Patna High Court
Suresh Chandra Singh vs State Of Bihar And Ors. [Alongwith ... on 5 May, 1993
Equivalent citations: 1994(2)BLJR797
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT
S.B. Sinha and N.P. Singh, JJ.
1. These two writ applications being interlinked with each other have been taken up together and are being disposed of by this common judgment.
2. Suresh Chandra Singh is the petitioner in C.W.J.C. No. 3111 of 1993. He is said to be the Acting Mukhia. One Surajdeo Singh was the elected Mukhia. He died in 1989. According to him, he is entitled to function in respect of the scheme of Jawahar Rojgar Yojna of Ark Dhibaria Gram Panchayat. By reason of the impugned order as contained in Annexure 1 to the writ application, the work of Jawahar Rojgar Yojna was directed to be done departmentally and in place of the petitioner, the Block Development officer, Tekari and Panchayat sevak, Ark Dhibaria Gram Panchayat have been authorised.
3. The contention of the petitioner is that Jawahar Rojgar Yojna can be implemented only in terms of the Rules framed thereunder. Learned Counsel in this connection has relied upon a decision of this Court in Bhanupratap Singh v. State of Bihar and Ors. 1991 (2) BLJ 78.
4. The petitioners of other writ application i.e. C.W.J.C. No. 1789 of 1993 are the residents of the aforementioned Gram Panchayat which consists of five villages namely, Ark Dhibaria, Bhawanpur, Guljana, Harna and Alalpur under Tekari Police Station in the district of Gaya. The elected Mukhia died on 23-2-1988 and thereafter no election had been held. On 11-5-1989 the District Panchayat Raj Officer directed the Prakhand Vikas Padadhikari to get a new Mukhia elected whereupon respondent No. 8 was nominated as Mukhia for a period of six months. It has been contended that as the said period has expired, he cannot legally function as a Mukhia. It has been contended that no work of development in the Panchayat had been done and the entire amount sanctioned for the development of the Panchayat either under the scheme of Jawahar Rojgar Yojna or other scheme is being swallowed by respondent No. 8. The petitioners sent various representations to the Chief Minister as also the District Panchayat Raj officials. According to the petitioners, the aforementioned facts were also published in the daily newspaper 'Navbharat Times' which is contained in Annexure 4 to the writ application. It has, therefore, been contended that after coming into force of the amended Act No. 7 of 19.90 there is no provision for the nomination of Mukhiya and therefore, respondent No. 8 is no longer the Mukhia of the aforementioned Grampanchayat.
5. Mr. Sharma, learned Counsel appearing for the petitioner in C.W.J.C. No. 1789 of 1993 has, therefore, submitted that in view of the provisions contained in Section 12(2) (ka) of the Gram Panchayat Act, the petitioner of C.W.J.C. No. 3111 of 1993 cannot be permitted to Act as Mukhia.
6. Mr. Dinu Kumar, learned Counsel appearing for the petitioner in C.W.J.C. No. 3111 of 1993 as also on behalf of respondent No. 8 in C. W. J. C, No. 1789 of 1993 has submitted that in view of the provision of Section 12(2) (ka) of the Act, the statement of Mr. Sharma cannot be accepted.
7. Jawahar Rojgar Yogna is a scheme of the Government. It does not have any statutory force. Section 14 of the Panchayat Raj Act provides for the compulsory duties of the Gram Panchayat which is subject to general or special orders issued by the State Government for its implementation. Even the scheme is to be implemented by the Executive Committee of the Gram Panchayat at the instance of the State. The same is a matter between the petitioner and the Gram Panchayat and the members of the Executive Committee and thus for that matter, the Mukhia therefore does not acquire any legal right in relation thereto. The State Government, however, has prepared the aforementioned policy decision in terms whereof, the scheme has to be selected by the Panchayat and the same would be implemented by an Executive committee elected in the general meeting of the Gram Panchayat. Rule 16(2) of the Rules specifically provides that the members of the Executive Committee shall not be the members of the Executive committee. Under the Rules, the District Magistrate, the District Development Commissioner and the Executive Engineer shall form a Committee with regard to the purchase of the materials. The only stage where the Mukhia comes in the picture is Rule 20 of the scheme which provides that the cheque will be signed by the Mukhia along with the Panchayat Sovak for meeting the expenses of the Yojna. Rules 24,12 and 26 mentions that the Block Development officer and certain other officers named therein will have the power of inspection and superintendence of Such scheme.
8. In Bhanu Pratap Singh v. State of Bihar and Ors. reported in 1991 (2) B. L. J. 78 upon which strong reliance has been placed by Mr. Dinu Kumar it has been held that in case there is misappropriation, defalcation as envisaged in Rules 24 and 12 of the scheme then the authorities mentioned in that paragraph should without hesitation take immediate action against persons concerned.
9. It is clear from a perusal of the records of C.W.J.C. No. 3111 of 1993 that there are allegation of defalcation as against the petitioner thereof. A Mukhia although may not have a direct say in implementation of the scheme but he having been alected/nominated by the Executive Committee of the Gram Panchayat must be presumed to have an influence over the members of the Executive Committee. If the Mukhia or the Acting Mukhia has no role to play in the Jawahar Rojgar Yojna except signing of the cheque along with the Panchayat Sevak, one fails to understand as to why he will be so much interested in signing the cheque only. If, therefore, their exists an apprehension in the mind of the authority of the State who have the power of superintendence over the matter relating to implementation of the scheme, in our opinion, no exception can be taken that the cheque may be signed by a Government servant in relation to an Acting Mukhia. From the very fact that the acting Mukhia is interested in signing the cheque goes to show that he has also interest in the implementation of the scheme personally which means that he has interest in the agencies and other persons in relation to the implementation of the scheme. From a perusal of Annexure 1 to the application, it appears that an allegation has been made that the petitioner had defalcated a huge amount in collusion with or in conspiracy with his favourite agents.
10. For the reasons aforementioned, in our opinion, is not a fit case in which this Court should interfere with the impugned order as contained in Annexure-1 to the writ application. C.W.J.C. No. 3111 of 1993 is dismissed accordingly.
11. So far as C.W.J.C. No. 1789 of 1993 is concerned, a decision of a Division Bench of this Court of which one of us (S. B. Sinha, J) was a member in Zainul Haque Ansari v. State of Bihar and Ors. reported in 1992 Vol (1) PLJR 360 may be noticed. In that decision it has been held that in terms of Sub-section (5) of Section 13 of the Bihar Panchayat Raj Act when the post of Mukhia falls vacant, the same should be filled up by election within six months therefrom. Section 12(2)(kha) however provides that so long as the post is not filled up, the member of the Executive Committee may act as a Mukhia or Upmukhia whichever is earlier. It is strange that despite the fact that the elected Mukhia died in 1988, no step has been taken by the competent authority for holding election in terms of Sub-section (5) of Section 13. In Zainul Haque Ansari's case, the petitioner thereof, who was the Up Mukhia began to discharge the functions of Mukhia in terms of Section 11(A) (ka) (1) of Bihar Panchayat Raj Act.
12. Section 12(2) (ka) prescribes a limit of six months, so the Acting Mukhia cannot continue for a period exceeding six months. In this situation, the Executive Committee may nominate any other persons as a Mukhia.
13. In this view of the matter, the respondents are hereby directed to see that the election for the post of Mukhia is held in terms of Sub-section (5) of Section 13 of the Bihar Panchayat Raj Act immediately.
14. In the result, C.W.J.C. No. 1789 of 1993 is disposed of with the aforementioned observations.