IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3816 of 2009 (O&M) Date of decision : 22.2.2010 Ashwani Kumar ....Appellant Versus Punjab State and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. R.K.Arya, Advocate for the appellant. ..... MAHESH GROVER, J. C.M.No.11653-C of 2009 Allowed as prayed for. C.M.No.11654-C of 2009 in/and R.S.A.No.3816 of 2009 This regular second appeal is directed against the judgments of the learned trial court dated 2.11.2007 and that of the first Appellate Court dated 1.4.2009. The appellant, who is plaintiff, had filed a suit for declaration to the effect that the amount being recovered from him on account of misutilisation of the grants meant for the benefit of the village was illegal, null and void. The respondents, who had pleaded that the appellant had misutilised such grants, had proceeded against the appellant after the fact had been determined in the audit of the accounts. R.S.A.No.3816 of 2009 (O&M) -2- Both the courts have determined against the appellant and in the instant appeal learned counsel for the appellant has contended primarily that by virtue of the provisions of Section 216(4) of the Punjab Panchayati Raj Act, 1994 the recovery sought to be effected is clearly barred by time. He contended that the appellant had abrogated his position as a Sarpanch in the year 1998 and the recovery which is being made from him is of the year 2001 which is clearly barred by the provisions of the aforesaid provisions which are extracted herein for the proper adjudication of the controversy :- “Notwithstanding anything contained in this section no person shall be called upon to explain why he should not be required to make good any loss, after the expiry of four years from the occurrence of the loss, waste or misapplication or after the expiry of two years from his ceasing to be a member, whichever is later.” After hearing the learned counsel for the appellant and on perusing the impugned judgments, I am of the considered opinion that the appeal is totally without any merit. The aforesaid fact of the recovery being barred by the provisions of Section 216(4) of the Punjab Panchayati Raj Act, 1994 was never pleaded by the appellant. This fact was essential to be pleaded as the respondent might have had a justifiable reason for explaining the delay in effecting the recovery. In any eventuality, since the point was argued before the learned trial court, some material had found its way therein which reveals that a proper inquiry had been conducted against the appellant by the Deputy Chief Executive Officer, Zila Parishad R.S.A.No.3816 of 2009 (O&M) -3- which proceedings the appellant chose not to associate himself with. The appellant himself brought on record a letter dated 22.7.2002 issued by the Block Development and Panchayat Officer, Pathankot which was served upon the appellant vide Ex.P-3 wherein it had been specifically mentioned that the assessment has been made by the Chief Executive Officer, Zila Parishad, Gurdaspur who had made recovery and sent it by registered letter dated 22.2.2000 informing the appellant that notice had been served and a report had been made regarding the acceptance of this notice and the appellant had refused to append his signatures to the said document. The service of the notice dated 9.6.2000 was duly proved on record. Therefore, it does not lie in the mouth of the appellant to now state that the recovery was belated. In any eventuality, the appellant has not raised any substantial question of law in the instant appeal. Besides, the appellant has merely denied that he was not liable to pay the amount. He made no challenge to the recovery on the ground that proper procedure has not been followed before effecting such a recovery. The respondents on the other hand have clearly pleaded that the inquiry was conducted against the appellant after the audit had raised the objection and after establishing his guilt the recovery was sought to be recovered and the delay in resorting to recovery stood established and attributed to the procedure resorted to by the respondents to prove the guilt of the appellant. In view of the aforesaid, there is no merit in the appeal and the same is accordingly dismissed. R.S.A.No.3816 of 2009 (O&M) -4- Consequently, the stay application is also dismissed. 22.2.2010 (MAHESH GROVER) JUDGE dss