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2013 DIGILAW 473 (MP)

Santosh Raghuvanshi v. State of M. P.

2013-04-08

D.K.Paliwal, S.K.Gangele

body2013
ORDER 1. This appeal has been filed by the appellant against the order dated 17.1.2013 passed in WP No. 281/2013. 2. The appellant was elected as Sarpanch of Gram Panchayat Khamkheda-Lashkarpur of Tahsil Vidisha. On 24.7.2012, appropriate authority i.e. SDO issued a show cause notice to the appellant that why the appellant be not removed from the post of Sarpanch in accordance with the provisions of section 40 contained in MP Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the ‘Adhiniyam of 1993’). The appellant submitted his reply and denied the allegations. Thereafter, the SDO passed an order on 31. 12.2012 and removed the appellant from the post of Sarpanch. Against the aforesaid order, the appellant preferred an appeal, that has been rejected by the Collector. Thereafter, he filed a writ petition, which has been dismissed by the learned Single Judge on the ground that the appellant could have filed a revision under the provisions of Adhiniyam of 1993. 3. Learned counsel for the appellant has contended that the SDO passed an order of removal after a period of 120 days, hence, the order passed by the authority is without jurisdiction and power. For the aforesaid purpose, the learned counsel relied on the judgment of this Court in the case of Dhanwanti v. State of MP and others reported in 2013 (2) JLJ 84 , 2013 (1) MPLJ 549. 4. This Court in the case of Dhanwanti (supra) has held tha the prescribed authority has no jurisdiction to pass order of removal of Sarpanch beyond the period of 120 days as mentioned in the proviso to section 40 (1) (c) of the Adhiniyam of 1993. The aforesaid provision is an under :- “40. Removal of office bearers of Panchayat.- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public: Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office. NP Provided further that the final order in the inquiry shall be passed wihin 90 days from the date of issue of show cause notice to the concerned office bearer and where the pending case is not decided within 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but such extension of time shall not be more than 30 days.” 5. In accordance with the aforesaid section, the prescribed authority has no power to pass final order after a period of 90 days in regard to removal of the office bearers of the Panchayat, however, the period could further be extended for a period of 30 days if the next senior officer of the authority grants permission of extension of time for disposal of the inquiry. In the case of Dhanwanti (supra), the Division Bench of this Court has held that the aforesaid proviso is mandatory in nature. 6. In this case, the show cause notice was issued on 24.7.2012 and the order was passed on 31.12.2012, after a period of 120 days. Hence, the order was without jurisdiction. When the order of removal of the appellant is without jurisdiction, then certainly the writ petition could be entertained even though there is alternative remedy available because for issuance of writ of certiorari alternative remedy is no bar. This point has already been considered in the case of Dhanwanti (supra). The present case is squarely covered by the judgment as quoted above. 7. In this view of the matter, the appeal is allowed. The order passed by the writ Court and the orders dated. 31.12.2012 passed by the SDO and dated 8.1.2013 passed by the Collector are hereby set aside. It is hereby clarified that the authorities are at liberty to take action against the Sarpanch, if it is required, in accordance with law. No. order as to costs.