*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY + WRIT PETITION NO: 17584 OF 2008 % 30-09-2008 # Karuva Anjinaiah …Petitioner and $ The Election Tribunal under APPR Act-cum- Junior Civil Judge, Paaathikonda & another …Respondents ! COUNSEL FOR PETITIONER : Sri Vedula Venkataramana ^ COUNSEL FOR RESPONDENTS: G.P. for Panchayat Raj and Sri B. Purushotham Reddy < Gist: > Head Note: ? CITATIONS: -Nil- THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION NO: 17584 OF 2008 O R D E R: Elections to the Kothiralla Grampanchayat of Pattikonda Mandal, Kurnool District, were held on 29.7.2006. The petitioner and 2nd respondent ﬁled their nominations. The 2nd respondent raised an objection to the nomination of the petitioner, by taking the plea that the latter incurred disqualification, under Section 19 (2) (i) of the A.P. Panchayat Raj Act (for short “the Act”). He stated that several surcharge orders were passed against the petitioner, to the tune of Rs.1,23,471/- and despite the same, the petitioner did not clear the said amounts. The objection was overruled, and nomination of the petitioner was accepted. After the poll took place, the petitioner was declared elected. The 2nd respondent ﬁled EOP No.2 of 2006, before the Election Tribunal-cum-Junior Civil Judge, Pattikonda, with a prayer to set aside the election of the petitioner and to declare the 2nd respondent as elected. The only ground pleaded by him was that the petitioner incurred disqualiﬁcation, under Section 19 (2) (i) of the Act. The petitioner ﬁled a counter and opposed the OP. The petitioner stated that the alleged orders of surcharge passed against him are untenable. He further pleaded that the 2nd respondent also suﬀered surcharge orders, and thereby, incurred disqualiﬁcation. Trial was conducted, and through its judgment, dated 21.7.2008, the Tribunal partly allowed the OP. It had set aside the election of the petitioner, but refused to declare the 2 nd respondent as elected, since it was found that he too incurred disqualification. Therefore, it directed the Election Authority to conduct fresh election to the oﬃce of Sarpanch of the Panchayat. The order passed by the Tribunal is challenged in this writ petition. Sri Vedula Venkataramana, learned counsel for the petitioner, submits that the alleged surcharge orders, passed against the petitioner, are contrary to the Rules, issued in G.O.Ms.No.190, Panchayat Raj and Rural Development, dated 20.3.1997, and framed in exercise of powers under Section 268 of the Act. He contends that the alleged dues from the petitioner, related to the period, beyond three years from the date of alleged surcharge orders, and they are contrary to Rule 5 of the said Rules. He further contends that the alleged surcharge orders were not issued by the competent authority, but only by an audit party. Learned counsel submits that even if the surcharge orders, marked as Exs.A-3 to A8, are taken on their face value, they cannot constitute the basis for disqualifying the petitioner. Learned Government Pleader for Panchayat Raj and Sri B. Purushotham Reddy, learned counsel appearing for the 2nd respondent, on the other hand, submit that the prohibition contained in Rule 5 of the Rules, is only against passing of orders of surcharge, beyond three years, from the date of audit, and in the instant case, Exs.A-3 to A-8 were passed, within the prescribed period. It is also their case that the petitioner cannot question the validity of the surcharge orders, either in the OP, or in the writ petition, arising out of it. The only ground urged against the petitioner in the Election Petition was that he incurred disqualification, under Section 19 (2) (i) of the Act. The petitioner, on the other hand, pleaded that he did not incur disqualiﬁcation. On the basis of the pleadings before it, the Tribunal framed the following issues: 1) Whether there were surcharges against the ﬁrst respondent at the time of ﬁling nominations? 2) Whether the ﬁrst respondent was disqualified because of surcharges? 3) Whether the Election of Returned Candidate is void? 4) Whether the petitioner is entitled to the relief that he is duly elected? The 2nd respondent adduced oral evidence of PWs.1 and 2 and documentary evidence, in the form of Exs.A-1 to A-8. On behalf of petitioners, Rws-1 to 4 were examined and Exs.B-1 to B-7 were marked. Exs.A-3 to A-8 are the surcharge declarations against the petitioner. The Tribunal had discussed these documents, with reference to the relevant provisions of law. Section 19 (2) (i) of the Act reads as under: “19. Disqualification of Candidates: (1) (Omitted as not necessary). (2) A person shall be disqualiﬁed for being chosen as a member if on the date ﬁxed for scrutiny of nominations for election, or on the date of nomination under sub-section (2) of Section 16, he is – (a) to (h) omitted as not necessary. (i) In arrears of any due including the sums surcharged otherwise than in a ﬁduciary capacity, to the Gram Panchayat upto and inclusive of previous year, in respect of which a bill or notice has been duly served upon him and the time, if any, speciﬁed therein for payment has expired. Provided that where any person has paid such dues into the Government Treasury of into a bank approved by Government to the credit of the Grampanchyat Fund and obtained a challan or receipt therefor in token of such payment, he shall not be disqualiﬁed to become a member of the Grampanchayat on and from the date of such payment.” The surcharge orders, marked as Exs.A-3 to A-8, if taken as true and valid, would naturally invite disqualiﬁcation against the petitioner. An eﬀort was made by the petitioner, to convince the Tribunal as well as this court that, Exs.A-3 to A-8 cannot be taken into account, since they did not accord with Rule 5 of the Rules. It was urged that no order of surcharge can be passed in relation to accounts, for a period exceeding three years. The provision reads as under: “5 (1) Any auditor may disallow every item contrary to law and surcharge the same on the person making or authorizing the making of the illegal payments and may charge against any person responsible therefor, the amount of any deﬁciency loss or unproﬁtable out lay incurred by the negligence or misconduct of that person or of any sum which ought to have been, but is not, brought to account by that person and shall in every case, certify the amount due from such person. Explanation:- It shall not be open to any person whose negligence or misconduct has caused or contributed to any such deﬁciency or loss, to contend that notwithstanding his negligence or misconduct, the deﬁciency or loss would not have occurred but for the negligence or misconduct of some other person. Provided that, no surcharge proceedings shall be instituted after a lapse of three years from the date of completion of audit. (2) and (3) omitted as not necessary” From this, it becomes clear that the bar operates on expiry of three year from the date of audit and not from the year of accounts. There is nothing in the Rule, which prohibits the audit of the accounts of an year being conducted, at a later point of time. The record discloses that orders of surcharge were passed within three years from the date of audit report. The plea of the petitioner that the audit itself related to accounts, which are for a period more than three years anterior to the date of audit, does not become relevant. What is important under the proviso is the date of audit, and not the period, to which the accounts relate to. Once it has emerged that the surcharge orders were passed within three years from the date of order, and the petitioner did not clear the dues thereunder, it is inevitable that the disqualiﬁcation prescribed under Section 19 (2) (i) of the Act, gets attracted. Learned counsel for the petitioner submits that the orders of surcharge were not passed by an authority, prescribed under the Act, or the Rules. In this regard, it needs to be observed that neither the Act, nor the Rules, mandate that the surcharge proceedings be issued by any particular authority. In fact, the word “surcharge” is not deﬁned any where in the Act. By its very purport, it has to be understood that the reference is to an order that reveals the fact that the person, against whom it was passed, has misutilized or misappropriated the amounts of the Grampanchayat. Unless the order so passed is challenged before a competent authority, and consequently set aside, the obligation arising out of it cannot be ignored. Once it emerges that an individual had suﬀered orders of surcharge and failed to discharge the amount covered by it, he cannot escape from the consequences provided for under Section 19 (2) (i). Therefore, no irregularity can be said to have been committed by the Tribunal, insofar as it set aside the election of the petitioner as Sarpanch. The Tribunal has also recorded a ﬁnding, to the eﬀect that the 2nd respondent himself incurred such disqualiﬁcation. It took a dispassionate view and refused to grant the relief of declaration that the 2nd respondent is elected. The Tribunal adopted the correct and right course, in directing fresh election. The order in the OP does not warrant interference. The writ petition is, accordingly, dismissed. There shall be no order as to costs. ___________________________ L. NARASIMHA REDDY, J Dt: 30th September 2008 Note: L.R. copies to be marked. (B/o) PAN