Allahabad High Court
Mahesh Kumar Tiwari vs State Of U.P. Thru. Prin. Secy. ... on 19 September, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:60243
Court No. - 20
Case :- WRIT - A No. - 6494 of 2023
Petitioner :- Mahesh Kumar Tiwari
Respondent :- State Of U.P. Thru. Prin. Secy. Panchayat Raj Lko. And 2 Others
Counsel for Petitioner :- Rakesh Kumar Srivastava,Veerendra Kumar Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for the petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging the order dated 04.08.2023 passed by the District Magistrate under Section 27(1) of the U.P. Panchayat Raj Act, 1947, imposing a surcharge upon petitioner to the tune of Rs.2,00,000/- holding him guilty of misappropriation of public money. Also under challenge is the consequential order dated 08.08.2023 passed by the District Panchayat Raj Officer.
3. Learned counsel for petitioner has submitted that the impugned order dated 04.08.2023 has been passed without jurisdiction inasmuch as petitioner who is a servant of the Gaon Sabha/ Panchayat at the relevant time was under jurisdiction of the District Panchayat Raj Officer and not the District Magistrate. It is further submitted that although the District Panchayat Raj Officer has also passed the other impugned order dated 08.08.2023 but it is quite evident from a perusal of said order that it has been passed as a consequence of order dated 04.08.2023 passed by the District Magistrate.
4. Learned counsel has also submitted that earlier vide order dated 08.10.2020, the District Panchayat Raj Officer, Sultanpur had passed an order imposing surcharge upon petitioner which was challenged in Writ Petition No.5049 (S/S) of 2021 which was allowed by means of judgment and order dated 22.02.2021 remitting dispute to the District Panchayat Raj Officer to pass fresh orders within a period of two months after affording reasonable opportunity of hearing to the petitioner.
5. Learned counsel has also adverted to judgment and order dated 17.12.2021 passed by Larger Bench of this Court in Writ Petition No.156 (M/S) of 2008, 'Ram Vilas Vs. Commissioner Devi Patan Mandal Gonda & Others' to submit that Larger Bench has specifically answered the question that in terms of the U.P. Panchayat Raj Act and the rules framed thereunder, it is only the District Panchayat Raj Officer who is the prescribed authority for imposing surcharge upon officers or servants of the Gaon Sabha while District Magistrate is the prescribed authority for imposing surcharge on Pradhan, Up Pradhan & Members of the Gaon Sabha. As such it is submitted the since petitioner was an officer of Gaon Sabha being Secretary thereof, it is only the District Panchayat Raj Officer who is the prescribed authority.
6. Learned State Counsel has not been provided any instructions in this matter but in view of material already on record particularly the decision of Larger Bench, this case is being decided finally at the admission stage itself.
7. Upon consideration of submissions advanced by learned counsel for petitioner and perusal of material on record, it is quite evident that earlier surcharge was imposed upon petitioner by the District Panchayat Raj Officer which was challenged in Writ Petition No.5049 (S/S) of 2021 and the matter was remitted only to the District Panchayat Raj Officer for taking afresh decision. In such circumstances and in tune with specific directions issued by this Court vide order dated 22.02.2021, it was only the District Panchayat Raj Officer who was competent to pass fresh orders with regard to petitioner.
8. It is also relevant that the Larger Bench in the case of Ram Vilas (supra) has also specifically answered a reference that with regard to officers and servants of the Gaon Sabha, it is only the District Panchayat Raj Officer who is competent as prescribed authority under Section 27(2) of the Panchayat Raj Act to pass orders.
9. In view of aforesaid, it is quite evident that only the District Panchayat Raj Officer was the competent authority with regard to imposition of surcharge on petitioner whereas impugned order dated 04.08.2023 has been passed by the District Magistrate who was not the competent authority. Order dated 08.08.2023 although passed by the District Panchayat Raj Officer has not been passed with independent application of mind but is in fact a consequential order.
10. Consequently, impugned order dated 04.08.2023 having been passed without jurisdiction is quashed by issuing a writ in the nature of certiorari. Consequential order dated 08.08.2023 is also quashed granting liberty to opposite party no.3 i.e. District Panchayat Raj Officer, Sultanpur to pass fresh order in pursuance of directions issued by this Court by order dated 22.02.2021 passed in Writ Petition No.5049 (S/S) of 2021.
11. Resultantly, the writ petition is succeeds and is allowed at the admission stage itself. Parties to bear their own cost.
Order Date :- 19.9.2023
Mohd. Sharif
