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2010 DIGILAW 402 (ORI)

Satyabadi Rout v. State of Orissa

2010-06-23

R.N.BISWAL

body2010
JUDGMENT R.N. BISWAL, J. — In this writ petition, the petitioner challenged the order dated 3.3.2010 passed by learned Collector, Cuttack, under Annexure-11. 2. As per the writ petition, the petitioner is the Sar¬panch, while opp. party No.4 is the Naib Sarpanch of Mahulia Gram Panchayat. Opp.Party No.4 wanted to dislodge the petitioner from his seat and take charge of the office of Sarpanch. She filed a number criminal cases against the petitioner on false allega¬tions. She along with some of her henchmen filed a false com¬plaint before learned Collector, Cuttack against the petitioner on several grounds, including the ground that he was allotted with execution of the work “LI work (4th phase) of Apokhia drain” by the B.D.O. Baramba on 12.2.2004 with an estimated cost of Rs.50,000/-. Measurement and check measurement of the work was done by J.E. and A.E. of the Block on 12.1.2005 and 13.1.2005 respectively and in the first phase, payment of Rs.39,883 was made to him on 24.3.2005 followed by payment of Rs.10,117/- in the 2nd phase on 8.8.2008 after final measurement was done by the competent authority. 3. On receipt of the complaint, the Collector Cuttack, issued show cause notice to the petitioner and accordingly, he filed his show cause on 30.12.2009 denying the allegations. After hearing the parties, learned Collector, Cuttack held that the aforesaid work was allotted to the petitioner prior to declara¬tion that the petitioner was elected as Sarpanch of Mahulia Gram Panchayat. But the final measurement and payment having been made for the said work during the incumbency of the petitioner as Sarpanch, he disqualified him to hold the office of Sarpanch in view of the provision contained under Section 25(1) (h) of the Orissa Gram Panchayat Act, 1964 (hereinafter referred as “G.P. Act”), which is under challenge in this writ petition. 4. Learned counsel for the petitioner submitted that since the petitioner was allotted with the work in question as the village leader under Sampoorna Graameen Rozgar Yogana (herein af¬ter referred as “SGRY”), it cannot be said that he held any office of profit under the State or Central Government or any local authority, so as to be disqualified to continue as Sar¬panch, as envisaged under Section 25(1) (h) of the G.P. Act. So, the order under challenge should be quashed. On the other hand, learned Addl. Govt. So, the order under challenge should be quashed. On the other hand, learned Addl. Govt. Advocate contends that, even if it is pre¬sumed that the petitioner did not hold any office of profit under the State or any local authority by taking the aforesaid work, still then it can be said that he was interested in a subsisting work being done for the G.P. So he is disqualified to continue as Sarpanch under Section 25(2) read with section 25(1)(n) of the G.P. Act. Only because learned Collector, Cuttack erroneously mentioned that the petitioner was disqualified to continue as Sarpanch under Section 25(1) (h) of the G.P. Act, the order under challenge cannot be quashed. In support of his submission he relied on the decision Karnam Laxmipati Padmini Vs. State of Orissa, 1992 (I) OLR 262. 5. It is relevant to quote para of 5.18.1 of the SGRY to find out whether the petitioner held any office of profit under any State Government or any local authority as he executed the aforesaid work. It reads as follows: “5.18.1. Ban on Contractors and Labour Displacing Machines-The programme will be implemented departmentally only. Contractors are not permitted to be engaged for execution of any of the works under the programme. No middleman or any other intermediate agency should be employed for executing works under the programme. The full benefit of wages to be paid should reach the workers and the cost of the works should not involve any commission charges payable to such contractors, middlemen, or intermediate agency. The implementing Agencies are also not al¬lowed to engage Labour Displacing Machines.” In view of this provision it cannot be said that the peti¬tioner held any office of profit under the State Government or any local authority during his incumbency as Sarpanch. Section 25(1) (n) of the Orissa G.P.Act reads as follows: “25. Disqualification for membership of Grama Panchayat. The implementing Agencies are also not al¬lowed to engage Labour Displacing Machines.” In view of this provision it cannot be said that the peti¬tioner held any office of profit under the State Government or any local authority during his incumbency as Sarpanch. Section 25(1) (n) of the Orissa G.P.Act reads as follows: “25. Disqualification for membership of Grama Panchayat. (1) A person shall be disqualified for being elected or nominated as, a Sarpanch or any other member of the Grama Pan¬chayat constituted under this Act, if he - xx xx xx xx xx xx xx xx xx xx xx xx (n) is interested in a subsisting contract made with or in any work being done for the Grama Panchayat or the Samiti, or any Government except as a Shareholder other than a Director in an incorporated company or as a member of a Co-operative Society.” 6. Learned counsel for the petitioner at this stage submitted that the petitioner completed the work prior to his election as Sarpanch. So, it cannot be said that he was interested in the work during his incumbency as Sarpanch. On the contrary, learned Addl. Govt. Advocate contended that since the final measurement and check measurement were made and petitioner re¬ceived payment of the final bill while acting as Sarpanch, it can be said that he was interested in the work being done. In the decision Gajendra Swain Vs. B.D.O.-cum-Election Officer and others, 64 (1987) C.L.T.21, a Division Bench of this Court held as follows: “Therefore, having regard to the provisions contained in Section 25(1)(n), our answer is that inasmuch as despite the contractor’s execution of his part of the contract and passing of the final bill, if payment is not made, the party has to fall back on the contract for enforcement of his right, the contract does not come to an end until the other part, namely, the Govern¬ment performs its part by making the payment.” So, in the instant case, even though the work was executed prior to the election of the petitioner as Sarpanch, since final bill was paid during his incumbency as such, it cannot be said that the contract came to an end before he was declared to be elected as Sarpanch. I have already held that petitioner did not hold any office of profit under the State or Central Government or any other local authority. I have already held that petitioner did not hold any office of profit under the State or Central Government or any other local authority. But the pertinent question is whether he was interested in the work being done while acting as Sarpanch. As stated earlier, as per para-5.18.1 of the SGRY, contractors are not permitted to be engaged for execution of any work under the said Scheme. No middleman or any other intermedi¬ate agency should be employed for executing the work under the programme. The full benefit of works to be paid should reach the workers. Furthermore, as per the said provision the cost of the work should not involve any commission charges, payable to such contracts, middleman or Intermediate agency. So in my considered opinion, the petitioner was not interested in the work in ques¬tion. 7. Accordingly, the writ petition is allowed and the order of learned Collector, Cuttack passed under Annexure-11 is hereby quashed. No cost. Petition allowed.