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2018 DIGILAW 820 (ALL)

RAM DARASH v. STATE OF U. P.

2018-04-05

A.P.SAHI, RAJIV GUPTA

body2018
JUDGMENT By the Court.—Heard learned counsel for the petitioner. 2. This is a writ petition by a duly elected Gram Pradhan of Gram Panchayat, Sultanpur Nawapur, Block Palhana, District Azamgarh who has come up assailing the order of the District Magistrate-Azamgarh dated 17th February, 2018 whereby the petitioner has been called upon to deposit a proportioned sum of Rs. 4,02,000/- on account of lapses in the construction of toilets in the Gram Panchayat in question. 3. Primarily, two grounds have been taken by Sri N.L. Pandey learned counsel for the petitioner, namely that the impugned order has been passed without holding any enquiry or putting the petitioner to notice, and secondly, the computation of the amount is absolutely erroneous and contrary to the available funds and without accounting the construction of the toilets already made. He submits that even if there was any alleged default then it was incumbent upon the Competent Authority to hold an enquiry, inasmuch as, the petitioner is a sitting Gram Pradhan and on the basis of a preliminary enquiry a show-cause notice ought to have been given to the petitioner, keeping in view the provisions of the Uttar Pradesh Panchayat Raj 1947 Act Section 27 and Section 95(1g) respectively. For this reliance is placed on one Division Bench judgment of this Court, namely Indu Devi v. District Magistrate, Chitrakoot and others, 2006(2) ADJ 552 and the judgment of a learned Single Judge in the case of Ram Shankar v. District Magistrate Basti and others, 2010(9) ADJ 23 . 4. It is further submitted that even otherwise if the realization has to be made under the provisions of Section 27 of the 1947 Act as a surcharge on the allegation of mis-utilization or otherwise of any Gaon Sabha fund, then too even, the same cannot be resorted too without following the procedure prescribed in law as has been dealt with by a learned Single Judge in the judgment of Dhruva Chand v. State of U.P. and others, 2016(6) ADJ 569 . 5. We have considered the submissions raised and we have also heard the learned Standing Counsel. 6. We have also been apprised of the contents of the communication of the Chief Development Officer dated 21st December, 2017 on the basis whereof the impugned order has been passed. 5. We have considered the submissions raised and we have also heard the learned Standing Counsel. 6. We have also been apprised of the contents of the communication of the Chief Development Officer dated 21st December, 2017 on the basis whereof the impugned order has been passed. The said letter of the Chief Development Officer was addressed to the Block Development Officer, Palhana, District-Azamgarh with a copy of the same to the Assistant Development Officer, and to the District Magistrate for his perusal. The Block Development Officer had been called upon to get the toilets completed, or else criminal prosecution would be launched against him and the other officials. 7. In our assessment, it appears that under the threat of the said letter of the Chief Development Officer, the impugned action was immediately taken without taking recourse to any preliminary or final enquiry either against the petitioner or against the officials concerned. This is evident from a perusal of the impugned order itself which reflects a knee-jerk reaction. The learned Standing Counsel could not point out the holding of any enquiry prior to the passing of the impugned order. In such a situation, it is evident that the impugned order dated 17.2.2018 has been passed in violation of principles of natural justice and there is no recital in the order about any procedure having preceded prior to the passing of the impugned order. Consequently, we find that the judgments which have been relied upon by the learned counsel for the petitioner, clearly come to the aid of his arguments and the writ petition deserves to be allowed on this short ground alone. 8. As a result of the foregoing discussion, we find that the impugned order dated 17.2.2018 cannot be sustained, and it is accordingly quashed without any prejudice to and with liberty to the concerned authority to put the petitioner to notice and then to take appropriate action in accordance with law in the light of the observations made hereinabove. 9. The writ petition, is accordingly, allowed.