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2021 DIGILAW 482 (AP)

Yalla Sujeeva Rao v. State of Andhra Pradesh

2021-07-27

BATTU DEVANAND

body2021
JUDGMENT Battu Devanand, J. - This Writ Petition has been filed against the action of respondent No.2 in issuing Proceedings No. A5/e-1812947/2020, dated 24.03.2021 without issuing any show cause notice and not following due procedure established under law is illegal, arbitrary and contrary to the law and unjust and violating the principles of natural justice and also violation of Articles 14,19 and 21 of the Constitution of India and for consequential direction to set aside the impugned proceedings directing the respondents to follow due process of law. 2. Heard learned counsel for the Petitioner and the learned Government Pleader for Panchayat Raj appearing for Respondent Nos. 1 to 6 and Sri I. Koti Reddy, learned Standing Counsel appearing for Respondent Nos. 7 and 8 and perused the material available on record. 3. The case of the petitioner is that the petitioner is a Ex.Sarpanch of Kaiakram Gram Panchayat of Unguturu Mandal, West Godavari District, Andhra Pradesh. He worked as Sarpanch for a period of five years from 02.08.2013 to 09.08.2018. 4. Learned counsel for the petitioner submits that the Audit Department checked all accounts of the Gram Panchayat from time to time, and there are no any objections or misappropriation of public funds found against the petitioner. Now, the respondents issued the impugned proceedings stating that the petitioner misappropriated the Gram Panchayat funds to a tune of Rs.33,23,597/- and authorized the Tahsildar, Unguturu Mandal, to recover the said amount from the petitioner by initiating proceedings under Revenue Recovery Act. It is submitted by the learned counsel for the petitioner that the petitioner discharged his duties without there being any misconduct, commission or omission, negligent in performing the duties and as such, the allegations made against the petitioner are misconceived. He further contended that the respondent No.2 without following the procedure provided under Section 265 of the A.P. Panchayat Raj Act issued the impugned proceedings. 5. Learned counsel further submits that no notice was issued and no opportunity was given to the petitioner to put forth his case before Respondent No.2 before passing the impugned proceedings dated 24.03.2021. It is contended that the order impugned in this Writ Petition is issued in violation of principles of natural justice and prayed this Court to set aside the same in the interest of justice. 6. It is contended that the order impugned in this Writ Petition is issued in violation of principles of natural justice and prayed this Court to set aside the same in the interest of justice. 6. Upon perusal of the impugned order, this Court deems it fit to direct the Officer, who passed the impugned order to file Counter Affidavit, if the said Officer is not working as 2nd respondent as of now. 7. A counter affidavit has been filed by the concerned Officer on behalf of respondent No.2. In the Counter Affidavit, it is contended by the learned counsel for Respondent No.2 that one Kollabattula Nagaraju, resident of Kaikaram Village, has submitted a petition in Spandana Programme on 21.10.2019, alleging that several irregularities took place in the administration of Gram Panchayat, Kaikaram, during the period 2013-2014 to till date. The Extension Officer, PR & RD, Unguturu, enquired and verified the Gram Panchayat records and submitted a report to the Divisional Panchayat Officer, Eluru, on 16.02.2020 and the Divisional Panchayat Officer, Eluru, forwarded the enquiry report on 28.02.2020 stating that an amount of Rs.84,12,221/- misappropriated by the petitioner, Special Officer and the then Panchayat Secretaries of Kaikaram Gram Panchayat. On 22.09.2020, the said Report was submitted to the Commissioner of Panchayat Raj and Rural Development for necessary further action. The Commissioner for Panchayat Raj and Rural Development issued instructions to the District Collector, West Godavari District, requesting to take action as per rules in the Andhra Pradesh Panchayat Raj Act, 1994 (for short "1994 Act") against the petitioner, vide Memo No.1303417/CPR&RD/B1/2020. 8. It is averred in the Counter of the respondent No.2 that originally the power vested with the Commissioner, Panchayat Raj, under Sub Section (1) of Section 265 of 1994 Act for fixation of liability of Sarpanch for loss, waste or misapplication of the property. As per Sub Section (2) of Section 265 of 1994 Act, if the amount not so paid, the Commissioner shall cause it to be recovered as arrear of land revenue and credit to the funds of the Gram Panchayat. On receipt of the instructions from the Commissioner, PR & RD, the District Panchayat Officer has circulated the file for recovery under Sub Section 2 of Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994, and basing on the circulated note, respondent No.2 has approved the file. 9. On receipt of the instructions from the Commissioner, PR & RD, the District Panchayat Officer has circulated the file for recovery under Sub Section 2 of Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994, and basing on the circulated note, respondent No.2 has approved the file. 9. It is further averred in the Counter of Respondent No.2 that the power vested with the Commissioner is delegated to the District Collector for taking necessary action as per Sub Section (1) of Section 265 of the 1944 Act. The District Panchayat Officer, Eluru, has circulated the file without mentioning the delegation of the power under Sub Section (1) of Section 265 of 1994 Act. 10. Respondent No.2 filed an Additional Affidavit stating that he could not able to observe whether show cause notice is issued to the petitioner or not before issuing the impugned orders directing the Tahsildar, Unguturu, for recovery of the misappropriated amounts due to pressure of work and in view of the Notification issued by the State Election Commission for conducting elections to local bodies. It is contended that due to the work pressure and monitoring the other flagship programmes scheduled by the Government from time to time, he could not observe the file in detail and circulated the file for recovery under Sub Section (2) of Section 265 of 1994 Act and this Respondent has approved the file. It is further contended that there is no intention on the part of respondent No.2 to issue recovery order without following the stipulated procedure laid down under Section 265 of the 1944 Act. 11. Having heard the submissions of the respective counsel and upon perusal of the material available on record, it is appropriate to extract Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994, for proper adjudication of the matter, which is as follows: " 265. 11. Having heard the submissions of the respective counsel and upon perusal of the material available on record, it is appropriate to extract Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994, for proper adjudication of the matter, which is as follows: " 265. Liability of Sarpanch, President, Chairman etc., for loss, waste or misapplication of property:- (1) If, after giving the Sarpanch, Upa-Sarpanch, President, Vice-President, "Chairperson", "Vice-Chairperson" or the Executive Authority, the Mandal Parishad Development Officer, the Chief Executive Officer an Opportunity of showing cause to the contrary, the Commissioner is satisfied that the loss, waste or misapplications of any money or other property owned by or vested in the Gram Panchayat, Mandal Parishad, or as the case may be, the Zilla Parishad is a direct consequence of misconduct or gross neglect, on the part of such person, the Commissioner may, by order in writing, direct such person to pay to the Gram Panchayat, Mandal Parishad or as the case may be, the Zilla Parishad before the date fixed by him, the amount required to reimburse it for such loss, waste or misapplication, unless such person proves that he had acted in good faith. (2) If the amount is not so paid, the Commissioner shall cause it to be recovered as arrears of land revenue and credited to the fund of the Gram Panchayat, Mandal Parishad or, as the case may be, Zilla Parishad. (3) An appeal shall lie within thirty days from any decision of the Commissioner under this section to the Government whose decision thereon shall be final". 12. Upon perusal of the above provision of law, it is clear that Section 265(1) of the Andhra Pradesh Panchayat Raj Act, 1994, provides that after giving the petitioner an opportunity of showing cause to the contrary, the Commissioner is satisfied that the loss, waste, misapplications of any money or other property owned by or vested in the Gram Panchayat, the Commissioner may, by order in writing, direct such person to pay to the Gram Panchayat before the date fixed by him, the amount required to reimburse for such loss, waste or misapplication, unless such person proves that he had acted in good faith. 13. 13. Section 265(2) of the Andhra Pradesh Panchayat Raj Act, 1994, provides that if the amount is not so paid, the Commissioner shall cause it to be recovered as arrears of land revenue and credited to the fund of the Gram Panchayat. 14. On plain reading of Section 265(1) of the Act, it is clear that unless and until Respondent No.2 arrives at a conclusion that loss, waste or misapplication of Gram Panchayat funds is a direct consequence of misconduct or gross neglect of the Sarpanch, there cannot be any order of recovery of the amount under Section 265(1) of the Act. Further, if it is shown that such loss or waste or misapplication was occasioned in spite of the petitioner acting in good faith, Section 265(1) of the Act has no application. 15. Section 265(2) of the Act enables the recovery of amount as a land revenue which only means by legally sanctioned methods. Therefore, unless and until conditions precedent for exercise of power under Section 265(1) of the Act exist, routine order without recording any finding cannot be sustained. 16. Learned Government Pleader submits that respondent No.2 issued the impugned proceedings in exercise of the power delegated to him by the Commissioner of Panchayat Raj. 17. It is settled law that Section 265(1) of the Act requires a specific finding that of loss to Gram Panchayat is a direct consequence of misconduct or gross negligence and that the Sarpanch has not acted in good faith. All these were not considered by Respondent No.2 in the present case. As the very exercise of power is not in accordance with Section 265(1) of the Act, it is to be held that the impugned order suffers from malice in law. 18. It is well settled principle of administrative law that if an authority vested with power fails to appreciate the facts properly or fails to apply the law properly, such order would be vitiated by illegality. 19. In the Counter Affidavit, respondent No.2 contended that the petitioner has an alternative remedy of appeal under Section 265(3) of the Act. In the opinion of this Court, this contention cannot be accepted due to the reason that the impugned order itself is issued against to the principles of natural justice. 20. This Court is not expressing its opinion with regard to the allegations made against the petitioner. In the opinion of this Court, this contention cannot be accepted due to the reason that the impugned order itself is issued against to the principles of natural justice. 20. This Court is not expressing its opinion with regard to the allegations made against the petitioner. It is open to the respondents to initiate appropriate proceedings in accordance with law, if so advised. 21. Admittedly, the Order impugned in this Writ Petition is passed without following the procedure provided under Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994, and accordingly, it is liable to be set aside. 22. Accordingly, this Writ Petition is allowed with the following direction: The impugned Order No.A5/e-1812947/2020, dated 24.03.2021, issued by respondent No.2, is hereby set aside. 23. There shall be no order as to costs. 24. As a sequel, miscellaneous petitions pending, if any, shall stand closed.