Recovery of money from Panchayat office-bearers under Section 92 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, cannot be initiated without prior adjudication of liability and providing a reasonable opportunity of being heard under Section 89.

ORDER

The present petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

(i) That, the order dt. 02-05-2012 (Annexure P/1) be also set aside.

(ii)That, the consequential order if any issued, be directed to be produced before this Hon'ble Court and same be set aside.

(iii) That, the other relief doing justice including cost be awarded.

Learned counsel for petitioner submitted that the petitioner was elected as a Sarpanch in the year 2005 and he was remained Sarpanch till February 2010 in Gram Panchayat Silanagar, Tehsil. Karera, Distt. Shivpuri. Learned counsel for petitioner submitted that according to Section 92 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 the prescribed authority can recovered records articles and money and as per section 94 (4), no action under sub-Section 1, 2 or 3 shall be taken unless a reasonable opportunity is given to the person affected to the show cause why such action should not be taken against him. But in the present matter said procedure has not been followed by the respondents while issuing the impugned show cause notice/order dated 02-05-2012. Learned counsel for petitioner submitted that ex-parte enquiry has been conducted by the authority behind the back of the petitioner and petitioner has mentioned in his reply that all work has been completed and despite several requests made by the petitioner as well Gram Panchayat, the measurement has not been done, by the Engineers. Learned counsel for the petitioner submitted that in aforesaid respect, the petitioner also written representation to the CEO, Janpath Panchayat. Despite the request made by the petitioner, the engineer was not interested to verify measurement of the work which has been completed by the Gram Panchayat and on the basis of ex-party inquiry, the amount of recovery from Sarpanch and Secretary Rs. 50,01,750/- and Rs. 33,43,120/-, respectively ascertained by the respondents behind the back of petitioner. Learned counsel for petitioner submitted that neither the Inquiry Officer came in the Gram Panchayat nor spot inspection has been done by the Inquiry Officer. For that, the petitioner has submitted the Panch Nama of the villagers of the Gram Panchayat in which it is categorically stated that Inquiry Officer never came in the Gram Panchayat. Learned counsel for the petitioner submitted that the Commissioner, Gwalior Division, Gwalior issued direction to the authorities to inspect all the Gram Panchayat but in the present case, the officers have never came in Gram Panchayat neither measurement has been made by the Measurement Officer. Learned counsel for the petitioner submitted that on 3-11-2011, Sub-divisional Officer Revenue directed the SDO, RES to conduct an inquiry in respect of Gram Panchayat with respect to allegations. Thereafter, inquiry was conducted by the SDO, RES and it has been certified that the work has been done by the petitioner as well as by the Gram Panchayat, but measurement has not been done (Annexure P-5). Learned counsel for the petitioner further submitted that without following the principles of natural justice and without giving any opportunity of being heard to the petitioner, the recovery of Rs.25,32,415/- has been ascertained by the respondents. Learned counsel for the petitioner further submitted that as per Section 89 of Panchayat Raj Gram Swarajya, Adhiniyam 1993, before issuing the impugned order, respondents must give reasonable opportunity of being heard to the petitioner. Learned counsel for the petitioner further submitted that as per reasonable opportunity, they should specify in the notice each and every allegations, should mention documents which tend to prove any allegation against the working of Panchayat, copies of the document or relevant extract and it should also mention the name of the witnesses who have deposed or verified the allegations. Learned counsel for the petitioner submitted that as the reasonable opportunit