2017(3) Law Herald (P&H) 2322 : 2017 LawHerald.Org 1392
 IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Amit Rawal
CWP- 909 of 2015
Manjit Kaur
v.
State of Haryana & Ors.
Decided on 30/03/2017

For the Petitioner: Mr. Vivek K. Thakur, Advocate & Mr. Saurabh Mohanta, DAG, Haryana.
For the Respondent: Mr. Vinod S. Bhardwaj & Mr. Babbar Bhan, Advocates.
Haryana Panchayati Raj Act, 1994, S.53(5)—Recovery of Amount-Proceedings for recovery after expiry of six years from the occurrence of the loss, waste or misapplication, or after two years from the date, he ceased to hold the office, whichever is earlier, cannot be proceeded against the Sarpanch or Panch.
CASE CITED:
  1. Panchayat, Shahpur v. Financial Commissioner and Principal Secretary to Govt. Haryana, Development
    and Panchayat Department & Ors. 2009 (2) RCR (Civil). 599. (Para 2)
JUDGMENT
Mr. Amit Rawal, J.:-The grievance of the petitioner(s) in the present case is that the impugned order dated 19.09.2014 (Annexure P-3) passed by the Deputy Commissioner, Bhiwani, whereby the Deputy Commissioner had directed the Block Development and Panchayat Officer, Dadri-ll/respondent No.5 to assess the amount and re-wertt.e same from the petitioner as per the provisions of Section 53 of the Panchayati Raj Act, 1953 (for short ‘the Act’), is not only erroneous, but not sustainable.
  1. Vivek K. Thakur, learned counsel for the petitioner submits that the allegation of the
    embezzlement made against the petitioner/Ex-Sarpanch was beyond 6 years as his tenure as
    Sarpanch was for the period of 2005-10 and the notice of the alleged embezzlement/
    misappropriation is of the year 2014. In view of the provisions of Section 53 (5) of the Act, no
    person shall be called upon to explain why he should not be required to make good any loss,
    after the expiry of six years from the occurrence of the loss, waste or mis-application or after the
    expiry of two years from his ceasing to be a Sarpanch or Panch, as the case may be, whichever
    is earlier. In support of his contentions, he relies upon the ratio decidendi culled out by the
    Division Bench of this Court rendered in “Gram Panchayat, Shahpur V/s Financial
    Commissioner and Principal Secretary to Govt. Haryana, Development and Panchayat
    Department & Ors” 2009 (2) RCR (Civil) 599, thus, urges this Court for setting aside the
    impugned order, under challenge as there is gross illegality and perversity.
  2. Saurabh Mohanta, DAG, Haryana submits that the order, under challenge, is perfectly legal
    and justified and does not call for interference. It is a clear cut finding with regard to the
    embezzlement/ misappropriation against the petitioner and he cannot oust from it. An FIR on the
    basis of the complaint submitted by respondent No.7, had also registered against the petitioner
    with regard to the alleged disbursement of old-age pension, thus, urges this Court for dismissal
    of the present writ petition by upholding the impugned order.
  3. Vivek K. Thakur, Advocate, in rebuttal, submits that respondent No.7 is a habitual
    complainant and the factum of the same has been noticed by this Court in one of the order dated
    26.02.2015 passed in CWP No. 17218 of 2013, whereby the petitioner had approached this
    Court for seeking a direction against the private respondent(s)/complainant for refraining him to
    file a perpetual complaint. This Court had observed the imposition of cost of Rs. 50.000/-, but
    the same ultimately was disposed of.
5.1 have heard the learned counsel for the parties and appraised the paper book and of the view that there is a merit and force in the submission of Mr. Vivek K. Thakur, for, as per the provisions of the Section 53 (5) of the Act, proceedings for recovery after expiry of six years from the occurrence of the loss, waste or mis-application, cannot be proceeded against the Sarpanch or Panch, much less, two years from the date, he ceased to hold the office, whichever is earlier. For the sake of brevity, the provisions of Section 53 (5) of the Act reads as under:
“Notwithstanding anything contained in this Section, no person shall be called upon to explain why he should not be required to make good any loss, after the expiry of six years from the occurrence of the loss, waste or mis-application or after the expiry of two years from his ceasing to be a Sarpanch or Panch, as the case maybe, whichever is earlier.”
  1. Since the petitioner had already ceased to hold the office from more than two years, the
    proceedings could not have been initiated.
  2. The aforementioned view of mine is reiterated from the judgment cited supra.
Keeping in view the aforementioned facts, the impugned order dated 19.09.2014 (Annexure P-3) is not sustainable in the eyes of law being opaque and arbitrary, much less, vitiated and the same is hereby set aside. Accordingly, the present writ petition is allowed.