/ y C!;te&l£ 3£%' S^I ±v3 IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT S-!.t^r--'^"sfti,'S^'k,. ilH^HilEit BILASPUR c^ W.P.«.NO. S^f^t OF 2008 PETITIONERS ./" - ^^ /\".^w f^v^r , t7/A' ^ ^^' • ^ ^,.' VERSUS RESPONDENTS 5-.\-:- WRIT Oe^®' PETITION 1. Ahilya Bai wife of Shri Ratan Sidar, aged about-40 years, the then Sarpanch, Gram Panchayat- Jharaama, Block- Lailunga Distt. Raigarh (C.G.) 2. Budhani Bai wife of Shri Bharat Painkra, aged about 32 years, the then Sarpanch, Gram Panchayat- Aamapali, Block- Lailunga Distt. Raigarh (C.G.). /1. State of Chhattisgarh through Secretary, Panchayat 85 Social Welfare Department, D.K.S. Bhavan, Raipur (C.G.) 2. Collector Raigarh Distt. Raigarh (C.G.) 3. Sub-Divisional Officer(R) cum Specified Offlcer Gharghoda Distt. Raigarh (C.G.) UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA The petitioners respectfully beg to submit as under:- 1. PARTICULARS OF THE PETITIONERS. As shown in the cause title 2. PARTICULARS OF THE RESPONDENTS, A§shown in the cause title N,^ ^ .g^:-A'-u»-<^'^ •i^-di^ HIGH COURT OF CHHATTISGARH : BILASPUR leBench: Hon'ble Shri ManindraNlohan Shrivastava, W.P. (Cl No.5491/2008 Ahilya Bai and another Versus State of Chhattisgarh and Others t Petiflon under Article 226 of the Constitution of India) Shri M. K. Sinha, counsel for the petitioners. Shri Satish Gupta, Govt. Advocate for the State/respondents. (Passedon 14-02-2011) This petjtion is directed against order dated 01-05-2008 passed by the Prescribed Authority/Sub Divisional Officer (Revenue), Gharghoda, District Raigarh whereby a show cause notice was directed to be issued to the petitloner. The petitioner has prayed for quashing of the aforesaid order and also for quashing whole proceedings initiated against the petitioner by respondent No.3. 2. The grievances of the petitioners is that during the period, the petitioners were working as a Sarpanch in respective Gram Panchayats, certain amounts were sanctioned by the State Government for construction of the road in Block Lallunga. After construction of road, the respondent authorities on certain allegations that the construction was not up to the mark and further that the construction work was not completed, a show cause notice was issued to the petitioner on 01-05-2008 (Annexure P-2) requiring the petitioner to show cause against the proposed recovery. The petitioners submitted their detailed reply to the show cause notice vide Annexure P-3. However, immediately thereafter, upon receipt of reply on 16-05-2008, the prescribed authority relying upon the enquiry made eariier, passed the order for recovery against the petitioners. ^-3». 'v^'fi. fls,. V ''i !;s»,, —2-' SI!:i;i|Btetl» f^;i|^ttil< Learned counsel for the petitioners submitted that the recovery proceedings are illega! as the petitioners reply was not considered in its proper perspective and the Sub Divisional OfRcer proceeded to pass the recovery order on 16-05-2008. He further submits that the aforesaid order of recovery is mainly based on some enquiry made which was held behind the back of the petitioners and the same could not be made a basis to pass order of recovery against the petitioners. Learned counsel for the petitioners submits that as the proceedings have been drawn for recovery without due and proper enquiry and without due and proper consideration of the detailed reply submitted by the petitioners, thls Court has the jurisdiction, authority under the law to entertain the matter on merits without requiring the petitioners to exhaust the alternative remedy of statutory appeal. Learned counsel next submitted that since the proceedings were initiated against the petitioners on the basis of a letter issued by the Collector on 28-03-2008, the remedy of appeal, if any, in the pecullar circumstances, before the Collector is illusionary, and the Coliector is not expected to decide the matter fairly and impartially. 4. On the other hand, learned State counsel submitted that this petition is not maintainable as the petiSioners have only chailenged the order, by which, show cause notice were directed to be issued without challenging the order dated 16- 05-2008, by which, recovery has been ordered rejecting the petitioners reply. Other submission is that the petitioners have an alternative and efficacious remedy of fiiing statutory appeat before the Collector in view of the provisions contained in Rule-3 of Chhattisgarh Panchayat (Appeal and Revision) Rules, 1995, (In short "the Rules of 1995") wherein against the order passed by the Sub Divisional Officer under any provision of the Panchayat Raj Adhiniyam or Rules or Byiaws made thereunder, statutory appeat lies to the Coltector. Learned State counsel submits that this is not one of those extra-ordinary cases where the "^.'" ^ 1 •• ^'^%:. - r '•"^* > •3 ||l;;8B@i! petitioners could invoke jurisdiction of the Court under Articte 226 of the Constitution of India without availing alternative remedy of statutory appeal. 5. ! have considered the submission made by learned counsel for the parties and perused the records. 3. From the pleadings made by the petitioners which are not disputed by the respondents, it is revealed that there were certain allegations against the petitioners that during their tenure as a Sarpanch, the construction of road was not completed and was also sub standard. A show cause notice was then issueci to the petitioners on 01-05-2008, copy ofwhich has also been placed on record. Order dated 01-05-2008 shows that the proceedings for recovery were initiated against the petitioners in purported powers under Section 91 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993. It is also revealed that the petitioners have submitted their detailed reply which has also been placed on record. Thereafter, the Sub Divisiona! Officer passed the order dated 16-05-2008 directing recovery. 7. The Sub Divisional Officer had issued show cause notice to the petitioners ind thereafter proceeded to pass the order of recoven/ on 16-05-2008. The order of Sub Diyisional Officer is appealable under Rule-3 of the Rules of 1995. Though, this Court has ample jurisdiction to entertain the petition notwithstanding existence of alternative remedy, such power is exereised only in appropriate cases and not in all the cases, as a matter of course. What 1 find from the records and proceedings is that a show cause notice was issued to the petitioners and the petitioners have submitted their detailed reply, whereafter the order of recovery has been issued. Therefore, the petitioners' complaint that the order of recovery was issued without giving any opportunity of hearing whatsoever is factually incorrect. Whether proper opportunity of hearing was given to the petitioners or not, is another matter. It is not a case where the petitionere have -4 ^'^ been able to make out that the proceedings of recovery were initiated and She order was passed by an incompetent authority. There is also no amount of pleading to show that the Sub Divisional Officer nurtured ill-will or acted maiafide against the petitioners. Therefore, case of ma!afide is also not made out. in the absence of it being a case of total and comp!ete violation of principles of natural justice or the absence of jurisdiction or a case of malafide exercise of power, this Court is not inclined to entertain the petition on the face of exlstence of atternative remedy of statutory appeal available to the petitioners. The petitioners' apprehension that while exercising power of appeal as a quasi- judicia! authority, the Collector would not take just and proper decision as the Collector itself had directed action to be taken vide his letter dated 28-03-2008, appears to be unfounded. From a perusal of order sheet dated 01-05-2008, it appears that in view of some Vidhan Sabha question inyolved, the matter was forwarded for necessary enquiry to the Sub Division Officer by the Collector. Therefore, there is no reason for this Court to entertain such an apprehension that the Collector would not look into the matter and decide the same in a just snd proper manner and in accordance with law. Therefore, this Court is not inclined to entertain the matter and adjudicate upon issues which necessariiy involve adjudication of disputed questions of fact relating to the allegation as to whether the work of construction of road was sub standard or incomplete so as to render the petitioners liable for recovery. Accordingly, the petitioners are granted liberty to file statutory appeal as is provided to them under Rule-3 of the Rules of 1995. If the petitioners prefer statutory appeal within a period of thirty days from today, the appellate authority/the Collector shail decide the same after due consideration the each and even/ ground raised in appeal, strictly in accordance with taw, on its own merits, without going into the question of limiiation and without being influenced (»• -^- ^••f.y-.y^i.. by its earlier order dated 28-03-2008. As the petitioners were under protective umbrella of this Court in viewof order dated 06-11-2008, l deem it expedientto direct that the recovery against the petitioners shali not be made for a period of two months from today. With the aforesaid observation, the petition is finaity disposed off. Sd-/ Manindra Mohan Shrivastava Judge