Madhya Pradesh High Court
Sitaram Jatav vs State Of M.P. on 21 June, 2018
1 WP 2957/06
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No. 2957/06
(Sitaram Jatav Vs. State of M.P.)
Gwalior Dt. 21/6/2018
Though name of Shri Arman Ali appears in the cause-list but
from perusal of the record it appears that there is no power of
attorney signed by the petitioner in favour of any of the counsel
whose name find mentioned in the cause list for the petitioner.
Smt. Nidhi Patankar, Government Advocate for the State.
1. This case is called out and taken up for hearing from the list of
final hearing cases under the category of "OTHER THAN
ABOVE".
2. The present petition filed u/Art. 226/227 of the Constitution
assails the order dated 27/5/2006, P/1 passed u/S. 92(2) of the
Panchayat Raj Avam Gram Swaraj Adhiniyam 1993 (for brevity 1993
Adhiniyam) by which the prescribed authority, the SDO, Sheopur
(M.P.) has directed to send the petitioner to civil jail on his failure to
deposit a sum of Rs. 1,97,759/- belonging to Gram panchayat Nagar
Gawda, district Sheopur.
3. The facts of the case reveal that the petitioner was a Sarpanch
of Gram Panchayat till 2005 whereafter another person was elected
as Sarpanch. It is alleged that certain civil construction work initiated
by the petitioner as Sarpanch could not be completed due to expiry
of tenure and since the successor Sarpanch belonged to rival political
party he did nothing to complete the said civil work commenced by
the petitioner leading to incomplete civil construction work suffering
the vagaries of nature leading to dilapidation.
3.1 It is alleged that successor Sarpanch nursed malice against the
petitioner and therefore was instrumental in initiation of recovery
proceedings against the petitioner by way of issuance of notice
passed u/s. 92 of the 1993 Adhiniyam by the SDO, Sheopur vide P/3
2 WP 2957/06
dated 4/2/2006 asking the petitioner to deposit various sums as
mentioned therein.
3.2 It is urged that the said notice P/3 was never served on the
petitioner and the order of recovery was passed on failure of the
petitioner to deposit the amount, the impugned order of sending the
petitioner to civil jail was passed on 27/5/2006 vide P/1 as a result of
which the petitioner was subjected to civil jail but was released on
personal bond of Rs. 10,000/- by virtue of the interim order passed
by this court on 3/7/2006 in this case.
3.3 The respondents-State represented through Smt. Nidhi
Patankar, learned Government Advocate submits that the notice, Annexure-P/3 was duly served on the petitioner as the process server had gone to the house of the petitioner to serve copy of the same but the petitioner was not found at home and since the attempt to serve the father of the petitioner failed as the father of the petitioner refused to accept the same, the mode of affixation on the front door of the house of the petitioner was adopted in the presence of witnesses. The petitioner did not appear before the competent authority which was therefore compelled to pass the impugned order on 27/5/2006, P/1, u/S. 92 of the 1993 Adhiniyam directing that since the petitioner has failed to deposit the money belonging to the Gram Panchayat as enumerated in the order impugned, the same be recovered as arrears of land revenue. The order further stipulated that the proceeding for recovery be not initiated for a period of 15 days to give the petitioner another chance to deposit the money. Further direction was issued to the police to subject the petitioner to civil jail and release him in case he deposits money. Warrant for sending the petitioner to civil jail was prepared on 27/5/2006 and he was sent to civil jail as per pleadings contained in para 5.8 of the petition on 14/6/2006.
3.4 However, the petitioner was directed to be released from civil 3 WP 2957/06 jail pursuant to the interim order passed by this court on 3/7/2006.
4. After hearing learned counsel for the State and having perused the pleadings and the documents on record, this court is of the considered view that the petitioner had been afforded due and sufficient opportunity of being heard and for depositing the money found to be belonging to the Gram Panchayat. The notice was deemed to be served as the elder male member of the family of the petitioner (father of the petitioner) declined to receive the notice compelling the authority to adopt the process of affixation on conspicuous place at the house of the petitioner. Thus, on the basis of the above, it cannot be said that the petitioner was not afforded reasonable opportunity before passing order u/S. 92 of the 1993 Adhiniyam and therefore prescribed authority complied with the requirement of principle of natural justice (audi alteram partem) as prescribed in sub-section (4) of Sec. 92 of the 1993 Adhiniyam, which reads thus:-
"(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."
5. It is relevant to point out that proceedings u/S. 92 of the 1993 Adhiniyam are not penal in nature as it do not cast any stigma on the petitioner against whom order of recovery was passed and on failure of the petitioner to deposit the amount the petitioner was directed to be sent to civil jail vide P/1.
5.1 More so, the petitioner has remedy of statutory appeal under Rule 3 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 against the impugned order, P/1 on merits which has not been availed.
6. In view of the above, this court declines interference in the present case and dismisses the petition with liberty to the petitioner to file appeal/revision, as the case may be, under Rule 3 of the M.P. 4 WP 2957/06 Panchayat (Appeal and Revision) Rules, 1995 to challenge the order P/1 passed u/S. 92 of the Adhiniyam 1993, which if filed within a period of 30 (thirty) days from today, shall be entertained by the higher authority on it's own merits without being dismissed on limitation alone.
7. It is made clear that the adjudication of appeal/revision, as the case may be, shall be limited to the ground of merit and not in regard to the ground of natural justice ( (audi alteram partem) which already stands concluded by this order.
8. The interim order dated 3/7/2006 passed in this case shall continue to be in operation till decision of appeal/revision, as the case may be.
9. Needless to emphasize that the protection extended by this order shall not be effective if appeal/revision, as the case may be, is not filed by the petitioner within a period prescribed for the same as stated herein above.
No cost.
(Sheel Nagu) Judge (Bu) DHANANJAYA BUCHAKE 2018.06.22 17:00:59 +05'30'