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2024 DIGILAW 637 (MP)

Vimal Sahu v. State of M. P.

2024-09-27

G.S.AHLUWALIA

body2024
ORDER 1. This petition under Article 226 of Constitution of India has been filed seeking following reliefs: "(i) A writ of certiorari quashing the impugned orders dated 22.8.2023 (P/1) and 26.9.2023 (P/2). (ii) A writ of mandamus to respondents for reimbursing the amount recovered from petitioner No.1. (iii) Any other relief deemed fit in the circumstances circumstances." 2. It is submitted by counsel for petitioners that by impugned order dated 26.9.2023 passed by Additional Collector (Development)/Prescri (Development)/Prescribed Authority, Zila Panchayat, Anuppur in File No.2694/Zi.Pan./Pan.Pr No.2694/Zi.Pan./Pan.Prako./Section/92/Case.No.-91/2023 91/2023, petitioner No.1 has been directed to deposit an amount of Rs.2,60,960/ Rs.2,60,960/- in addition to Rs.56,772/- which he has already deposited. A solitary contention is raised by counsel for petitioners petitioner that since order under challenge has been passed under section 92 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, Adhiniyam 1993 (in short "Act,, 1993") without any inquiry under section 89 of said Act, therefore, it is bad in law. It is further submittedd that case is hand is covered by order dated 20.8.2024 passed by this Court in the case of Prashant Kurariya v. State of Madhya Pradesh and others in W.P. No.23743/2024. 3. Per contra, petition is vehemently opposed by counsel for respondents. However, owever, it is fairly conceded that that case in hand is covered by order passed by this Court in the case of Prashant Kurariya (supra). 4. Heard learned counsel for parties. 5. This Court in the case of Prashant Kurariya (supra) has passed the following order: "This petition under Article 226 of Constitution of India has been filed seeking the following reliefs: "(i) To issue a writ in the nature of certiorari for quashing the order impugned dated 30.7.2024 (Ann.P/1) in the interest of justice. (ii) To quash qua the show-cause cause notice dated 4.7.2024 (Ann.P/2) so far as same relates to petitioner. (iii) To direct the respondents to consider the stand of petitioner while taking the action under section 92 of the Act of 1993. (iv) Any other suitable relief deemed fit in the facts and circumstances of the case and cost of the petition may also be given by this Hon'ble Court." 2. (iii) To direct the respondents to consider the stand of petitioner while taking the action under section 92 of the Act of 1993. (iv) Any other suitable relief deemed fit in the facts and circumstances of the case and cost of the petition may also be given by this Hon'ble Court." 2. It is submitted by counsel for the petitioner that the case in hand is duly covered by the order dated 17.9.2021 passed by this Court in the the case of Bhupendra Singh v. State of M.P. and others in W.P.No.16424/2021 (Gwalior Bench) and, therefore, this petition be also disposed of in the case of terms and conditions of order passed in the case of Bhupendra Singh (supra). 3. Per contra, the petition petition is vehemently opposed by the counsel for the petitioner. However, after going through the order passed by the Division Bench in the case of Narendra Pandey v. State of M.P. and others, decided on 20.2.2017 in Writ Appeal No.294/2016 (Gwalior Bench) as well as the order passed by this Court in Bhupendra Singh (Gwalior Bench), it is submitted that the (supra) (Gwalior aforesaid two orders will cover the controversy involved in the present petition. 4. Considered the submissions made by counsel for the parties. 5. This Court in the case of Bhupendra Singh (supra) has passed the following order :- "Shri Shri A.S. Bhadoriya, Counsel for the petitioner. Shri Ajay Raghuvanshi, Counsel for the State. This petition under Article 226 of the Constitution of India has been filed seeking following reliefs: "i) Notice under s. 92 (Annexure P/1) and consequential proceedings may kindly be quashed. ii) Respondent be directed not to undertake any proceedings without there being any adjudication under s. 89 of the Act. Shri Ajay Raghuvanshi, Counsel for the State. This petition under Article 226 of the Constitution of India has been filed seeking following reliefs: "i) Notice under s. 92 (Annexure P/1) and consequential proceedings may kindly be quashed. ii) Respondent be directed not to undertake any proceedings without there being any adjudication under s. 89 of the Act. iii) Any other o relief which this Hon'ble Court, in facts and circumstances of the present case, deems fit." It is submitted by the counsel for the petitioner that by the impugned order dated 29.7.2021, a show cause notice has been issued to the petitioner pointing out that the amount mentioned in the show cause notice (which appears to be more than 85 lacs but because of illegible figures, it has not been reproduced) be not recovered from him and it is also mentioned that in case, if he failed to submit reply, then further action under section 92(2) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (in short "Adhiniyam") shall be taken. It is submitted by the counsel for the petitioner that this Court by order dated 16.5.2019 passed in W.P.No.10060/2019 (Smt. t. Raina Bai and anr. v. State of MP and anr.) and W.P. No.10063/2019 (Narendra and anr. v. State of MP and anr.) has held that unless and until an enquiry is conducted under section 89 of the Adhiniyam, no action can be taken under section 92 of the Adhiniyam. Per contra, it is fairly conceded by the counsel for the State that facts of this case are covered by the law laid down in the case of Smt.Raina Bai (Supra) and Narendra (supra). Heard the learned counsel for the parties. In the case of Smt. Raina (supra) and Narendra (supra), this Court by order dated 16.05.2019 has held as under:- ''By this Common order, W.P. No.10063 of 2019 filed by Narendra & Chhotelal and W.P. No. 10060 of 2019 filed by Smt. Raina Bai & Jai Mandal Singh shall be decided. Petitioner Narendra is the Ex-Ex Sarpanch and Petitioner Chhotelal is Panchayat Secretary of Gram Panchayat Hidorakhedi, whereas Petitioner Smt. Rainabai is the Ex-Sarpanch, whereas petitioner Jai Mandal Singh is the Panchayat Secretary of Gram Panchayat Pancha Piproda Uwari. For the sake of convenience, the facts of W.P. No.10060 of 2019 shall be referred. Petitioner Narendra is the Ex-Ex Sarpanch and Petitioner Chhotelal is Panchayat Secretary of Gram Panchayat Hidorakhedi, whereas Petitioner Smt. Rainabai is the Ex-Sarpanch, whereas petitioner Jai Mandal Singh is the Panchayat Secretary of Gram Panchayat Pancha Piproda Uwari. For the sake of convenience, the facts of W.P. No.10060 of 2019 shall be referred. A show cause notice dated 11.4.11 2019 (Annexure P/7) has been issued to the petitioners on the allegations that gravel road was to be constructed and certain certa additional works were executed without seeking permission from the department, specifically when by letter dated 5-5- 5 2011, there was a complete ban for construction of additional road. Therefore, it was held that an amount of Rs.1,15,632/- has been spent by the petitioners which is liable to be recovered, accordingly, the petitioners were directed to file their reply by 26.4.2019, otherwise, action against them shall be taken under section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam (in short ''Adhiniyam''). The petitioners filed their reply. However, by order dated 26.4.2019, 26 it has been held that the reply submitted by the petitioners is not satisfactory, therefore, once again they have been directed to appear before the competent authority to put p forward their defence, otherwise, action would be taken under section 92 of Adhiniyam. Challenging the order dated 26.4.26 2019, it is submitted by the Counsel for the petitioners, that the respondents have already taken a final decision, which is bad because beca the provision of section 92 of Adhiniyam, is merely an execution provision, and unless and until, an enquiry is conducted under section 89 of Adhiniyam, no action can be taken against the petitioners. To buttress his contentions, the Counsel for the petitioners has relied upon the judgments passed by this Court in the case of Sumitra Dhurve v.State of M.P. reported in 2016(3) MPWN 83 and Kadam Singh v. CEO & others reported in 2019(1) MPLJ 420 . Per contra, it is submitted by the Counsel for the State that the letter dated 26.4.2019 26 (Annexure P/11) is not a final order, but it is merely a show cause notice and no action under section 92 of Adhiniyam would be taken unless and until, an enquiry is conducted under section 89 of Adhiniyam. Considered the submissions made by the Counsel for the parties. Considered the submissions made by the Counsel for the parties. This Court in the case of Kadam Singh (Supra) has held as under : ''9. 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 loss, Panch, member, officebearer, 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 rescribed authority is of the opinion that any person has un-authorisedly un 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, requi that the record of article or require 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. (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 authori shall be disposed of within authority 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) S for a period of (six) years commencing from the initiation of such action. 10. From bare perusal of section 89 it is clear that every Panch, member, office-bearer, office officer or servant of Panchayat shall be personally liable for the loss, waste or misappropriation misa 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. 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 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. 11. 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 subsection (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 subsection (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 order passed therein under section 92 of the Act. The prescribed authority has stra 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 sh be at liberty to take prompt action against the petitioner under section 89 & 92 of the Panchayat Act.'' Thus, the facts of this case are fully covered by the judgment passed by this Court in the case of Kadam Singh (Supra). Accordingly, it is directed that the respondents shall not effect any recovery or shall not take any coercive step against the petitioners, unless and until an enquiry is conducted under section 89 of Adhiniyam. Accordingly, it is directed that the respondents shall not effect any recovery or shall not take any coercive step against the petitioners, unless and until an enquiry is conducted under section 89 of Adhiniyam. As the letters dated 11.4.2019 and 26.4.2019 26 are merely show cause notices, therefore, the respondents are directed not to take any coercive steps against the petitioners on the basis of said show cause notices. With aforesaid observations, the petitions succeed and are hereby Allowed.'' Since this case is also covered by the directions given in the case of Smt. Raina Bai (Supra) and Narendra (Supra), accordingly, it is directed that respondents shall not take any coercive steps against the petitioner unless and until an enquiry is conducted under section 89 of the Adhiniyam. It is further directed that the respondents shall immediately issue a notice under Section 89 of the Adhiniyam and the enquiry shall be concluded within a period of three months from the date of receipt of copy of this order. The petitioner is directed to cooperate in the enquiry and shall not seek any adjournment at any cost. The petitioner is directed to submit a copy of this order to the respondents within a period of seven days from today, failing which this order shall automatically lose its effect. With aforesaid observations, the petition is finally disposed of. 6. Accordingly, this petition is also disposed of with a direction that the respondents shall not take any coercive action against the petitioner until and unless an inquiry is conducted under section 89 of M.P.Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. 7. It is further directed that the respondents shall immediately issue a notice under section 89 of Adhiniyam, 1993 and the inquiry shall be concluded within 3 months from the date of receipt of copy of this order. 8. The petitioner is also directed to cooperate in the inquiry and shall not seek any adjournment adjournment at any cost. The petitioner is also directed to submit a copy of this order to the respondents within a period of 7 days from today; failing which this order shall automatically lose its effect." 6. Accordingly, order dated 26.9.2023 passed by Additional Collector (Development)/Prescri (Development)/Prescribed Authority, Zila ila Panchayat Panchayat, Anuppur in File No.2694/Zi.Pan./Pan.Prako./Section/92/Case i.Pan./Pan.Prako./Section/92/Case No.- 91/2023 is hereby set aside. 7. The petitioner is also directed to submit a copy of this order to the respondents within a period of 7 days from today; failing which this order shall automatically lose its effect." 6. Accordingly, order dated 26.9.2023 passed by Additional Collector (Development)/Prescri (Development)/Prescribed Authority, Zila ila Panchayat Panchayat, Anuppur in File No.2694/Zi.Pan./Pan.Prako./Section/92/Case i.Pan./Pan.Prako./Section/92/Case No.- 91/2023 is hereby set aside. 7. The matter atter is remanded back to conduct an inquiry under section 89 of Act, 1993 and then then to pass a final order without getting influenced or prejudiced by any of the findings recorded in order dated 26.09.2023. 8. However, ver, it is made clear that show cause notice dated 22.8.2023 which has been filed as Annuexre P/2 shall be treated as a sufficient ficient show cause notice for initiating proceedings under section 89 of Act, 1993. 9. Petitioners shall file their response to the th show cause notice within a period one month from today, failing which it shall be presumed that petitioners petitioner have nothing to say against the said show cause notice dated 22.8.2023. 10. If reply with documents is filed, filed then the same shall be considered in accordance with provisions of section 89 of Act, 1993 and matter shall be decided preferably within a period of two months from thereafter. 11. With aforesaid observations, the petition is finally disposed of.