Rajasthan High Court - Jaipur
Smt Santosh Jilowa &Ors; vs State (Panchayati Raj Dep )Ors on 12 May, 2016
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R IN S.B. CIVIL WRIT PETITION NO.3684/2016 (Smt. Santosh Jilowa & Ors. Vs. State of Rajasthan & Ors.) Date of Order : 12.05.2016 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Anoop Dhand, for the petitioners. Mr. Anurag Sharma, AAG for the respondents. BY THE COURT
Under challenge are the order dated 29.02.2016 and the consequent demand notice dated 02.03.2016 passed by the Additional Chief Executive Officer, Zila Parishad, Sikar and the Block Development Officer, Panchayat Samiti Patan, District Sikar respectively whereby the recovery in equal measure of an amount of Rs.10,19,718/- is sought to be made from the three petitioners before this Court. Petitioner No.1 was at the relevant time Sarpanch of Gram Panchayat, Jilo, the petitioner No.2 the then Gram Sewak of Gram Panchayat, Jilo and the petitioner No.3 J.En. at Gram Panchayat, Jilo.
It appears that in 2011, 2013 and 2014 when the aforesaid three petitioners were posted at Gram Panchayat Jilo in their respective capacities, referred to above, cement concrete roads were constructed within the jurisdiction of the Gram Panchayat, Jilo. On a complaint having been received by the Lokayukta with regard to the poor and sub-standard quality constructions of the cement concrete roads, the Superintending Engineer, Department of Panchayat, State of Rajasthan, Jaipur was directed by the Lokayukta to make an onsite inspection and report. It appears from the report of the Superintending Engineer that a sample from only one road could be taken and not from the other two in view of the requisite thickness of the cement concrete road not obtaining at the two sites. The sample taken was sent to the authorized laboratory and found sub-standard. In these circumstances, the Superintending Engineer vide letter dated 19.02.2016 informed the Chief Executive Officer, Sikar about the outcome of the inspection made in respect of the three roads constructed during the tenure of the petitioners. On the receipt of the letter dated 19.02.2016 under the hand of the Superintending Engineer, Department of Panchayat, the Additional Chief Executive Officer, Zila Parishad, Sikar vide order dated 29.02.2016 required the Block Development Officer, Panchayat Samiti, Patan, District Sikar to take steps for the recovery of the amounts due from the petitioners for reason of their being responsible for the construction of poor quality roads evidencing financial loss to the State. The Block Development Officer, Panchayat Samiti, Patan, District Sikar vide notice dated 02.03.2016 sought to make requisite recovery from the petitioners.
Mr. Anoop Dhand, appearing for the petitioners has submitted that the petitioners were not given any opportunity of being heard before the huge demand of Rs.10,19,718/- in equal measure from each of them raised. It has been submitted that the demand is vitiated on this count and also for the reason that in the event of the petitioners being provided an opportunity of hearing, they would have been in a position to give out adequate reasons for their exculpation.
Mr. Anurag Sharma, AAG appearing for the respondents has however submitted that the demand against the petitioners under the impugned notice dated 02.03.2016 following the directive of the Additional Chief Executive Officer, Zila Parishad, Sikar issued on 29.02.2016 is a mathematical one and giving the petitioners an opportunity of being heard would only be an exercise in futility.
Heard. Considered.
I am of the considered view that it is not for the respondents to determine the futility or otherwise of an opportunity of hearing. It is also not for the respondents to preempt the potential defence of the petitioners, they might have had, to the demand under the notice dated 02.03.2016 or for that matter, the ex-parte inspection of the three sites where the roads were built by the Superintending Engineer, Department of Panchayat. In this view of the matter, the impugned order dated order dated 29.02.2016 and the consequent demand notice dated 02.03.2016 passed by the Additional Chief Executive Officer, Zila Parishad, Sikar and the Block Development Officer, Panchayat Samiti Patan, District Sikar deserve to be quashed and set aside to the extent it requires deposit of the alleged recoverable amounts. It is so directed.
However that is not the end of the matter, the respondents shall be free to proceed afresh for making recovery after giving the petitioners due opportunity of being heard and set up their defence to the allegation of construction of sub-standard roads. For this purpose, I am of the considered view that the notice dated 02.03.2016 be treated not as a notice for recovery (in which form it has been set aside) but as a show cause notice. The petitioners are directed to file their reply to the said notice dated 02.03.2016 (treated as show cause notice under the order of this Court) within a period of ten days from today before the Additional Chief Executive Officer, Zila Parishad, Sikar. The Additional Chief Executive Officer is thereafter required to consider the matter compliant with the principles of natural justice within four weeks following and pass a reasoned and speaking order with regard to the recovery founded, if any, against the petitioners.
It goes without saying that any observations made in this order by this Court will be taken as reflection on the merits of the case either of the petitioner or of the respondents.
The writ petition stands allowed accordingly.
Stay application needs no address in view of the petition itself having been allowed.
(ALOK SHARMA), J Satyam/MS/-
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