Madhya Pradesh High Court
Smt Suneeta vs The State Of Madhya Pradesh on 6 March, 2025
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 6 th OF MARCH, 2025
WRIT PETITION No. 16756 of 2024
SMT SUNEETA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Jay Pratap Singh Tomar - Advocate for the petitioner.
Shri Deepak Khot - Government Advocate for the State.
ORDER
The present petition under Article 226 of the Constitution of India has
been filed by the petitioner being aggrieved by the order dated 12.07.2021
passed by the Chief Executive Officer, Zila Panchayat, Morena vide
Annexure P/2 whereby the petitioner alongwith two persons have been held
to be liable for recovery of the sum of Rs.66,000/- each under the provisions
of Section 92 of the Madhya Pradesh Raj Avam Gram Swaraj Adhiniyam,
1993 (for short ''Adhiniyam, 1993'').
2. The petitioner is further aggrieved by the order dated 28.05.2024
passed by the Commissioner, Chambal Division, Morena whereby appeal
challenging the order dated 12.07.2021 passed by the Chief Executive
Officer, Zila Panchayat, Morena was dismissed holding that no illegality has
been committed by the CEO, Zila Panchayat, Morena in imposing the
aforesaid liability under the provisions of Section 92 of the Adhiniyam,
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1997.
3. Learned counsel for the petitioner has raised a solitary ground that
no opportunity of hearing has been granted to the petitioner at the time of
preliminary inquiry and even after issuance of notice under Sections 92(1) &
(2) of the Adhiniyam, 1997, thus, she could not bring to the knowledge of
the authorities the exact facts, which would have been relevant for the
purpose of determining the controversy and as the principles of natural
justice have not been followed, therefore, the present petition deserves to be
allowed and the orders impugned herein deserve to be quashed.
4. Apart from the aforesaid argument, no other arguments had been
raised.
5. On 12.07.2024, this Court had directed State Counsel to call for the
record of Case bearing No.NREGS-MP/Complaint/2010/5583, Morena and
since it was not produced for long, therefore, on 07.02.2025, the Chief
Executive Officer, Zila Panchayat, Morena was directed to remain present
alongwith the record before this Court. In compliance whereof, today, Shri
Kamlesh Kumar Bhargav, Chief Executive Officer, Zila Panchayat, Morena
is present alongwith the record.
6. On the basis of the record, learned Government Advocate for the
State has argued that since an irregularity and illegality was found in
construction of road when the petitioner was the Sarpanch of Gram
Panchayat, Nagra, Porsa, Janpad Panchayat Porsa therefore, after completion
of the road in the month of June, 2009, a show cause notice was issued by
Chief Executive Officer, Zila Panchayat Morena on 30.11.2009 alongwith
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letter dated 20.11.2009 of Executive Engineer and has requested the
petitioner to get the road repaired as it was of law quality and it had got
worned out in a rainy season, which was received by husband of the present
petitioner, but no reply was submitted on behalf of the petitioner to the said
show cause notice. A final order thereafter for recovery of a sum of
Rs.199498/- was passed directing it to be recovered from the petitioner in the
ratio of Rs.66,000/- each.
7. Learned Government Advocate has further submitted that since the
said amount was not recovered from the petitioner, therefore, on 29.07.2020,
a notice under Sub-sections (1) & (2) of Section 92 of the Adhiniyam, 1997
and another notice dated 09.02.2021 were issued, which were served on the
petitioner through her husband, but the both the notices were not
responded in time and instead, the replies were submitted in the Office and
after considering those replies, it was found that the amount which was
already quantified in the year 2010 is to be recovered from the petitioner
since was not deposited, therefore, it became incumbent upo the authorities
to invoke the provisions of Section 92 of Adhiniyam, 1997 and pass a final
order was passed which cannot be faulted in any manner, as every
opportunity was granted to the petitioner to rebut the allegations but in
rebuttal, no concrete material was placed before the authorities which could
have compelled them to quash the recovery order against the petitioner.
8. Lastly, it was argued that the Secretary, Gram Panchayat Nagra,
Porsa and Sub-Engineer, Janpad Panchayat Porsa, who were also saddled
with the liability of Rs.66,000/- each, had already deposited their 1/3rd share
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and it is only the petitioner who is agitating the matter without any basis,
therefore, the prayer was made for dismissal of the present petition.
9. At this juncture, learned counsel for the petitioner has placed
reliance in the matter of Nani Invati (Smt.) vs. State of M.P. & Others
reported in I.L.R. (2018) M.P. 867 (DB) for the proposition that when the
competent authority who is under obligation to decide the reply/objection
and to afford reasonable opportunity of hearing to the person concerned, has
not afforded such opportunity, any order passed under the provisions of
Section 92 of the Adhiniyam, 1993 is vitiated.
10. Further, reliance was placed on the order dated 27.08.2024 passed
by the Co-ordinate Bench of this Court in the matter of Sadhu Singh vs. State
of M.P. (Writ Petition No.3047 of 2012) for the proposition that the
authorities to pass any order under the provisions of Section 92 of the
Adhiniyam, 1993 are required to ascertain the amount to be recovered from
the petitioner and an explanation is also required to be provided as to how
they have arrived at a finding that there was embezzlement of an amount
which was recoverable from the petitioner and if there is no such finding then
the order is wholly perverse.
11. Lastly, placing reliance on the order dated in the matter of Ku.
Preeti Patidar vs. State of M.P. & Others passed in Writ Petition Nos.17964,
6332 of 2020, it was contended that since there is no proper consideration of
the detailed reply filed by the petitioner and since the burden of proving
embezzlment/defaulcation committed by the petitioner was on the Gram
Panchayat or the Government which was not discharged, charge against the
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petitioner was not made out, therefore, the order dated 12.07.2021 passed by
the Chief Executive Officer, Zila Panchayat, Morena and the order dated
28.05.2024 passed by the Commissioner, Chambal Division, Morena are per
se illegal and are liable to be set aside.
12. Heard counsel for the parties and perused the record.
13. Herein case, from the record which has been brought by Chief
Executive Officer, Zila Panchayat, Morena, today, it is revealed that a notice
dated 30.11.2009 was issued to the petitioner at the very inception when it
was found by Executive Engineer that the road constructed at the instance of
the present petitioner, who was the Sarpanch at that time, was of low quality
and she was directed to get it repaired. The said notice alongwith requisite
documents were received by husband of the petitioner whose signatures are
appended on its receiving, thus, the factum of issuance of notice was very
well within the knowledge of the petitioner but she did not care to file any
response to the said notice, therefore, on 10.06.2010, the amount of
Rs.66,000/- towards miappropriation as her share was quantified by the
CEO, Zila Panchayat, Morena on the basis of the available documents. Since
the aforesaid amount was not deposited by the petitioner, on 29.07.2020
notice was issued to her and again on 09.02.2021, second notice was issued
which were received by husband of the petitioner. This time, the petitioner
became wiser and filed response to those notices issued by the CEO, Zila
Panchayat, Morena, but instead of addressing the replies to the CEO, Zila
Panchayat, Morena, it was submitted in his Office but even then the said
replies were considered at the time of passing the impugned order dated
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12.07.2021 by the Chief Executive Officer, Zila Panchayat, Morena and only
after the said replies were found to be unsatisfactory and complying with the
provisions of Sub-section (4) of Section 92 of the Adhiniyam, 1993, final
order passed in pursuance to quantification of the amount vide order dated
10.06.2010, which in the circumstances cannot be said to be without giving
any opportunity of hearing to her and not adhering to the principles of
natural justice, thus, the arguments so advance by the counsel for the
petitioner has no force and no interference on this count is required.
14. Here it is also noteworthy that the Secretary, Gram Panchayat
Nagra, Porsa and Sub-Engineer, Janpad Panchayat Porsa, who were also
saddled with the 1/3rd liability, had deposited the amount and had not
challenged the impugned order and it is only the petitioner who is assailing
the said order unsuccessfully.
15. So far as the judgment cited by counsel for the petitioner in the
matter of Nani Invati (Smt.) vs. State of M.P. (supra) is concerned,
therein whether the consideration was the provisions of Section 92 of the
Adhiniyam, 1993 were complied with or not and whether the learned Single
Bench was right in dismissing the petition on the ground of availability of
alternate remedy of appeal and while analyzing the aforesaid, it was found
that the competent authority who is an under obligation to decide the
reply/objection of the petitioner and to afford reasonable opportunity of
hearing to the person concerned, since has not discharged his obligation
properly, the order of learned Single Judge was not proper and also the order
passed under Section 92 of the Adhiniyam, 1993 was vitiated and in that
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context, the matter was remitted back. Since the facts of that case are
altogether different from the facts of present case, the same is not applicable
herein.
16. So far as the judgment cited by counsel for the petitioner in the
matter of Sadhu Singh vs. State of M.P. (supra) is concerned, there it was
held by the Coordinate Bench that it must be explained as to how the
authorities have arrived at a finding that there was quantified amount of
embezzlement and since there was no conclusion regarding ascertainment of
the amount to be recoverable from the petitioner, the order was said to be
without application of mind and also therein since effective opportunity of
hearing was not given to the petitioner, the order was said to be bad in law,
the facts of that case are altogether different from the present case, therefore,
the same is also not applicable herein.
17. Lastly, so far as the judgment cited by counsel for the petitioner in
the matter of Ku. Preeti Patidar vs. State of M.P. & Others ( supra) is
concerned, therein there was no consideration of the detail reply submitted
by the petitioner therein and no documents regarding the work carried out by
the petitioner therein was placed before the authority and as the burden was
on the Gram Panchayat or the Government to establish the charge against the
petitioner, which was not discharged properly, it was held that the order
passed by the CEO was without application of mind. The aforesaid judgment
looking to the facts of the present case is not applicable to the present case as
the amount recoverable from the petitioner was already quantified on
10.06.2010 which is not under challenge in the present petition and before
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passing of the order also the notice was issued to the petitioner which was
received but she did not care to reply, thus on basis of the documents
available, a sum of Rs.66,000/- was held to be recoverable from the
petitioner and the burden of proving embezzlment/defaulcation was very well
discharged by the Gram Panchayat/State Government.
18. Accordingly, the present petition being sans merits is hereby
dismissed.
(MILIND RAMESH PHADKE)
JUDGE
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