State Of M.P. vs Kishan Mandloi
2022 Latest Caselaw 3990 MP

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         IN THE HIGH COURT OF MADHYA PRADESH
                               AT INDORE
                                BEFORE
                  HON'BLE SHRI JUSTICE VIVEK RUSIA

                     ON THE 23rd OF MARCH, 2022

               REVIEW PETITION No. 1207 of 2020

      Between:-
   STATE OF M.P. THR. COLLECTOR
1. OFFICE OF COLLECTOR (MADHYA
   PRADESH)
   THE CHIEF EXECUTIVE OFFICER
2. JANPAD   PANCHAYAT   ALIRAJPUR
   (MADHYA PRADESH)
   ASSISTANT PROJECT OFFICER ZILA
3. PANCHAYAT ALIRAJPUR (MADHYA
   PRADESH)
                                                 .....PETITIONERS


      AND

  KISHAN    MANDLOI    S/O   DHERU
1 MANDLOI      GRAM      PANCHAYAT
. RICHHVI     JANPAT      PANCHYAT
  ALIRAJPUR (MADHYA PRADESH)
  KISHAN S/O ROOPSINGH R/O : GRAM
2
  RICHHVI, POST ALIRAJPUR (MADHYA
.
  PRADESH)
                                                .....RESPONDENTS
                            ORDER

Shri Pushyamitra Bhargav, learned Additional Advocate General for the petitioners.

Shri Swapnil Sharma, learned counsel for the Respondent [R-

1].

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The State of Madhya Pradesh has filed the present review petition seeking review/ recalling the order dated 02.12.2020 passed in W.P. No.4771/2020 whereby order passed under Section 40 of Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as '' Adhiniyam 1993'') dated 25.01.2020 has been quashed.

(2) The writ petitioner has approached the writ court contending that he was served with show cause notice under section 92 of the Adhiniyam, 1993 and without giving him any opportunity of hearing the impugned order has been passed under Section 40 of Adhiniyam, 1993 debarring him to contest the election for next period of six years. The State did not dispute this fact hence this court has allowed the writ petition and also declined to remand the matter for fresh enquiry.

(3) Shri Pushya Mitra Bhargav, Additional Advocate General , learned counsel for the review petitioners/ State submits that show cause notice under section 92 as well as 40 of the Adhiniyam 1993 both were issued on the same date and served to the writ petitioner. The writ petitioner was called upon to submit reply of both show- cause notices. Writ petitioner appeared in the proceedings initiated under section 40 of the Adhiniyam, 1993 and thereafter final order has been passed under section 40 of the Adhiniyam,1993. Writ petitioner has suppressed the fact before this Court that notice under section 40 of the Adhiniyam, 1993 was also served upon him. Shri Bhargav, learned AAG has produced the copy of show cause notice No.70/Ji.P./Reader/2019 Alirajpur dated 02.01.2020 which the counsel for the writ petitioner is not disputing. Shri Bhargav, learned AAG fairly submits that the respondent in the return dated

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28.11.2020 did not disclose this fact that the notice under section 40 of the Adhiniyam 1993 was also issued to the writ petitioner. (4) There is mistake on part of the writ petitioner as well as State both for not bringing the correct fact before this Court. Shri Bhargav, learned AAG fairly submits that even if the proceedings under section 40 of the Adhiniyam 1993 were initiated against the writ petitioner after issuing a show cause notice but the procedure prescribed under the law was not followed, no issues were framed and no evidence were recorded, only upon relying the report submitted by Assistant Project Officer, Alirajpur, the order under section 40 of the Adhiniyam, 1993 has been passed which is not permissible under the law. Hence, he prays that an opportunity be given to the competent authority to complete the proceedings under section 40 of the Adhiniyam, 1993 in accordance with law. It is further submitted that proceedings under section 89/92 of the Adhiniyam, 1993 for recovery of the losses are also pending against the writ petitioner and the competent authority shall conclude both the proceedings under section 40 and 92 of the Adhiniyam, 1993 in accordance with law.

(5) Learned counsel for the respondent/ writ petitioner opposes the aforesaid prayer and also submits unconditional apology that notice No.70/Ji.P./Reader/2019 Alirajpur dated 02.01.2020 under section 40 of the Adhiniyam,1993 was not produced before this Court. He further submits that writ petitioner submitted reply to the show cause notice but same was not considered and mechanically order has been passed. Now the term has already been completed and new election is likely to be scheduled, hence, matter may kindly not be remanded.

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(6) It is correct that neither petitioner nor respondent have disclosed this fact that notice No.70/Ji.P./Reader/2019 Alirajpur dated 02.01.2020 under section 40 of the Adhiniyam, 1993 was issued to the writ petitioner and this Court has quashed the order dated 25.01.2020 on the ground that the show cause notice issued under section 92 of the Adhiniyam 1993 and final order has been passed which is not correct. Hence, the reasoning recorded in the impugned order dated 02.12.2020 are liable to be recalled. The petitioner was served with the notice under section 40 of the Adhiniyam, 1993. He submitted reply but the competent authority relying on report submitted by Assistant Project Officer, Jila Panchayat Alirajpur. It is settled law that order under section 40 of the Adhiniyam, 1993 is liable to be passed after framing issue, examination of the witnesses as trial and this law is settled by this Court as well as Apex Court in number of judgments. Therefore, it is not a case that the CEO who passed the order, was not aware of the settled position of the law despite that he has passed the order in very casual manner, therefore, this case is not liable to be remanded back. The impugned order is treated to be set aside as it was passed without following due procedure of law. Hence, review is partly allowed without change of final outcome of the order passed in writ petition. So far as proceedings under Section 89 and 92 are concerned that may go on against the writ petitioner.

No order as to cost.

( VIVEK RUSIA ) JUDGE

praveen/-

Digitally signed by PRAVEEN NAYAK Date: 2022.03.28 10:13:15 +05'30'