Madhya Pradesh High Court

Jagdish Damde vs The State Of Madhya Pradesh on 4 August, 2021

Author: Vishal Dhagat

                                                       1                              WP-14152-2021
                              The High Court Of Madhya Pradesh
                                         WP-14152-2021
                                 (JAGDISH DAMDE Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                      Jabalpur, Dated : 04-08-2021
                            Heard through Video Conferencing.

                            Shri V.D.S. Chauhan, learned counsel for petitioner.
                            Shri Dilip Singh Parihar, learned Panel Lawyer for respondent/State.

Petitioner has called in question order dated 30.12.2019 contained in Annexure-P/1. By said order, Tehsildar, Betul was ordered to recover an

amount of Rs.12,39,965/- from Sanju Dhurve, Jagdeesh Damde, Raghunath Thakre, Sunil Amarghade, Smt. Nisha Patil and Kamlesh Sahu in accordance with provision of M.P. Land Revenue Code. Aforesaid order was passed under provisions of Section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.

2. It is submitted by counsel appearing for petitioner that respondents never initiated any proceedings under Section 89 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and without giving an opportunity of hearing, respondent No.3 has passed final order under Section 92 of the Act

of 1993. If petitioner fails to deposit the amount within period of 30 days, then proceedings under Section 92 (2) of Act of 1993 is to be initiated. It is submitted that main provision is under Section 89 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and Section 92 is execution proceeding but respondents had directly started executive proceeding under Section 92 of the Act of 1993. On said grounds, counsel appearing for petitioner made a prayer for quashing the impugned order.

3. Counsel appearing for petitioner relied on judgment reported in 2017 (3) MPLJ 73 (Rosan Nargave and another Vs. State of M.P. and others), order dated 06.07.2021 passed in W.P. No.11164/2021 (Smt. Rukmani Uikey Vs. The State of Madhya Pradesh and others) and order dated 20.06.2019 passed in W.P. No.11235/2019 (Anil Kumar Jain Vs. State of Signature Not SAN Verified M.P and another).

Digitally signed by SUNIL KUMAR PATEL Date: 2021.08.11 17:55:53 IST 2 WP-14152-2021

4. Learned Single Judge in W.P. No.11235/2019 relied on judgment passed in cases of Sumitra Dhurve Vs. State of M.P. , reported in 2016 (3) MPWN 83 and judgment reported in 2019 (1) MPLJ 420; Kadam Singh Vs. CEO and others.

5. On the strength of aforesaid judgments, counsel appearing for

petitioner prayed for quashing of impugned order dated 30.12.2019.

6. Heard the counsel for petitioner.

7. Sections 89 and 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 are quoted as under:-

"Âœ89. Liability of Panch etc. for loss, misappropriation.

- (1) Every Panch, member, office-bearer, officer or servant of Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] shall be personally liable for loss, waste or misapplication of any money or other property of the Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] to which he has been a party or which has been caused by him by misconduct or gross neglect of his duties. The amount required for reimbursing such loss, waste, or misapplication shall be recovered by the prescribed authority: Provided that no recovery shall be made under this section unless the person concerned has been given a reasonable opportunity of being heard.

(2) If the person concerned fails to pay the amount, such amount shall be recovered as arrears of land revenue and credited to the funds of the Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] concerned.

92. Power to recover records, articles and money. - (1) Where the prescribed authority is of the opinion that any person has unauthorizedly in his custody any record or article or money belonging to the Panchayat, [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] he may, by a written order, require that the record of article or money be delivered or paid forthwith to the Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha], in the presence of Signature Not such officer as may be appointed by the prescribed authority SAN Verified in this behalf.

Digitally signed by SUNIL KUMAR PATEL Date: 2021.08.11 17:55:53 IST 3 WP-14152-2021 (2) If any person fails or refuses to deliver the record or article or pay the money as directed under sub-section (1), the prescribed authority may cause him to be apprehended and may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days.

(3) The prescribed authority may,-

(a) for recovering any such money direct that such money be recovered as an arrear of land revenue; and

(b) for recovering any such record or articles issue a search warrant and exercise all such powers with respect thereto as may lawfully be exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1973 (No. 2 of 1974).

(4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned lo show cause why such action should not be taken against him.

[(4-A) The case pertaining to recovery of any record or article or money initiated by the prescribed authority shall be disposed of within six months from the date of initiation.] (5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] for a period of [six] years commencing from the initiation of such action."Â

8. After carefully going through provisions of Sections 89 and 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, it is clear that Section 89 and Section 93 operate in different fields. Section 89 makes servant of Panchayat personally liable for loss, waste or misapplication of any money or property of Panchayat. Proviso of Section 89 provides for recovery of such amount or loss caused to Panchayat after giving opportunity of hearing and Section 89(2) provides for recovery of such amount as arrears of land revenue. Whereas, Section 92 (1) of Act of 1993 gives power to recover record, article or money in custody of Panchayat servant by giving him a notice. Section 92(2) of the Act provides for contingency if such Signature SAN Not Verified

Digitally signed by SUNIL KUMAR PATEL Date: 2021.08.11 17:55:53 IST 4 WP-14152-2021 Panchayat servant refuses to deliver said record, article or money and in such case, he may be sent to Civil Jail for period of no longer than 30 days. Section 92(3) provides for recovering of such money, record or article. Section 92(4) provides that action under Sections 92(1), 92(2) and 92(3) shall only be taken after giving reasonable opportunity of hearing to person concerned. Section 92(4)(a) provides limitation for disposing of the case within period of six months and Section 92(5) creates disqualification against a person, against whom, under Section 92 is taken. From scheme of Sections 89 and 92 of the Act of 1993, it is clear that Section 89 is applicable when loss is caused to Gram Panchayat due to waste or misapplication of money or property of Panchayat. Section 92 is applicable in cases where servant of Panchayat is having in his custody article, record or money. The two Sections operate in two different fields. Section 89 operates when loss caused due to spending of money (waste/misapplication) or property and Section 92 when article record or money is in custody of Panchayat servant and he does not return it. Each Section also provides a mechanism for passing decision and also for execution of the order passed under aforesaid Sections. In view of aforesaid scheme of Sections 89 and 92 of the Act of 1993, it cannot be said that substantive order is to be passed under Section 89 and execution of said order is to be provided in Section 92 of Act of 1993. Both Sections operate in different fields and provide mechanism for hearing and also for recovery of money or property. Section 93 does not provide mechanism for enforcing orders passed in Section 89 of the Act of 1993. Concerned authority has to form opinion about custody of record, article and money with Panchayat servant. Section 92 does not say once order is passed under Section 89 thereafter recovery is to be undertaken under Section 92 of Act of 1993.

9. In cases of Kadam Singh Vs. CEO and others reported in 2019(1) MPLJ 420, Rosan Nargave and another Vs. State of M.P. and others reported in 2017 (3) MPLJ 73, it has been held that after adjudication Signature SAN Not Verified

Digitally signed by SUNIL KUMAR PATEL Date: 2021.08.11 17:55:53 IST 5 WP-14152-2021 under Section 89 of the Act of 1993, Section 92 of said Act gives power to prescribed authority to recover records, articles and money belonging to Panchayat from custody of any person. In Section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 powers are given to prescribed authority for execution of orders passed under Section 89. If there is no adjudication under Section 89, therefore, no order could be passed under Section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.

10. I disagree with orders which have been passed in cases of Rosan Nargave and another Vs. State of M.P. and others reported in 2017 (3) MPLJ 73, in W.P. No.11164/2021 (Smt. Rukmani Uikey Vs. The State of Madhya Pradesh and others) and in W.P. No.11235/2019 (Anil Kumar Jain Vs. State of M.P and another).

11. I request Hon'ble the Chief Justice to constitute a Larger Bench for considering the following questions of reference:-

(i) Whether Sections 89 and 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 operate in different fields and said Sections are to be made applicable for different heads of money and property?

(ii) Whether Sections 89 and 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 are independent of each other and each Section provides mechanism for hearing and execution of order?

(iii) Whether adjudication under Sections 89 and 92 of the Act of 1993 is to be made for different heads of money and property mentioned in Sections 89 and 92 are different?