Ravinder Vs. Rattan Singh and ors. - Court Judgment

Hemant Gupta, J.

1. The petitioner is aggrieved against the order passed by the Election Tribunal on 4.4.2003 whereby the election of the petitioner as Sarpanch of Gram Panchayat was set aside on the ground that the petitioner was defaulter of the panchayat and, thus, not eligible to contest as Sarpanch.

2. The nomination for election to the post of the Sarpanch was required to be filled in from 26.02.2000 to 28.2.2000. The petitioner herein submitted his nomination papers on 28.2.2000 and was declared elected as Sarpanch in the polling which was conducted on 12.3.2000. Respondent No.l Rattan Singh challenged the election of the petitioner herein (hereinafter to be referred to as'the elected candidate')by way of election petition under Section 176 of the Haryana Panchayati Raj Act, 1994 (hereinafter to be referred as 'the Act') only on the ground that the elected candidate was defaulter of Gram Panchayat at the time of filing of nomination papers and, thus, he was ineligible to contest the election of Sarpanch.

3. It was alleged that Rajesh, real nephew of the elected candidate, has taken on lease an agricultural plot from the Gram Panchayat in the year 1992-93 in open auction for a sum of Rs. 31,200/-. Rajesh failed to make the payment of lease to the Gram Panchayat but on 7.3.1993 an amount of Rs. 31,200/- was paid to Gram Panchayat Ghogripur. The said amount of Rs. 31,200/- was received from Rajesh by the elected candidate who was then Panch of the Gram Panchayat and issued receipt no. 16 in Form-4 to said Rajesh. After the receipt of the said amount, the elected candidate failed to deposit it in the account of the Gram Panchayat. A sum of Rs. 31,200/- is reflected as due and payable by the elected candidate in the year Goshwara i.e. statement of accounts prepared in the month of March, 1993 for the year 1992-93. The Gram Panchayat passed Resolutior No. 40 dated 25.9.1994 and also called upon the elected candidate to deposit the balance amount of Rs. 28,700/- as Rs. 2500/- was deposited by the elected candidate earlier. Still further, in the Goshwara (account) prepared in the month of December, 1999, a sum of Rs. 24,000/- was still outstanding against the elected candidate as a sum of Rs. 4,700/- was deposited by the elected candidate earlier. The balance amount of Rs. 24,00/- was deposited by the elected candidate on 28.02.2000 i.e. on the last date for filling of nomination papers.

4. Before proceeding further, certain provisions of the statute would be relevant for determining the controversy between the parties in the present revision petition.

The Haryana Panchayati Raj Act, 1994

Suction 175. Disqualifications - (1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who -

(a) to (h) xx xx xx xx

(i) fails to pay any arrears of any kind due by him to the Gram Panchayat, Panchayat Samiti or Zila Parishad or any Gram Panchayat, Panchayat Samiti or Zila Parishad subordinate thereto or any sum recoverable from him in accordance with the Chapter and provisions of this Act within three months after a special notice in accordance with the rules made in this behalf has been served upon him:

(j) to (q) xx xx xx xx

Explanation 1: xx xx xx xx

Explanation 2: For the purpose of Clause (1) -

(i) a person shall not be deemed to be disqualified if he has paid the arrears or the sum referred to in clause (i) of this sub-section, prior to the day prescribed for the nomination or candidates;

The learned counsel for the elected candidate has vehemently argued that :-

(i) the elected candidate is not a defaulter of the Gram Panchayat. The lessee Rajesh, his nephew, has not paid the lease money, therefore, the elected candidate cannot be disqualified from contesting the election as defaulter of the panchayat.

(ii) On 25.5.1993, Gram Panchayat had passed a resolution to recover the amount from Rajesh and, therefore, receipt dated 16.3.1993 was never treated as discharge of Rajesh from his liability towards the Gram Panchayat.

(iii) Under Rule ll(l)(f) of the Haryana Panchayati Raj Rules, 1995,the elected candidate was not competent to receive any money on behalf of the Gram Panchayat as it is the Sarpanch who alone is authorized to receive the money for and on behalf of the Gram Panchayat. There is no resolution authorising the receipt of money by the elected candidate.

(iv) In terms of Section 175(l)(i) of the Act, before the elected candidate could be declared as a defaulter, a notice was required to be served. However, the notice is purported to be served upon the elected candidate by refusal but the Panch who has recorded the report of refusal has not been examined nor record in this respect has been produced.

(v) No resolution of the Gram Panchayat has been produced authorising Pala Ram Panch to serve summons upon the elected candidate.

(vi) The record pertaining to the resolutions in the year 1994 and that of service of notice upon the elected candidate could not be in possession of the Sarpanch in the year 2001 as the records of the Gram Panchayat have to be handed over after the completion of the tenure and, therefore, the Sarpanch could not give certified copy of the resolution dated 25.9.1994 resolving to give notice to the elected candidate.

(vii) In view of the no dues certificates issued by the Sarpanch Exhibit RW4/A, the elected candidate cannot be disqualified. The Election Tribunal has drawn adverse inference against the elected candidate that Sarpanch has not been examined although the elected candidate has summoned the Sarpanch but he has failed to appear. The elected candidate sought coercive method for summoning the witnesses but the election-petitioner opposed such coercive method and consequently evidence was closed. Therefore,adverse inference could not be drawn against the elected candidate.

(viii) The elected candidate has paid the amount standing against his name on 28.2.20002 i.e. on the last date for filing of nomination papers and thus, he ceases to be defaulter and is, thus, eligible for election of Sarpanch.

5. To controvert the above argument raised by the learned counsel for the elected candidate, Shri Vikram Singh, learned counsel for the election-petition has vehemently argued that the elected candidate has received the amount of lease money from his qnephew Rajesh which is evident from Receipt No. 16 in Form-4 which is signed by the elected candidate alone. In the statement of accounts prepared after the close of the year in March, 1993, a sum of Rs. 31,200/- is reflected as payable by the elected candidate alone. A resolution is passed by the Gram Panchayat on 25.9.1994 wherein a sum of Rs. 28700/- is reflected as payable by the elected candidate. It was resolved that notice be issued to all the persons from whom the Gram Panchayat is to recover the amount. On 26.9.1994, a notice is addressed to the elected candidate calling upon the elected candidate to pay a sum of Rs. 28,700/- which was refused when delivered to the elected candidate by Pala Ram Panch on 27.9.1994. The statement of account prepared in the month of December, 1999, further shows that a sum of Rs. 24,000/- is due and payable from the elected candidate. All these proceedings have taken place a number of years before the nomination papers for the post of Sarpanch were to be filled in February, 2000. Still further, the elected candidate has deposited the amount on 28.02.2000 whereas Explanation 2 to Section 175 of the Act contemplates that a person shall not be disqualified if he has paid the arrears or sum referred to in Sub-clause (i) of sub-section (1) of Section 175 of the Act prior to the date prescribed for nomination of the candidate. Since the elected candidate has paid the amount on 28.2,2000, such payment is not prior to the date prescribed for nomination of candidate but such payment is on the last date prescribed for nomination. Therefore, the elected candidate was defaulter on the day of filing of nomination and, thus, ineligible to contest the election. Still further, various documents produced on the record i.e. Exhibits PI to P4 and P9, exclusively prove that the elected candidate was defaulter of the Gram Panchayat having received the amount of the lease money from his nephew and not depositing it with the Gram Panchayat.

6. I have heard the arguments addressed by learned counsel for the parties at great length and also gone through the records carefully.

7. The powers, functions and duties of a Sarpanch are contained in Section 19 of the Act whereas the duties of the Gram Sachivs are the one contained in Section 15 of the Act. The Sarpanch is responsible for the transaction of business connected with the Act or for the purpose of making any order authorized thereby, exercise such powers, perform such functions and discharge such duties as may be exercised, performed or discharged by the Gram Panchayat under the Act or the Rules made thereunder. Under section 15 of the Act, the duty of the Gram Sachiv is to maintain accurate and upto date entries in accounts record and other property of the Gram Panchayat under the General supervision of the Sarpanch. A gram Sachiv is also subject to the control of the Sarpanch and is to sign daily balances in cash book. Under Rule,l l(l)(f) of the Haryana Panchayati Raj Rules, 1995, a Gram Sachiv in addition to the duties specified in Section 15 of the Act is responsible for issuing receipt for all moneys received by the Sarpanch on behalf of the Gram Panchayat under the signatures of the Sarpanch and to sign daily balance in the cash book and also ensure that the Gram Panchayat money is credited in the account of the Gram Panchayat in the bank etc. The format of the cash book is in Form I appended to such rules. The receipts are to be signed by the Sarpanch and so are the payments. As per Note (1) appended to Form I, every entry must be signed by the Sarpanch.

8. In the present case, there is me resolution of the Gram Panchayat or delegation by the Sarpanch authorising the elected candidate to receive money on behalf of the Gram Panchayat and to give a valid discharge to the debtor. Under the Act or the Rules framed thereunder, the responsibility of receipt of dues of the Gram Panchayat was on the Sarpanch. It is so evident from the provisions mentioned above. It was also the duty of the Gram Sachiv to make entries in the cash book every day. The receipt dated 16.3.1993 is signed by the elected candidate. It is not signed either by the Sarpanch or the Gram Sachiv. Therefore, the elected candidate was not authorised either to receive money from the debtor or to give valid discharge to the debtor on behalf of the Gram Panchayat. In fact, the Gram Panchayat has also not considered such receipt as a valid discharge of liability of Rajesh initially. On 25.5.19,3, resolution Exhibit RB was passed by the Gram Panchayat to request the Deputy Commissioner to initiate action, against the defaulters of payment to the panchayat. In the said list, the name of Rajesh is reflected as a defaulter and not that of the elected candidate. If after the receipt dated 16.3.1993, the Gram Panchayat has passed a resolution to initiate action against Rajesh as defaulter on 25.5.1993, it cannot be presumed that the said resolution is ineffective and can be ignored. The Goshwara (statement of accounts) prepared in the month of March, 1993, showing a sum of Rs. 31,200/- outstanding against the elected candidate could not have been prepared at the end of the month as in May, 1993, as per resolution, it was Rajesh who was the defaulter and not the elected candidate. It may be noticed that Ajit Singh, Secretary, Gram Panchayat, appearing as a witness has deposed that Goshwara for the month of March, 1993 has been prepared by him.In the cross-examination, he has admitted that the cash book of the Gram Panchayat is written monthly and not daily, lie has further deposed that monthly cash book is written on the instructions of the Sarpanch and whatever expenses are given by the Sarpanch are entered in the cash book. Even the record of the income of the Gram Panchayat is with the Sarpanch. A perusal of the said statement shows that the statement of accounts has not been maintained as contemplated by the statute. It is apparent from the records produced. The elected candidate could not receive the amount from Rajesh for and on behalf of Panchayat. He was not authorised by the Gram Panchayat or by the Sarpanch to receive the amount from a debtor of the Panchayat. If receipt dated 16.3.1993 was to give a valid discharge to Rajesh then resolution could not have been passed on 25.5.1993 for initiation of coercive method for recovery of dues to the Gram Panchayat.

9. Under Section 175(l)(i) of the Act, no person shall be a Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat, if he fails to pay arrears of any kind due by him to the Gram Panchayat or any sum recoverable from him in accordance with the Chapters and provisions of the Act after three months of a special notice in accordance with the rules made in this behalf has been served upon him. Admittedly, the arrears were payable to the Gram Panchayat by Rajesh and not by the elected candidate. No sum was payable by him to the Gram Panchayat. The question which is required to be examined is whether assuming the amount has been received by the elected candidate from Rajesh on behalf of the Gram Panchayat, whether the elected candidate can be treated as defaulter of the Gram Panchayat. The arrears, if any, were due from Rajesh. The elected candidate is purported to have received the amount on behalf of the Gram Panchayat. The elected candidate cannot be called defaulter because he has received the amount on behalf of the Gram Panchayat. If he has received the amount, he is trustee of the amount received on behalf of the Gram Panchayat but he cannot be treated as a defaulter of the arrears which were payable by the elected candidate. Still further, the notice contemplated in clause (i) of Section 175(1) of the Act has been served upon the elected candidate by Pala Ram, one of the Panches of the Gram Panchayat.No resolution has been produced on the record or rule show which authorised a Panch to deliver the notice of the arrears upon a person from whom the arrears towards the Gram Panchayat are payable. The report is that of refusal, Pala Ram Panch has not been produced as a witness. He was the person who could depose regarding the service of the notice upon the elected candidate. The presumption of due service cannot be raised in respect of such notice as the best evidence of service of notice has not been produced.

10. The argument raised by the learned counsel for the respondent that the elected candidate was found defaulter when the resolution was passed by the Gram Panchayat on 25.9.1994. The said resolution cannot be taken into consideration for the simple reason that the statement of accounts prepared in the month of March, 1993 has been found to be not reliable. There is no reference to the earlier resolution passed by the Gram Panchayat on 25.5.1993 wherein coercive method was sought to be adopted against Rajesh. In the resolution dated 25.9.1994, the outstanding amount is shown as Rs. 28,700/- but the payment of Rs. 2,500/- on which date and by whom is not proved. Similarly, in the statement of accounts prepared in the month of December, 1999, again the sum due and payable from the elected candidate is reflected as Rs. 24,000/- but payment of Rs. 4,700/- is again not shown to have been made on which date and by whom. Therefore, the accounts on the basis of which the liability is sought to be raised cannot be relied upon as the account books are not found to be maintained in normal course of its business. The argument that the elected candidate has admitted his default when he made the payment on 28.2.2000 is again not tenable in law. The elected candidate has deposed that since his name appeared in the list of defaulters, he paid the amount to avoid any controversy regarding contest of the election to the post of Sarpanch. Such payment, according to the respondents themselves, is not discharge of the default of the elected candidate. Therefore, such payment cannot be taken into consideration for any purpose.

11. The learned Election Tribunal returned the finding that the elected candidate has defaulted on the basis of the signatures on receipt dated 16.3.1993 as well as Goshwara prepared in the month of December, 1999 and notice dated 26.9.1994. The learned Election Tribunal found that the said documents are not forged documents as the documents have been produced by the witnesses and are produced from the official custody. Still further, no dues certificate dated 28.02.2000 was not taken into consideration as the elected candidate has not examined the Sarpanch. The reasoning given by the learned Election Tribunal are not sustainable in law as the mere fact that the documents an: official will not make them genuine and reliable as the circumstances mentioned above, in fact, shows that the accounts have not been maintained by the Panchayat in accordance with the statutory provisions and the rules framed thereunder as discussed above. The onus is heavy on the election petitioner to prove that the elected candidate is a defaulter. It is not a matter of inference which can be drawn on the basis of oral evidence. The documents produced by the election petition are not sufficient to discharge the onus on the election petitioner that the elected candidate was a defaulter either in law or in fact.

12. The findings recorded by the learned Election Tribunal suffer from patent illegality and material irregularity causing manifest injustice to the elected candidate. The election has been set aside even though the elected candidate is not a defaulter of the Gram Panchayat.

13. Consequently, the revision petition is allowed and the impugned order passed by the learned. Election Tribunal is set aside. Resultantly, the election petition is dismissed.