Allahabad High Court
Smt. Meena Devi vs State Of U.P. And 4 Others on 26 August, 2021
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- WRIT - C No. - 20495 of 2021
Petitioner :- Smt. Meena Devi
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Tripathi B.G. Bhai
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents and perused the record.
Present petition has been filed for quashing the order dated 26.03.2021 passed by the respondent No. 2 (Annexure No. 11 to the writ petition).
At the very outset, learned counsel for the petitioner and the learned Standing Counsel agree that the controversy involved in the present writ petition is fully covered by a decision of this Court dated 25.8.2021 passed in Writ Petition No. 17573 of 2021 (Shanti Devi Vs. State of U.P. And Others). The said order dated 25.8.2021 is quoted hereinunder:-
"Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents.
Present petition has been filed for quashing the order dated 28.4.2021 passed by the District Magistrate, Pilibhit, whereby a sum of Rs. 1,49,900/- was directed to be recovered from the petitioner as surcharge under the provisions of Section 27 of U.P. Panchayat Raj Act, 1947.
By order dated 30.7.2021 learned Standing Counsel was granted time to seek instructions in the matter.
Instruction dated 13.8.2021 has been placed before this Court. The crux of the defence of the instructions is that the District Magistrate has initiated proceedings and passed the order in accordance with law.
Learned Standing Counsel is directed to upload the instruction so that the same may be placed on record.
Learned counsel for the petitioner submits that the controversy involved in the present case is squarely covered by judgment of this Court in the case of Uday Pratap Singh @ Harikesh vs. State of U.P. and others, 2019 (10) ADJ 443, wherein following observations were made:-
"On a consideration of the aforesaid conclusions the Court holds: -
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."
From the principles as enunciated in that decision, it is manifest that the proceedings as initiated by the District Magistrate would not sustain.
Learned Standing Counsel fairly concedes to the aforesaid legal position.
Accordingly and in light of the above, the instant writ petition is allowed. The impugned order dated 28.4.2021 passed by the District Magistrate, Pilibhit is consequently quashed. "
Accordingly in the light of the above, present writ petition is allowed. The impugned order dated 26.03.2021 passed by the District Magistrate, Siddharth Nagar is consequently quashed.
Order Date :- 26.8.2021
Aditya
