JUDGMENT Arun Tandon, J.
1. Heard Sri Sanjay Singh, learned counsel for the petitioner and Learned Standing Counsel for the State-respondents.
2. The petitioner, Smt. Khalida Begum has admittedly worked as Pradhan of the Gram Panchayat Sarkada Khas, Block Mundha Pandey, Tehsil and District Moradabad between 1995 to 2000. In respect of the said period of working of the petitioner as Pradhan, proceedings under Rule 256 of the Surcharge Rules framed under Panchayat Raj Act, 1947 were initiated. The petitioner was issued a show-cause notice. After reply to the show-cause notice was filed by the petitioner, the District Magistrate, Moradabad passed an order dated 30th September, 2003 imposing surcharge of Rs. 1, 51, 057/- upon the petitioner. Feeling aggrieved by the aforesaid order of the District Magistrate, the petitioner preferred an appeal before the Commissioner, Moradabad Division, Moradabad under Rule 258 of the Surcharge Rules, which was numbered as 4 of 2003-04. The appeal preferred by the petitioner has been dismissed by the Commissioner by means of the order dated 24th January, 2005. The Commissioner has maintained the order of surcharge passed by the District Magistrate. The aforesaid two orders have been challenged by the petitioner by means of the present writ petition.
3. On behalf of the petitioner it is contended as follows:
(a) that enquiry officer appointed in the matter was not competent to hold enquiry in view of the fact that the Uttar Pradesh Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules 1997 provides that only the District Panchayat Raj Officer can hold enquiry against the Pradhan,
(b) that enquiry report submitted by the enquiry officer referred to incidents, where are alleged to have taken place subsequent to the date on which the report was submitted and therefore, the report was not reliable,
(c) that the petitioner has not been debarred from contesting the elections in future by any order under Section 5 (a) of the Panchayat Raj Act, therefore, the petitioner was not in arrears of any dues payable by her as the Gram Panchayat.
4. I have heard learned counsel for the parties and have gone through the records of the writ petition.
5. None of the grounds raised by the petitioner as aforesaid is legally tenable in the eyes of law. Ground No. 1.--The provisions of Uttar Pradesh Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules 1997 lay down the procedure for the purposes of holding an enquiry against the Pradhan, Up-Pradhan and Members in office for appropriate orders being passed under Section 95 (1) (Government Order) of the Act.
6. The enquiry contemplated for imposition of surcharge for the loss, which may have been caused to Gram Panchayat by the acts of Pradhan is regulated under Rule 256 of the Surcharge Rules. Rule 256 of the Surcharge Rules framed under the Panchayat Raj Act, 1947 reads as follows:
256 [1] In any case where the Chief Audit Officer, Co-operative Societies and Panchayats, considers that there has been a loss, waste or misuse of any money or other property belonging to a Gram Sabha as a direct consequence of the negligence or misconduct of a Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat, he may call Upon the Pradhan, Up-Pradhan, member, Officer or servant, as the case may be, to explain in writing why such Pradhan, Up-Pradhan, Member, Officer, or servant should not be required to pay the amount misused or the amount which represents the loss or waste caused to the Gram Sabha or to its property and such explanation shall be furnished within a period not exceeding two months from the date such requisition is communicated to the person concerned:
Provided that an explanation from the Pradhan, Up-Pradhan or member of the Gram Panchayat shall be called for through the District Magistrate and from the officer or servant through the District Magistrate Raj Officer:
Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gram Panchayat or nay of its committee as having been absent from the meeting at which the expenditure objected to was sanctioned or who voted against such expenditure.
(2) Without prejudice to the generality of the provisions contained in Sub-rule 91) of the Chief Audit Officer, Co-operative Societies and Panchayats, may call for the explanation in the following cases:
(a) where expenditure has been incurred in contravention of the provisions of the Act or of the rules or regulations made there-under;
(b) where loss has been caused to the Gram Sabha by acceptance of a higher tender without sufficient reason in writing;
(c) where any sum due to the Gram Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations made thereunder;
(d) where the loss has been caused to the Gram Sabha by neglect in realizing its dues; or
(e) where loss has been caused to the funds or other property of the Gram Sabha on account of want of reasonable care for the custody of such money or property (3) On the written request of the Pradhan, Up Pradhan, Member, Officer or servant from whom an explanation has been called for, the Gram Panchayat shall give him necessary facilities for inspection of the records connected with the requisition for surcharge. The Chief Audit Officer may, on application from the person surcharged, allow reasonable extension of time for submission of his explanation if he is satisfied that the person charged has been unable, for reasons beyond his control, to consult the record for the purpose of furnishing his explanation.
7. Ground No. 2 -. So far as the enquiry report submitted by the enquiry officer is concerned, petitioner did not raise any grievance with regard to same incident being unreliable because of subsequent date having been mentioned in the enquiry report, before the Commissioner in his appeal. If the petitioner had raised any such objections the factual position would have been clarified and it may have been made clear as to whether there was typing error in the enquiry report submitted by the enquiry officer or that the date mentioned in the enquiry report was incorrect. However, the petitioner cannot: be permitted to raise such objections for the first time in the present writ petition under Article 226 of the Constitution of India.
8. Ground No. 3 --. Order under Section 5 (A) debarring a person from contesting the election in future because of his being in arrears of money due to the Gram Sabha is a consequential action, which is to taken subsequent to the non-payment of the surcharge money and if the authorities have failed to act in accordance with the Rule 5 (A) for the purposes of debarring the petitioner from contesting the elections, it cannot be a ground for not quashing the surcharge as imposed under Rule 256 of the Surcharge Rules framed under the Panchayat Raj Act, 1947.
9. Lastly it is contended on behalf of the petitioner that the impugned orders have been passed because of mala fide considerations. From the record of the present writ proceedings, it is apparently clear that except for vague allegations having been made, there are no substantial facts on the basis where of the petitioner could establish mala fides. The Hon'ble Supreme Court in the judgment reported in AIR 1991 SC. 1832, Pr. 7 (Jindal Industries Ltd. v. State of Haryana and Anr.); and 1995 Supp. (4) SCC 89 (Deputy Registrar of the Firms, Societies and Chits. J.N. Banavalikar v. Municipal Corporation of Delhi and Anr.) has held that allegations of mala fide are essentially questions of fact and they have not only to be alleged but have also to be supported by the relevant material. The petitioner has failed to establish the allegation of mala fide as per the standard fixed by the Hon'ble Supreme Court as aforesaid.
10. In view of the law laid down by the Hon'ble Supreme Court, none of the grounds of the petitioner can be accepted.
11. In view of the aforesaid the writ petition is devoid of merits and is accordingly dismissed.