AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6533 OF 2012 Balaji v. NIRGUDE

Shri U.B. Bondar, Advocate for the appellant Shri D.R. Korde, AGP for the respondent Nos. 1 to 3/State Shri S.A. Nagarsoge, Advocate for respondent No.4 Shri G.V. Mohekar, Advocate for respondent No.5 CORAM : A. V. NIRGUDE, J. DATE : 21st November, 2012 PER COURT :

1. This writ petition challenges the judgment and order dated 20th July, 2012, passed by the Additional Commissioner, Aurangabad, on Appeal No.DB/ Desk-2/ZPVP/Appeal/CR-53/12. The learned Additional Commissioner held that the petitioner was guilty of misconduct under provisions of Section 14 (1)(g) of 2 the Village Panchayat Act and held him disqualified to continue in such position. The allegations against the petitioner were as under.

2. The petitioner was working as Sarpanch of the village. The Gram Panchayat proposed to repair existing school building. When the work was to commence, Gram Panchayat had not received funds from the Government. It was unanimously resolved by the members of the Gram Panchayat that the petitioner who was Sarpanch would lend money for the construction work. Accordingly, the petitioner apparently lent Rs. 6,38,000/- to the Gram Panchayat on three occasions. Though this loan was shown to have been given, the amount was not deposited in the bank account of the Gram Panchayat. The amount was spend soon after it was lent. After few months, the Government grant came and the Gram Panchayat issued three cheques in favour of the petitioner for repayment of the loan which he had given earlier. The petitioner thus received his money back.

3. One of the members of Gram Panchayat filed complaint against the petitioner that he had directly or indirectly share and interest in the work done by the order of Gram Panchayat, and therefore, he was guilty of misconduct, as provided under Section 14 (1) (g) of the Act. The Additional Collector referred the complaint to the Block Development Officer, who 3 submitted report favourable to the petitioner. Apparently he found that the petitioner has not committed any misconduct.

4. The Additional Collector, however, gave opportunity of hearing to both the complainant as well as the petitioner. It appears that the petitioner did not submit any reply in writing or in the form of affidavit to the allegations made against him. It is quiet clear from the nature of the complaint that the petitioner was under obligation to show that the amounts which he lent to the Gram Panchayat from time to time were spent on the repair work, but neither before Block Development Officer nor before the Additional Collector he submitted particulars of the work done by spending the amount he had lent. All that he stated was that he lent the amount as per the resolutions passed by the Gram Panchayat and that the work was done spending his amount. It is common knowledge that construction of road of gram panchayat it is always done under supervision of Government engineers. The petitioner did not place reliance on affidavit of the engineer who could have stated to the Additional Collector that he had seen the work being done by spending the amount at the relevant time lent by the petitioner. He could have even placed reliance on measurement reports etc. The petitioner could have also shown that from time to time money was spent on purchasing of construction material and on payment of 4 wages to the construction workers. When work of this magnitude is undertaken, the persons responsible for doing such work keep its record and would be able to show such record. Despite of opportunities available to the petitioner, he did not show such record to the Additional Collector. But the Additional Collector too naively did not ask him to do so, but place reliance on Block Development Officer’s report which was a clean chit given to the petitioner and rejected the complaint.

5. The matter went to the Additional Commissioner and for the first time it was Additional Commissioner who asked the petitioner as to how he would justify spending of Rs.6 lacs over the construction/repair work. The appeal before the Additional Commissioner was pending for one month, and despite this, the petitioner did not feel it necessary to submit the record of the Gram Panchayat in respect of construction work. As said above, the petitioner was working as Sarpanch, and therefore, he had free access to the record of the Gram Panchayat and that of the Gram Sevak. He would have easily got the record produced before atleast Additional Commissioner, but it was not produced until the judgment was delivered on 20th July, 2012.

6. Learned counsel for the petitioner pointed out that the learned counsel for the petitioner was 5 making application application for adjournment to the Commissioner to submit record, but time was not given to him. On this count, the petitioner even filed an application seeking review of the order to the Additional Commissioner, but the same was dismissed. The reason why the record was not produced before the Additional Commissioner within time, is that such record was not convenient for the petitioner. Had it been so, he would have certainly got it produced along with his reply which he ought to have filed before the Additional Collector and at least before the Additional Commissioner. The petitioner’s case that the Additional Commissioner ought to have given time to produce record is a lame excuse and cannot be taken seriously. The petitioner was all along defended by a competent lawyer, and in such situation, failure to produce record in support of the defence, would invite adverse inference. The petition should therefore fail. Writ Petition stands dismissed. ( A. V. NIRGUDE, J. ) SRM/21/11/12 ***