^•M HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR PETITIONERs Y-. ." RESPON&ENTS; Writ Petition No.2079 of 2003 ^ulab Khatri, son of HetmQl Khotri/ csQed about 39 yecrs, Occupation- Member, ZSJQ Pancha^at, Durg, Resident of Villcge P.5. Block and Tehsil- eurur, bistrict-Durg (C.G.}. Versus 1. State of Chhattisgarh , Throigh Secretary, Depcrtment of Panchayat and Social Weifare, AAantraloya/ b.K.5. Bhawon, Shastri Chowk, Raipur (C.0.). 2. birector, PQnchayat and Social Welfare, Rajpur (C.G.). 3. Sub bivisional Officer/ ^urur, bistHct- Durg {€.©.). 4. Superintendent of Police, &istrict-Durg (,C.G.). 5. Shri Lokendra Yadav, Member of Chhattisgarh legislative Assemb\y, R/o Tarod, District Durg (C.0.). POST FOR ORDER ON^^August, 2003 Sd/- L.C.Bhadoo Judge r::\ HISH CGURT OF JU&ICATURE. CHHATTIS©ARHAT BILASPUR PETETIONER: RESPON&ENTS: Writ Petition No.2079 of 2003 Guiob KhQtri,sonofH€tmQlKhatri, aged about 39 years/Occupcri'ion- Member, Zila Panchoyat, Ourg, Resident of ViJJ<^c P.5. Btock and Tehsil- ©urur/bistrict-Durg(C.@.). Versus 1. State of Chhattisgarh, Throiyh Secretary, DepQrtment of Panchoyat and SOCJQJ Welfare, AAantraloya, b.K.S. Bhowon, Shastri Chowk, Rdpur (C.@.5. 2. birector, Panchayat and Social Weifare, Raipur (C.@.). 3. 5ub bivisional Officer, &urur, &istrict- Ourg (€.$.). 4. Superintendent of Police, Oistr'ict-burg (C.6.). 5. Shri Lokendra Yadav, Member of Chhattisgorh legislative As^embly, R/Q Tarod, District Durg (€.$.). Shrs Rqjeev ShrivastGvc, Advocate; For the petitioner Shri Sanjay K. Agrowai, &y. Advocate ©eneral; For the respondents' ?sb. 1 to 4. Sefore: Hon'ble Shri L.C. Bhadoo, J. ORDER (Passed on^L. ^ugust, 2003) 1. By this writ petition under Articles 226/227 of the Constitution of India, the petitioner has chdlenged the action of the Respondent No.2 i.e. issuwce of a show cause notice beoring No. 28/PQnchayot/2003-IV dated 30.6.2CX)3 issued under* ssction 49(1) of the Chhattisga'h Panchcyat ftaj Adhiniyam, 1993. 2 /-— 2. The petitioner's petition is thot he is a member of the Zilo Panchayat Durg. He belongs to a reputed family of VillQge-^urur. His father Shri Hetmd Khotri wos Scrpanch of the village ^urur for about 15 years. His uncle Late Shri Mishrildi Khatri WQS a Member of Balod A^sembly Segment in the erstwhile State of Madhya PrQdesh.By virtue of the fomily background the petitioner is having good reputation and holding pubjic relotions in BQJod and its surrounding assembly segment. It is known to the Respondent No.5 that the petitioner is having capQcity to influence at least four assembiy seats of the Chhattisgorh Legislative Assembly. Panchayat Elections were held in the year 20(^ and the petitioner won from ©ururseat for the Zila PonchayQt Durg with Q thumping majority. The petitioner is a committed foilower of Shri Vidhya Choran Shukl who was eorjier a member of the Indion NationGl Congress which is ruling porty in the Stote of Chhattisgarh. Jhe petitioner has devoted his !if©for oppressed ond depressed cause of the society. TTie petitioner rdsed his voice to secure the life of the downtrodden ond cause of thc society. The petitioner is very closely related with the farmers. He conducted an ogitation agalnst the @ovt. officers in the year 1999 in purchasing of paddy, and staged a &hQrna to protect the jnterest of the poor farmers. In the year ^X)l some irreguiorities ^vere committed by the ^ovt. officers in survey of pspulation. For thls irregularity when all th©peacefui process of ventiloting the grievance failed to produce any fruit then the petitioner orgonized a mass movement ond staged Dharna, and due to thot cigitation an enquiry' was ordered and irregularities were corrected. Due to the various activitjes of the petitioner it is a generd feeling in the ruling congress party that the petitioner can turn a greot number of votes in favour of the .,-w.-r-.w»»»^-,,^a^t-<^ ruling congress party in the coming Vidhansabha elections whjch cire scheduled to be held in the month of November 2(X)3. 3. In the month of ^pril 2€K)3 the petitioner's ideal leader resigned from the IndiQn National Congress and joined the Nationalist Congress Party, therefore the petitioner also joined the N.C.P. Reacting imrrsediateiy on the petitioner's step Respondent No.5 who is a sitting M.L.A. from Bolod Assembly Segment Qnd Member of the Indian National Congress which is a ruling porty in the State, exerted pre^sure on the petitioner and 90! him Gffire5t€d on 9 April^ 2003 in order to prevent him from welcoming Shri Vidyo Charcn Shukl. Uitimately the petitioner was rejeased in the night of 12th and 13th April 2003. The Respondent No.5 asked mony a times to the petitioner not to support Shri Vidhya Choran Shukl and the petitioner shouid inimeciiQtely quit the camp of Shri Vidya Charon Shukl. When the petitioner refused to knee down Qgdnst the demQnd of Respondent No.5, he influenced the Respondents hto. 1 and 2 to issue show-cause notice dt. 30.6.2CX)3 for removal of the petitioner from the post of Member Zilo Panchayat burg. A copy of which is marked as Annexure P/3. 4. Tne notice dated 30.6.2CK)3 Itself states that one offence was regjstered Qgdnst the petitioner in the year 1996: four offences were registered in the yeor 1999: and two offences were registered in the year 2CK)1. It Is the most humble and respectful submission of the petitioner that so far as the offence registered in the year 1999 under section 107 wd 116 of the Cr.P.C. <ye concerned, till date the petitioner has not been served with any intimation that these offences have been registered against the petitioner. So far as the offences registered in the yeor 1996 and 2001 are concerned they Qr©^ ^^ not the offence which are cognizoble under the Panchayat Rqj Adhiniy<OT. These offences werc registered agQin^t the petitioner ^hen he wc^ fighting and organizing rallies to protect the interest of th€d<wntrodden class of the society. AII these raliies were rejated to Kisan Andolan in bistrict- Durg. So far as the Crime No. 76/96 is concerned the conviction order was passed on 7.12.2(X)0, the appea! agdnst the same is pending, and the sentence has been suspended by the competent Court. 5. The notice has been issued with mdQfide intention. The petitioner wos a Member of Jonpad Panchcyat for the ysar 1995 to 2000 and in the yecr 2CXX) he has been elected for Zila Panchayat. The offences were registered way back in 1996, 1999 and 2CK)1. M the petitioner wess member of the Indian National Congress no cction was taken cgainst him. As soon as the petitioner Joined the hands of Shri Vidhya Charan Shukl the sh<w cause notice was issued to him on the basis of the memorandum of Respondent No.4. There is no basis under the Adhiniyam but the same has been issued with malafide intention to harass the petitioner and wjth ulterior motive to compei the petitioner to resign from N.C.P. 6. Vide show-cause notice dated 30.6.2003 the Re^pondent No.2 has directed the petitioner to appeor on 16.7.2(X)3. TTtough the petitioner is appearing and fiiing the repty but the petitioner is sure thot he wili not get justice from the Respondent No.2 becouse with ^me other workers of N.C.P. ateo the Stote ^overnment is behaving jn the simiicr manner as it js behaving with the petitioner. Tnerefore, to command the respondents to produce the entire record for perusal "cind writ of certiorari be issued for quashing the show cause notice dt. 30.6.2CX)3 Anne^ure P/3. ® ^- 7. Return has been filed on behdf of the Respondents hto. 1 and 2. They hwe admitted i^uance of the ^how cause notice Annexure P/3 dt. 30th June 2003 by the prescribed Quthority under section 40 of the Panchcyat Rqj Adhiniyom, 1993. The petitioner's petition is premature and is not mdntdnd>le os it is merely directed agdnst the show cause notice. The petitioner after fiiing reply Annexure R-l/A before the prescribed authority and without owQiting the decision has rushed to this Court. The petitioner wi'll hcsve full opportunity to contest his case before the prescribed authorityand he will hwe fuil opportunity of heQring in accordance with IQW. Tliie petitioner is free to rdse all these grounds taken in thss petitson ond hence the petition filed by the petitioner without mciking detailed submission is not only premature but also not mointainable on this ground. The petition deserves to be dismissed. 8. It is well settled idw thot the show cause notice is beginning of the matter and not the end of the matter. Since the petitioner has already submitted his reply to the Respondent No.2, after submission of the repiy to the jurisdiction of that authority, the petition is not ot Qll mQintdnGbie and deserves to be dismissed. The answering respondents are not aware about the chonge of the party by 1+ie petitioner all the QJIegations in this regard cre irrelevant. PQPQ 5.14 to 5.16 of the petition cre denied. Notice has been jsgued by the Respondent No.2 on the basis of the material avdlabje on record and it has not been issued by the Respondent No.l. There is no question of influence by Qny authority. The dlegGtions of mQlafides are unspecific and uncleor. The petitioner has dready fi!ed reply before the prescribed duthorit^, therefore the petition be dismissed. r @ /^. ^ "^^ 9. I havs heard leorned counsel for the petitioner Mr. Rqjeev Shrivastava and learned counsel for the Respondents No. 1 to 4 Shri Sanjay K. Agarwd, Deputy Advocate ©enepal. 10. As far as preliminary objection raised by the Respondents No. 1 and 2 is concerned there is a settled law that c^dnst shc^r cause notice writ {ies only when the authority is having no jurisdiction to issue such notice ond show cause notlce does not meet the requirements as envisaged under the particulGr section under which it hos been issued i.e. jn ths present cose under section 40(1) of the Chhatti^arh Panchayot Rcy Adhiniyam, 1993. 11. As far as the first point is concerned, learned counsel for the petitioner has not questioned the authority of the Respondent hto.2 to issue the notice. Leorned counse! for the petitioner argued that so far os obout criminaJ conduct of the petitioner is concerned there is a specific provision under section 39 of the AdhiniyQm and if any of ths offence is covered under that section is committed by the office bearer of the Panchcyat then he can be suspended, Since the case of the petitioner was not covered under sectlon 39 of the Panchayat Rcy AdhiniyQm, which is a specific provision for crifn{n<s! conduct of the office bearer, simply based on the criminal cases mentioned in the shcN,v cause notice, the notice has been issued for removal under section 40 (1). He further orgued that under section 40 (1) (A) and (B), the action for removai can be initiated if the office bearer of the pancha^at is found to have indulged in misconduct in discharge of his duties wd if his continuance is undesirQbie in the interest of thc pubiic. This section provides thot no person shali be removed uniess he is given on opportunity to show-cause why he should not be removed from his office and in this case no public interest is 7 V-, involved. TTierefore the show cause notice itself is defective and on this ground the notice issued to the petitioner does not fdl under the category of the public interest. Thsrefore the show cause notice does not meet the requirement of sub-section (1)(B) of section 40. 12. On the other hand leorned counsel for the respondent placed reliance on a decision in the case of M/s Procter & ©amble Home Products Ltd. Vs. Commissioner of Customs ACentral Excise. reported in 2001 flVMPJR 191 and ajso possing remarks of the Hon'ble Apex Court in para-3 of the judgment in the cose of Bhaiji Vs. Sub DivisionQl Officer & others reported in 2003 (IZ) MPJR 1, in which it has been mentioned that the petitioner filed a wit petition before the High Court against the show cause notice of the Sub bivistonal Officer which WQS rejected by the High Court. 13. Now coming to the question as to whether the aliegations agdnst the petitioner whjch are mentioned jn the show cause notice about the pendency of the seven criminal cases and in first case the petitioner had been convicted under section 353 and 186 of the I.P.C. by the Court of Judicial MQgistrate First Class on 7.1.2000, and the third charge that the petitioner is in the hobit of indulging in mar-peet with the ©ovt. employees for causing obstruction in the work of the ^ovt. in my opinion prima-facie these ailegations Qgainst the petitioner are covered under clause (b) of subB3section (1) of Section 40 of the Act. At this stage, it is not proper to express any opinion o^<fetGil<(?on the merit of the case because the sctme moy prejuctice the cause of either of the party. 14. As far as the arguments of learned counsel for the petitioner thot the ajlegotions levelled in the show cause notice are not substantioted and^ 8 ^ " .^c£. established with supportir^ m<2terial, therefore, the show cause notice is bad. Learned counsei for the petitioner in support of his contention relied upon the dedsion rendered by the Apex Court reported in A,I.R. 1972 SC 1571 in the case of Bhagat Ram Patanga Vs. State of Pwjab ond (2001) 6 SCC 260 Tarlochan &ev Sharma Vs. State of Puntob and others: 1980 MPLJ 34 Bansmani Prosad Veerbhadrtt ShuMa Vs. State of M.P. & others; 1998 (1} JLJ 420 Sarita Mabre (Smt.VVs. Sta-te of M. P. and others. As for QS these decisions are concerned, these are agQinst the finQi decisions of the concerned authority and in this matter stilJ the show cause notice has been issued to the petstioner and ogdnst the show cause notice no writ petition lies as has been held by the M. P. High Court in the CQSC reported in 2001 mMPJR 191. 15. The petitioner is entitled to raise all the objections before the Respondent No.2 which are raised by him in Ihis petition and the Respondent No.2 after giving the petitioner a reasonobk opportunity Qgoinst the show cause notice ond after hearing will decide ali the questions. Even if the petitioner has already submitted his repiy to the show cause notiee Jooking to the facts and circumstQnces of the cose I deem it Qppropriate to give onemore opportunity to the petitioner to raise all these points before respondent No.2 which are rdsed and argued by the counsel for the petitioner before this Court and for this purpose 10 doys time is ojlowed ;to the petitioner and the Respondent No.2 after considering the repiy and heoring the petitioner wilf decide the matter in accordance with low. 16. In the result, the.writ petition has ho force being premature it is liable to be dismissed and th@ same is dismissed. However the petitioner is <2l!owedJO_ ® doys time to raise Qti the objections before the respondent No.2 which are raised ond argued in this writ petition and the competent authority will consider and decide after hearing the petitioner. 17. Th©writ petition is disposed of in the obsve terms. r Sd/- L.C. Bhadoo Judge / Y ..a yl^ rS>: