Adjudication under Section 89 of the Panchayat Act is necessary before initiating execution proceedings under Section 92, and failure to provide a reasonable opportunity of being heard violates principles of natural justice.

1. The petitioner before this Court has filed present petition being aggrieved by order dated 15/11/2016 passed by respondent No.2 Sub Divisional Officer, Biaora in exercise of power conferred under Section 92 of the Panchayat Raj Adhiniyam, 1993.

2. Learned counsel has argued before this Court that the order has been passed under Section 92 without holding any inquiry with the participation of the petitioner and without taking any action under Section 89 with the participation of the petitioner. He has straightaway drawn the attention of this Court towards judgment delivered in Writ Petition No.7528/2015 dated 17/11/2016 and the same reads as under:-

“The question involved in this writ petition is squarely covered by a Single Bench decision of this Court in Writ Petition No.7672/2015 (Radheshyam Kochak s/o Jagannath Kochak v. The State of MP & others) decided on 20.10.2016; which reads, as under: -

“Petitioner who is the Secretary of Gram Panchayat, Marimata approached this Court being aggrieved by the order dated 8.10.2015 passed by S.D.O (Revenue)/the Prescribed Authority, Badwani by which petitioner has been directed to deposit the amount of Rs.18.06 lacs within thirty days. The aforesaid order was passed under section 92(2) 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 petitioner that during his tenure the work of construction of toilets were awarded to the Panchayat and during this tenure while working as Secretary he did not construct 500 toilets for which an amount of Rs.23.00 lacs was sanctioned. It is alleged that while working as Secretary he withdrew an amount of Rs.20.31 lacs along with Sarpanch. It was required to be utilized for constructing 442 toilets at the rate of Rs.4600/-which he did not construct. He has got constructed only 49 toilets out of 442. 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 petitioner and Sarpanch directing them to deposit the said amount i.e. Rs.18.06 lacs, failing which the same shall be recovered under the provisions of Section 92 of the Panchayat Act.

3. Pursuant to the aforesaid notice petitioner 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. The petitioner 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 petitioner was directed to deposit the amount within 30 days, failing which he would be sent to civil jail, hence the present petition.

4. Shri Manav, learned counsel for the petitioner submits that petitioner was 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 vs. State of M.Pand 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 petitioner to deposit Rs.18.06 lacs without adjudication, hence the same is liable to be set aside.

5. Shri Praveen Pal, learned G.A for the respondent/State submits that in pursuance to the show cause notice petitioner appeared before the S.D.O and after giving opportunity of hearing the S.D.O has passed the order. He f