Subordinate to the appointing authority can not grant sanction to prosecute

Additional Collector holding charge of District Collector can not give sanction to prosecute in corruption case when employee is appointed by District Collector

    The sanction for prosecution can be granted by the authority competent to remove person. The appointment authority was Collector. PW-4 was subordinate to Collector. He was working as Additional Collector. The prosecution is relying upon the order handing over the charge to PW-4. The documents were produced on re-examination of the witness. The question which arises for consideration is that assuming that the charge was handed over to PW-4, on account of leave of District Collector, whether the charge of according sanction to prosecute the accused stands transferred to him. There is no satisfactory evidence on record to substantiate this fact. The approach of PW-4 appears to be casual. Learned counsel for the appellant has drawn my attention to some provisions of Maharashtra Civil Services Rules to bring home and contended that District Collector was appointing and removing authority.[Para No.21]

    It is submitted that, disciplinary authority cannot be inferior to the appointing authority. In the present case the collector being the appointing authority of the applicant, the additional collector did not have the power to remove him from service. Article 311 (1) of the constitution of India creates a safeguard where in no person who is a member of the Civil services of the Union or the state or an All Indian Service or a civil service or who holds a civil post under the union or State shall be removed by an authority sub ordinate to him. In the present case PW-3 at the relevant time was functioning as the Additional collector of Kolhapur. PW-3 in his examination in Chief makes a positive assertion that the Collector of the District is the Appointing and the removing Authority of the Appellant/accused. The Appointment order of the Appellant was produced on record by the said witness and the same is at (Exh.119). The PW 3 admits in his cross examination that the Post of the Additional Collector and Collector are different. The onus of proving a valid sanction is on the prosecution and hence it was incumbent upon the prosecution to bring on record any documents which would demonstrate that the power of Appointment and the removal of the Appellant vested with the Additional Collector. The prosecution has not produced any documents in this regard. The aforesaid witness was re-examined by the prosecution and the documents at Exh.124 is a charge report dated 11th April, 2006. It can be seen that the Collector holding regular charge was proceedings on leave and hence the Additional Charge of the District was being handed over to the PW-3. In the aforesaid charge report it is no where mentioned that the PW-3 had the authority to remove the Appellant or persons of equivalent rank from service and hence (Exh.124) would not come to the aid and assistance of the prosecution.

In fact Article 311 (1) does not permit such a delegation of powers and hence assuming without admitting that there was such a delegation, then the same would nonest in the eyes of law and the same would be in conflict with the constitutional safeguard created under Article 311 (1) of the Constitution of India.[Para No.22]

Dispute between landlord and tenant is arbitrable in case of lease and it is non arbitrable in case if Rent Act is applicable

Such equitable protection does not mean that the disputes relating to those aspects between the landlord and the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the circumstance stated in the provision. In our view, when the disputes arise between the landlord and tenant with regard to determination of lease under the TP Act, the landlord to secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However, if the parties in the contract of lease or in such other manner have agreed upon the alternate mode of dispute resolution through arbitration the landlord would be entitled to invoke the arbitration clause and make a claim before the learned Arbitrator. Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act arise, it could be brought up before the learned Arbitrator who would take note of the same and act in accordance with the law qua passing the award. In other words, if in the arbitration proceedings the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express condition for payment of rent or such other breach and in such proceedings the tenant pays or tenders the rent to the lessor or remedies such other breach, it would be open for the Arbitrator to take note of Section 114, 114A of TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion.[Para No.16]

    On the other hand, the disputes arising under the Rent Acts will have to be looked at from a different view point and therefore not arbitrable in those cases. This is for the reason that

notwithstanding the terms and conditions entered into between the landlord and tenant to regulate the tenancy, if the eviction or tenancy is governed by a special statute, namely, the Rent Act the premises being amenable to the provisions of the Act would also provide statutory protection against eviction and the courts specified in the Act alone will be conferred jurisdiction to order eviction or to resolve such other disputes. In such proceedings under special statutes the issue to be considered by the jurisdictional court is not merely the terms and conditions entered into between the landlord and tenant but also other aspects such as the bonafide requirement, comparative hardship etc. even if the case for eviction is made out. In such circumstance, the Court having jurisdiction alone can advert into all these aspects as a statutory requirement and, therefore, such cases are not arbitrable. As indicated above, the same is not the position in matters relating to the lease/tenancy which are not governed under the special statutes but under the TP Act.[Para No.17]