I^" ^•> IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (2271 N0. ^^^ l( OF 2009 Sitlflto B®nCh ^PETITIONER 1?C\J1STOM€^ L- RESPONDENTS L0vr. ^ >-<;VYti <%^ ^"^ • ( 8.8. ^bik) ^l ^^1 ^.^^ ^n^^' ^Lata Chandrakar wife of Pawan Kumar Chandrakar, aged about 39 years, resident of village Kumhari, Tahsil — Aarang, District- Raipur (Chhattisgarhj VERSUS 1.^ Director Panchayat, Chhattisgarh, Raipur, District - Raipur (Chhattisgarh). ^" 1. State of Chhattisgarh, Through Additional Collector, Raipur, District - Raipur (Chhattisgarh). -^ 3. The Sub Divisional Officer cum Prescribed Authority, Aarang, Headquarter - at Raipur / (Chhattisgarh) 4. Chief Executive Officer, Janpad Panchayat- Aarang, Tahsil- Aarang, District Raipur (Chhattisgarh). (E WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ^•KUC»I>_, 4F< Petifioner HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227) N0. 2084 OF2Q09 Lata Chandrakar VersiisS Resigonidlente Director Panchayat & Others VVRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDiA (SB: Hon'ble Mr. Satish K. Agnihotri, J.) EL?^I?t-l- Shri Sourabh Sharma, Advocate for the petitioner. Shri M.P.S. Bhatia, Dy. GovernmentAdvocate fortheState. None appears for the respondent No.4 despite service of notice. QRDER(ORA!-1 (Passec) on 29th day ofJuly, 2010) 1. Challengein this petitiofi is to the order dated 04/0472009 (Ahnexure P/'l) whereby theorder dated 16/04/2008 (Annexure P/8) passed by the Sub Divisional Officer-cum-Competent Authority hoiding that the petitioner was guilty of embezzlement and as such he was declared disqualified to hold the post of Sarpanch, Gram Panchayat, Kumhari under the provisions of Section 40 of Chhattisgarh F-'anchayat Raj Adhiniyam, 1993 (for short "the Adhiniyam, 1993"),was affirmed. Further, the petitioner v/as declared disqualified for a period of six years. 2. Shri Sharma, leaned counsel appearing for the petitioner submits that the Director Panchayat has not considered the fact that Sub- Divisional Officer-cum-Competent Authority/respondent No.3 has proceeded ex-parte against the petitioner without affording an opportunity of hearing. He furthersubmits that it is clearly stated in the order dated 16/07/2008 (Annexure P/8) that a notice dated 09/04/2008 was issued to the petitioner by the registered post and the registered envelope came back with a remark that the petjtsoner does not iive in village-Kumhari. He further submits that. FU.ile 3 ofthe Chhattisgarh Panchayat (Method of Service of Notice and Documents) Rutes, 1995 (for short "the Rules, 1995") clearly provides that if officer directing the issue of such notice or ^s:"^ ••K' •-y^i 2 document is satisfied that. the addressee is evading the notice or document and notice or document cannot be served by the method mentioned as above. The said officer shall cause such notice or document to be served by affixing a copy thereof upon some conspicuous part of the last known place of residence or business of the person concerned and service shall be as effectual as if it had been made on the addresses personally. 3. In the case on hand, admittedly no notice has been posted on his residence or the office as 'last known place of residence or business. Thus, findirig of the respondent No.3 that the notice has been served and proceeded ex-parte against the petitioner is vitiated. Thus, the order dated 16/07/2008 is bad and vitiated on the ground of being violative of basic principle of natural justice before condemning the petitioner. 4. The Director in his order dated 04/04/2009 (impugned herein) has not examined the abovestated facts and affirmed the finding on the basis of certain materiats produced by other people. The same is also vitiated accordingty. 5. Shri Bhatia, learned State counsel submits that having regard to the procedure as prescribed under the Rutes 1995, the notice has to be served in accordance with provisions of Rule 3. It appears that the service has not been effected in accordance with iaw and the matter has been proceeded ex-parte. However, on the facts as narrated in the orders passed by the authorities below,the petitioner does not deserve to continue as Sarpanch of village- Kumhari. 6. On hearing learned counsel appearing forthe parties, perusing the documents on record and without going into the merits of the case about sufficiency of material, for declaring the petitioner disqualified under the provisions of Section 40 of the Adhiniyam, 1993, it is held that the material/documents have not been put to scrutiny and the petitioner has not been afforded opportunity of hearing to rebut or explain the same. The Competent Authority has proceeded ex-parte in a manner which is not permissible uncler the provisions of taw, if the petitloner was not available at a particular place. As per provisions of Rule 3, a notice ought to /^ t:s-ii 3 have been posted on a conspicuous part of last known place of residence or business, the same has not been done. Thus, the order passed by the authority is vitiated and bad. The Director l::>anchayat has also not examined the aspects when the same was raised before him in revision, It appears that he has affirmed the order passed ex-parte on the basis of certain facts, which were recorded in the order passed by the Competent Authority accepting the sameas truth. Without affording an opportunity of being heard to the petitioner, the order has been passed against the petitioner, by the competent authority. 7. 11: is well settled principles of law that "no one shall be condemned unheard". This is one of the clear cut cases where the petitioner has been condemned without being heard. 8. On the question of prejudice, since the petitioner has been disqualified for a period of six years, prima facie, it appears that the prejudice has been caused to him, as according to the petitioner, all the allegations made against the petitioner are untrue and needs clarification/expt.anation before passing the order by the Competent Authority. 9. For the reasons mentionedhereinabove, the impugned orderdated 04/04/2009 (Annexure P/1) and 16/07/2008 (Annexure P/8) are quashed. However, on the request of lea.rned counset appearing for the respondent/State, liberty (s reserved to the respondent authority to take appropriate steps, in accordance with law and pass the order accordingly. 10. The writ petition is allowed to extent indicated above. No order asto costs. Sd/- Satish K. Agnihotri Judge ashok