grama. The
allegations were to the effect that he had collected illegal gratification from
poor beneficiaries of the Indira Avas Yogana by giving false assurance to
provide them India Avas Houses, and also from some people for providing HUDCO
loans. The Sub-Collector had recorded statements of seven of such beneficiaries
and had concluded that by taking advantage of the simplicity of the poor
persons, the respondent had cheated the poor beneficiaries who relied upon the
words of the respondent and were finally deceived.
11. At this juncture it is desirable to consider the true, import of the word
'wilful'. An Act is said to be 'wilful' if it is intentional, conscious and
deliberate. (See: Rakapalli Raja Rama Gopala Rao vs. Naragani Govinda
Sehararao.
12. The expression 'wilful' excludes casual, accidental, bona fide or
unintentional acts or genuine inability. It is to be noted that a wilful acts
does not encompass accidental, involuntary, or negligence. It must be
intentional, deliberate, calculated and conscious with full knowledge of legal
consequences flowing therefrom. The expression 'wilful' means an act done with
a bad purpose, with an evil motive.
13. 'Wilful' is a word of familiar use in every branch of law, and although in
some branches of law it may have a special meaning, it generally, as used in
courts of law, implies nothing blameable, but merely that the person of whose
action or default the expression is used is a free agent, and that what has
been done arises from the spontaneous action of his will. It amounts to nothing
more than this, that he knows what he is doing, and intends to do what he is
doing, and is a free agent. (Per Bowen L.J. in Re Young and Harston 31
ChD 174. It does not necessarily, connote blame, although the word is more
commonly used of bad conduct than of good. (See Wheeler vs. New Merion Board
Mills 1933 (2) KB 669. Whatever is intentional is wilful. (per Day J. in
Gayford vs. Chouler (1898) 1 Q.B. 316). As observed by Russel C.J. in R. v.
Senior 1899 (1) QB 283, 'wilfully' means deliberately and intentionally.
14. When the allegation is of cheating or deceiving, whether the alleged act is
wilful or not depends upon the circumstances of the concerned case and there
cannot be any strait jacket formula. The High Court unfortunately did not
discuss the factual aspects and by merely placing reliance on earlier decision
of the Court held that pre-requisite conditions were absent. Reliance on the
decision without looking into the factual background of the case before it is
clearly impermissible. A decision is a precedent on its own facts. Each case
presents its own features. It is not everything said by a Judge while giving
judgment that constitutes a precedent. The only thing in a Judge's decision
binding a party is the principle upon which the case is decided and for this
reason it is important to analyse a decision and isolate from it the ratio decidendi.
According to the well-settled theory of precedents, every decision contains
three basic postulates - (i) findings of material facts, direct and
inferential. An inferential finding of facts is the inference which the Judge
draws from the direct, or perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the above. A decision is an authority
for what it actually decides. What is of the essence in a decision is its ratio
and not every observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation of the reason or
principle on which a question before a Court has been decided is alone binding
as a precedent. (See: State of Orissa vs. Sudhansu Sekhar Misra and others
and Union of India and others vs. Dhanwanti Devi and others 8. A case is a precedent and binding for what it
explicitly decides and no more. The words used by judges in their judgments are
not to be read as if they are words in Act of Parliament. In Quinn vs. Leathem
1901 AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must
be read as applicable to the particular facts proved or assumed to be proved,
since the generality of the expressions which are found there are not intended
to be exposition of the whole law but governed and qualified by the particular
facts of the case in which such expressions are found and a case is only an
authority for what it actually decides.
15. The High Court has not indicated as to why according to it the
pre-requisite conditions stipulated were not satisfied. Vulnerability of the
High Court's judgment is also apparent from the fact that it referred to the
report of the Sub-Collector and held that the same did not satisfy the
pre-requisite conditions stipulated. The Sub-Collector's report indicated
circumstances to show that Sarpanch had wilfully omitted or refused to carry
out or has violated the provisions of the Act or the Rules or Orders made
thereunder or has abused the powers, rights and privileges vested in him or has
acted in the manner prejudicial to the interest of the inhabitants of the
Grama.
16. In the instant case various acts of the respondent are prima facie indicative
of abuse of powers, rights and privileges vested on the Sarpanch. The
Collector, on the basis of materials contained in the report of the
Sub-Collector has opined that these are wilful acts. The High Court has
completely lost sight of these relevant facts. The Collector's opinion at the
stage of consideration is really a prima facie view on the basis of materials
before him. Unless there is total absence of material and/ or non-application
of mind the Courts should not interfere. The case at hand does not belong to
that category.
#
17. A plea has been advanced by learned counsel for the appellant that the
Collector does not have to opine on the wilful aspect when the act impugned is
an abuse of the powers, rights and privileges, there is no need to examine that
aspect as the Collector has himself characterized the act as wilful.
18. Looked from any angle, the High Court's judgment is indefensible and is set
aside. We make it clear that we have not expressed opinion on the merits of the
case, so far as action under sub-section (2) of Section 115 is concerned. That
is a matter which is to be adjudicated by the State Government. Learned counsel
for the respondent submitted that prayers shall be made before the State
Government to revoke the suspension in terms of sub-section (3a) of Section
115. If any prayer is made the same shall be considered in accordance with law,
and we express no opinion in that regard.
19. The appeal is allowed, with no order as to costs.