P.A Choudary, J. - (1.) Elections to the Gram Panchayat of Vatluru West Godavari District, were held on 27th May, 1981. The 3rd respondent was elected as the Saroanch The petitioner has filed this writ petition alleging, that on the day of his nomination, the 3rd respondent was disqualified under S 12 (6) read with Section 19 (2) (h) of the A P Gram Panchayats Act. (Hereinafter referred to as 'the Act') He says, that the 3rd respondent was due to pay certain amounts to the Gram Panchaypt by the day of filing of his nomination and that therefore, under Section 12 (6) read with s 19 (2) (h) of the Act, he stood disqualified The petitioner says that on that ground he had objected to the acceptance of the nomination filed by the 3rd respondent and that his objett'on war. wrongly and orally rejectee bv the Returning Officer He says that he was informed by the Returning Officer that in view of the Memo of the Governmen. of Andhra Pradesh issued in No. 042/Panchayats-1/81-1 dt 12-5-1981, the 3rd resnondent could not be consicered to have suffered any disqualification under anyone of tho e Sections The petitioner has, there are, filed this writ petition to declaie the aforesaid Memorandum of the Government of Andhra Pradesh to be void and to declare the election of the 3rd respondent as the Sarpanch of Vatluru Gram Panchayt as llegal and void
(2.) The facts which are mentioned above are not on controversy. Although there is no written proof of the fact that the petitioner had objected to the nomination of the 3rd respondent, it is admitted by fie 3rd respondent that, on the day of filing of his nomination and also by the day of his election as Sarpanch, he was found due to pay certain amounts to the Panchayat and was served with appropriate surcharge certificates by the Local Fund Auditor. Some of those surcharge certificates had been annexed to the writ petition. Surcharge certificate dt. 3-2-1981 shows that the Audit Officer, Local Funds, Eluru, West Godavari District had found the 3rd respondent to be liable to pay an amount of Rs 102-14 to the aforementioned Vatluru Gram Panchayat Similar anounts hava been mentioned as due and payable by the other Surcharge Certificates. It follows that prima facie, the third respondent should suffer the above disqualification under the Act. But the 3rd respondent's defence is that, notwithstanding the fact that he was in arrears to the gram panchayat and that he had been served with the surcharge certificate calling upon him to pay the amounts due to the gram panchayat, disqualification under S 19(2)(h) read with S 12 (6) of the Act, was not attracted. This is so according to him, because of the fact that by then he had preferred an appeal to the Deputy Secretary, Government of Andhra Pradesh In G 0 Ms No. 565 dt. 13th May, 1965 the Government has made statutory rules relatinq to audit, 'Surcharge disallowance, and appeals etc..Under these rules, a person, who had preferred appeals against the amounts surcharged by the Local Fund Auditor, need not pay those amount till his appeals filed against those surcharged demands are disposed of by the Deputy Secretary. The relevant part of rule 7 of the aforesaid rules clearly postpones the liability to pay to a future date of ascertainment. "Rule 7 : Every sum certified to be due from any person by the auditor under these rules shall be paid by such person into the nearest Government Treasury or in the office of the Gram Panchayat within 30 days after the intimation to him of the decision of the auditor, unless within that time such person has appealed to the Deputy Secretary to Government against the decision". (emphesis supplied). Now, in this case, it is not in dispute that the 3rd respondent has filed appeals against the demands made by the auditor and that they were pending. Consequently, the time for payment of those amounts surcharged and demanded by the auditor had not yet arrived. On the other hand, that time for payment and even ascertainment automatically stood postponed. Under the penal provisions of S 19 (2) (h) and S 12 (6) of the Act, two things are required before a candidate could be said to have been found to be due to pay the gram panchayat, in presenti, certain amounts and secondly, he should have failed to pay those amounts within the time specified. The language of S 19(2) (h) of the Act leads to this conclusion. S. 19 (2) : A person shall be disqualified for being chosen as a member if on the date fixed for scrutiny of nominations for elections, or on the date of nomination under sub-sec (2) of S.13, he is : a) x b) x c) in arrears of any dues otherwise than in a fiduciary capacity, to the gram panchayat upto and inclusive of the previous year, in respect of which a bill or notice has been duly served upon him and the time, if any, specified therein for payment has expired " Now, it is clear that disqualification under S 19 (2) (h) of the Act cannot be earlier to the date i f the failure to pay. The date of failure to pay cannot be earlier to the date specified for payment. Now in this case, by reason of rule 7 of the Audit Rules, the time for payment stood indefinitely postponed merely by reason of filing of appeal. Till the disposal of the 3rd respondent's appeal preferted to the Deputy Secretary that time for payment will not arrive. Before that time arrives the 3rd respondent cannot be said To have failed to pay the arrears within the t me specified. Because of that reason, we must hold that the disqualification mentioned by section 19(2)(h) read with S 12(6) of the Act has not been attracted in this case. The surcharge certificates themselves speak of postponement of time to pay when appeals are filed by the surchrge under Rule 6 of the Audit rules. They read thus : "The amount of Rs. 102-14 (Rupees one hundred and two and paise fourteen only) should be paid to the credit of the aforesaid Vatlur Gram Panchayat funds Euru Taluk, West Godavari District within sixty days after the date of receipt of this certificate unless action is taken under rule 6 of the rules issued under Section 211 (2) (viii) and (ix) of the Andhra Pradesh Gram Panchayat Act, 1964........
(3.) In view of the fact that the 3rd respondent has taken the action contemplated to be taken under rule 6 of the Audit Rules and has preferred appeals to the Deputy Secretary within time, it must be taken that the above mentioned disqualification under S 19(2)(h) has never been attracted in this case. Consequently, it must be held, that the 3rd respondent was not disqualified on the date of his nomination or election. The Memorandum issued by the Government on 12th May, 1981, the validity of which is assailed by the petitioner is no doubt an executive instruction and surely cannot go beyond the scope of S. 19(2)(h) of the Act. But that memorandum is not guilty of any such excesses. The memorandum merely clarified the legal position obtaining under section 19 (2) (h) read with the Audit Rules. It merely makes the legal position clear and intelligible to the officers. It is a Government action taken to educate its officers. It does not run counter to the aforesaid legal position or any legal provisions.;