Bhupendra Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 5586 MP

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          THE HIGH COURT OF MADHYA PRADESH
                       WP-16424-2021
            Bhupendra Singh Vs. State of MP and ors.

Gwalior, Dated: 17/09/2021

      Shri A.S. Bhadoriya, Counsel for the petitioner.

      Shri Ajay Raghuvanshi, Counsel for the State.

      This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs:

              "i) Notice under s. 92 (Annexure P/1) and
       consequential proceedings may kindly be quashed.
              ii)   Respondent be directed not to undertake

any proceedings without there being any adjudication under s. 89 of the Act.

iii) Any other relief which this Hon'ble court, in facts and circumstances of the present case, deems fit."

It is submitted by the counsel for the petitioner that by the

impugned order dated 29.07.2021, a show cause notice has been

issued to the petitioner pointing out that the amount mentioned in the

show cause notice (which appears to be more than 85 lacs but

because of illegible figures, it has not been reproduced) be not

recovered from him and it is also mentioned that in case, if he failed

to submit reply, then further action under Section 92(2) of the M.P.

Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (in short

"Adhiniyam") shall be taken. It is submitted by the counsel for the

petitioner that this Court by order dated 16.05.2019 passed in W.P.

No.10060/2019 (Smt. Raina Bai and anr. Vs. State of MP and

anr.) and W.P. No.10063/2019 (Narendra and anr. Vs. State of MP

and anr.) has held that unless and until an enquiry is conducted

THE HIGH COURT OF MADHYA PRADESH WP-16424-2021 Bhupendra Singh Vs. State of MP and ors.

under Section 89 of the Adhiniyam, no action can be taken under

Section 92 of the Adhiniyam.

Per contra, it is fairly conceded by the counsel for the State that

facts of this case are covered by the law laid down in the case of Smt.

Raina Bai (Supra) and Narendra (supra).

Heard the learned counsel for the parties.

In the case of Smt. Raina (supra) and Narendra (supra), this

Court by order dated 16.05.2019 has held as under:-

''By this Common order, W.P. No.10063 of 2019 filed by Narendra & Chhotelal and W.P. No. 10060 of 2019 filed by Smt. Raina Bai & Jai Mandal Singh shall be decided.

Petitioner Narendra is the Ex- Sarpanch and Petitioner Chhotelal is Panchayat Secretary of Gram Panchayat Hidorakhedi, whereas Petitioner Smt. Rainabai is the Ex- Sarpanch, whereas petitioner Jai Mandal Singh is the Panchayat Secretary of Gram Panchayat Piproda Uwari.

For the sake of convenience, the facts of W.P. No.10060 of 2019 shall be referred.

A show cause notice dated 11-4-2019 (Annexure P/7) has been issued to the petitioners on the allegations that gravel road was to be constructed and certain additional works were executed without seeking permission from the department, specifically when by letter dated 5-5-2011, there was a complete ban for construction of additional road. Therefore, it was held that an amount of Rs.1,15,632/- has been spent by the petitioners which is liable to be recovered, accordingly, the petitioners were directed to file their reply by 26-4-2019, otherwise, action against them shall be taken under Section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam (in short ''Adhiniyam''). The petitioners filed their reply. However, by order dated 26-4-2019, it has been held that the reply submitted by the petitioners is not satisfactory, therefore, once again they have been directed to appear before the competent authority to put forward their defence, otherwise, action would be taken under Section 92 of Adhiniyam.

Challenging the order dated 26-4-2019, it is submitted by the Counsel for the petitioners, that the respondents have

THE HIGH COURT OF MADHYA PRADESH WP-16424-2021 Bhupendra Singh Vs. State of MP and ors.

already taken a final decision, which is bad because the provision of Section 92 of Adhiniyam, is merely an execution provision, and unless and until, an enquiry is conducted under Section 89 of Adhiniyam, no action can be taken against the petitioners. To buttress his contentions, the Counsel for the petitioners has relied upon the judgments passed by this Court in the case of Sumitra Dhurve Vs. State of M.P. reported in 2016(3) MPWN 83 and Kadam Singh Vs. CEO & others reported in 2019(1) MPLJ 420.

Per contra, it is submitted by the Counsel for the State that the letter dated 26-4-2019 (Annexure P/11) is not a final order, but it is merely a show cause notice and no action under Section 92 of Adhiniyam would be taken unless and until, an enquiry is conducted under Section 89 of Adhiniyam.

Considered the submissions made by the Counsel for the parties.

This Court in the case of Kadam Singh (Supra) has held as under :

''9. That the respondents have issued notice under section 92 of the Panchayat Act. The proceeding of section 92 is like an execution proceeding. Before initiating the execution proceeding there has to be an adjudication by the competent authority. Section 89 provides for adjudication. Sections 89 & 92 of the Panchayat Act are reproduced herein below:

89. Liability of Panch etc. for loss, misappropriation.- (1) Every Panch, member, officebearer, 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.

THE HIGH COURT OF MADHYA PRADESH WP-16424-2021 Bhupendra Singh Vs. State of MP and ors.

92. Power to recover records articles and money.-(1)Where the prescribed authority is of the opinion that any person has un-authorisedly 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 such officer as may be appointed by the prescribed authority in this behalf.

(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 any 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 to 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.

10. 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

THE HIGH COURT OF MADHYA PRADESH WP-16424-2021 Bhupendra Singh Vs. State of MP and ors.

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.

11. 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 order passed therein under section 92 of the Act. The prescribed authority has straight away 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 prompt action against the petitioner under section 89 & 92 of the Panchayat Act.'' Thus, the facts of this case are fully covered by the judgment passed by this Court in the case of Kadam Singh(Supra).

THE HIGH COURT OF MADHYA PRADESH WP-16424-2021 Bhupendra Singh Vs. State of MP and ors.

Accordingly, it is directed that the respondents shall not effect any recovery or shall not take any coercive step against the petitioners, unless and until an enquiry is conducted under Section 89 of Adhiniyam.

As the letters dated 11-4-2019 and 26-4-2019 are merely show cause notices, therefore, the respondents are directed not to take any coercive steps against the petitioners on the basis of said show cause notices.

With aforesaid observations, the petitions succeed and are hereby Allowed.''

Since this case is also covered by the directions given in the

case of Smt. Raina Bai (Supra) and Narendra (Supra),

accordingly, it is directed that respondents shall not take any coercive

steps against the petitioner unless and until an enquiry is conducted

under Section 89 of the Adhiniyam. It is further directed that the

respondents shall immediately issue a notice under Section 89 of the

Adhiniyam and the enquiry shall be concluded within a period of

three months from the date of receipt of copy of this order. The

petitioner is directed to cooperate in the enquiry and shall not seek

any adjournment at any cost. The petitioner is directed to submit a

copy of this order to the respondents within a period of seven days

from today, failing which this order shall automatically lose its effect.

With aforesaid observations, the petition is finally disposed of.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.09.18 11:51:14 +05'30'