Madhya Pradesh High Court
Ajmer Singh Yadav vs The State Of Madhya Pradesh on 24 September, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
HIGH COURT OF MADHYA PRADESH
1
(W.P. No. 19599/2019)
Ajmer Singh Yadav and Anr. v. State of MP and Ors.
W.P. No. 19985/2019
Smt. Geeta Bai and Anr. v. State of M.P and Ors.
Gwalior dated; 24.09.2019
Shri Arun Dudawat Advocate for the petitioners.
Shri Sanjay Bahirani Govt. Advocate for the respondent/State.
The issue involved in these writ petitions being identical and almost similar, therefore, these writ petitions are dealt with and decided by this common order.
2. The facts in W.P. No. 19599/2019 are as under:-
3. The present petition has been filed challenging the order dated 30.8. 2019 passed by respondent no. 2 whereby decision has been taken to recover amount of Rs. 2,01,600/- from the petitioner with further direction of debarring the petitioner for the period of six years from the member of Gram Panchayat or Gram Nirman Sammitti on the allegation that they have not installed solar street lights on the roads of the village which is contrary to the recommendation of the Project Officer, Construction who has directed for installation of Solar Panels and not Solar Lights. It is submitted that petitioner no.1 is holding the post of Sarpanch whereas petitioner no. 2 is posted as Panchayat Sachiv of Gram Panchayat Rampura, Ghatigaon, distt. Gwalior. It is submitted that Panchayat Raj Directorate vide order dated 5.10. 2015 has HIGH COURT OF MADHYA PRADESH 2 recommended for installation of street lights as well as solar panels. Respondent no. 1 vide order dated 4.03 2016 has issued detail instructions for regularization of funds under 14th Finance Commission Report. Accordingly, Gram Panchayats were directed for installation of street lights. It is argued that in pursuance to the aforesaid direction work was done and LED lights were installed after passing of the resolution dated 1.6. 2016 and after inviting quotations and following the procedure. After the lapse of two years on complaint being made by respondent no. 3 to respondent no. 2 for initiating recovery proceedings under Sec. 92 of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 ( in short "Adhiniyam of 1993") and in pursuance to letter dated 29.8. 2018 the action was taken against the petitioners and the impugned order has been passed. It is further alleged that the recovery order is per-se illegal for reasons that before initiating proceedings under sec. 92 of the Adhiniyam of 1993, no enquiry as contemplated under sec. 89 of the Adhiniyam of 1993 has been conducted.
4. Counsel for the petitioner has relied upon the judgment of coordinate bench of this court in the case of Mukesh Gurjar and Anr. Vs. State of M.P. and Anr. being W.P. No. 19603/2019 wherein in similar circumstances the notice was issued for recovery of the aforesaid amount from the petitioner. It is further submitted that ratio laid down by co-ordinate bench of this court is HIGH COURT OF MADHYA PRADESH 3 fully applicable in the facts and circumstances of the case. He has further relied upon the judgment passed in the case of Kadam Singh vs. CEO and Ors. reported in 2019 (1) MPLJ 420 and has prayed for setting-aside the impugned order.
5. Per contra, respondents' counsel could not point out any genuine reason for issuance of the aforesaid impugned order dated 30.8.2019 without following the procedure as prescribed under sec. 89 of the Adhiniyam of 1993. It is further submitted that the facts and circumstances of the case which has been relied upon by the petitioners are different as the show cause notice is being issued to the petitioners in the present case. It is submitted that petitioners could not show any illegality in the order as opportunity of hearing was granted to the petitioners prior to passing of the impugned order. It is submitted that petitioner is having alternative efficacious remedy of appeal against the impugned order and without following the aforesaid remedy present petition has been filed before this court which is not maintainable in the present facts and circumstances of the case.
6. Heard learned counsel for the parties and perused the record.
7. From the record it is seen that respondents authorities have directly issued show cause notice u/s. 92 of the Adhiniyam of 1993 without following the procedure contemplated under sec. 89 of the Adhiniyam. Secs. 89 and 92 of the Adhiniyam is required to be HIGH COURT OF MADHYA PRADESH 4 seen which are reproduced here as under:-
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 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 HIGH COURT OF MADHYA PRADESH 5 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. The point of consideration before this Hon'ble Court that whether without following the procedure as contemplated under Sec. 89 of the Adhiniyam of 1993 the order impugned could be passed.
10. Counsel for the petitioner has submitted that authorities have directly arrived at the conclusion that this much amount of Rs. 2,01,600/- is to be recovered from the petitioner without properly analysing and granting opportunity of hearing to the petitioner. The procedure as required under Sec. 89 has not been followed by the authority, therefore, in such circumstances the coordinate bench of HIGH COURT OF MADHYA PRADESH 6 this court in the case of Kadam Singh (supra) has allowed the writ petition and has held as under:-
"10. 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. 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. The fact of the aforesaid case is identical to the present case. Therefore, in such circumstances and by maintaining parity with the order passed by the co-ordinate bench, this court is of the considered opinion that the order impugned is unsustainable and accordingly the same is quashed.
12. Accordingly petition succeeds and is hereby allowed. No orders as to costs.
(Vishal Mishra)
ar Judge
ABDUR RAHMAN
2019.10.03 15:59:51
+05'30'