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Madhya Pradesh High Court · body

2016 DIGILAW 790 (MP)

Rosan Nargave v. State of M. P.

2016-09-08

VIVEK RUSIA

body2016
ORDER : Vivek Rusia, J. With the consent of parties, petition is heard finally. Petitioner No.1 who is the Secretary of Gram Panchayat, Dhamnai and petitioner No.2 who is the Ex-Sarpanch of Gram Panchayat, Bomya approached this Court being aggrieved by the order dated 8.10.2015 passed by S.D.O (Revenue), the Prescribed Authority, Badwani by which petitioners have been directed to deposit the amount of Rs.3.79 lacs within thirty days. The aforesaid order was passed under section 92 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Panchayat Act'). 2. That it has been alleged against the petitioners that during their tenure the work of construction of toilets were awarded to the Panchayat and during this tenure while working as Sarpanch and Secretary they did not construct 100 toilets for which an amount of Rs.4,60,000/- was sanctioned. It is alleged that while working as Sarpanch and Secretary they withdrew an amount of Rs.3.79 lacs. They were required to be utilized for constructing 82 toilets at the rate of Rs.4600/- which they did not construct. The Chief Executive Officer, Zila Panchayat has constituted an inspection committee which has submitted its report and on the basis of the said report the S.D.O issued a notice dated 15.12.2014 to the petitioners directing them to deposit the said amount i.e. Rs.3.79 lacs, failing which the same shall be recovered under the provisions of Section 92 of the Panchayat Act. 3. Pursuant to the aforesaid notice petitioners approached before the S.D.O and filed the reply. Respondents have filed the entire note sheet of the proceedings before the S.D.O. Vide order dated 23.12.2014 petitioners appeared before the S.D.O and denied the allegation and demanded the ex-parte enquiry report which is evident from Annexure P/3. Vide order dated 19.01.2015 the S.D.O has directed the Executive Engineer (R.E.S), Badwani to submit the valuation report. The said report was received on 8.10.2015 and the S.D.O has closed the case for orders and vide order dated 8.10.2015 petitioners were directed to deposit the amount within 30 days, failing which they would be sent to civil jail, hence the present petition. 4. Shri Manav, learned counsel for the petitioners submits that petitioners were not given any opportunity of hearing as contemplated under section 92 of the Panchayat Act, therefore, the order is bad in law and is liable to be set aside. 4. Shri Manav, learned counsel for the petitioners submits that petitioners were not given any opportunity of hearing as contemplated under section 92 of the Panchayat Act, therefore, the order is bad in law and is liable to be set aside. In support of this contention, he has placed reliance over the order passed by this Court in the case of Sewak s/o Hardas Sour v. State of M.P and others reported in 2016 (2) MPRD 1 in which the show cause notice was set aside by the Court which was passed in violation of principles of natural justice. Shri Manav submits that in the present case also while issuing the show cause notice dated 15.12.2014 liability has been fastened on the petitioners to deposit Rs.3.79 lacs without adjudication, hence the same is liable to be set aside. 5. Shri Yogesh Mittal, learned G.A for the respondent/State submits that in pursuance to the show cause notice petitioners appeared before the S.D.O and after giving opportunity of hearing the S.D.O has passed the order. He further submits that against that order petitioners are having a remedy of appeal under the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995, hence the writ petition is not maintainable. ORDER 6. That the petitioners were issued show cause notice dated 15.12.2014 on the basis of some enquiry report submitted by the enquiry committee constituted by the Chief Executive Officer. In this show cause notice an amount of Rs.3.79 lacs has been ascertained as recoverable from the petitioners and they were directed to deposit the same, therefore, the impugned show cause notice is not as per the law as has been held by this Court in the case of Sewak Sour (supra). Relevant para-6 is reproduced below. 8. From perusal of the extract quoted above, it is evident that the liability of the petitioner has already been determined and the petitioner is being asked to deposit the amount and thereafter to file the reply up to 20.8.2015. The alleged notice dated 7.8.2015 by no stretch of imagination can be called to be a show cause notice. In fact, it is an order directing the petitioner to deposit the amount first and then to submit the reply up to 20.8.2015 failing which, proceeding under section 92 of the Act, 1993 shall be initiated against the petitioner. The alleged notice dated 7.8.2015 by no stretch of imagination can be called to be a show cause notice. In fact, it is an order directing the petitioner to deposit the amount first and then to submit the reply up to 20.8.2015 failing which, proceeding under section 92 of the Act, 1993 shall be initiated against the petitioner. The impugned action is being taken in flagrant violation of principles of natural justice. The impugned communication i.e. show cause notice dated 7-8-2015 does not fulfil the requirement of a valid notice in as much as, it does not contain the particulars of the grounds on which the proposed action is sought to be taken. Admittedly, the report prepared by the Chief Executive Officer, Janpad Panchayat Prithvipur, distt. Tigamgarh, on which the show cause notice is founded, has also not been supplied to the petitioner. 7. Pursuant to the so called show cause notice petitioners appeared before the S.D.O which is evident from the order sheet filed by the respondents along with the return as Annexure R/1. On 23.12.2014 petitioners demanded a copy of the enquiry report. From the order sheets it is not reflected that the said enquiry report was supplied to the petitioners. On the contrary, the S.D.O has directed the Executive Engineer to submit the valuation report. The said report was received on 8.10.2015 which is evident from the order sheet. The said report was also not supplied to the petitioners and on the same date final order was passed, therefore, from the order sheets from 23.12.2014 till 8.12.2015 no effective hearing was given to the petitioners to defend their case, hence the impugned order dated 8.10.2015 is liable to be set aside on the ground of principles of natural justice. 8. That the respondents have issued notice under section 92 of the Panchayat Act. The proceeding of section 92 is like an execution proceeding. Before initiating the execution proceeding there has to be an adjudication by the competent authority. Section 89 provides for adjudication. Sections 89 & 92 of the Panchayat Act are reproduced herein below: 89. Liability of Panch etc. That the respondents have issued notice under section 92 of the Panchayat Act. The proceeding of section 92 is like an execution proceeding. Before initiating the execution proceeding there has to be an adjudication by the competent authority. Section 89 provides for adjudication. Sections 89 & 92 of the Panchayat Act are reproduced herein below: 89. Liability of Panch etc. for loss, misappropriation.-(1)Every Panch, member, office-bearer, officer or servant of Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) shall be personally liable for loss, waste or misapplication of any money or other property of the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) to which he has been a party or which has been caused by him by misconduct or gross neglect of his duties. The amount required for reimbursing such loss, waste, or misapplication shall be recovered by the prescribed authority. Provided that no recovery shall be made under this section unless the person concerned has been given a reasonable opportunity of being heard. (2) If the person concerned fails to pay the amount, such amount shall be recovered as arrears of land revenue and credited to the funds of the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) concerned. 92. Power to recover records articles and money.-(1)Where the prescribed authority is of the opinion that any person has un-authorisedly in his custody any record or article or money belonging to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), he may, by a written order, require that the record of article or money be delivered or paid forthwith to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), in the presence of such officer as may be appointed by the prescribed authority in this behalf. (2) If any person fails or refuses to deliver the record or article or pay the money as directed under sub-section (1) the prescribed authority may cause him to be apprehended any may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days. (2) If any person fails or refuses to deliver the record or article or pay the money as directed under sub-section (1) the prescribed authority may cause him to be apprehended any may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days. (3) The prescribed authority may- (a) for recovering any such money direct that such money be recovered as an arrear of land revenue; and (b) for recovering any such record or articles issue a search warrant and exercise all such powers with respect thereto as may lawfully be exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1973 (No.2 of 1974). (4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned to show cause why such action should not be taken against him. (4-A) The case pertaining to recovery of any record or article or money initiated by the prescribed authority shall be disposed of within six months from the date of initiation. (5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) for a period of (six) years commencing from the initiation of such action. 9. From bare perusal of section 89 it is clear that every Panch, member, office-bearer, officer or servant of Panchayat shall be personally liable for the loss, waste or misappropriation of any money or other property of the Panchayat to which he has been a party or which has been caused by him by misconduct or gross neglect of his duties. The said amount is liable to be recovered by the prescribed authority. As per the proviso to this section no recovery shall be made under this section unless the person concerned has been given a reasonable opportunity of being heard. That every Panch, member, office-bearer, officer or servant of Panchayat may be existing or ex or removed who has caused loss to the Panchayat by misconduct or gross neglect of his duties and required for reimbursing such loss, waste or misapplication and same can be recovered even after demitting office by them, as the case may be. That every Panch, member, office-bearer, officer or servant of Panchayat may be existing or ex or removed who has caused loss to the Panchayat by misconduct or gross neglect of his duties and required for reimbursing such loss, waste or misapplication and same can be recovered even after demitting office by them, as the case may be. The section 89 specifically provides that an adjudication must be done and as per the proviso reasonable opportunity of hearing ought to have been given to those persons. In the present case there is no such adjudication under section 89 of the Act. 10. After adjudication under section 89, Section 92 gives power to prescribed authority to recover the records, articles and money belonging to the Panchayat from the custody of any person. Under sub-section (2) of section 92 if any person fails or refuses to deliver the record or article or pay the money then the prescribed authority may apprehend him with a warrant for sending him to civil jail and under sub-section (3) may recover such money as arrears of land revenue. As such under section 92 powers are given to the prescribed authority for execution of the order passed under section 89. In the present case there is no adjudication under section 89, therefore, there cannot be any execution proceeding or order passed therein under section 92 of the Act. The prescribed authority has straight away on the basis of ex-parte enquiry report initiated recovery under section 92. In view of the above, the impugned show cause notice as well as the final order dated 8.10.2015 are hereby set aside. Needless to say that still respondents/authority shall be at liberty to take action against the petitioners under section 89 & 92 of the Panchayat Act. 11. With the aforesaid, petition is allowed.