ORDER :

1. Petitioner is an elected Member of Jila Panchayat Kabirdham. Respondent No.4 submitted an application under Section 40 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short 'the Adhiniyam 1993') pleading therein that number of criminal cases are registered against the petitioner including FIR for the offence defined under Section 153A of the Indian Penal Code, which relates to promoting enmity between different groups on grounds of religion race, etc. and doing acts prejudicial to maintenance of harmony between different religions, racial, languages etc. and cause adverse effect in the society. On account of acts and registration of criminal cases, petitioner has committed misconduct in discharge of his duties and therefore, his continuance in the office is undesirable in the public interest. After receipt of show-cause notice, petitioner initially submitted preliminary objection with regard to maintainability of proceeding under Section 40 of the Adhiniyam, 1993, which came to be dismissed, and thereafter petitioner submitted reply to application submitted under Section 40 of the Adhiniyam, 1993. Immediately after submission of reply to notice under Section 40 of the Adhiniyam, respondent No.3 fixed the case for final arguments, which made the petitioner to file this writ petition seeking following relief:-

“10.1. To call for the records of the case for the kind perusal of this Hon'ble Court.

10.2. To issue an appropriate writ or order and declare that the order dated 28.06.23 contained in Annexure P-1 is illegal, bad in law, suffers from vice of malice and is in clear contravention of provisions contained under the Act of 1993.

10.3. To issue an appropriate writ or order and quash the order dated 28.06.23 contained in Annexure P-1.

10.4. Any other relief deemed fit in the facts and circumstances of the case may also be granted.”

2. Learned Senior Counsel for petitioner submitted that proceeding initiated against petitioner is under Section 40 of the Adhiniyam 1993, for removing him from the post of Member of Jila Panchayat. Proviso to sub-section (1) of Section 40 of the Adhiniyam 1993, provides that no person shall be removed unless he has been given an opportunity to show-cause as to why he should not be removed from his office. Petitioner in his reply denied the contents of application filed under Section 40 of the Adhiniyam 1993, and therefore, the Prescribed Authority i.e. respondent No.3, is under an obligation to conduct enquiry as envisaged under Section 40 (1). However, respondent No.3 straight-away fixed the case for final arguments without fixing it for recording of evidence, which is in contravention of provisions of Section 40. Allegation levelled in the application submitted by respondent No.4 that on account of registration of criminal cases under the provisions of the Indian Penal Code the harmony and spirit of common brotherhood will be affected, is specifically denied by petitioner in his reply and therefore, it has become incumbent upon respondent No.4-complainant to prove the pleadings / allegations made in the application submitted by him. Non-recording of evidence amounts to denial of fair opportunity to petitioner which may result into serious prejudice to him, he will not be able to defend the allegations in proper manner. Removal of office bearer of Panchayat under Section 40 on the allegation of misconduct is injurious and stigmatic, therefore, any such action can be taken only after following the procedure prescribed under Section 40 i.e. conducting enquiry etc. In support of his submissions, he placed reliance on the decision in cases of Kailash Kumar Parmanand Dangi vs. State of M.P. & Ors., reported in 1999 (2) MPHT 722 and Khem Chand vs. Union of India, reported in AIR 1958 SC 300. It is also contention that in none of the criminal cases petitioner is convicted. Cases against petitioner are registered only because of the political vendetta.

3. Learned Advocate General for the State v