The judgment establishes the importance of providing a reasonable opportunity of being heard, adherence to principles of natural justice, and the necessity of adjudication under section 89 before initiating recovery proceedings under section 92 of the Panchayat Act.

Vivek Rusia, J.

With the consent of parties, petition is heard finally.

Petitioner No.1 who is the Secretary of Gram Panchayat, Dhamnai and petitioner No.2 who is the Ex-Sarpanch of Gram Panchayat, Bomya approached this Court being aggrieved by the order dated 8.10.2015 passed by S.D.O (Revenue), the Prescribed Authority, Badwani by which petitioners have been directed to deposit the amount of Rs.3.79 lacs within thirty days. The aforesaid order was passed under section 92 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Panchayat Act').

2. That it has been alleged against the petitioners that during their tenure the work of construction of toilets were awarded to the Panchayat and during this tenure while working as Sarpanch and Secretary they did not construct 100 toilets for which an amount of Rs.4,60,000/- was sanctioned. It is alleged that while working as Sarpanch and Secretary they withdrew an amount of Rs.3.79 lacs. They were required to be utilized for constructing 82 toilets at the rate of Rs.4600/- which they did not construct. The Chief Executive Officer, Zila Panchayat has constituted an inspection committee which has submitted its report and on the basis of the said report the S.D.O issued a notice dated 15.12.2014 to the petitioners directing them to deposit the said amount i.e. Rs.3.79 lacs, failing which the same shall be recovered under the provisions of Section 92 of the Panchayat Act.

3. Pursuant to the aforesaid notice petitioners approached before the S.D.O and filed the reply. Respondents have filed the entire note sheet of the proceedings before the S.D.O. Vide order dated 23.12.2014 petitioners appeared before the S.D.O and denied the allegation and demanded the ex-parte enquiry report which is evident from Annexure P/3. Vide order dated 19.01.2015 the S.D.O has directed the Executive Engineer (R.E.S), Badwani to submit the valuation report. The said report was received on 8.10.2015 and the S.D.O has closed the case for orders and vide order dated 8.10.2015 petitioners were directed to deposit the amount within 30 days, failing which they would be sent to civil jail, hence the present petition.

4. Shri Manav, learned counsel for the petitioners submits that petitioners were not given any opportunity of hearing as contemplated under section 92 of the Panchayat Act, therefore, the order is bad in law and is liable to be set aside. In support of this contention, he has placed reliance over the order passed by this Court in the case of Sewak s/o Hardas Sour v. State of M.P and others reported in 2016 (2) MPRD 1 in which the show cause notice was set aside by the Court which was passed in violation of principles of natural justice. Shri Manav submits that in the present case also while issuing the show cause notice dated 15.12.2014 liability has been fastened on the petitioners to deposit Rs.3.79 lacs without adjudication, hence the same is liable to be set aside.

5. Shri Yogesh Mittal, learned G.A for the respondent/State submits that in pursuance to the show cause notice petitioners appeared before the S.D.O and after giving opportunity of hearing the S.D.O has passed the order. He further submits that against that order petitioners are having a remedy of appeal under the Madhya Pradesh Panchayats (Appeal and Revision) Rules, 1995, hence the writ petition is not maintainable.

ORDER

6. That the petitioners were issued show cause notice dated 15.12.2014 on the basis of some enquiry report submitted by the enquiry committee constituted by the Chief Executive Officer. In this show cause notice an amount of Rs.3.79 lacs has been ascertained as recoverable from the petitioners and they were directed to deposit the same, therefore, the impugned show cause notice is not as per the law as has been held by this Court in the case of Sewak Sour (supra). Relevant para-6 is reproduced below.

8. From perusal of the extract quoted above, it is evident that the liability