Allahabad High Court
Shiv Kumar Patel vs State Of U.P. And 2 Others on 28 July, 2022
Author: Rajesh Bindal
Bench: Rajesh Bindal
HIGH COURT OF JUDICATURE AT ALLAHABAD
HIGH COURT OF JUDICATURE AT ALLAHABAD
***
SPECIAL APPEAL No. - 216 of 2022
(Arising out of Writ - C No. 24314 of 2021)
Shiv Kumar Patel
.............. Appellant
Through :-
Mr. Ashish Kumar Srivastava and Mr. Ajai Kumar Singh Yadav, Advocates
v/s
The State of U.P. and others
.............. Respondents
Through :-
Mr. A.P. Paul, State Law Officer for Respondent Nos.1 and 2 and Mr. Gyan Bahadur Singh, Advocate for Respondent No.3
CORAM :
HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE J.J. MUNIR, JUDGE
ORDER
1. This special appeal is directed against the order of the learned Single Judge dated 18.10.2021, dismissing the appellant's writ petition. The petitioner-appellant instituted the writ petition, giving rise to this appeal, asking for the issue of a writ of mandamus to the District Magistrate, Prayagraj to decide proceedings under Section 95(1)(g) of the Uttar Panchayat Raj Act, 1947 (for short, 'the Act of 1947'), pending before him against respondent no.3, Chamela Devi, the Village Pradhan, within some stipulated period of time as the Court may determine.
2. Shorn of unnecessary details, Chamela Devi was elected as the Village Pradyan of Village Shivlal Ka Pura, Post Gohri, Tehsil Soraon, District Prayagraj in the elections held in the year 2016. It is the petitioner-appellant's case that respondent no.3 committed misfeasance in office during her tenure. The petitioner-appellant, who shall hereinafter be referred to as 'the writ petitioner, instituted a Public Interest Litigation No. 1944 of 2020, Shiv Kumar and others v. State of U.P. and others, seeking a direction to the District Authorities to make an inquiry into those acts of misfeasance alleged, and cause an FIR to be lodged for the offence of the misappropriation and embezzlement of public moneys. A Division Bench of this Court vide order dated 08.02.2021 disposed of the writ petition virtually dismissing it on the ground of availability of an efficacious statutory remedy. That remedy was said to be available under Rule 3 of the Uttar Pradesh Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Inquiry Rules, 1997 (for short, 'the Rules of 1997'). In fact, the said rules are referable to the powers available to the State Government, or on its behalf with the District Magistrate under Section 95(1)(g) of the Act of 1947.
3. The writ petitioner on 10.05.2021 moved a complaint to the District Magistrate, Prayagraj under Section 95(1)(g) of the Act of 1947, complaining of misdemeanour in office against respondent no.3, involving defalcation of public money. There was inaction on the District Magistrate's part to proceed further on the said complaint. This led the writ petitioner to move the present petition, seeking a mandamus in the terms prayed.
4. Before the learned Single Judge, it was contended by the learned Counsel for the writ petitioner that where any financial irregularities have been committed by a Pradhan, the District Magistrate ought to deprive her of her financial powers, after the necessary preliminary inquiry, with the ceasure of powers continuing until the Pradhan is exonerated in the final inquiry. It was also argued before the learned Single Judge, as would appear from the impugned judgment, that Section 27 of the Act of 1947 envisages proceedings by way of surcharge. These proceedings are designed to recover loss, waste or misappropriation of money or property belonging to the Gaon Sabha. The Prescribed Authority has been entrusted with the duty to fix the amount of surcharge, which shall be recovered from the Pradhan or the other person concerned by the Collector.
5. The State, on the other hand, contended that respondent no.3 was in office as the Village Pradhan until 02.05.2021, and after fresh elections to the post of Pradhan in the State of Uttar Pradesh were held in the month of April, 2021, respondent no.3 has been replaced by another incumbent. It was emphasized that the complaint moved by the writ petitioner was on 10.05.2021, that is, after respondent no.3 had demitted office. As such, the State or its Authorities, including the District Magistrate, could not proceed under Section 95(1)(g) of the Act of 1947, read with the Rules of 1997. It was, particularly, argued that it is only in an audit or inquiry that facts are discovered to show that any sum of money has been misappropriated, and, thereupon, proceedings for surcharge can be initiated against a Pradhan under Section 27 of the Act of 1947. It was also contended on behalf of the State that the writ petitioner had not been able to show that any sum of money, allegedly embezzled by respondent no.3, on an inquiry made by the competent Authority, had been found to be defalcated. The learned Single Judge, before whom the writ petition came up, proceeded to formulate the following question:
"Whether provision of Section 95 (1) (g) of the Act of 1947, as well as Section 27 and Rules 256 and 257 of the Rules of 1947 are applicable against an ex Pradhan on the complaint being lodged after he/she ceased to be a Pradhan"
6. The learned Judge undertook a survey of the provisions of Section 95(1)(g) and Section 27 of the Act of 1947, besides Rules 256 and 257 of the Uttar Pradesh Panchayat Raj Rules, 1947, framed under the Act of 1947 (for short, ''the Rules of 1947') that have been extracted in the impugned judgment. We would only refer to so much of them as elucidate the point upon which, according to us, the decision turns. The learned Judge, on a conjoint reading of the provisions of Section 95(1)(g) and Section 27 of the Act of 1947 together with Rule 256 of the Rules of 1947, held that though the provisions for surcharge under Section 27 entitle the State for recovering money on account of loss, waste or misuse of any money or property belonging to the Gaon Sabha, caused by a misconduct or neglect of the Pradhan, independent of proceedings under Section 95(1)(g) of the Act, but the powers under Section 27 can be invoked if proceedings against the Pradhan, under Section 95(1)(g) or Section 27, are initiated while the Pradhan is in office.
7. It has further been held that the Act and the Rules do not envisage a contingency, where a Pradhan, whose term has come to an end, can still have his conduct inquired into while in office and recovery made for loss, waste or misuse of Gaon Sabha money or property under Section 27. It has also been opined that launching of fresh proceedings after expiration of the term of office of the Pradhan is not permissible under the Act of 1947, as the word used is ''the Pradhan' and not ''an Ex-Pradhan'. The proviso to Section 27 that saves proceedings for recovery of money as surcharge on account of loss, waste or misapplication for a period of 10 years of the occurrence of the loss, waste etc. is attracted, where the complaint is made and proceedings initiated during the Pradhan's tenure, in the learned Judge's opinion. The proviso to Section 27(1) would not apply where no proceedings are initiated while the Pradhan was in office. It is on all these reasonings that the learned Judge has dismissed the petition.
8. Before us, elaborate arguments were advanced on both sides to assail and defend the order impugned.
9. We have carefully perused the record. There is hardly any doubt on facts here. By the time, the complaint against respondent no.3 was laid, for whatever reason, she had demitted office and was no longer the Pradhan. Nevertheless, the complaint was about the misconduct or inaction of respondent no.3 whilst she held the office of the Gram Pradhan. To our understanding, the purpose and scope of the provisions of Section 95(1)(g) and Section 27 of the Act of 1947 are distinct and different. Whilst Section 95(1)(g) is directed to ensure removal from office of an elected Pradhan on one or the other ground mentioned in sub-clauses (i) to (v) of Clause (g) of sub-Section (1) of Section 95 of the Act of 1947. Section 27 has an altogether different scope and purpose. Section 27 is designed to recover money occasioned on account of loss, waste or misapplication of money or property belonging to a Gram Panchayat by a Pradhan, if that loss, waste, etc. is the direct consequence of the Pradhan's neglect or misconduct. In this connection, we consider it apposite to refer to the provisions of Section 27 of the Act, which read:
''27. Surcharge.-(1) Every Pradhan or Up-Pradhan of a [Gram Panchayat] every member of a [Gram Panchayat] or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property [belonging to the Gram Panchayat or Nyaya Panchayat] as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, Up-Pradhan, Member, Sarpanch, Sahayak Sarpanch or Panch :
Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later.
(2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realise it as if it were an arrear of land revenue.
(3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed.
(4) Where no proceeding for fixation and realisation of surcharge as specified in sub-section (2) is taken the State Government may institute a suit for compensation for such loss, waste or misapplication, against the person liable for the same.'' (emphasis by Court)
10. Now, in a case where no proceedings of any kind are initiated against a Pradhan while in office, for whatever reason, and still, there is a case with some evidence at hand to show that loss, waste or misapplication or for that matter misappropriation of Gram Panchayat's property has happened on account of negligence or misconduct of the Pradhan while he/ she was in office, nothing can be done to recover such loss, according to the learned Single Judge. The learned Judge has exposited the provisions of Section 95(1)(g) and Section 27 of the Act of 1947 to mean that though the two are independent, yet action must commence under Section 95(1)(g), or for that matter under Section 27, while the Pradhan holds office in order to enable proceedings for recovery of the loss or surcharge to continue after he/ she demits office. In the opinion of the learned Judge, the Pradhan's end of tenure closes all chapter of his liability to the Gram Panchayat.
11. We find the learned Judge's reasoning based on the interpretation of Section 95(1)(g) and Section 27 to be based on strained logic, if not altogether inexplicable. We have already pointed out that the purpose of Section 95(1)(g) and Section 27 is altogether different. It is true that upon the Pradhan demitting office, proceedings under Section 95(1)(g), if not initiated, cannot continue as the entire purpose of those proceedings is to oust the incumbent Pradhan from office. These proceedings certainly cannot commence after the Pradhan has already demitted office. But, the purpose of Section 27 of the Act of 1947 is to recover money belonging to the Gram Panchayat i.e. lost, wasted or misapplied, as a direct consequence of the Pradhan's neglect or misconduct while in office. We wish to emphasize the words employed in Section 27(1), "if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan,". The import of the words on a plain reading is unmistakable. It is to hold the Pradhan liable for all loss or waste that he causes to the Gaon Sabha by acts of misconduct or negligence while still incumbent. The phraseology of the statute unmistakably points to loss caused by acts of negligence or misconduct of the Pradhan while he was in office. Nothing prevented the legislature to say while "he is such Pradhan,". The employment of the word "was" is a singular pointer to the fixation of liability for past actions done in office. It is an established principle of statutory construction, often called the golden rule, that if the words of a statute are clear and unmistakable in their import, they are to be given their ordinary, natural meaning. This is also called the literal rule of construction. It dictates attributing every word in the statute its plain and simple meaning, grammatically supported. In this connection, reference may be made to the decision of the Supreme Court in Prabhudas Damodar Kotecha and others v. Manahbala Jeram Damodar and another, (2013) 15 SCC 358. The golden rule or the principle of literal construction has been enunciated by their Lordships thus:
Golden rule
31. The golden rule is that the words of a statute must prima facie be given their ordinary meaning when the language or phraseology employed by the legislature is precise and plain. This, by itself proclaims the intention of the legislature in unequivocal terms, the same must be given effect to and it is unnecessary to fall upon the legislative history, Statement of Objects and Reasons, framework of the statute, etc. Such an exercise need be carried out only when the words are unintelligible, ambiguous or vague.
32. It is trite law that if the words of a statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The above principles have been applied by this Court in several cases, the judgments of which are reported in Chief Justice of A.P. v. L.V.A. Dixitulu [(1979) 2 SCC 34 : 1979 SCC (L&S) 99] , Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 : 1988 SCC (Cri) 711 : AIR 1988 SC 1883] , District Mining Officer v. Tisco [(2001) 7 SCC 358] , Gurudevdatta VKSSS Maryadit v. State of Maharashtra [(2001) 4 SCC 534 : AIR 2001 SC 1980] , State of H.P. v. Pawan Kumar [(2005) 4 SCC 350 : 2005 SCC (Cri) 943] and State of Rajasthan v. Babu Ram [(2007) 6 SCC 55 : (2007) 3 SCC (Cri) 52].
12. The learned Counsel for the writ petitioner has placed reliance on a decision of a Division Bench of this Court in Indu Devi v. District Magistrate, Chitrakoot and others, 2006 (2) ADJ 552 (DB) to submit that proceedings under Section 27 of the Act of 1947 can very well continue after the Pradhan demits office and these are independent of proceedings for removal of the Pradhan under Section 95(1)(g). No doubt, there are some remarks in Paragraph No.8 of the report in Indu Devi's (supra) that seem to support the writ petitioner, but the decision may not be of much help on the point, because Indu Devi was a case where proceedings against the Pradhan commenced whilst she was in office. The decision there turned on a different point and the remarks in Paragraph No.8 of the report are not of much assistance to the writ petitioner.
13. Nevertheless, in our considered opinion, the provisions of Section 27(1) are of clear import and they clothe the Authorities under the Act of 1947, with jurisdiction to take proceedings against the Pradhan for recovery of loss, caused to the Gram Panchayat's by his/ her neglect or misconduct, after the Pradhan ceases to hold office.
14. An objection on behalf of the respondents, which must be dealt with, is that the relief claimed in the writ petition is limited to a direction to conclude proceedings under Section 95(1)(g) of the Act of 1947, which is an infructuous prayer, once respondent no.3 has demitted office. The mere mention of a wrong provision in the complaint laid, in our opinion, would not be decisive. The complaint, that has been laid before the District Magistrate, a copy of which is annexed as Annexure No.2 to the writ petition (Annexure No.7 to the affidavit filed in support of the Stay Application to the appeal), shows on a wholesome reading that it is about misappropriation of funds of the Gram Panchayat by respondent no.3 while in office. The facts set out in the complaint clearly lend themselves to initiation of appropriate action under Section 27 of the Act of 1947, though they might also have formed basis of proceedings, under Section 95(1)(g), if respondent no.3 were in office. We do not wish to say that the facts stated in the complaint are true or untrue. All that we say, is that the complaint cannot be thrown out on the ground alone that respondent no.3 has demitted office, on the date the complaint was laid before the District Magistrate. In our opinion, the District Magistrate, or whoever be the competent Authority, ought to inquire into the complaint independently under Section 27(1) of the Act of 1947, ignoring the fact that respondent no.3 has demitted office as the Pradhan. We emphasize twice over that nothing said by us shall be construed an expression on the merits of the complaint laid against respondent no.3.
15. In the result, this appeal succeeds and is allowed. The impugned judgment dated 18.10.2021 passed by the learned Single Judge is set aside. A writ of mandamus is issued to the District Magistrate, Prayagraj to consider the complaint dated 10.05.2021 laid by the writ petitioner, against respondent no.3, as one under Section 27 of the Act of 1947 and proceed with the same in accordance with law.
Allahabad 28.07.2022 Anoop Whether the order is speaking :
Yes/No Whether the order is reportable :
Yes🗸/No