ORDER

1. As the controversy involved in both the petitions is common, therefore, both the petitions are being decided by this common order for the sake of convenience, facts narrated in W.P.7427/2019 are taken into consideration.

2. Petitioners have filed the present petition challenging the order dated 29.1.2019 and the letter/civil jail warrant dated 7.3.2019 passed by the Chief Executive Officer and Prescribed Authority in Jila Panchayat, Barwani in exercise of power under section 92(2) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 whereby both of them have been jointly and severally directed to deposit an amount of Rs.11,24,098/- failing which the proceedings under section 92(2) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 shall be initiated for sending them to Civil Jail.

3. This Court in the case of Rosan Nargave and Another v. State of M.P. and Another reported in 2017 (3) MPLJ 73 has held that before initiating the recovery proceedings under section 92(2) there should be an adjudication under Section 89 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. This order is still governing the field in this matter. Para 9 and 10 of are reproduced below:-

“9. From bare perusal of section 89 it is clear that every Panch, member, office-bearer, officer or servant of Panchayat shall be personally liable for the loss, waste or misappropriation of any money or other property of the Panchayat to which he has been a party or which has been caused by him by misconduct or gross neglect of his duties. The said amount is liable to be recovered by the prescribed authority. As per the proviso to this section no recovery shall be made under this section unless the person concerned has been given a reasonable opportunity of being heard. That every Panch, member, office bearer, officer or servant of Panchayat may be existing or ex or removed who has caused loss to the Panchayat by misconduct or gross neglect of his duties and required for reimbursing such loss, waste or misapplication and same can be recovered even after demitting office by them, as the case may be. The section 89 specifically provides that an adjudication must be done and as per the proviso reasonable opportunity of hearing ought to have been given to those persons. In the present case there is no such adjudication under section 89 of the Act.

“10. After adjudication under section 89, section 92 gives power to prescribed authority to recover the records, articles and money belonging to the Panchayat from the custody of any person. Under subsection (2) of section 92 if any person fails or refuses to deliver the record or article or pay the money then the prescribed authority may apprehend him with a warrant for sending him to civil jail and under subsection (3) may recover such money as arrears of land revenue. As such under section 92 powers are given to the prescribed authority for execution of the order passed under section 89. In the present case there is no adjudication under Section 89, therefore, there cannot be any execution proceeding or order passed therein under section 92 of the ACt. The prescribed authority has straightway on the basis of ex parte enquiry report initiated recovery under section 92. In view of the above, the impugned show cause notice as well as the final order dated 8.10.2015 are hereby set aside. Needless to say that still respondents/authority shall be at liberty to take action against the petitioners under sections 89 and 92 of the Panchayat Act”

4. In view of the aforesaid, petition is allowed. The impugned order dated 29.01.2019 and the letter/civil jail warrant dated 7.3.2019 passed by the Chief Executive Officer and Prescribed Authority in Jila Panchayat are hereby set aside. The matter is remitted back to the prescribed Authority to proceed under section 89 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993.

5. It is made clear that the findings should not based on the enquiry report dated 31.10.