Civil Writ Petition No.17098 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17098 of 2010 Date of Decision:17.05.2011 Gram Panchayat, Village Jatuwas ......Petitioner Versus Financial Commissioner, Haryana and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Shilak Ram Hooda, Advocate, for the petitioner. Mr.Narender Singh, Deputy Advocate General, Haryana, for respondent Nos.1 to 5. Mr.Mukesh Verma, Advocate, for respondent No.6. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, culminating in the commencement, relevant for disposal of the present writ petition and emanating from the record, is that Smt.Bimla Devi-respondent No.6 was elected and remained as a Sarpanch of the petitioner-Gram Panchayat, Jatuwas, District Rewari(for brevity “the petitioner- Gram Panchayat”) till April, 2005. Thereafter, she ceased to be its Sarpanch after completion of her term. 2. The petitioner-Gram Panchayat claimed that during her tenure as a Sarpanch, she committed certain irregularities and caused a financial loss to the Gram Panchayat. The Block Development and Panchayat Officer-respondent No.4 (for short “the BDPO”) assessed and directed her to deposit the impugned amount of Rs.1,26,506/- in this regard, in the account of Gram Panchayat, by way of impugned order/letter dated 31.10.2008(Annexure P/6), in view of the provisions of Section 53(2) of The Haryana Panchayati Raj Act, 1994(hereinafter to be Civil Writ Petition No.17098 of 2010 2 referred as “the Act”). 3. Dissatisfied with the order/letter(Annexure P/6), respondent No.6 filed the appeal(Annexure P/10), which was dismissed as well by the Deputy Commissioner-cum-Appellate Authority(for short “the Appellate Authority”), by virtue of order dated 27.07.2009(Annexure P/11). 4. Still aggrieved by the orders(Annexures P/6 and P/11), Smt.Bimla Devi, Ex-Sarpanch(respondent No.6) filed the revision petition, which was accepted by the Financial Commissioner and Principal Secretary to Government of Haryana, Department of Development and Panchayat, Haryana-respondent No.1 (for brevity “the Revisional Authority”) by means of impugned order dated 19.01.2010(Annexure P/12) and directed the Deputy Commissioner, to take necessary action against the concerned BDPO in this respect. 5. The petitioner-Gram Panchayat did not feel satisfied and preferred the present writ petition, challenging the vires & validity of the provisions of Section 53(5) of the Act, being ultra vires, against the spirit of Constitution and public policy and impugned order(Annexure P/12), invoking the provisions of Articles 226/227 of the Constitution of India. 6. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant writ petition in this context. 7. As is evident from the record that respondent No.6, Ex.-Sarpanch ceased to be a Sarpanch of the petitioner-Gram Panchayat in the month of April, 2005. A show cause notice was issued to her on 22.08.2008 under Section 53 of the Act and she was directed to make the payment of Rs.1,26,506/- by the BDPO, through the medium of order(Annexure P/6). The appeal filed by her was also dismissed by the Appellate Authority by means of order(Annexure P/11). However, the revision petition filed by Bimla Devi(respondent No.6) was accepted by the Revisional Authority, by virtue of impugned order dated 19.01.2010 Civil Writ Petition No.17098 of 2010 3 (Annexure P/12), which in substance is, as under:- “However, it is undisputed fact that the Block Development and Panchayat Officer had issued a show cause on 22.08.2008. It is also admitted that the petitioner ceased to be a Sarpanch w.e.f. April, 2005. As such, the prescribed authority had called upon the petitioner to make good the loss to the Gram Panchayat beyond the period of limitation and hence the impugned recovery orders are not sustainable in the eyes of law. Therefore, the revision petition is allowed and impugned recovery orders are set aside. However, before parting with this, it will be appropriate to observe that the Block Development and Panchayat Officer, Rewari had submitted its report vide his letter dated 19.04.2006 but he did not issue a show cause notice to the petitioner within the period prescribed under the law and thus the then Block Development and Panchayat Officer was reluctant in performance of his duties. Therefore, the Deputy Commissioner is directed to take necessary action against the delinquent Block Development and Panchayat Officer, including recovery of the said amount.” 8. What is not disputed here is that the Constitutional validity/vires of Section 53(5) of the Act was upheld in this case by the First Division Bench of this Court, vide order dated 20.01.2011, the operative part of which is, as under:- “Under sub-section 2 of Section 53, the concerned Authority named therein, after giving an opportunity to explain to the Sarpanch or the Panch, as the case may be, is empowered to make an assessment of the amount of the loss caused in respect of the property of the Gram Panchayat and thereafter take necessary steps for recovery. Sub-Section(3) deals with the revisional powers of the Director whereas Sub-Section(4) provides for the suo moto revisional powers of the State Government. Sub-Section(5) introduces a kind of limitation of six years after the occurrence of the incident of loss or two years from the date that a person had ceased to be a Sarpanch or Panch. The limitation that has been provided by Sub-Section (5) is with regard to the initiation of the process of determination of the question as to whether there has been any loss, waste or mis-application caused to the property of the Gram Panchayat. This is made clear by the use of the words in Sub-Section 5 to the effect that “no person shall be called upon to explain why he should not be required to make good any loss, after the expiry of six years from the occurrence of the loss, waste or Civil Writ Petition No.17098 of 2010 4 mis-application or after the expiry of two years from his ceasing to be a Sarpanch, or Panch as the case may be, whichever is earlier. Sub-Section (5), therefore, does not bar the eventual steps for recovery that may follow the determination of loss, waste or mis-application, as may be. The bar imposed is only with regard to the initiation of the process by asking upon the delinquent to explain. If Sub-Section(5) of Section 53 is construed in the above manner, there is no infirmity in the said provisions of the Act. The challenge with regard to the validity of Sub-Section 53(5) having been answered in the above manner, we are of the view that it will only be proper for us to refer this matter to the learned Single Judge for a decision on the merits of the revisional order dated 19.01.2010(Annexure P-12) passed by the Financial Commissioner and Principal Secretary to the Government of Haryana, Development and Panchayat Department, Chandigarh. Office to place the case before the learned Single Judge on 16.03.2011.” 9. Meaning thereby, once the Constitutional validity/vires of Section 53 (5) of the Act, having been upheld by the First Division Bench of this Court, in that eventuality, respondent No.6 cannot possibly be called upon to explain and to make good any loss, after the expiry of six years from the occurrence of loss, waste or misapplication, or after the expiry of two years from her ceasing to be a Sarpanch, whichever is earlier. Therefore, to my mind, the Revisional Authority has rightly accepted her revision petition, set aside the recovery order and directed the Deputy Commissioner, to take necessary action against the concerned BDPO in this relevant connection. That appears to be the evident reason that the concerned BDPO prompted the petitioner-Gram Panchayat to file the present writ petition, challenging the vires of Section 53(5) of the Act and the impugned order (Annexure P/12) in this relevant behalf. 10. In this view of the matter, it is held that the Revisional Authority has rightly accepted the revision petition of respondent No.6, in view of Section 53(5) of the Act and the contrary arguments of the learned counsel for the petitioner “stricto-sensu” deserve to be and are hereby repelled under the present set of Civil Writ Petition No.17098 of 2010 5 circumstances. 11. Moreover, the Revisional Authority has recorded the valid reasons in this regard. Such order, containing the valid grounds, cannot legally be set aside, in exercise of writ jurisdiction of this Court, unless the same is perverse and without jurisdiction. As, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, therefore the impugned order (Annexure P/12) deserves to be and is hereby maintained in the obtaining circumstances of the case. 12. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 13. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. May 17, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No