Shambhulal Parihar vs Panchayat And Rural Development ...
2021 Latest Caselaw 2238 MP

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                                                              W.P. No. 3434/2020



  HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
     (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                           W.P. No. 3434 of 2020
              (Shambhulal Parihar V/s. State of M.P. & others)

Date: 10.06.2021 :
      Petitioner by Shri Prasanna R. Bhatnagar, Advocate.
      Respondents/State by Shri Sanjay Karanjawala, Govt. Advocate.

The petitioner has filed the present petition being aggrieved by order dated 21.1.2020 passed by Chief Executive Officer, Zila Panchayat, Mandsaur in exercise of powers conferred u/s. 40 of the M.P. Panchayat Avam Gram Swaraj Adhiniyam ("Panchayat Raj Adhiniyam" for short) whereby he has been removed from the post of Surpanch, Gram Panchayat Satakhedi, Janpad Panchayat Sitamau, District Mandsaur and further declared ineligible to contest the election for a period of six years.

The petitioner was elected as Surpanch, Gram Panchayat Satakhedi in the year 2015 for a period of five years. A show-cause notice dated 18.10.2019 was issued to the petitioner u/s. 40 of the Panchayat Raj Adhiniyam on the basis of report dated 13.9.2019 submitted by Janpad Panchayat Sitamau. As per the report, Gram Panchayat Satakhedi received Rs. 32.15 Lakhs for various works in the Gram Panchayat, but the same had not been completed. On 31.10.20119 the petitioner submitted the reply stating that all the works had already been completed but the Sub Engineer was not carrying out the valuation of the work and not issuing the completion certificate. The petitioner submitted the representation dated 11.12.2019 and 14.1.2020 that the Sub Engineer and Assistant Engineer are not performing their duties to issue the completion certificate after inspecting the site. After considering the reply submitted by the petitioner and the material available on record, vide order dated 21.1.2020 the Chief Executive Officer has held that the petitioner has failed to complete various works in the Gram Panchayat and withdrawn the amount from the Panchayat more than the sanctioned amount and removed the petitioner from the post of Surpanch.

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W.P. No. 3434/2020

The petitioner has assailed the impugned order on various grounds viz. the procedure prescribed u/s. 40 of the Panchayat Raj Adhiniyam has not been followed; before passing the impugned order, no issues were framed; no evidence was recorded, therefore, the impugned order is bad in law. In support of the contention, the petitioner has placed reliance over the various judgments passed by the apex Court as well as by this Court, which are as under :

(i) Manita Jaywar V/s. State of M.P. : 2009(3) MPHT 70 (DB);

(ii) Chandrakanta Bai V/s. State of M.P. : 2014 (4) MPHT 350 (DB);

(iii) Vikram Singh V/s. State of M.P. : 2019 (3) MPLJ 676;

(iv) Ravi Yashwant Bhoir V/s. District Collector : (2012) 4 SCC 407;

(v) Committee of Management, Mumtaj PG College V/s. Vice Chancellor : 2009 (2) SCC 630.

After notice the respondents have filed the return by submitting that the petitioner was served with the show-cause notice before taking action. He has failed to satisfy the competent authority that the work had been completed. It is further submitted that the petition is not maintainable as the petitioner is having alternative remedy by way of appeal u/s. 92 of the Panchayat Raj Adhiniyam. A show-cause notice dated 3.2.2020 has also been issued u/s. 92 of the Panchayat Raj Adhiniyam directing the petitioner to deposit the amount of Rs.23,.10,434/-. Against the said order, the petitioner has already preferred an appeal before the Commissioner, therefore, this petition be dismissed with a liberty to the petitioner to prefer an appeal because the subject-matter of the present petition and appeal pending before the Commissioner are the same.

I have heard the learned counsel for the petitioner and the learned Govt. Advocate appearing for the respondents/State and perused the material available on record.

That, it is not in dispute that the order passed u/s. 40 of the Panchayat Raj Adhiniyam is an appellable order. The appeal lies to the Commissioner. The subject-matter of order dated 21.1.2020 passed u/s. 40 and the order dated 3.2.2020 passed u/s. 92 of the Panchayat Raj

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W.P. No. 3434/2020

Adhiniyam are the same. Against the order dated 3.2.2020, the petitioner has already preferred an appeal before the Commissioner and the same is pending. Therefore, the present petition is also dismissed with a liberty to the petitioner to prefer an appeal before the Commissioner. If such an appeal is preferred, the Commissioner shall entertain the appeal on merit treating it to be within limitation because one appeal is already pending.

With the aforesaid, this petition is dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2021.06.17 17:48:48 +05'30'