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CASE NO.: Appeal (civil)  6980 of 2005

PETITIONER: State of Orissa & Ors.                                   

RESPONDENT: Md. Illiyas                                                      

DATE OF JUDGMENT: 22/11/2005

BENCH: ARIJIT PASAYAT & ARUN KUMAR

JUDGMENT: J U D G M E N T (Arising out of S.L.P (C) No. 15626 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       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.   

       The factual background needs to be noted in brief:                                                              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 him (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. High Court referred to an earlier decision in  Sanatan Jena v. Collector, Balasore and Anr. (2001 (I) OLR  206) where reference was made to two earlier decisions i.e.

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Pradeep Kumar Karji v. Collector, Rayagada & Ors. (1998 (II)  OLR 348) and Tarini Tripathy v. Collector, Koraput and Ors.  (1986 (II) 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."

       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 (II) OLR 348 (Pradeep Kumar Karji V.  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 (II) OLR 497 (Tarini Tripathy V.  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 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."              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.           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

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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.   

       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 \026 (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 or 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.

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(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 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 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 by 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.

       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).  

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       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 wilfully 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.   

       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 v. Naragani Govinda Sehararao  (1989 (4) SCC 255).           The expression ’Wilful’ excludes casual, accidental,  bona fide or unintentional acts or genuine inability. It is  to be noted that a wilful act 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.   

       "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 Ch. D. 174). It does not  necessarily, connote blame, although the word is more  commonly used of bad conduct than of good.  (See Wheeler v.  New Merion Board Mills (1933) 2 K.B. 669).  Whatever is  intentional is wilful. (per Day J. in Gayford v. Chouler  (1898) 1 Q.B. 316). As observed by Russel C.J. in R. v.  Senior (1899) 1 Q.B. 283, "wilfully" means deliberately  and intentionally.               

       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.  

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According to the well-settled theory of precedents, every  decision contains three basic postulates \026 (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 v. Sudhansu  Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India  and Ors. v. Dhanwanti Devi and Ors. (1996 (6) SCC 44).  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 v. 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.                       

       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.  

       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.   

       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.           

       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

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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.  

       The appeal is allowed, with no order as to costs.