Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 271 (ALL)

DHRUVA CHAND v. STATE OF U. P.

2016-01-20

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri A.P.Tewari, learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 31.12.2015 passed by the Collector, Basti, while exercising the power under Sub-Section 2 of Section 27 of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ‘the Act’) by which he has required the Pradhan to deposit 1/3rd of the total amount of surcharge Rs. 4,03,074/- and 1/2 of the total amount Rs. 18,900/- misused from the Gram Nidhi (fund). 3. Learned Standing Counsel appearing for the State respondents submits that the impugned order is appealable as against the order passed by the District Magistrate under Sub-Section 2 of Section 27, appeal lie to the State Government within thirty days from the date of such order and therefore the writ petition should be dismissed on the ground of alternative remedy. Whereas learned counsel for the petitioner submits that the availability of the alternative remedy under Sub-Section 3 of Section 27 of the Act is not disputed but here it is a case where the order has been passed in breach of principles of natural justice, therefore in view of the exception carved out by Hon’ble the Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, 1998 (8) SCC 1 , the writ petition should be entertained and the petition should not be thrown on the ground of alternative remedy. 4. From the perusal of the impugned order passed by the District Magistrate it transpires that although the show-cause notice was issued to the petitioner and the petitioner has not filed any reply after expiry of long period but there is no such finding that the show-cause notice issued to the petitioner was ever served upon him. The case of the petitioner before this Court is that the impugned order has been passed without there being any notice or opportunity to the petitioner. 5. Learned counsel appearing for the State respondents could not show from the perusal of the impugned order any finding regarding service of notice upon the petitioner, therefore in my view, this writ petition falls in the ambit of exception carved out by the Apex Court for entertaining the writ petition under Article 226 of the Constitution of India. 5. Learned counsel appearing for the State respondents could not show from the perusal of the impugned order any finding regarding service of notice upon the petitioner, therefore in my view, this writ petition falls in the ambit of exception carved out by the Apex Court for entertaining the writ petition under Article 226 of the Constitution of India. The writ petition is being entertained. 6. Sri Tewari, who appears for the petitioner, has invited attention of the Court towards the statutory provisions relating to the levying surcharge. The particular attention has been invited towards Section 27 of the Act and Rules 256 and 257 of the Rules known as U.P. Panchayat Raj Rules, 1947 (in short ‘the Rules’). For convenience, Section 27 of the Act as well as Rules 256 and 257 of the Rules are reproduced herein under : “27. Surcharge—(1) Every Pradhan or of a (Gram Panchayat) every member of a (Gram Panchayat) or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property [belonging to the Gram Panchayat or Nyaya Panchayat] as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, member, Sarpanch, Sahyak Sarpanch or Panch; Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later. (2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realize it as if it were an arrear of land revenue. (3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed. (3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed. (4) Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute a suit for compensation for such loss, waste or misapplication, against the person liable for the same.” “Rule 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 Gaon Sabha as a direct consequence of the negligence or misconduct of a Pradhan, he may call upon the Pradhan, Up-Prahdan, 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 Gaon 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 Gaon Panchayat shall be called for through the District Magistrate and from the officer or servant through the Panchayat Raj Officer. Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gaon Panchayats or any of its committee as having been absent from the meeting at which the expenditure objected to was sanctioned or who voted against such expenditure. Note—Any information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand. Note—Any information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand. (2) Without prejudice to the generality of the provisions contained in sub-rule (1) the Chief Audit Officer, Cooperative Societies and Panchayts, 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 thereunder; (b) where loss has been caused to the Gaon sabha by acceptance of a higher tender without sufficient reasons in writing. (c) where any sum due to the Gaon 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 Gaon sabha by neglect in realizing its dues; or (e) where loss has been caused to the founds or other property of the Gaon 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 Gaon Panchayat shall give his necessary facilities for inspection of the record connected with the requisition for surcharge. The Chief Audit Officer may, on application from the person surcharged, allow a 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. “257. (1). After expiry of the period prescribed in sub-rule (1) or (3) of Rule 256, as the case may be, and after examining the explanation, if any, received within time, the Chief Audit Officer shall submit the papers alongwith his recommendations to the District Magistrate of the district in which the Gram Sabha is situated in case of Pradhan, Up-Pradhan and Members and to the District Panchayat Raj Officer of the district in which the Gram Sabha is situated in case of Officers and servants. (2) The District Magistrate or the District Panchayat Raj Officer, as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole or part of the sum to which such Pradhan, Up-pradhan, Member, Officer or servant is found liable: PROVIDED, firstly, that no Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat would be required to make good the loss, if from the explanation of the Pradhan, Up-Pradhan, Member, Officer or servant concerned or otherwise the District Magistrate or the District Panchayat Raj Officer, as the case may be, is satisfied that the loss was caused by an act of the Pradhan, Up-pradhan, Member, Officer or servant in the bona fide discharge of his duties: PROVIDED secondly, that in the case of loss, waste or misuse occurring as a result of a resolution of the Gram Panchayat or any of its committees the amount of loss to be recovered shall be divided equally among all the members including Pradhan and Up-pradhan, who are reported in the minutes of the Gram Panchayat or any of its Committee as having voted for or who remained neutral in respect of such resolution: PROVIDED thirdly, that no Pradhan, Up-Pradhan, Member, Officer or servant shall be liable for any loss, waste or misuse after the expiry of four years from the occurrence of such loss, waste or misuse or after the expiry of three years from the date of his ceasing to be a Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat, which ever is later.” 7. From the perusal of Sub-Section 1 of Section 27 of the Act, it transpires that the loss waste or misapplication of money or property belonging to the Gram Panchayat or Nyaya Panchayat directly or in consequence of his neglect or misconduct of the Pradhan, Up-Pradhan, Member or Joint Committee or any other Committee constituted under the Act can be realised. However, such liability shall cease to exist after the expiration of ten years from the occurrence of such loss waste or misapplication or five years from the date on which the person liable ceases to hold his office, whichever is later. 8. However, such liability shall cease to exist after the expiration of ten years from the occurrence of such loss waste or misapplication or five years from the date on which the person liable ceases to hold his office, whichever is later. 8. Sub-Section 2 of Section 27 of the Act provides that the amount of surcharge shall be fixed in accordance with the procedure prescribed and the said fixed amount can be realised as arrears of land revenue. 9. This power has been conferred upon the prescribed authority and it shall send the same to the Collector for realising the same as arrears of land revenue. 10. Sub-Rule 1 of Rule 256 of the Rules provides that the Chief Audit Officer, Co-operative Societies and Panchayats, shall first of all inquire about such loss and thereafter call upon the Pradhan, Up-Prahdan, 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 Gaon 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. Such explanation has to be called through District Magistrate in the case of the Pradhan, Up-Pradhan or member of the Gaon Panchayat. 11. The Note to this Rule provides that information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand. 12. Sub-Rule 1 of Rule 257 of the Rules provides that after expiry of the period prescribed in sub-rule (1) or (3) of Rule 256 of the Rules, after examination of the explanation, if any, received within time, the Chief Audit Officer shall submit the papers alongwith his recommendation to the District Magistrate of the district in which the Gram Sabha is situated in case of Pradhan, Up-Pradhan and Members. 13. 13. Sub-Rule 2 of Rule 257 of the Rules provides that the District Magistrate or the District Panchayat Raj Officer, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole or part of the sum to which such Pradhan, Up-pradhan, Member, Officer or servant is found liable. 14. Here in this case, the petitioner, who at the relevant time was Pradhan, was directed by the order dated 26.3.2015 to pay 1/3rd of the total amount of surcharge Rs. 4,03,074/- and 1/2 of the total amount Rs. 18,900/- misused from the Gram Nidhi (fund). The petitioner, herein, has challenged the aforesaid order through Civil Misc. Writ -C No. 19542 of 2015 (Dhruv Chandra v. State of U.P.and others) in which on 8.4.2015, following order was passed. Challenging the order dated 26.3.2015 passed by the District Magistrate /District Karyakram Samnyavak(Manrega), Basti, the submission of the learned counsel for the petitioner is that surcharge under Section 27 of U.P. Panchayat Raj Act cannot be levied without conducting final inquiry against the allegation leveled against the Gram Pradhan. It appears that a preliminary inquiry was conducted in which the petitioner was not given opportunity. The report was submitted on 12.2.2015 on which direction was given by the Additional Commissioner(Manrega) to proceed. The District Magistrate without show-cause notice, while preparing the charge-sheet, directed to recover the surcharge which is clearly bad. In Indu Devi v. D.M Chitrakoot and others, 2006(2) ADJ 522(All), has held that order of surcharge cannot be passed on mere prima facie finding of guilt and can only be passed after final inquiry. Prima facie case of interim protection is made out. Learned Standing Counsel prays for and is allowed three weeks’ time to file counter-affidavit. One week thereafter for filing rejoinder-affidavit. List thereafter. Until further orders of this Court effect and operation of the order dated 26.3.2015 passed by the District Magistrate, Basti so far as the recovery initiated against the petitioner shall remained stayed. However it made clear that pendency of the writ petition would not come in the way of proceedings initiated against the petitioner. The District Magistrate is directed to conclude the proceedings strictly in accordance with law expeditiously. 15. However it made clear that pendency of the writ petition would not come in the way of proceedings initiated against the petitioner. The District Magistrate is directed to conclude the proceedings strictly in accordance with law expeditiously. 15. Learned counsel for the petitioner, taking shelter of the last portion of the interim order dated 8.4.2015 passed by this Court, submits that the District Magistrate was directed to conclude the inquiry strictly in accordance with law but the District Magistrate has issued a show-cause notice as stated in the impugned order on 28th July, 2015 and thereafter passed the impugned order requiring the petitioner to deposit 1/3rd amount of the surcharge and 1/2 of the Gram Nidhi dehorse the Rule. 16. The submission of learned counsel for the petitioner is two fold : (i) The preliminary inquiry as required under Sub-Rule 1 of Rule 256 was not conducted as per scheme of the Rules as at no point of time, the alleged inquiry on which basis earlier order dated 26.3.2015 was passed, the petitioner was associated. The inquiry dated 12.2.2015 was an ex parte inquiry that too by the State Quality Monitor Manrega U.P. Lucknow and not by the Chief Audit Officer and Cooperative Societies as required under Sub-Section 2 of Section 27 of the Act and (ii) The alleged show-cause notice on which basis impugned order has been passed cannot be termed as notice or can be substituted as notice as required under Sub-Rule 1 of Rule 256 of the Rules. 17. From the perusal of the impugned order it transpires that the order of surcharge has been passed only on the basis of the prima facie satisfaction which would reveal from the following line of the impugned order jkT; xq.koŸkk eukuhVj eujsxk m0iz0 }kjk tkWpksijkUr izLrqr tkWp vk[;k ds vuqlkj eujsxk ;kstukUrxZr xzke iapk;r & jkSuk dyk esa djk;s x;s fodkl dk;ksZ esa dqy :0 4]03]074-00 ¼pkj yk[k rhu gtkj pkSgRrj½ :i;s rFkk xzke fuf/k&izFke ls :0 18]900-00 ¼vBkjg gtkj ukS lkS½ ek= /kujkf'k dh vfu;fefrrk fd;s tkus esa Jh /kzqo pUnz iz/kku ,oa Jh jke lgk;] lfpo xzke iapk;r & jkSuk dyk] voj vfHk;Urk@rduhdh lgk;d fodkl [k.M& :/kkSyh izFke n`"V;k nks"kh ik;s x;s gSA 18. In the submissions of learned counsel for the petitioner, the alleged show-cause notice issued to the petitioner by the Collector was never served. In the submissions of learned counsel for the petitioner, the alleged show-cause notice issued to the petitioner by the Collector was never served. Sub Rule 2 of Rule 257 of the Rules requires that the District Magistrate or the District Panchayat Raj Officer, as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole or part of the sum to which such Pradhan, Up-pradhan, Member, Officer or servant is found liable meaning thereby after submitting the report as required by the Chief Audit Officer, the District Magistrate is required to consider the report as well as the explanation submitted by the erring person and only thereafter final decision regarding realization of the amount as surcharge be passed. 19. In this case as would appear from the impugned order, although it is recorded that show-cause notice was served upon the petitioner but there is no such finding that when and on which date, it was served, therefore in absence of any such finding about service of notice, as required in the statute, it cannot be treated to be served when its service is being denied by the petitioner. 20. I have gone through the preliminary inquiry report too, that report only records that apart from the other officers, villagers and complainant, the petitioner being Pradhan was also present and the preliminary inquiry was conducted in the presence of the Pradhan. The question would be as to whether under the scheme of the Act and the Rules only nodal presence of the Pradhan is required or effective presence. I am of the view that once an order realising some amount as surcharge is passed, such order leads to civil consequences, therefore that has to be passed in conformity with the principles of natural justice, which requires the precise charges levelled against the person concerned against whom such allegation is made, his reply and inquiry report and thereafter the final order of the District Magistrate. In this case, from the perusal of the record, it does not transpire that the charges levelled against the Pradhan regarding irregularities and misuse of the Gram Nidhi fund has ever been served and he was required to file reply. In this case, from the perusal of the record, it does not transpire that the charges levelled against the Pradhan regarding irregularities and misuse of the Gram Nidhi fund has ever been served and he was required to file reply. The mere nodal presence in the preliminary inquiry cannot be termed the active participation and it is just like an eye wash. 21. In view of foregoing discussions, I am of the view that the impugned order suffers from breach of statutory provisions and it is settled that when a Statute requires to do certain thing in a particular manner, then that thing must be done in that very manner and other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid legal proposition is based on a legal maxim “Expressio unius est exclusio alterius”, meaning thereby that ‘if a Statute provides for a thing to be done in a particular manner, then it has to be done in that very manner and other manner and procedure is ordinarily not permissible’.Reference may be had to the judgments of the Apex in Taylor v. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253 ; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 ; Haresh Dayaram Thakur v. State of Maharashtra and others, (2000) 6 SCC 179 ; Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9 ; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633 , as well as this Court in Atar Singh v. State of U.P. and others, 2013(1) ADJ 43 , Bankey Lal and another v. Deputy Director of Consolidation and others, 2013(5) ADJ 51 , Phoolpati v. State of U.P. and others, 2014 2 AWC 1291 (All), Paras and another v. and others, 2013(8) ADJ 253 , Ram Pratap v. Deputy Director of Consolidation and others, 2013(6) ADJ 457 , Rambali and others v. State of U.P. and others, 2013(2) ADJ 91 . 22. It is also well-settled that where a Statute provides the consequence for nonperformance of such act as provided for, then those provisions are mandatory and not directory. While determining as to whether a provision is mandatory or directory, apart from the consequence, the language used in the statute has also to be seen. 22. It is also well-settled that where a Statute provides the consequence for nonperformance of such act as provided for, then those provisions are mandatory and not directory. While determining as to whether a provision is mandatory or directory, apart from the consequence, the language used in the statute has also to be seen. Further, in addition to the language used therein, the Court has to examine the context in which the provision is made and the purpose behind it to achieve. It may also be necessary to find out the intention of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. Here, in this case, the intention of the Legislature is to pass final order only after due notice and hearing to the affected parties that too by the particular department. 23. In view of foregoing discussions, the order passed by the Collector Basti cannot be sustained in the eye of law. The impugned order dated 31.12.2015 passed by the Collector, Basti is hereby quashed. The writ petition succeeds and is allowed. The District Magistrate, Basti is directed to proceed in accordance with law and get a preliminary inquiry conducted as intended under the Rules and pass a fresh order in accordance with law expeditiously but not later than six months from the date of receipt of certified copy of the order of this Court.