DULORIN BAI SAHU Vs. COLLECTOR

JUDGEMENT

(1.) THE petitioner who was the elected Sarpanch of Gram Panchayat, Thathapur in the 2000, has preferred this writ petition under Article 226/227 of the Constitution of India questioning the legality, correctness and propriety of the order dated 29-4-2004 (Annexure P-7) passed by the prescribed authority, Sub Divisional Officer, Kabirdham, in Revenue Case No. 263/B/121/2003-04 whereby the learned Prescribed Authority exercising the power under Section 40 of the Chhattisgarh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Act'), removed the petitioner from the post of Sarpanch, and also the order dated 22-7-2004 passed by the Collector, Kabirdham, in Revision Petition No. 31/B-121 year 2003-2004.

(2.) BRIEF facts leading to filing of this writ petition are that the petitioner contested the election for the post of Sarpanch, Gram Panchayat, Thathapur in the month of February, 2000 and she was elected in the said general elections. Consequently, she took over the charge of the said post vide Annexure P-1. However, on 20-5-2004 six persons of the Gram Panchayat made a complaint before the S.D.O., Kabirdham (hereinafter referred to as 'the Prescribed Authority), that the petitioner herein had encroached upon the Government grassland area of 0.05 decimal out of the area 10.70 of Khasra No. 335 and she has constructed a house. Accordingly, a case was registered by the Naib Tehsildar, Lohara, for removal of the said encroachment. As per the provisions of Section 56 (1) (d) of the Act, the petitioner was supposed to stop and take action against the encroachers, whereas, the petitioner herself has encroached upon the Government land which constitutes misconduct on the part of the petitioner as per the provisions of Section 40 (1) (a) of the Act, hence, she be removed from the post. On receiving this complaint, the Prescribed Authority registered a case and ordered for issuance of show-cause notice to the petitioner on the same day under Section 40 of the Act and fixed the case on 8th of March, 2004. On 8th March, 2004, the Advocate for the petitioner appeared and sought for adjournment for filing reply. The Prescribed Authority adjourned the matter for filing reply for 22nd March, 2004. However, on 22nd March, 2004 and also on the next date of hearing, i.e., 27th March, 2004, the Prescribed Authority was on tour. On 29th March, 2004 also the Prescribed Authority was on tour. On 6th April, 2004, the Prescribed Authority was not in Office and was on tour, therefore, the matter was fixed for 26th April, 2004. On 26th April, 2004, a legal objection about the maintainability of the complaint was filed on behalf of the petitioner mentioning therein that regarding the same land a case was initiated against her father-in-law by the Naib Tehsildar in which fine was imposed and a receipt was also submitted, therefore, for the same act and for the same land no action can be initiated against the petitioner, therefore, there is no gross negligence on the part of the petitioner herein and further time was sought to file a detailed reply. However, the learned S.D.O. mentioned that since an opportunity to file reply has already been given, therefore, no further opportunity can be given and closed the right of the petitioner herein to file reply. The learned S.D.O. further mentioned that the arguments heard and the matter was closed for orders. Next date, i.e., 29th April, 2004 was given and vide the impugned order dated 29th April, 2004, the learned Prescribed Authority reached the conclusion that the petitioner herein herself has committed misconduct by encroaching upon the Government land. The petitioner herein ought to have removed the encroachment as per the provisions of Section 56 (1) of the Act, whereas, she herself has encroached upon the Government land, therefore, this amounts to misconduct, as such she be removed from the post of Sarpanch. In between, the petitioner herein moved a revision against the order of the closure of the right of the petitioner to file reply, before the Collector, but, before the revision could be decided, the learned Prescribed Authority passed the impugned order against which the petitioner herein filed this writ petition on 19-8-2004.

(3.) HOWEVER, thereafter, she also preferred an appeal before the Collector on 1-9-2004, which was dismissed as withdrawn on 18-10-2004. The main grievance raised by the petitioner in this writ petition is that no opportunity for fair hearing was given to the petitioner and the impugned order has been passed prejudicial to the interest of the petitioner, therefore, the impugned order is liable to be quashed.