Karnataka High Court
Parashuram Balagunki vs The Ombudsman on 9 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 108262 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 108262 OF 2014 (GM-RES)
BETWEEN:
1. PARASHURAM BATAGUNKI,
AGE: 29 YEARS
PANCHAYAT DEVELOPMENT OFFICER,
GRAM PANCHAYAT AINAPUR,
TQ: ATHANI, DIST: BELGAUM-590001.
2. SMT. JAYASHREE S/O. NAVALAPPA MURAGUNDI,
AGE: 45 YEARS,
CHAIRMAN GRAM PANCHAYAT, AINAPUR,
TQ: ATHANI, DIST: BELGAUM-590001.
3. R.P. KHANAPURE,
AGE: 55 YEARS,
EXECUTIVE OFFICER TALUKA PANCHAYAT,
ATHANI, DIST: BELGAUM-590001.
SAROJA
HANGARAKI ...PETITIONERS
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
(BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE)
BENCH
AND:
1. THE OMBUDSMAN,
MGNREGA BELGAUM,
TQ: BELGAUM, DIST: BELGAUM-590001.
2. TAMANNA S/O. SHIVAGOUDA PARSHETTY,
AGE: MAJOR,
R/O. AINAPUR, TQ: ATHANI,
DIST: BELGAUM-590001.
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WP No. 108262 of 2014
3. VINOD S/O. GANAPATI CHALAWADI,
AGE: MAJOR,
R/O. AINAPUR, TQ: ATHANI,
DIST: BELGAUM-590001.
4. PRAVEEN P. PATIL,
AGE: MAJOR, OCC: ASST. ENGINEER,
T.P. PRE ATHANI,
R/O. AINAPUR, TQ: ATHANI,
DIST: BELGAUM-590001.
5. K.K. KULKARNI,
AGE: MAJOR,
OCC: VILLAGE ACCOUNTANT,
G.P. AINAPUR, TQ: ATHANI,
DIST: BELGAUM-590001.
...RESPONDENTS
(BY SRI. VITHAL S. TELI, ADV. FOR R2 & R3;
R1, R4 & R5 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI AND QUASH THE ORDER DATED 6/8/2014
PASSED IN OMB/MGNREGA/CR NO 347/14/839 BY 1ST RESPONDENT
VIDE ANNEXURE-E.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 07.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 108262 of 2014
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
The present writ petition is filed praying to issue a
writ of certiorari and quash the order dated 06.08.2014
passed by respondent No.1 vide Annexure-E.
2. The factual matrix of the case of the petitioners
before this Court is that respondents No.2 and 3 have filed
a false complaint making an allegation against the
petitioners that the scheme for constructing sheep and
cattle shed under NREGA scheme to SC/ST and small
farmers has been violated and the benefit has been
extended to the rich persons vide complaint dated
21.02.2014. The petitioners also contended that based on
the alleged complaint, the matter was referred to
respondent No.1-Ombudsman. The Hon'ble Ombudsman
referred the alleged complaint to the Technical Assistant
Taluk Panchayat, Athani to hold a detail enquiry and
submit a report. The authority after due enquiry,
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submitted a report by stating that the charge are baseless
vide report dated 05.04.2014.
3. Respondents No.2 and 3 i.e. complainants have
objected the said report and hence the Ombudsman
framed the articles of charges and issued notice to the
present petitioners and respondents No.4 and 5 on
24.04.2014 and articles of charges is also placed along
with this petition as Annexure-C. The complaint given by
respondents No.2 and 3 is marked as Annexure-B. The
commencement of work letter dated 15.01.2014 is
annexed as Annexure-A issued by the Taluk Panchayat,
Athani.
4. The petitioners also contended that they led
their evidence and specifically contended that list of
beneficiaries was prepared keeping in mind the norms,
rules and also the guidelines framed under the NREGA
scheme and respondent No.1 without examining the
material evidence adduced by the present petitioners has
allowed the complaint and has recommended the State to
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initiate criminal action against the petitioners and also to
initiate recovery proceedings for a sum of Rs.1,75,000/-
vide Annexure-E and hence the present petition is filed for
quashing the impugned order.
5. The petitioners in the petition urged the
Annexure-E is perverse and suffers from serious material
irregularity and impugned order at Annexure-E is against
preliminary report submitted by the Technical Assistant
Taluk Panchayat and hence it requires interference. The
finding of the respondent No.1 that no Gram Sabha was
held while preparing the beneficiary list is erroneous and
in the absence of any evidence to that effect, the order is
not sustainable.
6. It is also contended that respondent No.1 failed
to note that the beneficiaries have submitted the
application along with the requisite documents which also
includes holder certificates issued by Village Accountant
and having scrutinized the holder certificate, the
petitioners have proceeded to prepare the final list of
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beneficiaries and hence if the holder certificate furnished
by the farmers are not authenticated, the petitioners
cannot be held liable and it is only respondent No.5
against whom appropriate action is to be initiated and
hence the impugned order passed by the respondent No.1
recommending to initiate criminal action and also civil
recovery against the present petitioners is not sustainable.
7. It is also contended that the finding of the
respondent No.1 that the amount is released by the
present petitioners fraudulently to deceive the real
beneficiaries and in gross violation of rules and regulations
of NREGA scheme and the public fund has been misused,
is capricious and contrary to the material on record.
Respondent No.1 has not at all conducted a fair enquiry
since the first respondent has recommended a recovery in
respect of beneficiary mentioned at Sl.No.49 and 50 and
when admittedly no amount is released in their favour, the
Ombudsman failed to take note of the beneficiary
mentioned at Sl.No.7, 24, 25 and 26 are eligible and
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hence it requires interference. The beneficiary at Sl.No.26
owns only 2 acres of land in Sy.No.8/2+3/1 and hence the
benefit under the scheme has to be extended in favour of
Sl.No.26 and hence it requires interference.
8. Learned counsel for the petitioners in his
argument reiterating the grounds urged in the petition,
brought to notice of this Court para 16 of Annexure-E and
the documents of Exs.D1 for which D3 has prepared
estimate and he has written MB in respect of 33 works,
Ex.D2 to D.34 of beneficiaries and also prepared bills NMR
and material charges. The bills have been produced by D3.
Accordingly PDO has made the payment. The PDO,
Ainapur has produced D1 to D34 individual files of these
beneficiaries. The statement of DW.1 indicates that E.O.
T.P. Athani, who has scruitinized all the necessary
documents and issues sanctioned orders. Based on this
material PDO has made the payment to the beneficiaries.
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9. Counsel also vehemently contends that the
reasoning given by the respondent No.1 is against the
material on record and it requires interference.
10. Per contra, counsel for the respondents would
vehemently contend that the specific allegation is made in
the complaint at Annexure-B and also Annexure-A clearly
discloses that the order issued by the Taluk Pancnayat
Athani commencement of work is on 15.01.2014 and each
work is for Rs.35,000/-. The respondent No.1 also while
considering the material on record, rightly comes to the
conclusion that the petitioners have committed
misappropriation and criminal breach of trust by cheating
and committed mischief with common malafide intention
fraudulently and deceived the real beneficiaries and
misused the public fund to the tune of Rs.1,75,000/- and
hence rightly invoked the offences against the petitioners
to prosecute the petitioners since they indulged in
committing the offence of criminal breach of trust and
indulged in also creating documents and using them.
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11. Counsel brought to notice of this Court the
allegations made in the complaint and while answering the
point for consideration in detail discussed para No.6 and 7
narrating the complaint averments in para NO.8 also
discussed with regard to the documents which have been
placed on record before the respondent and particularly
para No.9 discussed documents which have been exhibited
and all of them are having large extent of land and all of
them not come within the purview of the scheme.
Particularly relied upon P.1 to P.10 so also holding
certificate issued by the village accountant in respect of
beneficiaries at Sl.No.7, 25, 26, 49 and 50. Ex.P.11 to 17
establishing misuse of the funds.
12. Counsel would also contend that delinquents
have misused the government funds, which was
earmarked for the SC/ST and marginal farmers and also
contends that the petitioners acted upon based on the
certificate issued by the village accountant who is not
competent to issue such certificate aad same has been
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discussed at para No.11, 12 and 13. Respondent No.1 also
comes to the conclusion that the holding certificate in
respect of beneficiaries is to be obtained either from
Tahasildar or Revenue Inspector and not from the Village
Accountant and holding certificates issued by the Village
Accountant have been relied upon and extended the
benefit to the above persons having taken Rs.35,000/- in
respect of those persons and rightly comes to the
conclusion that Rs.1,75,000/- has been misappropriated
and committed criminal breach of trust and hence invoked
criminal offences and hence it does not require any
interference.
13. Having heard both the learned counsels and
considering the grounds urged in the petition, the
following point would arise for consideration:
"Whether respondent No.1 has committed an
error in passing an order in terms of Annexure-E
recommending to the State Government to
initiate appropriate criminal action as well as
ordering to make good of the misappropriated
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amount of Rs.1,75,000/- with interest against
the petitioners and it requires quashing of the
same?
14. Considering the material on record, it is not in
dispute that the work commencement order was issued by
Taluk Pancnayat, Athani on 15.01.2014. Each work is also
estimated cost of Rs.35,000/-. It is also not in dispute that
members of the very same Gram Panchayat of Ainapur
have given complaint in terms of Annexure-B wherein
specific allegation is made that in violation of guidelines
the work was entrusted to the rich persons. It is also not
in dispute that respondent No.1 referred the matter to the
technical person and he has given the report that no such
misappropriation was taken place. It is not in dispute that
the said report has been objected by respondents No.2
and 3. It is important to note that in terms of Annexure-C
articles of charges are also framed against the petitioners
on 24.04.2014. It is not in dispute that enquiry is
conducted and while conducting enquiry relied upon
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documents at Ex.P.1 to P.19 and on the other hand two
witnesses have been examined on behalf of petitioners
and documents Exs.D.1 to D.27 are marked.
15. I have already pointed out that specific
allegations made against petitioners in terms of Annexure-
B and report at Annexure-E also discloses that in para
No.6 and 7 the allegation is that there is misappropriation
of government money which was meant for real
beneficiaries. Complainants have also produced documents
and list of beneficiaries marked at Ex.P.2. It is their case
that beneficiaries at Sl.No.7, 25, 26, 49 and 50 are very
rich persons not coming under the category of SC/ST and
marginal farmers. In order to prove the same, they have
relied upon Khata extract of beneficiaries at Ex.P.3 to
P.17. Khata extract of beneficiaries namely Girimallappa
and Ashok S/o Shivaputra Ganiger, shows the total holding
of this beneficiaries is 8 Acres 13 Guntas. Ex-P4 reveals
that, another Khata extract of same person Girimallappa
Shivaputra Ganiger is holding 5 Acres 6 Guntas and
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holding of Ashok Shivaputra Ganiger is holding 7 Acres 13
Guntas. As per Ex-P5 and holding of Jantennavar
1)Housabai 2)Appasab 3) Tatyasab 4) Babasab S/o Ramu
Jantennavar is 18 Acres 17 Guntas, as per Ex-P6 and Ex-
P7 indicates that, holding of beneficiaries 7 Acres 29
Guntas and Ex-P7 & P8 is a Khata extract of same
persons, total holding is 11 Acres 29 Guntas. Ex-P9 Khata
extract of beneficiaries Smt. Rajeshree Sunil Patil, reveals
that, this beneficiaries having 19 Acres 10 Guntas and Ex-
P10 holding of another beneficiaries Bhopal Bhima
Mangavi is 8 Acres 3 Guntas. Holding certificate issued by
village accountant in respect above said beneficiaries
marked at Ex.P.11 to P.17.
16. Having taken note of all these documents,
comes to the conclusion that the NREGA authority without
following the rules and regulations under NREGA scheme,
the petitioners have misused and misappropriated public
money and committed criminal breach of trust, by creating
false and fabricated documents with active collusion of
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Village Accountant R5 and thereby misused the public
fund, without extending the benefit to the real
beneficiaries coming under the category of SC/ST and
marginal farmers.
17. The main contention of the petitioners in the
petition is that respondent No.1 failed to note that
beneficiaries have submitted an application along with
requisite documents which also includes holder certificate
issued by Village Accountant and having scrutinized the
holder certificate petitioners have proceeded to prepare
the final list of beneficiaries and hence if the holder
certificates furnished by the farmers are not authenticated
the petitioner cannot be held liable and it is only
respondent No.5 against whom appropriate action is to be
initiated. The very said contention cannot be accepted
since the holder certificate issued by respondent No.5 is
authenticated or not, it ought to have been verified by
petitioners being the Panchayat Development Officer,
Chairman of Gram Panchayat and Executive Officer of
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Taluk Panchayat, Athani. When NREGA rules are clear that
holder certificate in respect of beneficiaries is to be
obtained either from Tahasildar or from Revenue Inspector
and no such documents are produced and delinquents
having thrown the rules and regulations of NREGA scheme
and committed dereliction of duty and same is discussed
in para No.18 in keeping the original documents which
have been placed and marked as stated in para No.9 and
10 and specific allegations are also made that they have
violated norms and rules and regulations.
18. The other contention of the petitioners before
this Court is that the beneficiaries mentioned at Sl.No.49
and 50 admittedly no amount is released in their favour
and to that effect no such document is placed before
respondent No.1. The other contention that respondent
No.1 failed to take note of that beneficiaries mentioned at
Sl.No.7, 25, 26 are eligible and hence their enquiry is not
fair enquiry and in order to substantiate the same nothing
is placed on record. No doubt the petitioners have relied
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on D.1 to D.37 and those containing action plan for the
year 2013-14 and D.2 to D.34 are shed and cattle shed of
33 beneficiaries and D.35 to 37 are khata extract and
holding certificate of beneficiaries and nothing is pointed
out as against documents Ex.P.3 to P.17 i.e. khata
certificates of different beneficiaries as set out in para
No.9 and they are all having large extent of lands and
those documents are not considered by the petitioners.
19. The other contention is that respondent No.1
failed to take note of beneficiaries at 26. He owns only 2
acres of land in Sy.No.8/2+3/1. In order to substantiate
the same, nothing is placed on record though grounds
have been urged in the petition and only referred the
order passed by respondent No.1 and when such being the
material on record, I do not find any error committed by
respondent No.1 in relying upon document P.3 to P.17.
Respondent No.1 also taken note of evidence of PW.1 and
nothing is elicited in the cross-examination of PW.1 and
merely the scheme was implemented based on the holding
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certificate issued by village accountant who is not
competent to issue such certificate and also taken note of
Ex.D.2 to D.34 and khata extract and holding certificate
issued to beneficiaries at Sl.No.7, 25, 26, 49 and 50
clearly indicates that they are not entitled to get benefit
under NREGA and same has been discussed in para No.14
of the order.
20. When such material has been considered by
respondent No.1, the petitioners have floated the norms,
rules and regulations in extending the benefit of scheme to
rich persons as alleged in the complaint and the same has
been substantiated by producing Ex.P.3 to 17, I do not
find any error committed by respondent No.5
recommending the State to initiate criminal action and
ordering for making good of the misappropriated amount
of Rs.1,75,000/- with interest.
21. In view of the above, I do not find any error
committed by respondent No.1 in passing Annexure-E and
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hence there is no merit to quash Annexure-E. Accordingly,
the point framed above is answered in negative.
22. In view of the discussions made above, I pass
the following:
ORDER
The writ petition is dismissed.
Sd/-
(H.P. SANDESH) JUDGE sh Ct-mck List No.: 3 Sl No.: 1