Court No. - 30
Case :- WRIT - C No. - 54314 of 2016 Petitioner :- Smt. Akal And Another Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Suresh Chandra Dwivedi Counsel for Respondent :- C.S.C.,Anand Kumar Yadav,Mithlesh Kumar
Hon'ble Vivek Kumar Birla,J.
Heard Sri S.C. Dwivedi, learned counsel for the petitioners as well as Sri Rajesh Pandey, learned Standing Counsel appearing for the State respondents and Sri Neeraj Srivastava, learned counsel holding brief of Sri Mithlesh Kumar, learned counsel for the contesting respondent no. 9 and perused the record.
Present petition has been filed challenging the impugned orders dated 28.9.2016 (partly) and order dated 14.10.2016 passed by the Commissioner, Jhansi Mandal, Jhansi and also to quash the appeal filed by the respondent no. 9 being Appeal No. 1 of 2015-16 (Manohar Lal vs. State of UP and others). A further prayer has been made to direct the respondents not to proceed in pursuance of the orders dated 28.9.2016 and 14.10.2016 passed by the Commissioner, Jhansi Mandal, Jhansi.
The facts of the case as well as arguments of the parties have been suitably noted by this Court in its order dated 16.11.2016, which is quoted as under:
"List revised.
Heard Sri Suresh Chandra Dwivedi, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Sri Anand Kumar Dubey for the eighth respondent i.e. Gram Pradhan.
By means of the instant petition, petitioner is assailing the orders dated 28 September 2016 and 14 October 2016 passed by the second respondent, Commissioner, Jhansi Mandal, Jhansi in Appeal No. 1 of 2015-2016 (Manohar Lal Versus State of U.P. and others).
It is sought to be urged by learned counsel for the petitioner that a complaint was filed by the ninth respondent against the petitioner for irregularities committed under the MGNREGA scheme. The ninth respondent approached this Court by filing a petition being Writ-C No. 15047 of 2015 (Manohar Lal Versus State of U.P. and others) which was disposed of directing the District Magistrate, Lalitpur, to look into his complaint and make proper enquiry, further, in the event of complaint being false and bogus, the ninth respondent had undertaken to deposit Rs. 50,000/-. Order dated 24 March 2015 is extracted:
"Heard learned counsel for the parties.
Petitioner has filed a complaint against the Gram Pradhan of the village for various irregularities committed by him in issuance of job cards under the Manrega Scheme and various constructions being done by him. In the application moved on 28.1.2015 petitioner categorically stated that in case complaint made by him is found bogus he would pay amount of Rs.50,000/- towards penalty as petitioner is member of Gram Panchayat.
The respondent no.2 District Magistrate, Lalitpur shall look into his complaint and make proper inquiry. In case complaint is found bogus amount of Rs.50,000/-as admitted by the petitioner be levied from him.
With these observations, the writ petition is disposed of."
Pursuant thereof, the enquiry was conducted by the Block Development Officer, Block Madawara, Tehsil Poli, District Lalitpur, who in his report dated 24 June 2015, found the allegation made by the ninth respondent to be incorrect.
It appears that the ninth respondent without disclosing the outcome of the enquiry preferred a contempt petition being Contempt Application (Civil) No. 5348 of 2015 (Manohar Lal Versus Jasair Bin Sagir, D.M. Lalitpur). The Court vide order dated 2 September 2015 disposed of the contempt application giving an opportunity to the District Magistrate to comply with the order passed in Writ-C No. 15047 of 2015. Thereafter, second contempt petition being Contempt Application (Civil) No. 7585 of 2015 (Manohar Lal Versus Jasair Bin Sagir, D.M. and another) was filed, in which, notices were issued on 16 December 2015, thereafter, on 23 February 2016, an order was passed noticing the conduct of the applicant (ninth respondent). The relevant portion of the order is extracted:
"Notice dated 6.2.2016 and 15.2.2016 has been sent to the applicant asking him to deposit the said amount. Submission is that till date, money has not been deposited by the applicant.
List this matter on 28.3.2016 on the next date, learned counsel for the applicant shall appear in the Court and explain as to why the cost be not imposed upon the applicant for filing frivolous complaint and the contempt petition".
Thereafter, the ninth respondent preferred an appeal before the second respondent, Commissioner, Jhansi Mandal, Jhansi, under Section 258 of U.P. Panchayat Raj Act, wherein, the petitioners have not been made a party.
It is sought to be urged by learned counsel for the petitioner that by the impugned order Commissioner has tried to over reach this Court in pending contempt application by going into the question as to whether the ninth respondent (appellant) is entitled to deposit Rs. 50,000/-.
Learned counsel for the petitioner would, therefore, submit that the appeal, as such, is not maintainable under Section 258 of the Act, the petitioners have not been impleaded being a necessary and proper party, appeal is gross misuse of the process of the court. Further, the ninth respondent has misused the forum of this Court by filing false affidavit and misleading the Court.
I find merit in the submission of learned counsel for the parties.
Issue notice to the ninth respondent under Section 340 Cr.P.C. to show cause as to why the criminal proceedings may not be initiated against him for commission of offence under Section 193 I.P.C. Notice shall be served upon ninth respondent through Chief Judicial Magistrate, Lalitpur. Registrar General of this Court is directed to take necessary steps in compliance of the order.
List on 4 January 2017.
Till the next date of listing, the effect and operation of the impugned orders dated 28 September 2016 and 14 October 2016 passed by the second respondent, Commissioner, Jhansi Mandal, Jhansi in Appeal No. 1 of 2015-2016 (Manohar Lal Versus State of U.P. and others), shall remain stayed.
It is made clear that in case the writ petition is withdrawn the proceedings under Section 340 Cr.P.C. shall be treated as separate proceedings."
The respondent no. 9 has filed an affidavit to the effect that a sum of Rs. 50,000/- has already been deposited.
On perusal of the record, it is very much clear that the respondent no. 9 has himself undertaken to deposit sum of Rs. 50,000/- in case his complaint is found to be bogus. This fact was clearly noticed in the order dated 24.3.2015 in Writ-C No. 15047 of 2015 (Manohar Lal vs. State of UP and others) as noted in the above quoted order. It is not in dispute that the complaint filed by the respondent no. 9 was found to be bogus but still he filed contempt petitions before this Court. The above quoted order covers the crux of the dispute and the contentions and arguments of learned counsel for the petitioners.
Sole submission of learned counsel for the respondent no. 9 is that he has already deposited a sum of Rs. 50,000/- and therefore, proceedings under Section 340 Cr.P.C. as directed by this Court vide order dated 16.11.2017 may be dropped.
In paragraph 15 of the counter affidavit, it has been categorically stated by the State authorities that the respondent no. 9-Manohar Lal has concealed the fact before the Commissioner, Jhansi and he incorrectly filed an appeal under Rule 258 (wrongly mentioned) of UP Panchayat Raj Rules and has abused the process of law.
In such view of the matter, present petition stands allowed. The impugned orders dated 28.9.2016 (partly) and order dated 14.10.2016 passed by the Commissioner, Jhansi Mandal, Jhansi are not sustainable in the eye of law and are hereby quashed. However, proceedings under Section 340 Cr.P.C. as already made clear by this Court in its order dated 16.11.2016 shall be treated as separate proceedings against the respondent no. 9 and may be brought to its logical end. No order as to costs.
Order Date :- 30.11.2018 Abhishek