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2022 DIGILAW 712 (HP)

Pratap Chand v. State of Himachal Pradesh

2022-11-16

TARLOK SINGH CHAUHAN, VIRENDER SINGH

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ORDER : 1. Petitioner-Pratap Singh has filed the present writ petition invoking the extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. 2. Petitioner, who is the President of Gram Sudhar Sabha, Dari, Tehsil Dharamshala, has impleaded Ex-Pradhan and Ex-Ward Member of Gram Panchayat Gabli Dari as respondents No. 4 and 5, as, according to him, they have done a lot of bungling in the funds of Mahatma Gandhi National Rural Employment Guarantee Act (hereinafter referred to as ‘MNREGA’). 3. One Nirdesh Kumar, a resident of Gram Panchayat Gabli Dari, is stated to have moved one such complaint, mentioning therein that respondents No. 4 and 5 had wrongly marked the presence in the muster rolls, for the works, which were being executed by the then Gram Panchayat under the MNREGA Scheme, whereas, at the same time, both these persons were present in the meeting of Gram Panchayat and Gram Sabha and they had wrongly claimed the wages for the same period, under the MNREGA Scheme. 4. It has been pleaded by the petitioner that when no action was taken by the authorities on the representation/complaint (Annexure P-1) made by Nirdesh Kumar, then he had obtained the information under the provisions of Right to Information Act. In response to the said request for providing the information, it has been informed that an inquiry has been conducted by the Inquiry Officer and the allegations against respondents No. 4 and 5 were proved, however, they have been warned to be cautious in future and the amount, so received by them, has been ordered to be recovered from them. 5. It is the further case of the petitioner that he, alongwith other members of the Panchayat, was waiting for the decision, to be taken by the authorities, on the report submitted by the Inquiry Officer, but, no action has been taken against them. Thereafter, a legal notice was also issued to respondents No. 1 and 2, apprising them about the fact, that the inquiry has been conducted and Audit Officer of the Panchayat, has also raised objection, in making the payments to respondents No. 4 and 5. Hence, a request has been made to take a stern action against the persons who have been indicted. 6. Hence, a request has been made to take a stern action against the persons who have been indicted. 6. However, in the month of September, 2012, respondent No. 6 has submitted a reply to the petitioner, in which the allegations against respondent No. 4, qua the fact, that she got her name entered into the muster roll of the MNREGA work, have been denied. The said attempt of respondent No. 6 has been stated to be an effort to save respondents No. 4 and 5, from the penalty, as in the inquiry, both of them, i.e. respondents No. 4 and 5, have been warned. 7. In addition to this, it has been alleged that respondents No. 4 and 5 have also misappropriated the funds, which, they had allegedly shown to be paid to Shri Chuhar Singh and Shri Saroop Chand, as these two persons were never engaged for the construction of the retaining wall. This information has also been obtained by the petitioner, under the provisions of Right to Information Act. The amount, which has been sanctioned for the construction of Samudaik Bhawan in the Panchayat area, has also been stated to be embezzled by respondents No. 4 and 5. In this regard, a representation was also made to respondent No. 2, in which, it has specifically been held that despite release of Rs. 9,54,000/- for the construction of Samudaik Bhawan, in Gabli Dari Panchayat, the building has not been constructed, but, no action has been taken by the respondents. 8. It is the further case of the petitioner that the respondents are hand in gloves with respondents No. 4 and 5 and as such, a clean chit has been given to them, by stating that respondent No. 4 had deposited a sum of Rs. 900/- in the account of the Panchayat and she has been warned to be careful in future. 9. The petitioner has also filed Civil Writ Petitions No. 2094 and 9028 of 2012, titled as Pratap Chand versus State, before this Court, in which the allegations with regard to the embezzlement and misappropriation of the funds have been levelled. In the said writ petitions, a direction was given to respondent No. 6 to examine the case and to take appropriate action, in accordance with law, with a further direction to the parties to place on record the additional material before respondent No. 6. In the said writ petitions, a direction was given to respondent No. 6 to examine the case and to take appropriate action, in accordance with law, with a further direction to the parties to place on record the additional material before respondent No. 6. Consequently, the petitioner has placed on record the photograph of the said Samudaik Bhawan, clicked in the year 2013 and written submissions, copy of which have been annexed with the writ petition, as Annexure P-12 and P-13, but, the said petition has been rejected, being not maintainable, by respondent No. 7. 10. On the basis of the above facts, the following reliefs have been prayed for, by the petitioner: “It is therefore respectfully prayed that the present petition may kindly be allowed keeping in view the facts and circumstances of the case and the respondents may kindly be directed to take action in the matter as early as possible with a further direction to them to conduct proper and complete enquiry in the matter about the illegal marking of presence in the muster-rolls of the panchayat works being done under MNREGA, where the respondent No. 4 being the Pradhan of the concerned Gram panchayat has marked her presence illegally and fraudulently in order to derive illegal benefit so that public at large may not suffer and there may be a check in the unfettered powers of the elected representatives of the Panchayats. That the respondents may also be directed to enquire about the utilization of funds of Rs. 9,54,000/- released to respondents No. 4 and 5 for the construction of Samudaik Bhawan in the then Gabli Dari Panchayat, which till date has not been constructed, in addition to the embezzlement of lakhs of rupees which were collected by respondents No. 4 and 5 by allotting place for shops in Dhumushah Mela, in the ground belonging to Panchayat since 2010 onwards, in order to cull out the truth. That the respondents may please be directed to produce unto this Hon’ble Court the complete and entire record pertaining to the muster-rolls, where the respondents No. 4 and 5 have marked their presence and has claimed the wages simultaneously while attending the meetings of the Gram Panchayat and Gram Sabha and has been found guilty by the enquiry officer, but without recommending any punishment, as also with respect to the release of funds for construction of Samudaik Bhawan and the detail of the amount collected by respondents No. 4 and 5 from mela ground by allotting shops to various hawkers since 2010.” 11. When put on notice, the writ petition has been contested by the respondents. 12. Respondents No. 1 to 3, 6 and 7 have filed the joint reply, in which, a clear cut stand has been taken by them that the action, as per the provisions of Panchayat Raj Act and the Rules, has already been taken against respondents No. 4 and 5, on the complaint of the petitioner. 13. It has not been disputed that one Shri Nirdesh Kumar had lodged a complaint, with respondent No. 2, regarding the fact that the presence has been marked, by respondents No. 4 and 5, in the muster roll and on the same day, the said two persons were present in the meeting of the Gram Panchayat. The said complaint is stated to have been sent to the Project Officer, District Rural Development Agency, Kangra at Dharamshala, who has submitted his inquiry report, in which, recommendations have been made to recover the amount from respondents No. 4 and 5. Consequently, the said amount has been recovered from them. Respondent No. 3 has also issued a warning to respondent No. 4 not to repeat such mistake in future. However, when respondent No. 4 has not deposited the entire amount, a recovery report was prepared by respondent No. 6 and Show Cause Notice was issued against respondent No. 4 on 1st December, 2012, in which, she has been directed to explain her position as to why action should not be taken against her, as per the provisions of Section 145 of the Himachal Pradesh Panchayati Raj Act, 1994 and Rule 142 of the Himachal Pradesh Panchayati Raj General Rules, 1997. Respondent No. 6 was also directed to initiate the action against the then Secretary, Gram Panchayat, Gabli Dari. Respondent No. 6 was also directed to initiate the action against the then Secretary, Gram Panchayat, Gabli Dari. The recovery of the amount from respondents No. 4 and 5 has also been made for marking their presence, as pointed out in the inquiry report. 14. It is their further stand that no amount has been sanctioned/released to Gram Panchayat Gabli Dari, for construction of Community Hall, however, an amount of Rs. 9,54,000/- was sanctioned vide letter No. 3267, dated 5th March, 2011, by respondent No. 2, under the Head “Vikas Mein Jansahyog” for the construction of Janhit Samudayik Bhawan in Village Dari and the first installment of Rs. 4 lakh was released to the Pradhan, Janhit Samudayik Bhawan Committee, Dari, on 2nd May, 2011, vide cheque No. 126248. 15. Respondents No. 4 and 5 have filed their separate reply, in which, they have taken the preliminary objections, with regard to the fact that the petitioner is having the alternative, speedy and efficacious remedy, under the provisions of Himachal Pradesh Panchayati Raj Act and the Rules framed thereunder. 16. The petition is also stated to have been filed on account of personal vengeance and enmity between the petitioner and respondents No. 4 and 5, as, in the elections held in the year 2011, the petitioner had unsuccessfully contested the election of Vice President of Gram Panchayat, Gabli Dari, as such, he has nourished a grudge against the returning candidate Shri Ashok Verma, who is stated to be the man of the group of respondents No. 4 and 5. 17. Respondent No. 4 has also given the details as to how she had won her first election in the year 1995 and thereafter, again has been elected as President of Gram Panchayat, Gabli Dari, in the year 2001. She has repeated her success in the years 2006 and 2011 also. Thereafter, she has also been elected as Councillor from Ward No. 13 in the years 2016 and 2021. According to her, the petitioner is a chronic litigant and is in the habit of lodging such type of false cases against respondent No. 4. 18. She has repeated her success in the years 2006 and 2011 also. Thereafter, she has also been elected as Councillor from Ward No. 13 in the years 2016 and 2021. According to her, the petitioner is a chronic litigant and is in the habit of lodging such type of false cases against respondent No. 4. 18. It is the further case of respondents No. 4 and 5 that when the petitioner could not succeed in the electoral battles, then, he had formed a parallel body under the name and style of ‘Gram Sudhar Sabha, Gabli Dari, Tehsil Dharamshala’ for which he had sought the NOC from respondent No. 4, which was firstly turned down and, thereafter, with the approval of the office bearers of the Gram Panchayat, Gabli Dari, the same was issued. 19. Filing of the earlier Civil Writ Petitions No. 2094 of 2012 and 9028 of 2012, by the petitioner, has not been disputed by them. The directions issued in CWP No. 9028 of 2012, dated 16th June, 2014, are stated to have been complied with by the Deputy Commissioner, Dharamshala vide letter, Annexure R-4/1. A Civil Suit against Gram Panchayat Gabli Dari, for grant of injunction, restraining the Panchayat from construction of washroom etc. over the Government land bearing Khasra No. 96, is also stated to have been filed by the petitioner. 20. According to respondents No. 4 and 5, an amount of Rs. 220/- was recovered from respondent No. 4 and Rs. 150/- was recovered from respondent No. 5 and the matter has been ordered to be closed by issuing warning against them. 21. Justifying their stand with regard to receiving the amount under the MNREGA Scheme, while reiterating their stand that the amount, which has been objected to by the petitioner, has already been deposited by them, it has been submitted by respondents No. 4 and 5 that they had marked their presence in the muster roll for that date, after attending the meeting of Gram Panchayat. 22. Rebutting the allegations, as levelled against them by the petitioner, it is further contended on behalf of respondents No. 4 and 5 that the contract for the construction of Janhit Samudaik Bhawan was given to the Contractor, Shri Ved Dhiman, to whom the amount of Rs. 4 lakh was given through cheque No. 112281, dated 11th May, 2012 and vide cheque No. 152282, dated 1st August, 2012. 4 lakh was given through cheque No. 112281, dated 11th May, 2012 and vide cheque No. 152282, dated 1st August, 2012. The said contractor has erected nine pillars at the site, however, in view of the complaints made by the residents of the area, the Government has changed the site and design for the construction of Janhit Samudaik Bhawan. Since the contractor could not raise the construction, as per the designs, as such respondent No. 4 has issued the notice to the contractor to refund the amount of Rs. 4 lakh, however, the cheque, by virtue of which the amount was stated to be refunded to the Panchayat, has been dishonoured as the person, who had issued the same, was not having the sufficient amount in his account. Thereafter, a legal notice was also served upon the said person. 23. On all these submissions, a prayer has been made to dismiss the writ petition. 24. Perusal of the record shows that in this case, it has not been disputed that the inquiry was initiated against respondent No. 4 and during the inquiry, the allegations have been found to be true. However, the amount, unauthorizedly received by respondents No. 4 and 5, is stated to have been deposited by them. Not only this, respondent No. 2, vide office order, dated 7th October, 2013, has issued warning to respondent No. 4, to remain careful in future. 25. It is apt to record herein that during the pendency of the writ petition, this Court, vide order, dated 23rd May, 2022, appointed Mr. Dinesh K. Thakur, Advocate, as Court Commissioner with a direction to visit the spot on 6th June, 2022 at 11.00 a.m. and to conduct the inquiry by recording the statements and clicking the photographs of the spot in question. 26. Consequently, the said Court Commissioner has submitted the report. The operative portion of the report of the Court Commissioner is reproduced as under: “I have observed that the land on which “Janhit Samudaik Bhawan” Dari was to be constructed, presently bearing full thick thorny shrubs. The fifteen (15) pits are there without uniform depth varying from 1.5 feet to 4 feet. Even a single elevated pillar or wall like structure is not there. The statements of locals along with photographs are attached with this report to support my conclusion.” 27. It has been admitted by the respondents that amount of Rs. The fifteen (15) pits are there without uniform depth varying from 1.5 feet to 4 feet. Even a single elevated pillar or wall like structure is not there. The statements of locals along with photographs are attached with this report to support my conclusion.” 27. It has been admitted by the respondents that amount of Rs. 9,54,000/- was sanctioned vide letter No. 3267, dated 5th March, 2011 for construction of Janhit Samudaik Bhawan in Village Dari and out of the said sanctioned amount, Rs. 4 lakh was released to the Pradhan, Janhit Samudaik Bhawan Committee, Dari, vide cheque No. 126248, dated 2nd May, 2011. This fact has also been admitted in the status report, Annexure R-3, filed by respondents No. 1 to 3, 6 and 7, wherein a specific stand has been taken that the foundation has been excavated and the work of plinth is in progress, whereas the report of the Court Commissioner, as reproduced above, is containing a different story. 28. Considering the rival stand of the parties, this Court is of the view that the official respondents have not performed their duties diligently and made futile attempts to hush up the matters, whereas, from the stand taken by the parties to the writ petition, it transpires that the public money, which has been released for a specific purpose, has not been used for the said purpose and no action has been taken by the authorities constituted under the Panchayati Raj Act as well as various authorities of the administration, i.e. Deputy Commissioner, etc. 29. In Dwarkanath, Hindu Undivided Family vs. Income Tax Officer, Kanpur and Another, (1965) 3 SCR 536 , their Lordships of Hon’ble Supreme Court have had an opportunity to discuss the scope of the powers of the High Court under Article 226 of the Constitution of India. The relevant portion of the aforesaid judgment is reproduced as under: “This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression “nature” for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself......” 30. Considering the factual position of the present case, in the light of the above decision of the Hon’ble Supreme Court, this Court is of the opinion that the allegations levelled by the petitioner regarding the misappropriation and misutilization of the Government funds, prima-facie, have been proved. 31. Accordingly, the Deputy Commissioner, Kangra at Dharamshala, is directed to take appropriate action against respondents No. 4 and 5, or any other person, found involved, on the basis of the admitted acts of forgery and misutilization of the Government funds and after formally registering an FIR, the police is directed to investigate the case and take the same to its logical end promptly, preferably, within a period of six months from today. 32. The writ petition is disposed of in the above terms, so also the pending miscellaneous applications, if any.