IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SANJAY DWIVEDI th ON THE 8 OF SEPTEMBER, 2023 WRIT PETITION No. 26739 of 2018 BETWEEN:-

RAMADHAR DHAKAD S/O SHRI SHANKAR SINGH, AGED ABOUT 50 YEARS, OCCUPATION: EX SECRETARY ZILA PANCHAYAT R/O VILL. TIKHAWAN POST NOOR NAGAR TEH. UDAYPURA DISTT. RAISEN M.P. (MADHYA PRADESH)

.....PETITIONER (BY SHRI MANOJ SHARMA- SENIOR ADVOCATE WITH SHRI AYUR JAIN-

ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THR.

PRINCIPAL SECRETARY AND RURAL DEVELOPMENT VALLABH BHAWAN BHOPAL M.P.

(MADHYA PRADESH)

2. CHIEF EXECUTIVE OFFICER ZILA PANCHYAT DISTT. RAISEN (MADHYA PRADESH)

3. COMMISSIONER BHOPAL BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI PUNEET SHROTI- GOVERNMENT ADVOCATE)

This petition coming on for admission this day, the court passed the following:

ORDER

By way of this petition filed under Article 226 of the Constitution of India, the petitioner has assailed the order dated 15.10.2018 (Annexure-P/3) and order dated 20.01.2018 (Annexure-P/1). By Annexure-P/1, the Chief Executive Signature Not Verified Signed by: RAVIKANT Officer, Zila Panchayat Raisen, the respondent no.2 herein passed an order exercising powers provided under section 92 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short" Adhiniyam of 1993") directed that the amount of Rs.2,41,1000/- be recovered from the petitioner. The proposed recovery was made alleging some misappropriation of government amount in a scheme known as Panch Parmeshwar Yojna, in which, some construction work was done and on the basis of some forged and fabricated vouchers, amount has been withdrawn.

2. The allegation made against the petitioner being a Secretary of the Gram Panchayat and as such total recovery was assessed to the tune of Rs.2,41,100/-

and as such petitioner had to pay Rs.2,41,100/-

3. The challenge is made basically on the ground that the order of recovery was illegal because it was on the basis of assessment made by the authority itself without conducting any enquiry as required to have been conducted under section 89 of Adhiniyam of 1993.

4. Counsel for the petitioner submits that it is a settled law that without initiating proper enquiry u/s 89 of Adhiniyam of 1993, no recovery can be made u/s 92 of the Adhiniyam of 1993. He relied upon the decision passed in the case of State of M.P. and Others VS. Ku. Preeti Patidar and Others, passed by the Division Bench at Indore in Writ Appeal No.951/2021 and 949/2021.

5. Reply has been filed by the State taking stand therein that some enquiry got done and report submitted i.e. Annexure-R/1. However, it is nowhere mentioned that the said enquiry has been conducted in a case registered under section 89 of Adhiniyam of 1993. According to Shri Sharma, Senior Advocate, this enquiry report cannot be a substitute of report submitted u/s 89 of Adhiniyam of 1993. He submits that the compliance of section 89 of Adhiniyam Signature Not Verified Signed by: RAVIKANT of 1993 is mandatory so as to initiate recovery u/s 92 of the Adhiniyam of 1993. In the reply, there is no document and even averment made that enquiry was conducted u/s 89 of Adhiniyam of 1993 and in that enquiry, the amount of Rs.13,51,953/- has been determined to be recovered from the petitioner and also from the Sarpanch.

6. Considering the aforesaid, I am of the opinion that the order impugned i.e. Annexure-P/3 and Annexure-/1 are not sustainable for the reasons that it does not reveal that mandatory requirement to section 89 of the Adhiniyam of 1993 and enquiry under the said provisions has been conducted in which petitioner has been given any opportunity of hearing. The orders dated 15.10.2018 and

20.01.2018 are accordingly set-aside.

7. However, liberty is still with the respondents/State, if they want to proceed further and want to recover the amount, then they have to follow the procedure prescribed under the Statute and after initiating enquiry under section 89 of Adhiniyam of 1993 and amount determined