Allahabad High Court
Smt. Anar Devi And Another vs State Of U.P. And 2 Others on 16 August, 2021
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- WRIT - C No. - 15768 of 2021
Petitioner :- Smt. Anar Devi And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Arvind Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the hte State.
Present petition has been filed seeking quashing of the order dated 31.5.2021 passed by respondent no. 2, District Magistrate, Etah and further quashing of the recovery proceeding initiated against the petitioner pursuant to the aforesaid impugned order.
On 22.7.2021, following order was passed:
"Heard Sri Arvind Kumar Singh, learned counsel for the petitioners and learned Standing Counsel for respondents State.
It is contended by learned counsel for the petitioners that by order dated 31.05.2021, an amount of Rs.96,465/- is being recovered from the petitioners. Section 27(2) of the U.P. Panchayat Raj Act provides that the District Magistrate is not the prescribed authority as held by this Court in case of Uday Pratap Singh @ Harikesh vs. State of U.P. and others, [2020] 1 UPLBEC 213. It is submitted that once it has been held that power under Section 27(2) of the Act can be exercised by the presribed authority only, District Magistrate was not empowered to pass an order for recovery.
Learned Standing Counsel is granted two weeks' time to seek instructions in the matter as to whether the District Magistrate, Etah proceeded to pass the order as presribed authority or being a District Magistrate.
Matter requires consideration.
Put up this case as fresh on 16.08.2021.
Till the next date of listing, the order impugned dated 31.05.2021 shall be kept in abeyance."
Learned Standing Counsel states that he has not received any instructions till date and he is praying for further time.
Attention of the Court has been drawn to the order dated 14.10.2019 passed by this Court in Writ C No. 30079 of 2019, which is as follows:
"Learned Standing Counsel fairly concedes that the order impugned in this petition would not sustain in light of the judgment rendered in Writ -C No. 24902 of 2019 (Uday Pratap Singh @ Harikesh Vs. State of U.P. And 4 Others). In that decision, this Court recorded the following conclusions:-
A. The expression "Prescribed Authority" referred to in Section 27(2) of the Act means an authority duly designated for that purpose in accordance with the provisions made in Section 2(q)(ii);
B. The State has failed to establish that the District Magistrate was duly notified as the Prescribed Authority in accordance with the mandate of Section 2(q)(ii). In the absence of a notification designating the District Magistrate as the competent authority for the purposes of Section 27(2), the orders of surcharge impugned cannot be sustained;
C. The prescription of a procedure for assessment and recovery of surcharge in Chapter XIII of the Rules and the assignment of a role to the District Magistrate or the District Panchayat Raj Officer thereunder cannot be held to be a compliance of the requirement of Section 27(2);
D. Rules 256-259 as contained in Chapter XIII of the Rules are only an extension of the requirement placed by Section 27(2) to lay in place a structure to "fix the amount of the surcharge according to the procedure that may be prescribed";
E. Section 27(2) neither sanctions nor envisages the designation of a Prescribed Authority by way of a rule or other subordinate legislation;
F. The prima facie findings of wrongdoing arrived at during the course of or in contemplation of an enquiry initiated under Section 95(1)(g) cannot form the foundation for levy or recovery of surcharge."
Accordingly and following the principles enunciated in that decision, this petition is allowed. The impugned order dated 25 July 2019 is consequently quashed."
Learned counsel for the petitioner submits that the controversy involved in present case is squarely covered by the aforesaid order.
Learned Standing Counsel agrees that the relief as prayed for in the present petition is covered by the above said order.
Accordingly, present petition stands allowed in the same terms of above quoted order and the order impugned herein dated 31.5.2021 is hereby quashed.
Order Date :- 16.8.2021
Kuldeep
