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IN THE HIGH COURT OF MADHYA PRADESH
Subodh Abhyankar and Anil Verma, JJ.
State of M.P. & Others v. Ku. Preeti Patidar & Others
Writ Appeals No. 949 of 2021 and 951 of 2021 (Indore); against order dated 23.6.2021, Passed in Writ Petitions No. 17964/2020 and 6332 of 2021; Decided on 12.1.2022.
¼1½ iapk;r jkt ,oa xzke Lojkt vfèkfu;e] 1993 ¼eŒçŒ½ & èkkjk 89 rFkk 92 & èkkjk 92 d¢ vèkhu olwyh d¢ fy, lwpuk i= & mi&vfÒ;ark d¢ çfrosnu ds vk/kkj ij olwyh dk vkns'k ikfjr & fof/kekU;rk & ,slk çfrosnu ;kph d¨ çnk; ugha fd;k x;k & jkT; }kjk çLrqr iqufoZy¨du esa v©j bl vihy esa Òh çLrqr ugha fd;k x;k & ;g ekuus ij Hkh fd dk;Zokgh èkkjk 89 d¢ vèkhu lafLFkr dh xbZ & ;g ugha dgk tk ldrk fd og fofèk d¢ vuqlkj rFkk uSlfxZd U;k; d¢ fl)kar dk ;Fk¨fpr ikyu djus d¢ i'pkr~ lapkfyr dh xà & gLr{ksi ugha & vihy [kkfjtA ¼iSjk 13½
¼2½ iapk;r jkt ,oa xzke Lojkt vfèkfu;e] 1993 ¼eŒçŒ½ & èkkjk 92 rFkk 89 & jde olwyh dh jhfr & èkkjk 89 d¢ vèkhu jde dk voèkkj.k fd, fcuk lhèks èkkjk 92 d¢ vèkhu jde olwy ugha dh tk ldrhA
vfÒfuèkkZfjr% tc rd vfèkfu;e dh èkkjk 89 d¢ vèkhu jde dk voèkkj.k ugha fd;k tkrk] lhèks èkkjk 89 d¢ vèkhu mldh olwyh ugha dh tk ldrhA bldk dkj.k ;g gS fd ;fn jde dk voèkkj.k fd, fcuk fdlh O;fDr d¨ èkkjk 92 d¢ vèkhu lwpuki= rkehy fd;k tkrk gS r¨ jde d¨ mldh olwyh dh fnukad ij ns; ugha dgk tk ldrk D;¨afd bldh ek=k voèkkfjr ugha dh xà gS] v©j tc rd bldh ek=k voèkkfjr ugha dh tkrh] ;g ugha dgk tk ldrk fd ;g iapk;r dh gS] v©j blfy, vfèkfu;e dh èkkjk 92 d¢ vèkhu bldh olwyh ugha dh tk ldrhA oLrqr% ;g lR; gS fd vfèkfu;e dh n¨u¨a èkkjkv¨a vFkkZr~ èkkjk 89 vkSj 92 d¢ vèkhu 'k¨è; jde Òw&jktLo d¢ :i esa olwyh dh tk ldrh gS] ijarq mu ifjfLFkfr;¨a esa] tc jkT; }kjk jde voèkkfjr dj nh xà g¨rh gS] mls og jde vfèkfu;e dh èkkjk 89 ;k fQj èkkjk 92 d¢ vèkhu olwy djus dk foosdkfèkdkj gSA Li"V :i ls] n¨u¨a èkkjk,a ijLijO;kih gSa v©j ;fn jkT; ,slk Li"Vhdj.k pkgrk gS fd og n¨u¨a i`Fkd~ v©j fÒUu gSa] r¨ mls miyC/k ,dek= jkLrk micaèk¨a esa la'k¨èku dj vfèkfu;fefr vFkkZr~ vfèkfu;e esa ,d:irk v©j Li"Vrk ykus dk gSA 2018 ¼2½ jkŒ fuŒ 148 ¼mPp U;k;ky;½ rFkk fjV vihy Øekad 633@2021] fu.kÊr fnukad 9-8-2021 fufnZ"VA ¼iSjk 15½
(1) Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (M.P.) -- Ss. 89 and 92 -- notice for recovery under section 92 -- order of recovery passed on report of Sub Engineer -- validity -- such report not furnished to petitioner -- also not filed in review petition filed by State or in present appeal -- even assuming proceeding was initiated under section 89, it cannot be said that it was conducted in accordance with law and after due adherence to principles of natural justice -- no interference -- appeal dismissed. [Paras 13]
(2) Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (M. P.) -- Ss. 92 and 89 -- manner of recovery of amount -- without determining amount under section 89, amount cannot be directly recovered under section 92.
Held: An amount cannot be directly recovered under section 92 of the Adhiniyam unless the same is determined under section 89 of the same. This is for the reason that without determining the amount, if the notice under section 92 is served on a person, the amount cannot be said to be due on the date of its recovery because it has not been quantified, and unless it is quantified, it cannot be said that it belongs to the Panchayat and thus, cannot be recovered under section 92 of Adhiniyam. Indeed it is true that under both the sections, viz., section 89 and section 92 of Adhiniyam, the amount due can be recovered as land revenue but in such circumstances, when the amount is determined by the State, it has the discretion to recover it either under section 89 or section 92 of the Ahiniyam. Apparently, both the sections are overlapping and if the State seeks any clarification that both of them are distinct and different then the only course available to it is to amend the provisions and bring some uniformity and clarity in the enactment, i.e., the Adhiniyam.2018 (2) RN 148 (HC) and Writ Appeal No. 633/2021 decided on 9.8.2021 referred to. [Para 15]
ORDER
Abhyankar, J:- 1. This order shall govern the disposal of writ appeal No.949/2021 and writ appeal No.951/2021 as both the appeals have arisen out of the common order dated 23.6.2021 passed by the leaned single judge in W.P. No.17964/2020 and W.P. No.6332/2021 respectively. For the convenience, the facts as narrated in W.A. No.949/2021 (W.P. No.17964/2020) are being taken into consideration.
2. This appeal under section 2(1) of the M.P. Uchha Nayaylalya (Khand Nyaypith Ko Appeal) Adhiniyam, 2005 has been filed by the appellants/State against the order dated 23/06/2021 passed by the learned Single Judge in WP No.17964/2020 by which the petition filed by the petitioner/respondent No.1 (hereinafter referred to as 'the petitioner') has been allowed with cost of Rs.15,000/-, quashing the order dated 5.10.2020 passed by the appellate authority- Commissioner, Ujjain, Division Ujjain which affirmed the order dated 28.11.2020 passed by the Collector, Ujjain whereby the respondent No.1/petitioner was removed from the post of Pradhan. and consequently the recovery effected from the petitioner/respondent was also quashed being not sustainable. The review petition No.553/2021 filed by the State has also been dismissed by the learned Single Judge by order dated 21.9.2021 W.P. No.17964/2020 was preferred by the petitioner against the order dated 4.10.2019 passed by the Specified Officer and Chief Executive Officer, Jila Panchayat, Ujjain under section 92(2)(1) of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ‘the Panchayat Act’) and order dated 5.10.2020 passed by the appellate authority-Commissioner, Ujjain Division, Ujjain. Whereas, WP No.6332/2021 was preferred against the order dated 4.3.2021 passed by the Commissioner, Ujjain, Division Ujjain whereby the application for stay of her removal from the post of Pradhan of the Administrative Committee has been rejected. As pursuant to the order dated 5.10.2020, the Specified Officer and Collector, Ujjain vide its order dated 28.11.2020, has also removed the petitioner from the post of Pradhan of the Administrative Committee.
3. The case of the appellants is that the respondent/petitioner, who was elected on the post of Surpanch of Gram Panchayat Kharsodkhurd, Badnagar was found guilty of irregularities committed by her in construction of RRC road which was of substandard quality and hence, an amount of Rs.83,175/- was sought to be recovered from her.
4. The facts of the case as have been noted by the learned Single Judge are as under:-
2. The petitioner was elected as Surpanch of Gram Panchayat Kharsodkhurd in an election held on 9.2.2015. According to the petitioner, she is highly qualified having a degree of M.Sc. From Vikram University, Ujjain. She has donated her entire salary and allowances in “Swachha Bharat Mission” for construction of toilets in the Gram Panchayat area.
3. According to the petitioner, one Mangilal - Up-Surpanch of Gram Panchayat Kharsodkhurd who is having previous enmity with her father, made a complaint on 1.2.2017 in respect of quality of construction of Cement Concrete (CC) road from the house of Rajaram to the house of Suresh Rathore in Gram Panchayat Kharsodkhurd (in short “Certified Copy Road”)(sic). On the basis of the aforesaid complaint, vide order dated 5.12.2017 the petitioner was removed from the post of Sarpanch without conducting any inquiry as contemplated under section 40 of ‘the Panchayat Act’. She challenged the aforesaid removal order by way of W.P. No.22373/2017 before this Court. Vide order dated 19.12.2017, this Court stayed the removal order and thereafter vide order dated 19.6.2018 set aside the order of removal. During above precoding after removal of the petitioner from the post of Surpanch, the Chief Executive Officer (CEO), Janpad Panchayatgave the charge of the post of Surpanch to Mangilal on 13.12.2017.
4. The petitioner was served with the show-cause notice on 8.1.2019 under section 92 of the Adhi
The main legal point established in the judgment is that the decision-making process adopted by the respondents must comply with the principles of natural justice and the statutory mandate of Section....
Compliance with the principles of natural justice and the authority of the Chief Executive Officer under Section 92 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.
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