Smt. Rachana Jatav vs The State Of Madhya Pradesh
2024 Latest Caselaw 4033 MP

Madhya Pradesh High Court

Smt. Rachana Jatav vs The State Of Madhya Pradesh on 12 February, 2024

Author: Milind Ramesh Phadke

Bench: Milind Ramesh Phadke

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                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT GWALIOR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                            ON THE 12 th OF FEBRUARY, 2024
                                            WRIT PETITION No. 2101 of 2024

                          BETWEEN:-
                          SMT. RACHANA JATAV W/O SHRI PARMAL SINGH
                          JATAV, AGED ABOUT 31 YEARS, OCCUPATION: HOUSE
                          WIFE MANOHAR PURA, GRAM PANCHAYAT ANDORI
                          JANPAD PANCHAYAT GOHAD DISTRICT BHIND (M.P. )
                          (MADHYA PRADESH)

                                                                                    .....PETITIONER
                          (BY SHRI R.B.S. TOMAR AND SHRI S.S. RAWAT - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH PRINCIPAL
                                SECRETARY VALLABH BHAWAN, BHOPAL M.P.
                                (MADHYA PRADESH)

                          2.    COLLECTOR BHIND (MADHYA PRADESH)

                          3.    CHIEF EXECUTIVE OFFICER JILA PANCHAYAT
                                BHIND BHIND (MADHYA PRADESH)

                          4.    CHIEF EXECUTIVE OFFICER JANPAD PANCHAYAT
                                GOHAD, BHIND BHIND (MADHYA PRADESH)

                          5.    SARPANCH GRAM PANCHAYAT ANDORI BLOCK
                                GOHAD, BHIND BHIND (MADHYA PRADESH)

                          6.    SMT SUNITA JATAV W/O SHRI RAMESHWAR
                                J ATA R/O GRAM PANCHAYAT ANDORI BLOCK
                                GOHAD, BHIND (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
                          (SHRI VIVEK KHEDKAR - ADDITIONAL ADVOCATE GENERAL FOR
                          RESPONDENT NO.1 TO 4-STATE AND SHRI D.S. RAGHUVANSHI -
                          ADVOCATE FOR RESPONDENT NO.6)

                                Th is petition coming on for hearing this day, th e court passed the
Signature Not Verified
Signed by: NEETU
SHASHANK
Signing time: 2/26/2024
1:17:44 PM
                                                              2
                          following:
                                                              ORDER

The present petition under Article 226 of the Constitution of India is directed against the letter dated 18.01.2024 issued by respondent No.4/CEO, Janpad Panchayat Gohad, District Bhind, whereby directions have been issued to the Secretary, Gram Panchayat Andori to hand over the charge of Sarpanch to respondent No.6.

2. Short facts of the case are that in the year 2022, elections of Gram Panchayat in the State of M.P. were notified by the State Government and the present petitioner contested the election of respondent No.5 Gram Panchayat Andori, Block Gohad, District Bhind and was later on, elected as Sarpanch of

the aforesaid Gram Panchayat. On the basis of certain allegations, an enquiry under the provision of Section 89 of M.P. Panchayat Raj Adhiniyam was conducted, wherein the petitioner was found to have embezzled Public Exchequer Fund to the tune of Rs.11,37,945.00, out of which the petitioner was held to be entitled for payment of Rs.5,68,972.50. Thereafter invoking the provisions of Section 92 of M.P. Panchayat Raj Adhiniyam the order dated 28.07.2023 came to be passed by CEO, Zila Panchayat Bhind, whereby the aforesaid amount was directed to be recovered from the petitioner in the light of provisions contained under Section 92 (2) of M.P. Panchayat Raj Adhiniyam and as a consequence thereof, invoking the provisions of Section 92 (5) of the M.P. Panchayat Raj Adhiniyam the petitioner was declared to be disqualified from contesting the elections of any Panchayat for next six years.

The petitioner along-with the present order dated 28.07.2023 had also challenged the order dated 13.06.2023, which was for recovery of the aforesaid amount issued by the Collector as well as the order dated 05.09.2023, whereby

notification was issued for appointment of officiating Sarpanch invoking the provisions under Section 38 of M.P. Panchayat Raj Adhiniyam. All the three appeals came to be heard by the Commissioner simultaneously and vide order dated 08.01.2022 the appeal was partly allowed and the orders impugned therein were set aside and the matter was relegated back to the Collector/CEO Zila Panchayat, Bhind to constitute an enquiry committee, in which it was directed that one member should be technically qualified, other should be accounts literate and one should be Administrative Officer. The said committee was directed to carry out the enquiry with regard to the irregularities committed by the petitioner after issuance of show cause notice and giving opportunity of hearing to all the concerned and thereafter was directed to pass orders on merits.

3. During the pendency of appeal since the post of Sarpanch fell vacant, notification was issued by the State Election Commission for filling up the vacant post of Sarpanch of Gram Panchayat, Andori and for staying the aforesaid proceedings an application was moved by the petitioner, which was not entertained, rather the Commissioner in the concluding para of the order dated 08.01.2024 observed that it would not be legal to stay the election proceedings for Sarpanch.

4. Since even after setting aside of the order passed by the

Collector/CEO, Zila Panchayat Gohad, whereby the petitioner was held to be disqualified to become a member of Panchayat in pursuance to the fresh allegations held, the CEO Janpad Panchayat Gohad directed the Secretary, Gram Panchayat Andori vide order dated 18.01.2024 to hand over charge of Sarpanch to the elected one. Being aggrieved by the aforesaid, the present petition has been filed.

5. Learned counsel for the petitioner while taking this Court through Section 92 of Panchayat Raj Adhiniyam,1993 specially sub section (5) which lays that a person against whom an action is taken under this Section, shall be disqualified to be a member of any Panchayat, contended that since the very action against the petitioner for recovery of an amount has been set aside by the appellate authority, therefore, as a natural corollary, the disqualification as envisaged under sub section (5) would not entail and any proceedings taken pursuant after the petitioner vacating the said office would be of no consequence as the petitioner would again be stated to have occupied the said post. To bolster his submissions he had placed reliance in the matters of Bibhudatta Mohanty Vs. Union of India & Ors. reported in (2002)4 SCC 1 6 , and in the matter of Poonam Vs. State of Uttar Pradesh (specially referring to para 48) reported in 2016 (2) SCC 779. On the strength of above arguments, it was contended that the very letter dated 18.01.2024 (Annexure P/1) issued by respondent No.4/CEO Janpad Panchayat Gohad to the Secretary, Gram Panchayat, Andori for handing over charge to the new elected Sarpanch is per se illegal and the very election of respondent No.6 to the office of Sarpanch, Gram Panchayat, Gohad be declared illegal and void. It was further prayed that the respondents may be directed to hand over charge of Sarpanch, Gram Panchayat Andori to the petitioner immediately.

6. On the other hand, Shri Vivek Khedkar, learned Additional Advocate General for the State alongwith Shri D.S. Raghuvanshi, learned counsel for respondent No.6 has vehemently opposed the prayer made by the counsel for the petitioner. While taking this Court to the earlier order passed in W.P. No.20165/2023 dated 13.09.2023, wherein the present petitioner was 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 was directed to be made against the petitioner, was challenged, it was contended that this Court though had dismissed the writ petition with an observation that it is nowhere necessary to provide opportunity of hearing to any person concerned, in any fact finding enquiry to ascertain prima facie allegations, but going contrary the Commissioner while passing the order dated 08.01.2024 had remanded the matter back to the Collector/CEO Zila Panchayat for giving opportunity of hearing to the petitioner, which itself appears that in a very hasty manner the Commissioner had overlooked the findings given by learned Writ Court and since the very order passed by the Commissioner was not in consonance with the observations of this Court, therefore, the aforesaid aspect should now be gone into by this Court and the very findings of the CEO, Zila Panchayat while imposing the punishment of recovery over the petitioner is required to be seen.

7. It was further contended that the Commissioner while passing the orders, in specific terms remanded the matter for constituting a three members' enquiry committee of one technical person, one accounts person and one administrative officer and conduct the spot inspection and thereafter ascertain the irregularities committed by the petitioner and after affording opportunity of hearing to all the parties concerned pass orders on merits, which only means that for a limited purpose the matter has been remanded. It was further submitted that the request of the petitioner for staying the election process due to vacation of the post of Sarpanch was also refused and it has been observed in the order that it would not be legal to stay the election process once it has been started and, therefore, the duly elected Sarpanch is required to be handed

over the charge of Sarpanch, which has rightly been done by CEO, Zila Panchayat. Thus, no illegality can be said to have been committed by him in directing the Secretary, Gram Panchayat, Andori to hand over the charge to the newly elected Sarpanch i.e. respondent No.6.

8. It has also been argued by respondent No.6 that since the very election of respondent No.6 is in consonance with the Rule 89 of Panchayat Nirwachan Rules, 1995 and the said election has not been challenged by the present petitioner, the judgments which have been cited by the learned counsel for the petitioner are not applicable. In that regard reliance has been placed in the matter o f Vijay Singh Shakya Vs. Smt. Geeta Suresh Chaudhri passed in Writ Appeal No.364/2017 dated 14.09.2017. It was contended that it is a settled law that election dispute cannot be raised in the writ petition under Section 226 of the Constitution of India and the remedy is available by way of election petition, therefore, the election of a duly elected member of the Panchayat cannot be challenged in the present writ petition and on this count also the

present petition deserves to be dismissed.

9. Encountered with the aforesaid arguments raised by the counsel for the respondent No.6, counsel for the petitioner has placed reliance on Rule 21 of Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 framed under Section 122 read with Section 95(1) of M.P. Panchayat Raj Adhiniyam and it was contended that only on the grounds mentioned under the aforesaid Rules the election could be challenged for declaring it to be void. In support thereof he has placed reliance in the matter of Naravadi Bai Chgoudhary and others Vs. State of M.P. and others reported in 2005 (2) MPLJ 306.

10. Heard learned counsel for the parties and perused the record.

11. The issue in the present matter is whether after setting aside of the order, on the basis of which the petitioner has entailed disqualification under Section 92 (5) of the M.P. Panchayat Raj Adhiniyam, the post which was filled up by fresh elections shall be deemed to have been nullified and the petitioner who was earlier duly elected Sarpanch be said to be allowed to occupy the said post ignoring the claim of an elected Sarpanch.

12. It is an inference of common law that once an order which is passed against any person which had caused the person his disqualification/removal or termination is set aside, it would be deemed that the said person has not vacated the said office.

13. Admittedly the order dated 28.07.2023 passed by the CEO, Zila Panchayat, whereby direction for recovery of a sum of Rs.5,68,972.50 have been directed to be initiated against the petitioner and as a consequence thereof as per Section 92(5) of M.P. Panchayat Raj Adhiniyam, she had entailed disqualification of six years for contesting for any Panchayat is concerned, it has been set aside by the order of Commissioner dated 08.01.2024.

14. So far as the contention of the counsel for the respondents that the order passed by the Commissioner is in total derogation of the findings/observations made by this Court in W.P. No.20165/2023 dated 13.09.2023, wherein the present petitioner earlier had challenged the order dated 28.07.2023, whereby she had suffered disqualification due to direction of recovery, this Court only with regard to some preliminary enquiry conducted against the petitioner had observed that it is not necessary at that stage to give any opportunity of hearing to any person concerned, as it was a fact finding or

preliminary enquiry to ascertain the prima facie allegations against the person

and thereafter the only question which has been dealt with is with regard to the competency of the authority who had issued the said order. Nowhere in the order it has been observed or it has been held that proper opportunity of hearing was extended to the petitioner which would render the order passed by the Commissioner otiose. Even otherwise, the order of Commissioner dated 08.01.2024 is not under challenge, this aspect at present cannot be gone into whether any irregularity or illegality has been committed by the Commissioner while passing the said order, the only aspect which has required to be gone into is with regard to the effect of the said order.

15. As has been discussed earlier by this Court as a natural coloraly such an order would bring the status ante, therefore, the arguments advanced by the counsel for the petitioner appears to have some force.

16. This Court after going through the entire record finds that certain serious allegations were leveled against the petitioner with regard to defalcation of money of Public Exchequer, though the said defalcation was initially found proved against the petitioner but at present since the said orders have already been set aside by the Commissioner, the findings arrived at therein cannot be gone into but looking to the overall allegations and the remand of the matter by the Commissioner vide order dated 08.04.2024 on technical grounds, this Court deems it appropriate to direct the committee which has been directed to be formulated by the Commissioner to conclude the enquiry within a period of 15 days from the date of receipt of certified copy of this order and thereafter the competent authority shall pass appropriate order within next seven days. Till then the appointment of any of the party to the post of Sarpanch shall be kept in abeyance.

17. It is needless to observe that the aforesaid exercise as directed by the Commissioner, by the committee shall be in strict compliance of and adhering to the principle of natural justice as directed by the Commissioner and parties present before this Court are directed to cooperate in the said enquiry.

18. With the aforesaid, petition stand disposed of.

E-copy/certified copy as per rules.

(MILIND RAMESH PHADKE) JUDGE neetu