Madhya Pradesh High Court
Smt. Chinta Bai vs Panchayat And Rural Developement ... on 21 March, 2025
Author: Pranay Verma
Bench: Pranay Verma
1 WP-26010-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 21st OF MARCH, 2025
WRIT PETITION No. 29413 of 2018
RAM GOPAL BHABAR
Versus
PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT
AND OTHERS
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
WITH
WRIT PETITION No. 4665 of 2019
BHURE SINGH PATEL
Versus
PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT
AND OTHERS
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
WRIT PETITION No. 6045 of 2019
RASAL SINGH AND OTHERS
Versus
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT AND
OTHERS
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 4/3/2025
6:04:51 PM
2 WP-26010-2019
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
WRIT PETITION No. 14814 of 2019
RAKESH PRAJAPATI AND OTHERS
Versus
PANCHAYAT RAJ AND RURAL DEVELOPMENT DEPARTMENT
AND OTHERS
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
WRIT PETITION No. 24890 of 2019
GHANSHYAM
Versus
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT AND
OTHERS
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
WRIT PETITION No. 26010 of 2019
SMT. CHINTA BAI
Versus
PANCHAYAT AND RURAL DEVELOPEMENT DEPARTMENT AND
OTHERS
Signature Not Verified
Signed by: SHAILESH
MAHADEV SUKHDEVE
Signing time: 4/3/2025
6:04:51 PM
3 WP-26010-2019
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
WRIT PETITION No. 1047 of 2022
GHANSHYAM RATHORE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prasanna R. Bhatnagar - Advocate for the petitioner.
Shri Amit Rawal - counsel appearing on behalf of Advocate
General/State.
ORDER
1. With the consent of the learned counsel for the parties, the petitions are finally heard.
2. Since these petitions raise common questions of facts and law, they have been heard together and are being decided by a common order. Facts are being taken from W.P.No.29413/2018.
3. By this petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 8/5/2018 (Annexure P/1) passed by Chief Executive Officer - cum - Prescribed Officer (Panchayat), Jila Panchayat, Khargone, respondent No.4 under the provisions of Section 92 of Madhya Pradesh (Panchayat Raj Evam Gram Swaraj) Adhiniyam, 1993.
4 . The petitioner is working on the post of Panchayat Secretary in Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 4/3/2025 6:04:51 PM 4 WP-26010-2019 Gram Panchayat, Bandikhar. By order dated 4/2/2008 he was appointed by CEO Janpad Panchayat, Barwaha on the post of Gram Panchayat Secretary and by order dated 16/4/2008 secretarial powers were conferred upon him as per Section 69(1) of the Adhiniyam. On instructions of the Collector dated 10/6/2014 he was suspended by order dated 3/3/2015 alleging that work of construction of additional class rooms under Sarv Shiksha Abhiyan is under valued and therefore, recovery of Rs.2,74,381/- is proposed. Thereafter on 19/6/2017 respondent No.4 issued a show cause notice to the petitioner under Section 92 of the Adhiniyam for recovery of Rs.59,29,494/- alleging excess payment of construction work conducted in the Gram Panchayat. The petitioner filed his reply to the show cause notice contending that he did not commit any misconduct. It was stated that the enquiry which has been conducted was behind his back and the works have not been properly verified and valued. Thereafter respondent No.4 passed the impugned order holding the petitioner and Sarpanch guilty and directed for recovery of an amount of Rs.59,29,494/- from him.
5 . The aforesaid show cause notice has been challenged by the petitioner primarily on the ground that no proceeding could have been taken against him directly under Section 92 of the Adhiniyam without there being any determination under Section 89 thereof. Without determining the amount notice has been issued under Section 92. The amount cannot be said to be due on the date of its recovery. No proceeding under Section 89 of the Adhiniyam has been taken by the respondents in the matter hence straight away notice under section 92 could not have been issued. Reliance has been Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 4/3/2025 6:04:51 PM 5 WP-26010-2019 placed on the decision of this Court in Writ Appeal No.951 of 2021 and Writ Appeal No.949 of 2021 [State of M.P. and others Vs. Ku. Preeti Patidar and Ors.] decided on 12.01.2022.
6. Reply has been filed by the respondents and the learned counsel for the respondents has submitted that Section 89 and 92 of the Adhiniyam, 1973 operate in different spheres and fields and provide mechanism for hearing and also for recovery of money or property. Section 92 does not provide mechanism for enforcing orders passed under Section 89. It cannot be said that once order passed under Section 89 then only recovery is to be undertaken under Section 92. It is stated that show cause notice was issued to the petitioner after report of preliminary inquriy on 29.08.2020 wherein allegations of financial irregularities in grant of the funds of the State were found against the petitioner. It is hence submitted that the petition deserves to be dismissed.
7. I have considered the submissions of learned counsel for the parties and have perused the record.
8. The Division Bench of this Court in Ku. Preeti Patidar and others (supra) has categorically held that Section 89 is only in respect of liability in respect of amount suffered by Panchayat for losses, misappropriation etc. caused by every Panch, member, office bearer, officer or servant of Panchayat etc Section 92 provides for power to recover records, article and money belonging to the Panchayat. An amount cannot be directly recovered under Section 92 of the Adhiniyam unless the same is determined under Section 89 thereof. It has been held as under :-
Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 4/3/2025 6:04:51 PM6 WP-26010-2019 "14] So far as the contentions of learned counsel for the appellants that Section 89 and 92 operate in two distinct compartment, it is found that it is true that Section 89 and 92 are pre-dominantly in respect of recovery from a Panchayat members or any other person of the money due to the Panchayat. Whereas, Section 89 is only in respect of liability in respect of the amount suffered by Panchayat for losses, misappropriation etc.,casued by every Panch, member, office-bearer, officer or servant of Panchayat etc., Section 92 provides for power to recover, record, articles and money belonging to the Panchayat from any person.
15] On perusal of the various decisions cited by the counsel for the parties, it is found that this Court has taken a consistent view that an amount cannot be directly recovered under Section 92 of the Adhiniyam unless the same is determined under Section 89 of the same. This is for the reason that without determining the amount, if the notice under Section 92 is served on a person, the amount cannot be said to be due on the date of its recovery because it has not been quantified, and unless it is quantified, it cannot be said that it belongs to the Panchayat and thus, cannot be recovered under s.92 of Adhiniyam. Indeed it is true that under both the sections, viz., Section 89 and Section 92 of Adhiniyam, the amount due can be recovered as land revenue but in such circumstances, when the amount is determined by the State, it has the discretion to recover it either under Section 89 or Section 92 Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 4/3/2025 6:04:51 PM 7 WP-26010-2019 of the Ahiniyam. Apparently, both the sections are overlapping and if the State seeks any clarification that both of them are distinct and different than the only course available to it is to amend the provisions and bring some uniformity and clarity in the enactment, ie., the Adhiniyam."
9. In the present case also there has not been any determination of amount recoverable from the petitioner under Section 89 of the Adhiniyam and straight away a notice under Section 92 has been issued to him. It hence cannot be said that the amount was due from the date of its recovery because it has not been quantified hence the same cannot be recovered under Section 92 of the Adhiniyam.
10. As a result of the aforesaid discussion, the impugned orders passed in all the petitions by the respondents cannot be sustained and are accordingly quashed. The respondents shall however be at liberty to proceed against the petitioners afresh in accordance with law.
11. The petitions are accordingly allowed and disposed off.
(PRANAY VERMA) JUDGE SS/-
Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 4/3/2025 6:04:51 PM