Smt. Gyanmati Basore Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1054191
CourtMadhya Pradesh High Court
Decided OnSep-04-2012
AppellantSmt. Gyanmati Basore
RespondentThe State of Madhya Pradesh
Excerpt:
1 high court of madhya pradesh : jabalpur w.p. no.14512/2012 smt. gyanmati basore vs. state of mp and others present : hon’ble mr. justice r.s. jha. for the petitioner : shri v.k. shukla, advocate. for the respondents/ state : shri r.p. tiwari, g.a. for the respondent no.5 : shri p.s. gaharwar, advocate. order (04.09.2012) the petitioner has filed this petition being aggrieved by order dated 08.08.2012 passed by the additional commissioner, rewa division rewa in case no.230/nigrani/2011-12 whereby the order of the removal of the petitioner as sarpanch of gram panchayat chhatauli, janpad panchayat waidhan district singrouli under section 40 of the m.p. panchayat raj avam gram swaraj adhiniyam, 1993 (for short “the act”.) has been affirmed.2. the brief facts leading to the filing of the present petition are that the petitioner is a duly elected sarpanch of gram panchayat chhatauli, janpad panchayat waidhan district singrouli. initially proceedings under section 92 of the act were initiated against the petitioner 2 for recovery of dues which culminated in passing of the order dated 08.08.2012 by the collector, singrouli in which it was held that the petitioner along with the secretary of the gram panchayat and the concerned sub-engineer were held equally liable for misappropriation of rs.1,97,000/- as well as certain other amounts regarding payment made in the muster roll etc. which was directed to be computed and recovered from them. subsequent to the aforesaid order under section 92 of the act, the respondent no.5 filed an application for initiating proceedings under section 40 of the act against the petitioner on 13.09.2011. pursuant to which notices were issued to the petitioner for her appearance before the sub divisional officer, singrouli on 03.10.2011. the petitioner instead of filing a reply or response to the notice, submitted an application under section 11 of the c.p.c. raising objections to the effect that in view of the order passed under section 92 of the act, initiation of the proceedings under section 40 on the same issue was not permissible and on that count prayed for dismissal of the complaint.3. the sub divisional officer, singrouli rejected the objections of the petitioner and passed the orders of removal of the petitioner under section 40 of the act on 13.01.2012. being aggrieved by which the petitioner filed a revision before the additional commissioner, rewa, division rewa. the additional commissioner, rewa/respondent no.2 initially granted stay of operation of the order passed by the s.d.o., singrouli by order dated 06.02.2012, however, by impugned order date”08. 08.2012 the revision filed by the petitioner has been dismissed on merits.4. being aggrieved by the same, the petitioner has filed the present petition on the ground that the respondents/authorities were required to follow the entire detailed procedure prescribed under section 40 of the act and conduct an enquiry and record a finding as to why the petitioner deserves to be removed as sarpanch before passing the impugned order but the concerned authority instead of doing so, has removed the petitioner who is an elected sarpanch of the gram panchayat chhatauli, janpad panchayat waidhan district singrouli only on the ground that the order under section 92 of the act has been passed by the authority wherein a finding to the effect that the petitioner has misappropriated certain amount of money, has been recorded. it is submitted that the procedure adopted by the respondents/authorities amounts to denial of the right to show cause as prescribed and provided by section 40 of the act, therefore, deserves to be set aside.5. the learned counsel appearing for the respondents/ state as well as respondent no.5 per contra submit that the petitioner was given due and fair opportunity of hearing in the proceedings initiated against her under section 92 of the act in which she was found guilty of misappropriation of panchayat funds. it is submitted that in view of the aforesaid findings recorded against the petitioner in which she was given full opportunity of hearing, a detailed enquiry is not required to be conducted by the authorities under section 40 of the act 4 as the petitioner cannot be permitted to go behind the order passed under section 92 of the act and re-agitate the issue.6. it is further submitted that as the petitioner has been found guilty under section 92 of the act of misappropriation of panchayat funds, she does not deserve to be continued as sarpanch of the concerned gram panchayat, therefore, no fault can be found in the orders passed by the s.d.o. singrouli or the additional commissioner, rewa division rewa rejecting the petitioner's revision.7. i have heard the learned counsel for the parties at length.8. from a perusal of the record, it is apparent that in the proceedings under section 92 of the act the authority has recorded a finding to the effect that the petitioner has misappropriated funds of the panchayat along with the secretary and sub engineer and that the said finding has been recorded after giving due opportunity of hearing to the petitioner. from a perusal of the record, it is further clear that the authority on a complaint under section 40 of the act being filed by the respondent no.5 had issued notices to the petitioner in response to which the petitioner had filed an application under section 11 of the c.p.c. but the s.d.o., singrouli instead of passing any order thereon, proceeded to remove the petitioner from the post of sarpanch under section 40 of the act, and therefore, it is an admitted fact that the detailed procedure prescribed under section 40 of the act has not been followed by the authority and the petitioner has no.5 been given any opportunity to file a reply to the allegations made by the respondent no.5 in the complaint filed by him.9. at this stage, learned counsel for the petitioner submits that if the petitioner is given an opportunity to file a detailed reply to the complaint, she undertakes to do so within any period stipulated prescribed by this court. the petitioner also undertakes to deposit her share of the amount that has been directed to be recovered from her by the collector under section 92 of the act.10. in view of the aforesaid admitted factual position, i am of the considered opinion that the authority was required to give an opportunity to the petitioner to file a reply and thereafter pass a detailed order after following the procedure prescribed by law under section 40 of the act.11. in view of the aforesaid, the petition is partly allowed and while the impugned order dated 13.01.2012 passed by the s.d.o, singrouli as well as order dated 08.08.2012 passed by the additional commissioner, rewa division rewa are hereby quashed, the matter is remanded back to the s.d.o., singrouli to take up further proceedings from the stage of permitting the petitioner to file a reply to the notice issued under section 40 of the act subject to the fact that the petitioner does so by 20th of september, 2012 along with receipt indicating that the petitioner has deposited her share of amount that has been directed to be recovered from the her, pursuant to the order passed under section 92 of the act, and thereafter proceed to decide the matter after following the procedure prescribed 6 by law and pass a reasoned order after taking into consideration all the contentions of the parties without being influenced by the previous impugned orders that have been quashed by this court by this order.12. it is further directed that the matter shall be decided by the sub divisional officer, singrouli as expeditiously as possible, preferably within three months. the petitioner undertakes to render full co-operation and assistance in the speedy disposal of the same and therefore, till decision in the matter, the petitioner shall be permitted to continue as sarpanch of gram panchayat chhatauli, janpad panchayat waidhan district singrouli.13. the writ petition stands partly allowed to the extent indicated above and is disposed of accordingly. (r.s. jha) judge msp 7
Judgment:

1 HIGH COURT OF MADHYA PRADESH : JABALPUR W.P. No.14512/2012 Smt. Gyanmati Basore Vs. State of MP and others Present : Hon’ble Mr. Justice R.S. Jha. For the petitioner : Shri V.K. Shukla, advocate. For the respondents/ State : Shri R.P. Tiwari, G.A. For the respondent No.5 : Shri P.S. Gaharwar, Advocate. ORDER

(04.09.2012) The petitioner has filed this petition being aggrieved by order dated 08.08.2012 passed by the Additional Commissioner, Rewa Division Rewa in case No.230/Nigrani/2011-12 whereby the order of the removal of the petitioner as Sarpanch of Gram Panchayat Chhatauli, Janpad Panchayat Waidhan District Singrouli under section 40 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short “the Act”.) has been affirmed.

2. The brief facts leading to the filing of the present petition are that the petitioner is a duly elected Sarpanch of Gram Panchayat Chhatauli, Janpad Panchayat Waidhan District Singrouli. Initially proceedings under section 92 of the Act were initiated against the petitioner 2 for recovery of dues which culminated in passing of the order dated 08.08.2012 by the Collector, Singrouli in which it was held that the petitioner along with the Secretary of the Gram Panchayat and the concerned Sub-Engineer were held equally liable for misappropriation of Rs.1,97,000/- as well as certain other amounts regarding payment made in the muster roll etc. which was directed to be computed and recovered from them. Subsequent to the aforesaid order under section 92 of the Act, the respondent No.5 filed an application for initiating proceedings under section 40 of the Act against the petitioner on 13.09.2011. Pursuant to which notices were issued to the petitioner for her appearance before the Sub Divisional Officer, Singrouli on 03.10.2011. The petitioner instead of filing a reply or response to the notice, submitted an application under section 11 of the C.P.C. raising objections to the effect that in view of the order passed under section 92 of the Act, initiation of the proceedings under section 40 on the same issue was not permissible and on that count prayed for dismissal of the complaint.

3. The Sub Divisional Officer, Singrouli rejected the objections of the petitioner and passed the orders of removal of the petitioner under section 40 of the Act on 13.01.2012. Being aggrieved by which the petitioner filed a revision before the Additional Commissioner, Rewa, Division Rewa. The Additional Commissioner, Rewa/respondent No.2 initially granted stay of operation of the order passed by the S.D.O., Singrouli by order dated 06.02.2012, however, by impugned order date”

08. 08.2012 the revision filed by the petitioner has been dismissed on merits.

4. Being aggrieved by the same, the petitioner has filed the present petition on the ground that the respondents/authorities were required to follow the entire detailed procedure prescribed under section 40 of the Act and conduct an enquiry and record a finding as to why the petitioner deserves to be removed as Sarpanch before passing the impugned order but the concerned authority instead of doing so, has removed the petitioner who is an elected Sarpanch of the Gram Panchayat Chhatauli, Janpad Panchayat Waidhan District Singrouli only on the ground that the order under section 92 of the Act has been passed by the authority wherein a finding to the effect that the petitioner has misappropriated certain amount of money, has been recorded. It is submitted that the procedure adopted by the respondents/authorities amounts to denial of the right to show cause as prescribed and provided by section 40 of the Act, therefore, deserves to be set aside.

5. The learned counsel appearing for the respondents/ State as well as respondent No.5 per contra submit that the petitioner was given due and fair opportunity of hearing in the proceedings initiated against her under section 92 of the Act in which she was found guilty of misappropriation of Panchayat funds. It is submitted that in view of the aforesaid findings recorded against the petitioner in which she was given full opportunity of hearing, a detailed enquiry is not required to be conducted by the authorities under section 40 of the Act 4 as the petitioner cannot be permitted to go behind the order passed under section 92 of the Act and re-agitate the issue.

6. It is further submitted that as the petitioner has been found guilty under section 92 of the Act of misappropriation of Panchayat funds, she does not deserve to be continued as Sarpanch of the concerned Gram Panchayat, therefore, no fault can be found in the orders passed by the S.D.O. Singrouli or the Additional Commissioner, Rewa Division Rewa rejecting the petitioner's revision.

7. I have heard the learned counsel for the parties at length.

8. From a perusal of the record, it is apparent that in the proceedings under section 92 of the Act the authority has recorded a finding to the effect that the petitioner has misappropriated funds of the Panchayat along with the Secretary and Sub Engineer and that the said finding has been recorded after giving due opportunity of hearing to the petitioner. From a perusal of the record, it is further clear that the authority on a complaint under section 40 of the Act being filed by the respondent No.5 had issued notices to the petitioner in response to which the petitioner had filed an application under section 11 of the C.P.C. but the S.D.O., Singrouli instead of passing any order thereon, proceeded to remove the petitioner from the post of Sarpanch under section 40 of the Act, and therefore, it is an admitted fact that the detailed procedure prescribed under section 40 of the Act has not been followed by the authority and the petitioner has No.5 been given any opportunity to file a reply to the allegations made by the respondent No.5 in the complaint filed by him.

9. At this stage, learned counsel for the petitioner submits that if the petitioner is given an opportunity to file a detailed reply to the complaint, she undertakes to do so within any period stipulated prescribed by this court. The petitioner also undertakes to deposit her share of the amount that has been directed to be recovered from her by the Collector under section 92 of the Act.

10. In view of the aforesaid admitted factual position, I am of the considered opinion that the authority was required to give an opportunity to the petitioner to file a reply and thereafter pass a detailed order after following the procedure prescribed by law under section 40 of the Act.

11. In view of the aforesaid, the petition is partly allowed and while the impugned order dated 13.01.2012 passed by the S.D.O, Singrouli as well as order dated 08.08.2012 passed by the Additional Commissioner, Rewa Division Rewa are hereby quashed, the matter is remanded back to the S.D.O., Singrouli to take up further proceedings from the stage of permitting the petitioner to file a reply to the notice issued under section 40 of the Act subject to the fact that the petitioner does so by 20th of September, 2012 along with receipt indicating that the petitioner has deposited her share of amount that has been directed to be recovered from the her, pursuant to the order passed under section 92 of the Act, and thereafter proceed to decide the matter after following the procedure prescribed 6 by law and pass a reasoned order after taking into consideration all the contentions of the parties without being influenced by the previous impugned orders that have been quashed by this court by this order.

12. It is further directed that the matter shall be decided by the Sub Divisional Officer, Singrouli as expeditiously as possible, preferably within three months. The petitioner undertakes to render full co-operation and assistance in the speedy disposal of the same and therefore, till decision in the matter, the petitioner shall be permitted to continue as Sarpanch of Gram Panchayat Chhatauli, Janpad Panchayat Waidhan District Singrouli.

13. The writ petition stands partly allowed to the extent indicated above and is disposed of accordingly. (R.S. Jha) Judge msp 7