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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON’BLE SHRI JUSTICE VIVEK KUMAR SINGH

&

HON’BLE SHRI JUSTICE AJAY KUMAR NIRANKARI

ON THE 04

th

OF FEBRUARY, 2026

WRIT PETITION NO.16338 of 2023

ANIRUDDHA NAGAR

Versus

THE STATE OF MADHYA PRADESH AND OTHERS

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Appearance :

Shri Abhishek Arjaria - Advocate for the petitioner.

Shri Piyush Jain – Government Advocate for the respondent-State.

Ms. Rajnandini Saxena and Ms. Aditi Singh Thakur - Advocate for the

respondent No.3/Lokayukta.

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AND

WRIT PETITION NO.17378 of 2024

ARUN KUMAR YADAV

Versus

THE STATE OF MADHYA PRADESH AND OTHERS

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Appearance :

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

Shri Piyush Jain – Government Advocate for the respondent-State.

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Reserved on      :  16/01/2026

Pronounced on : 04/02/2026

O R D E R

Per : Justice Vivek Kumar Singh

Regard being had to the similitude of the facts and question of law

involved in both the writ petitions, they are being heard and decided

analogously by this common order. However, for the sake of convenience,

facts of W.P. No. 16338 of 2023 are being taken for reference.

2.The W.P. No.16338 of 2023 has been filed under Article 226 of the

Constitution of India assailing the order dated 30.05.2023 passed by

respondent No.1 to set aside the order of refusal of sanction by President-

in-council, Municipal Council, Ashta and the order dated 17.07.2023 for

granting sanction under Section 323(2) of Madhya Pradesh Municipalities

Act, 1961 (for brevity ‘Act of 1961’) to prosecute the petitioner in

connection with Crime No.229/2015 for the offence registered under

Sections 7, 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988

(in short ‘PC Act, 1988’) on the ground that the impugned order was

passed by respondent No.1 without jurisdiction, contrary to the provisions

contained under Section 323 of the Act of 1961 and also against the

direction issued vide circular dated 05.09.2014 (Annexure P/4) passed by

General Administration Department, Govt. of M.P. (hereinafter referred to

as ‘GAD’).

3.Shorn of unnecessary details, the facts germane to the institution of

the present petition, are as under :-

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(i)The petitioner is working as Assistant Grade-II in the

Municipal Council, Ashta and an F.I.R. was registered on

26.10.2018 against him for the offences under Section 7, 13(1)

(b) and 13(2) of the Prevention of Corruption Act, 1988

registered at Crime No. 229/2018.

(ii)The Investigating Agency sought prosecution sanction

from the competent authority i.e. President-in-council (for short

‘PIC’), Municipal Council, Ashta and the same has been refused

vide order dated 12.10.2022 (Annexure P/1), exercising the

power under Section 19(3) of the PC Act, 1988. The said order

of refusal was suo moto set aside by Urban Administration and

Development Department, State of Madhya Pradesh, Bhopal

vide impugned order dated 30.05.2023 (Annexure P/3) and

during the pendency of the present petition, the Commissioner,

Urban Administration and Development Department, Bhopal

granted prosecution sanction vide impugned order dated

17.07.2023 (Annexure P/5) by exercising the power of amended

Rule 51 of the Madhya Pradesh Municipal Employees

(Recruitment and Conditions of Service) Rules, 1968 which was

amended only on 15.12.2022.

(iii)This Court vide order dated 23.09.2025 requested the

Principal Secretary of the Department to file an affidavit giving

the details as to “whether the decision of Mayor-in-council can

be over-turned if it suffers from bias of non-application of mind

and also with regard to that once one of the authority exercising

concurrent power i.e. the Mayor-in-council has already

exercised its authority in rejecting the sanction then whether the

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Commissioner, Urban Administration and Development

Department was competent to grant sanction de horse the

rejection made by Mayor-in-Council?”

3.Learned counsel for the petitioner succinctly submits that once the

order was passed by the PIC, Municipal Council, Ashta refusing the

sanction for prosecution for the aforesaid offences then the State

authorities or its functionaries do not have any power to set aside the same

under Section 323 of the Act of 1961. It is further submitted that according

to a circular issued by General Administration Department, Govt. of

Madhya Pradesh dated 05.09.2014, the Department Law and Legislative

Affairs, Govt. of Madhya Pradesh is competent authority for giving its

opinion vis-a-vis the prosecution sanction rejected by PIC, Municipal

Council, Ashta on 12.10.2022 and the Urban Administration &

Development Department has passed the impugned order without

jurisdiction and contrary to the aforesaid circular since the State

Government itself has sent the said matter to the Municipal Council, Ashta

for adjudication with regard to sanction against the petitioner.

4.Learned counsel for the petitioner relentlessly submits that the

circular dated 05.09.2014 issued by the GAD prescribed a procedure

pointing out that in case prosecution sanction was rejected by the

Administrative Department and the Department of Law and Justice was of

the contrary opinion then the matter has to be referred again to the same

authority to reconsider it afresh. The said circular also points out that if

there is a conflict of opinion, even after the reviewed order, the matter has

to be placed before the Cabinet of Ministers for its adjudication. However,

in the present case, respondent No.1 while passing the impugned order

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dated 30.05.2023 and setting aside the resolution passed by the President-

in-Council recorded his reasoning on the merits and referred it to the

Commissioner, Urban Administration & Development Department for the

prosecution sanction in an illegal manner.

5.Further, learned counsel for the petitioner seamlessly contends that

the proviso to Section 323 clarifies that the State shall not revise, modify

or confirm any order without giving the Council reasonable opportunity of

showing cause against the order and thus, the impugned order dated

30.05.2023 passed by the respondent No.1 is in utter violation of the

provisions contained in Section 323 of the Act of 1961. It is further

submitted by him that there is no provision of suo moto revision of any

appeal against the order passed by competent authority under Section

19(1) of the PC Act, 1988. However, the respondent No.1 vide order dated

30.05.2023 set aside the order dated 12.10.2022 passed by PIC, Municipal

Council, Ashta without having the jurisdiction and further directed the

Commissioner, Urban Administration and Development Department to

pass an order granting sanction afresh. This procedure is completely

unknown under the PC Act, 1988 as once the competent authority has

refused to grant the sanction, the same cannot be revised or set aside by

any authority in absence of any statutory provision.

6. In support of his submissions, learned counsel for the petitioner has

placed reliance on certain judgments of the Hon’ble Supreme Court

rendered in the cases of State of Himachal Pradesh vs. Nishant Sareen

reported in (2010) 14 SCC 527; State of Punjab vs. Mohd. Iqbal Bhatti

reported in (2009) 17 SCC 92 and Gopikant Choudhary vs. State of

Bihar reported in (2000) 9 SCC 53.

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7.Per contra, learned counsel for the respondent-State has opposed the

submission putforth by learned counsel for the petitioner and placed

reliance on the amendment made in the Madhya Pradesh Municipal

Corporation (Appointment and Service of Officers and Servants) Rules,

2000 wherein the Rule 51 has been amended and apart from PIC, the

Commissioner, Directorate of Urban Administration and Development

Department has also been given the powers of granting sanction under

Section 94(3) of the Act of 1961 and also under Rule 49 of the said Rules.

It was further submitted that when the orders dated 30.05.2023 and

17.07.2023 were passed for granting sanction for prosecution, the said

amendment/notification was enforced and therefore, it cannot be said that

the Commissioner, Urban Administration and Development Department

was not having the statutory power to grant the sanction for prosecuting

the petitioner. To bolster his submissions, learned counsel for the

respondent-State has placed reliance on the order of this Court passed in

W.P. No.7818/2021 (Sabit Khan vs. State of M.P.) reported in ILR (2021)

MP 1871 (DB) wherein it has been laid down that the act of granting

sanction is an administration function and while passing the said order, the

sanctioning authority must apply his mind.

8.Learned counsel for the SPE-Lokayukta also opposed the arguments

advanced by learned counsel for the petitioner and placing reliance on

various decisions of Apex Court rendered in the cases of Bachhittar

Singh vs. State of Punjab and anr. reported in AIR 1963 SC 395 and

Sethi Auto Service Station vs. DDA reported in (2009) 1 SCC 180,

contended that on the basis of the aforesaid judgments of the Supreme

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Court, the submissions putforth by learned counsel for the petitioner is ill-

founded and deserves to be repelled being devoid of merit and substance.

9.No other point is pressed by the parties.

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

11.In view of the aforesaid submissions made by learned counsel for

the parties, in the conspectus of facts and circumstances of the case and on

perusal of record, the moot question for consideration before this Court is

as under :-

Whether the decision of Mayor-in-Council can be

over-turned if it suffers from bias of non-application of

mind and also with regard to that once one of the

authority exercising concurrent power i.e. the Mayor-in-

Council has already exercised its authority in refusing

grant of sanction then whether the Commissioner,

Urban Administration and Development Department

was competent to grant sanction de horse the rejection

made by Mayor in Council ?

12.It is pertinent to note that Mayor-in-council was the competent

authority to remove the petitioner in terms of Section 19(1) of the PC Act,

1988 which is a central legislation and in view of the judgments relied

upon by the learned counsel for the petitioner, it is apposite that the

authority empowered under Section 323 of the Act of 1961, does not have

any power to review the order passed earlier while refusing to grant

prosecution sanction. It is also to be noted that Prevention of Corruption

Act, 1988 is a special act dealing with matters related to the corruption and

other similar offences by public servants and any order passed under

Section 19(3) of the PC Act, 1988 cannot be over-turned by exercising the

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power under Section 323 of the Act of 1961 which is a state legislation.

For ready reference, it is apt to reproduce Section 323 of the Act of 1961

which is as under :-

323. Power to suspend execution of orders, etc.,

of Council-(1) If in the opinion of the Divisional

Commissioner, the Collector, or any other officer

authorized by the State Government in this

behalf, the execution of any order or resolution of

a Council, or of any of its Committee or any other

authority or officer subordinate thereto, or the

doing of any act which is about to be done or is

being done by or on behalf of the Council, is not

in conformity with law or with the rules or bye-

laws made there under and is detrimental to the

interests of the Council or the public or is causing

or is likely to cause injury or annoyance to public

or any class or body of persons or is likely to lead

to a breach of the peace, he may, by order or

prohibit the doing of any such act.

(2) When any order under sub-section (1) is

passed the authority making the order, shall

forthwith forward to the State Government and to

the Council affected thereby a copy of the order

with a statement of reasons for making it; and it

shall be in the discretion of the State Government

to rescind the order, or to direct that it shall

continue in force with or without

modification, permanently or for such period as it

thinks fit:

Provided that the order shall not be revised,

modified or confirmed by the State Government

without giving the Council reasonable

opportunity of showing cause against the order.”

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13.In view of the above, it is imperative to refer to another judgment of

the Apex Court rendered in the case of Subramanian Swamy vs. Dr.

Manmohan Singh AIR 2012 SC 1185, wherein it has been held that

“where for any reason whatsoever any doubt arises as to whether the

previous sanction as required under Section 19(1) of the PC Act, 1988

should be given by the Central Government or the State Government or

any other authority. Such sanction shall be given by that government or

authority which would have been competent to remove the public servant

from his office at the time when the offence was alleged to have

committed.”

14.Considering the aforesaid observation of the Apex Court and

perusing the amended Rule 51 of the Madhya Pradesh Municipal

Employees (Recruitment and Conditions of Service) Rules, 1968 which

was amended only on 15.12.2022, it is clear like a noonday sun that the

authority empowered under this amended rule, cannot retrospectively

exercise the power to allow the sanction for prosecution under Sections 7,

13(1)(b) and 13(2) of the PC Act, 1988 over-turning the sanction refused

by the competent authority under the PC Act, 1988. Thus, the order passed

under Section 19(3) of the PC Act, 1988 by the competent authority (PIC,

Municipal Council, Ashta) cannot be set aside by exercising concurrent

jurisdiction in the same matter. The power under section 19(1) of the PC

Act, 1988 for grant of sanction to prosecute cannot be delegated by the

competent authority and also sanction cannot be granted on the basis of

report given by some other officer or authority.

15.In view of the aforesaid discussion, this petition (W.P. No.16338 of

2023) is allowed and the impugned orders dated 30.05.2023 and

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17.07.2023 are set aside. As a natural corollary, all further proceedings

originating from the sanction order also stands quashed.

16.In terms of the observation made hereinabove, the connected writ

petition i.e. W.P. No.17378 of 2024 also stands allowed and the impugned

order dated 24.04.2024 is set aside. Ex-consequenti, all further proceedings

originating from the sanction order also stands quashed.

17.A copy of this order shall also be kept on record in the connected

writ petition i.e. W.P. No.17378 of 2024.

18.Petitions allowed.

19.No order as to costs.

(VIVEK KUMAR SINGH) (AJAY KUMAR NIRANKARI)

JUDGE JUDGE

PK