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2020 DIGILAW 1269 (MP)

Reshma Bai v. State of M. P.

2020-12-15

VIVEK RUSIA

body2020
ORDER 1. Heard learned counsel for the parties through video conferencing. Petitioner has filed the present petition being aggrieved by the order dated 25.11.2020 passed by Collector, Barwani in exercise of powers under section 40(2) of the M.P Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Ádhiniyam of 1993') removing the petitioner from the post of Sarpanch, Gram Panchayat, Dongargaon and disqualifying her to hold the post of Head of Gram Nirman Samiti/ Gram Vikas Samiti/Gram Sabha. 2. Learned counsel for the petitioner submits that the CEO Jila Panchayat Barwani issued a show cause notice under section 89 of the Adhiniyam, 1993 to the petitioner on 3.11.2020 alleging change of location of two culverts of 2018-19. The petitioner has filed a reply to the said show cause notice on 7.11.2020 but straightaway the impugned order under section 40(2) of the Adhiniyam, 1993 has been passed by the Collector who is not the competent authority under the Adhiniyam, 1993. 3. Learned counsel appearing for the petitioner further submits that though the show-cause notice was issued to the petitioner u/s 89 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 but the Collector has 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 CEO Janpad Panchayat was not supplied to the petitioner. Therefore, the impugned order passed in violation of principles of natural justice and provision of section 40 of the Adhiniyam, 1993 is unsustainable in law 4. This Court in number of cases has repeatedly held that in a proceeding under section 40 of the Adhiniyam of 1993, it is incumbent upon the authority to frame the issues, to record evidence and give an opportunity to cross examine before passing the final order. The Sarpanch is also entitled to cross examine of the witnesses in support of defence. 5. 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. 5. 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 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. 6. In view of the above, the impugned order is not sustainable in law and is hereby set aside. The matter is remanded back to the competent authority to conduct a detailed enquiry as contemplated under section 40 of the Adhiniyam of 1993 and pass a reasoned order. 7. With the aforesaid, the writ petition stands disposed of. Manoj Mana for petitioner; Arjun Pathak, Panel Lawyer for respondents/State.