Smt Rachna Jatav vs The State Of Madhya Pradesh
2023 Latest Caselaw 16976 MP

                                              1

          IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                                         BEFORE
                 HON'BLE SHRI JUSTICE ANAND PATHAK
                          ON THE 13th OF SEPTEMBER, 2023

                       WRIT PETITION NO. 20165 of 2023

       BETWEEN:-

       SMT RACHNA JATAV S/O SHRI PARMAL SINGH, AGED
       ABOUT 31 YEARS, OCCUPATION: SARPANCH GRAM
       PANCHAYAT ENDORI, JANPAD PANCHAYAT GOHAD
       DISTRICT BHIND R/O VILLAGE MANOHAR KA PURA
       GRAM PANCHAYAT ENDORI, JANPAD PANCHAYAT
       GOHAD, DISTRICT BHIND (MADHYA PRADESH)
                                                                         .....PETITIONER
       (BY SHRI B.M PATEL - ADVOCATE)
       AND
1.     STATE OF MADHYA PRADESH THROUGH PRINCIPAL
       SECRETARY, DEPARTMENT OF PANCHAYAT AND
       RURAL DEVELOPMENT, VALLABH BHAWAN BHOPAL
       (MADHYA PRADESH)
2.     COLLECTOR, DISTRICT BHIND, (MADHYA PRADESH)
3.     CHIEF EXECUTIVE OFFICER JILA PANCHAYAT
       BHIND DIST. BHIND (MADHYA PRADESH)
4.     CHIEF EXECUTIVE OFFICER JANPAD PANCHAYAT
       GOHAD, DIST. BHIND (MADHYA PRADESH)
                                                                      .....RESPONDENTS

       (BY SHRI NEELESH SINGH TOMAR - GOVERNMENT
       ADVOCATE)
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        Reserved on                                  :          13-09-2023
        Delivered on                                 :           12-10-2023
--------------------------------------------------------------------------------------- ----
       This petition having been heard and reserved for orders coming on for
pronouncement this day, delivered the following:-
                                          ORDER

1. The instant petition is preferred by the petitioner under Article 226 of the Constitution taking exception to the order dated 13-06-2023

passed by the Collector, District Bhind whereby the Collector, District Bhind has ascertained the loss of amount under Section 89 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Adhiniyam, 1993") and referred the matter to the Prescribed Authority (Chief Executive Officer, Zila Panchayat, Bhind) for recovery. Petitioner is also aggrieved by the order dated 28-07-2023 passed by the Chief Executive Office, Zila Panchayat, Bhind whereby purportedly under Section 92 of the Adhiniyam, 1993, recovery of Rs.5,68,972.50 has been directed to be made against the petitioner.

2. Precisely stated facts of the case are that petitioner was elected Sarpanch of the Gram Panchayat Endori, Janpad Panchayat Gohad District Bhind at the relevant point of time. A complaint was made against the petitioner before respondent No.3 -Chief Executive Officer, Zila Panchayat, Bhind. Based on the said complaint, a three members enquiry committee was constituted by the CEO, Zila Panchayat, Bhind vide its order dated 06-04-2023 and report was solicited. Said preliminary enquiry report indicated the role of petitioner in causing embezzlement of public money and corruption in public works as referred in the impugned order. A show cause notice dated 15-04-2023 (Annexure P/10) was given to the petitioner by CEO, Zila Panchayat, Bhind and solicited her response.

3. It is worth mentioning the fact that these proceedings were undertaken by CEO, Zila Panchayat, Bhind. Later on, it appears that a notice was given to the petitioner on 10-05-2023 purportedly under Section 89 of the Adhiniyam, 1993 by the Office of Collector, District Bhind. In response thereof, petitioner filed her detail reply on 16-05- 2023. It also appears that in response to the show cause notice issued

by the CEO, Zila Panchayat, Bhind, petitioner submitted her reply vide Annexure P/14. After hearing the parties concerned, going through the contents of enquiry report, impugned orders have been passed. Therefore, petitioner is before this Court.

4. It is the submission of counsel for the petitioner that the matter suffers from vice of principle of natural justice. Petitioner never supplied copy of complaint and enquiry was done behind her back, therefore, principle of Audi Alteram Partem has been violated.

5. It is further submitted that respondents never initiated any proceedings under Section 89 of the Adhiniyam, 1993 and passed the final order under Section 92 of the Adhiniyam, 1993. Main provision is Section 89 and Section 92 is execution proceedings but the respondents have directly started execution proceedings purportedly under Section 92 of the Adhiniyam, 1993. It is further submitted that for Section 89 of the Adhiniyam, 1993, the Prescribed Authority is only Chief Executive Officer, Zila Panchayat. Learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Maya Choudhary Vs. State of M.P., 2012 (2) MPLJ 90 and order dated 04-08-2021 passed in Writ Petition No.14152/2022 (Jagdish Damde Vs. The State of Madhya Pradesh and others).

6. Learned counsel for the respondents/State opposed the submissions and submitted that due opportunity of hearing was given to the petitioner and thereafter impugned order has been passed. He specifically submitted that petitioner is not required to be give any hearing in the preliminary enquiry. He supported the impugned orders. It is further submitted that petitioner has efficacious alternative remedy against the impugned orders.

7. Heard the counsel for the parties at length and perused the impugned

orders.

8. Petitioner has raised two points in the present case; one is, opportunity of hearing was not provided and another is, regarding competence of authority under Sections 89 and 92 of the Adhiniyam, 1993.

9. So far as opportunity of hearing is concerned, after receiving the complaint, preliminary enquiry was conducted. This was in fact a fact finding enquiry in a way which was meant for ascertaining the fact whether complainant has made a complaint on mere surmises and conjuncture or motivated by malice or his complaint bears some substantial ground to proceed against an office bearer. Therefore, it is nowhere necessary to give any opportunity of hearing to any person concerned when any fact finding or preliminary enquiry to ascertain the prima facie allegations is carried out. Thereafter from the record, it appears that petitioner was given show cause notice by the Collector on 10-05-2023 (Annexure P/11) under Section 89 of the Adhiniyam, 1993 and her reply to the said notice was not found satisfactory. Therefore, she was again directed to appear on 16-05- 2023 to lead evidence. It appears that against the said show cause notice, petitioner replied on the same day on 10-05-2023 vide Annexure P/12. Thereafter, impugned order dated 13-06-2023 has been passed by the Collector, District Bhind under Section 89 of the Adhiniyam, 1993 in which amount of Rs.5,68,972/- was ascertained and for realization matter was referred before the Prescribed Authority.

10. As per Gazette notification dated 30-11-2022 of Panchayat and Rural Development Department, for Gram Panchayats the Prescribed Authority under Section 89 of the Adhiniyam, 1993 is Chief

Executive Officer, Zila Panchayat. Therefore, contention of petitioner that Collector is not appropriate authority and order dated 13-06-2023 is without jurisdiction does not hold ground because Collector can ascertain the loss caused to the State Exchequer and for realization it shall be referred to the Prescribed Authority. Therefore, Chief Executive Officer, Zila Panchayat is the Prescribed Authority and he is meant for recovery of such loss/waste or misappropriation done by the office bearer of Panchayat. Thus, Collector is competent while passing the order under Section 89 of the Adhiniyam, 1993. However for execution of the case, it would be referred to the Chief Executive Officer, Zila Panchayat. Therefore, no jurisdictional error has been committed by the Collector in passing the impugned order dated 13- 06-2023 under Section 89 of the Adhiniyam, 1993.

11. So far as competence of Chief Executive Officer, Zila Panchayat, Bhind under Section 92 of the Adhiniyam, 1993 is concerned, it is the CEO, Zila Panchayat who has to take care of recovery and disqualification of such office bearer. CEO, Zila Panchayat issued notice to the petitioner on 14-06-2023 (Annexure P/5) purportedly under Section 92 of the Adhiniyam, 1993 in which reference of order dated 13-06-2023 passed by the Collector was mentioned. Petitioner was asked to appear on 20-06-2023 and on that day she appeared again and filed her parawise reply in detail along with measurement books and other documents to plead her innocence. She was heard and after due hearing, impugned order dated 28-07-2023 has been passed. Therefore, it is not a case of any jurisdictional error and CEO, Zila Panchayat as prescribed authority passed the impugned order dated 28-07-2023 under Section 92 of the Adhiniyam, 1993.

12. Considering the rival submissions and the fact that petitioner raised

the ground of technical issues and those technical issues do not exist in the facts and circumstances of the case and act of petitioner is contrary to the public welfare and defeat the trust reposed into her and foundation of Local Self Government. Other contention of malafide has no meaning when concept of "Social Audit" has already been introduced in the Mahatma Gandhi National Rural Employment Guarantee (Appointment, Powers and Duties of the Ombudsman) Madhya Pradesh Rules, 2013 which is recently evolved concept and which mandates the impact assessment of scheme or policy over common people. Petitioner being Sarpanch had to be very cautious, careful and dutiful towards the cause of public at large because a trust has been reposed into her and she cannot escape from her "Democratic Accountability".

13. In the considered opinion of this Court, no case for interference is made out on the basis of grounds raised. So far as availability of alternative remedy to the petitioner is concerned, petitioner is free to avail the said remedy in accordance with law. In case petitioner avails the alternative remedy, if any, then the authority concerned shall decide the case of petitioner on merits without being influenced by this order.

14. Petition sans merits and is hereby dismissed.

                                                                   (ANAND PATHAK)
Anil*                                                                  JUDGE
        ANIL       Digitally signed by ANIL KUMAR CHAURASIYA
                   DN: c=IN, o=HIGH COURT OF MADHYA



        KUMAR
                   PRADESH BENCH GWALIOR, ou=HIGH COURT
                   OF MADHYA PRADESH BENCH GWALIOR,
                   postalCode=474001, st=Madhya Pradesh,
                   2.5.4.20=8512f40a1a9eaa50b6802d068b51da
                   e27e84c266b09d283f0799e67cdc7df50f,


        CHAURASI
                   pseudonym=F7E569EA2A8955818DF870B0C
                   50764B46C526E80,
                   serialNumber=EC534CBB3B245F050119F06F
                   4A296DD83C765A1E2ACC6EC7D8BD8CBCC9



        YA
                   C2446E, cn=ANIL KUMAR CHAURASIYA
                   Date: 2023.10.12 17:27:46 +05'30'