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Madhya Pradesh High Court · body

2020 DIGILAW 1242 (MP)

Kishan Mandloi v. Collector, Alirajpur

2020-12-02

VIVEK RUSIA

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ORDER 1. The petitioner has filed the present petition being aggrieved by the order dated 25.1.2020 passed by the Prescribed Authority & Chief Executive Officer, Zila Panchayat, Alirajpur u/s. 40 of Panchayat Raj Avam Gram Swaraj Adhiniyam,1993 (hereinafter for short “Panchayat Raj Adhiniyam” for short) whereby he has been removed from the post of Surpanch with disqualification for a period of six years to contest any election in future . 2. The petitioner was elected as Surpanch of Gram Panchayat Richhvi, Janpad Panchayat Alirajpur. During his tenure, various construction works were carried out in the financial year 2016-17 and 2017-2018 like the construction of CC roads, deepening of the reservoirs, construction of “Shanti Dham”, etc within the Panchayat area. In a “Jan Sunwai”, a complaint was made to the Collector against the petitioner alleging non -payment of wages to the labours who were engaged in the aforesaid construction work. A notice was issued to the petitioner and he submitted the detailed reply. Thereafter, the Chief Executive Officer (CEO) issued a show cause notice dated 2.1.2020 to the petitioner calling upon him to file the reply on 13.1.2020. The aforesaid notice was issued u/s. 92 of the Panchayat Raj Adhiniyam based on a complaint made by the villagers in “Jan Sunwai”. The Assistant Project Officer, Zila Panchayat, Alirajpur, has submitted its report dated 25.12.2019 with findings that the construction works are incomplete and there are financial irregularities by the petitioner, hence disciplinary action is liable to be initiated. The petitioner appeared before the CEO on 13.1.2020 and submitted his reply . That the Prescribed Authority & Chief Executive Officer, Zila Panchayat, Alirajpur vide impugned order dated 25.1.2020 , in the exercise of powers u/s. 40 of the Panchayat Raj Adhiniyam has removed the petitioner from the post of Surpanch declaring him disqualified for a period of six years for contesting the election. Hence, the present petition before this Court. 3. Learned Panel Advocate appearing for the respondents/State, has raised a preliminary objection about the maintainability of this petition for want of alternate remedy of appeal u/s. 91 of the Panchayat Raj Adhiniyam. 4. Hence, the present petition before this Court. 3. Learned Panel Advocate appearing for the respondents/State, has raised a preliminary objection about the maintainability of this petition for want of alternate remedy of appeal u/s. 91 of the Panchayat Raj Adhiniyam. 4. Learned counsel appearing for the petitioner submitted that though the show-cause notice was issued to the petitioner u/s 92 of the Panchayat Raj Adhiniyam, but the CEO and prescribed authority did not record any evidence, did not give any opportunity to cross-examine the witnesses and passed the order only on the basis of preliminary inquiry report taken behind the back of the petitioner. Even the copy of the report of the Assistant Project Officer was not supplied to the petitioner. Therefore, the impugned order passed in violation of principles of natural justice is unsustainable in law hence liable to be set aside in a writ petition itself without relegating the petitioner to the appellate authority. It is further submitted that the new elections in the panchayats are going to be held and the petitioner has been disqualified to contest the election for a period of six years, hence there is urgency in the matter. 5. By order dated 25.2.2020, this Court has directed the Govt. Advocate to produce the entire record, but despite time given on 16.3.2020, 8.10.2020, 16.10.2020 and 3.11.2020, the record has not been produced, therefore, this petition is heard finally without record and return from the respondents. The petitioner has filed the that all the relevant documents duly certified by the CEO, Zila Panchayat, Alirajpur, therefore, there is no reason to disbelieve these documents (annexures) filed along with the petition. 6. The petitioner was served with the show-cause notice dated 2.1.2020 u/s. 92 of the Panchayat Raj Adhiniyam with a direction to appear on 13.1.2020. The petitioner appeared and submitted the reply, but vide order dated 25.1.2020 i.e. on the next date, the CEO has passed the order u/s. 40 of the Panchayat Raj Adhiniyam by simply mentioning that the reply given by the petitioner is not satisfactory. He has reproduced the contents of the report submitted by the Assistant Project Officer and formed an opinion that the petitioner has committed misconduct and he is liable to be removed from the post of Surpunch. He has reproduced the contents of the report submitted by the Assistant Project Officer and formed an opinion that the petitioner has committed misconduct and he is liable to be removed from the post of Surpunch. This Court in the number of cases has repeatedly held that in a proceeding u/s. 40 of the Panchayat Raj Adhiniayam, it is incumbent upon on the authority to frame the issues and to record evidence before passing the final order. 7. In the case of Maya Choudhary v. State of M.P. : 2012(2) MPWN 101 = 2012 (2) MPLJ 90 , this Court has held that both the proceedings u/s. 40 and 92 of the Panchayat Raj Adhiniyam are different. No action of removal can be taken u/s. 40 in a proceeding initiated u/s. 92 of the Panchayat Raj Adhiniyam. In the case of Manita Jaiwar v. State of M.P. & others [ 2009(2) JLJ 333 = 2009(3) MPLJ 370 ] the Division Bench of this Court has quashed the order of removal of the Sarpanch on the ground that he was neither allowed to cross-examine the witness nor allowed to adduce evidence in his defence. In the case of Kailash Kumar Dangi v. State of M.P & others : 1999 (2) JLJ 280 this Court has held that the removal of Sarpanch who is an elected representative with further disqualification for a period of six years to contest the election is a serious matter and secondly merely giving a show-cause notice and calling a reply is not sufficient on the ground of misconduct. The enquiry report taken from the back of the office bearers cannot be relied upon without supplying a copy to him. This Court is surprised to see that the CEO issued show-cause notice u/s 92 and passed the final order u/s 40 of the Panchayat Raj Adhiniyam. All the laws and verdict of apex Court and this Court has been disregarded while taking such harsh action against the petitioner. 8. In view of the above discussion and the law laid down by this Court in the aforesaid judgments, the impugned order dated 25.1.2020 passed by the Chief Executive Officer and prescribed authority, Jila Panchayat, Alirajpur is unsustainable in law, hence hereby set aside. The petition is allowed. 9. 8. In view of the above discussion and the law laid down by this Court in the aforesaid judgments, the impugned order dated 25.1.2020 passed by the Chief Executive Officer and prescribed authority, Jila Panchayat, Alirajpur is unsustainable in law, hence hereby set aside. The petition is allowed. 9. In normal circumstances, this Court would have remitted the matter to the CEO to decide the afresh but now enough is enough . This Court has settled the law in the number of cases and despite that the Prescribed authority who is law knowing person adamant not to follow the law. The way they are behaving with democratically elected panchayat office-bearers it seems that they are being treated them their subordinate employees. They don’t know how to act as a quasi-judicial authority in order to pass the order under sections 40, 89 and 92 of the Panchayat Raj Adhiniyam. Every time this Court is required to set aside the order and remand the matter which is nothing but wastage of valuable time of this Court and authorities and harassment to the litigant. Copy of this order be sent to Advocate General of MP and Principal Secretary of the Panchayat Department. No order as to cost.