HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION 227 NO 2084 OF 2009
Lata Chandrakar
...Petitioners
Versus
Director Panchayat & Others
...Respondents
! Shri Sourabh Sharma Advocate for the petitioner
^ Shri MPS Bhatia Dy Government Advocate for the State None appears for the respondent No 4 despite service of notice
CORAM: Honble Mr Satish K Agnihotri J
Dated: 29/07/2010
: Judgement
ORDER ORAL
Passed on 29th day of July 2010
WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA
1. Challenge in this petition is to the order dated
04/04/2009 (Annexure P/1) whereby the order dated 16/04/2008
(Annexure P/8) passed by the Sub Divisional Officer-cum-
Competent Authority holding 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 Panchayat Raj
Adhiniyam, 1993 (for short “the Adhiniyam, 1993”), was
affirmed Further, the petitioner was 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 No3 has proceeded ex-parte against the
petitioner without affording an opportunity of hearing He
further submits 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
petitioner does not live in village-Kumhari He further
submits that Rule 3 of the Chhattisgarh Panchayat (Method of
Service of Notice and Documents) Rules, 1995 (for short “the
Rules, 1995”) clearly provides that if officer directing the
issue of such notice or 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, finding of the respondent No3
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 materials produced by
other people The same is also vitiated accordingly
5. Shri Bhatia, learned State counsel submits that having
regard to the procedure as prescribed under the Rules 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 law 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 for the 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 under
the provisions of law, if the petitioner was not available at
a particular place As per provisions of Rule 3, a notice
ought to 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 Panchayat 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 same as truth Without
affording an opportunity of being heard to the petitioner,
the order has been passed against the petitioner, by the
competent authority
7. It 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/explanation
before passing the order by the Competent Authority
9. For the reasons mentioned hereinabove, the impugned
order dated 04/04/2009 (Annexure P/1) and 16/07/2008
(Annexure P/8) are quashed However, on the request of
learned counsel appearing for the respondent/State, liberty
is 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
J U D G E
