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Madhya Pradesh High Court · body

2001 DIGILAW 698 (MP)

Virumal Khemani v. State of M. P.

2001-09-25

A.M.SAPRE

body2001
ORDER 1. By filing this writ under Articles 226 and 227 of the Constitution of India, the petitioners in substance, challenge the order dated 28.3.2001, passed by Collector (Annexure P-1) and the order of appellate Court (Commissioner, Ujjain) dated 9.9.2001 (Annexure P-5). The petitioners also question the issuance of show cause notice (Annexure P-6). 2. Petitioner No. 1 and 2 are elected Panch of one Gram Panchayat Panigaon, situated in Tahsil Kannod, District Dewas. There are other elected Panch also of the said Gram Panchayat. 3. The Panchayat through these Panch constructed one Kanji House in the said area and spent quite a substantial amount therein. On certain complaints being made, an inquiry was set up by the Collector in which statements of petitioners and of other Panch were recorded. The cost of construction was got determined by the Government engineers, who were of the view that it was Rs. 41,587.39 whereas, according to Gram Panchayat they spent about Rs. 50,000/- in its construction. The Collector was of the view that after hearing all the parties concerned that a sum of Rs. 8,314.11 is found to be in excess and has to be refunded by the petitioners and also by all others, who were elected Panch of the said Gram Panchayat. Accordingly, an order was passed by the Collector (Annexure P-1). An appeal was filed by the petitioners and other Panch to the Commissioner, who by her order dated 9.7.2001 (Annexure P-5) dismissed the appeal and affirmed the order of Collector. Both, in the opinion of Collector and Commissioner lot of irregularities were noticed in the construction and excess amount was liable to be recovered from the elected Panch, which infact was found to be not spent in the construction work. It was for this reason, these Panch were asked to refund the amount to the Institution (Gram Panchayat). After passing of the order, a show cause notice was issued to the petitioners on 16.11.2000 (Annexure P-7) to which petitioners have filed a reply, but without there being any order passed by the authorities, the petitioners have filed this writ petition and challenged the order of Collector and also of the Commissioner. 4. Having heard learned counsel for the petitioners, I find absolutely no merit in this writ petition. It is not a case where no opportunity was extended to petitioners by the Collector before passing order dated 28.3.2001. 4. Having heard learned counsel for the petitioners, I find absolutely no merit in this writ petition. It is not a case where no opportunity was extended to petitioners by the Collector before passing order dated 28.3.2001. It is clear when one reads paragraph No.3 of Annexure P-1 which in clear terms says and records that the statements of all the petitioners were recorded on the question whether there were any or no irregularities committed in construction of the said Kanji House and how much money was spent in construction. Petitioners knew what they have to prove. They appeared and contended by leading evidence that whatever amount has been spent by the Panch, is correct, proper and that no excess recovery can be made from them. This was not accepted by the Collector and by Commissioner in appeal. 5. When the two authorities, one in original and the other appellate decide such issue on facts then writ Court becomes foreign to its examination. Learned counsel for the petitioners tried to find out very technical niceties, which in my opinion do not survive. One has to see the substance of the charge and the nature of inquiry and whether it would cause prejudice to the petitioner? Petitioners knew what they have to prove when they appeared before the Collector. They indeed appeared and led evidence. This itself shows that they knew what evidence they have to lead and nobody prevented them from leading evidence whatever they wish to lead. The finding recorded by the Collector and affirmed by the Commissioner cannot be faulted with because it is based upon a cogent and documentary' evidence namely the report of Government officials who certified that the amount spent in the construction work was much less than what is shown by the petitioners. There is no reason to disbelieve this report, nor any reason to discard it. There is indeed no basis for discarding such report. 6. On the strength of these two orders, the issuance of show cause notice asking each petitioner to repay the money is also therefore, justified. The petitioner has already filed a reply and it is for the authorities issuing show cause to decide what action is now required to be taken against the petitioners for realising the excess money. 7. I find no substance in this writ. It is accordingly fails and is dismissed in limine.