Smt. Suabai vs State Of Madhya Pradesh

Heard on IA No. 2946/2018, which is an application for urgent hearing during summer vacation.

For the reasons mentioned in the application, the same is allowed.

The case is taken up for admission and for consideration of interim relief.

This petition under Article 226/227 of the Constitution of India has been filed challenging the correctness and propriety of order dated 28/5/2018

passed by the Commissioner, Bhopal, Division Bhopal in Appeal No. 0136/Appeal/2017-18 by which order dated 10/11/2017 passed by the Chief

Executive Officer, Zila Panchayat, District Vidisha has been set aside.

The necessary facts for the disposal of the present petition in short are that respondent No. 5 was elected as the Sarpanch, Gram Panchayat Jarsena,

Janpad Panchayat, Block Lateri, District Vidisha. One Veer Singh and other villagers made a complaint against respondent No. 5 Smt. Phoolbai

Yadav alleging financial irregularities in various construction works as well as misappropriation of the Government funds. Accordingly, a show cause

notice was issued to respondent No. 5. Respondent No. 5 did not file any written reply, but her husband filed a reply on 11/8/2017 which was not

found satisfactory and, accordingly, respondent No. 5 was removed from the post of Sarpanch under Section 40 of Madhya Pradesh Panchayat Raj

Avam Gram Swaraj Adhiniyam, 1993 and she was declared disqualified for contesting elections for a period of six years by order dated 05/09/2017.

The said order passed by the Chief Executive Officer, Zila Panchayat, District Vidisha was challenged by respondent No. 5 by filing a writ petition

before this Court which was registered as WP No. 6220/2017 which was allowed by order dated 15/9/2017 and the matter was remanded back with

the following observations:-

“As far as the petitioner's contention that no proper enquiry was conducted by the Chief Executive Officer, no witnesses were examined and no

opportunity of cross-examination was afforded to the petitioner in the light of the law laid down in the case of Manita Jaiwar (supra) and that of

Babita Lilhare (supra), it is apparent from the impugned order that there is no mention of examination of any witnesses and opportunity being afforded

to the petitioner to cross-examine such witnesses and, therefore, in the opinion of this Court, in the light of the law laid down in the case of Manita

Jaiwar (supra), this is a fit case to quash the impugned order. Accordingly, the impugned order is quashed and the matter is remitted back to the Chief

Executive Officer to conduct an enquiry in accordance with law and afford an opportunity of hearing to the petitioner before passing an impugned

order. It is commanded that the Chief Executive Officer shall complete such proceedings within 30 days of receipt of this order inasmuch as it is

expected that the petitioner shall not cause any undue hindrance or obstruction for whatsoever reasons. Thus, the petition is allowed.â€​

Thereafter, it appears that the Chief Executive Officer, Zila Panchayat, District Vidisha, by order dated 10/11/2017, again passed an order under

Section 40 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam and removed respondent No. 5 from the post of Sarpanch, Gram

Panchayat Jarsena, Janpad Panchayat, Block Lateri, District Vidisha. The said order was once again challenged by respondent No. 5 by filing a writ

petition before this Court which was registered as WP No. 21018/2017. The said writ petition was disposed of by this Court by order dated 15/12/2017

by holding that respondent No. 5 has an efficacious and alternative remedy of filing an appeal. The operative part of order dated 15/12/2017 passed by

this Court in WP No. 21018/2017 is as under:-

“This court would not like to advert on merits of the claim, inasmuch as there exists alternative remedy of appeal and this court is of the opinion

that the petitioner should avail such alternative remedy of appeal. Hence, without adverting to the second issue, petition is disposed of with the

direction to the petitioner to approach the appellate authority within fifteen days from today and if he approaches the appellate authority within the

aforesaid time, the appellate authority shall bestow its consideration to the issues raised in the appeal and decide the same on merits.â€​

It appears that thereafter respondent No. 5 filed an appeal before the Court of the Commissioner, Bhopal, Division Bhopal which has been allowed by

impugned order dated 28/5/2018 by holding that the Chief Executive Officer, Zila Panchayat, District Vidisha did not grant proper opportunity of

hearing to respondent No. 5 as directed by this Court by order dated 15/9/2017 passed in WP No. 6220/2017 and, accordingly, order dated 10/11/2017

passed by the Chief Executive Officer, Zila Panchayat, District Vidisha in Case No. 84 71/Panch Prakoth/2018, Rajgarh was set aside and the matter

was remanded back to the Chief Executive Officer, Zila Panchayat, District Vidisha to decide the matter afresh and it was also directed that the

charge of the Sarpanch of Gram Panchayat Jarsena, District Vidisha be immediately handed over to respondent No. 5.

It is submitted by the counsel for the petitioner that after respondent No. 5 was removed from the post of Sarpanch, Gram Panchayat Jarsena, District

Vidisha, the petitioner has been given the charge of the post of Sarpanch by order dated 22/9/2017 (Annexure P-7) and, thus, she is discharging the

duties of Sarpanch, Gram Panchayat Jarsena, District Vidisha. It is further submitted that this Court, while deciding Writ Petition No. 21018/2017, had

observed that opportunity of hearing has been given to respondent No. 5 and, therefore, any finding given by the Commissioner, Bhopal, Division

Bhopal with regard to violation of principles of natural justice and non-compliance of order dated 15/9/2017 passed by this Court in WP No. 6220/2017

is contrary to record. It is further submitted that when there are serious allegations of financial irregularities against respondent No. 5, then the

Commissioner, Bhopal, Division Bhopal should not have directed the Chief Executive Officer, Zila Panchayat Jarsena, District Vidisha to hand over

the charge of the Office of Sarpanch to respondent No. 5.

Heard the learned counsel for the parties.

So far as the contention of the petitioner that full opportunity of hearing was given to respondent No. 5 by the Chief Executive Officer, Zila

Panchayat, District Vidisha prior to passing order dated 10/11/2017 is concerned, the same appears to be misconceived.

The relevant part of the order dated 10/11/2017 reads as under:-

“eku- mPPk U;k;ky; ds funsZ'kksa ds vuqikyu esa ;kfpdkdrkZ Jhefr QwyckbZ ljiap xzke iapk;r tjlsuk rglhy yVsjh fnukad 16@10@2017 dks bl

U;k;ky; esa mifLFkr gq;sA le{k esa lquokbZ esa viuk i{k izLrqr fd;k x;kA U;k;ky; }kjk tkjh vkns'k Øekad&6450 fnukad 05@09@2017 esa vf/kjksfir

vkjksiks ds laca/k esa fcUnqckj tkudkjh Jhefr QqyckbZ ljiap xzke iapk;r tjlsuk ls pkgh xbZA ljiap xzke iapk;r tjlsuk }kjk fdlh Hkh fcUnq ds laca/k esa

dqN ugh dgk x;kA Li""V gksrk gS fd Jhefr QwyckbZ ljiap dks fofHkUUk fcUnqvksa ds ckjs esa dksbZ tkudkjh ugh gSA blls fl) gksrk gS fd Jhefr

QwyckbZ ljiap xzke iapk;r ds dk;ksZ esa :fp ugh yh tkrh gS ,oa tkudkjh ugh j[kh tkrh gSA vr% Jhefr QwyckbZ ljiap xzke iapk;r tjlsuk rglhy yVsjh dk

ljiap xzke iapk;r tjlsuk ds in ij fujUrj cuk jguk yksdfgr esa okaNuh; ugh gS] e/;izns'k iapk;r ,oa xzke Lojkt vf/kfu;e 1993 dh /kkjk 40 ds rgr vf/kdkjksa dk

iz;ksx djrs gq, ljiap xzke iapk;r tjlsuk Jhefr QwyckbZ rglhy yVsjh ftyk fofn'kk dks ljiap ds in ls i`Fkd tkjh vkns'k dzekad&6450 fnukad 05@09@2017

;Fkkor j[kk tkrk gSAâ€​

Thus, it is clear that the Chief Executive Officer, Zila Panchayat, District Vidisha in its order dated 10/11/2017, even did not care to mention the

allegations made against respondent No. 5.

This Court, while deciding Writ Petition No. 6220/2017 had observed that no proper enquiry has been conducted because there is no mention of

examination of any witness and opportunity being afforded to the petitioner to cross-examine such witnesses. It appears that in utter disregard to the

directions given by this Court by order dated 15/9/2017 passed in WP No. 6220/2017, the Chief Executive Officer, Zila Panchayat, District Vidisha in

a most casual manner, again passed order dated 10/11/2017 thereby removing respondent No. 5 from the post of Sarpanch, Gram Panchayat Jarsena,

District Vidisha under Section 40 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam.

It is next contended by the counsel for the petitioner that this Court, while deciding Writ Petition No. 21018/2017, has already observed that the

opportunity of hearing has already been given to respondent No. 5, therefore, under these circumstances, respondent No. 2 should not have set aside

order dated 10/11/2017 passed by respondent No. 4 on the ground of violation of principles of natural justice.

The contention made by the counsel for the petitioner with regard to the findings given by this Court in WP No. 21018/2017 is misconceived and is

hereby rejected. While deciding the aforesaid writ petition, this Court had only observed that a show cause notice was issued and she was asked to

file her reply and, therefore, it cannot be said that the impugned order was passed without affording opportunity of hearing to the petitioner. However,

this Court had further observed that this Court would not like to advert on merits of the claim, inasmuch as there exist an alternative remedy and this

Court was of the considered opinion that the petitioner should avail such alternative remedy and without adverting to the issue of affording opportunity

of hearing to the petitioner, the petition was disposed of with a direction to approach the appropriate authority.

Thus, it is clear that this Court, while deciding Writ Petition No. 21018/2017, had not given any finding that the enquiry conducted by respondent No. 4

was in accordance with law or not. On the contrary, the said issue was kept open by this Court while deciding WP No. 21018/2017.

Considering the order dated 10/11/2017 passed by the Chief Executive Officer, Zila Panchayat, District Vidisha as well as considering the order dated

28/5/2018 passed by the Commissioner, Bhopal, Division Bhopal, this Court is of the considered opinion that the Commissioner, Bhopal, Division

Bhopal has rightly set aside order dated 10/11/2017 as the order dated 10/11/2017 passed by respondent No. 4 does not reflect that any enquiry was

conducted by the said authority in compliance of order dated 15/9/2017 passed by this Court in WP No. 6220/2017.

It is next contended by the counsel for the petitioner that although respondent No. 2 might have set aside the order dated 10/11/2017 passed by

respondent No. 4, but should not have directed respondent No. 4 to hand over the charge of the post of Sarpanch to respondent No. 5 because there

are serious allegations of financial irregularities.

The submission made by the counsel for the petitioner cannot be accepted because after the order dated 10/11/2017 passed by respondent No. 4 was

set aside, the factual position is that respondent No. 5 is still holding the post of Sarpanch as at present there is no order under Section 40 of the

Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.

Hence, this petition sans merits and, accordingly, it is dismissed in limine. As a consequence, IA No. 2947/2018, which is an application for stay of

operation of order dated 28/5/2018 passed by respondent No. 2 is also hereby dismissed.