# Dinesh Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2022) 12 ILRA 276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-16
- **Case number:** Writ C No. 28230 of 2022
- **Bench:** Siddhartha Varma, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-ors-v-state-of-u-p-ors-48014
- **Pages:** 7

## Headnote

A. Civil Law - UP Panchayat Raj Act, 1947
- Section 27 - UP Panchayat Raj Rules,
1947 - R. 256 & 257 - Allegation of
committing irregularities of public money
against Pradhan & ors. - Enquiry was
conducted
by
Deputy
Director
of
Agriculture, not by Chief Audit Officer -
Effect - Surcharge for the loss etc. -
Validity challanged - Held, there is not an
iota of doubt that the enquiry, which was
conducted
by
the
Deputy
Director
(Agriculture), Basti, was an enquiry which
was without jurisdiction - As per Rules
256 and 257 of the 1947 Rules, the
enquiry ought to have been conducted by
the Chief Audit Officer and now as per the
order of delegation made by the Chief
Audit Officer by the District Audit Officers
- High Court set aside the impugned
order. (Para 15)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

276 INDIAN LAW REPORTS ALLAHABAD SERIES
that neither a mistake nor an irregular
exercise of jurisdiction gives a ground for
interference.

19. In Beni Prasad Tiwari Vs.
Damodar Prasad Tiwari, 1979 AWC
(Rev) 37 it is held that mistake of fact, an
omission by trial court to record proper and
detailed reason is not a ground for revision.

20. By this order no injustice had
been caused to the petitioner. The effect of
the order of S.D.O. or the Commissioner
was only this that the original suit would be
disposed of on merit. This is also the basic
purpose of justice and the judicial system.
It appears that the petitioner does not want
disposal of original suit on merit, so he
preferred revision and thereafter restoration
application and caused more delay by filing
this writ petition. If the impugned orders
remain intact, no prejudice is caused to the
petitioner. For maintainability of a revision,
there must be a decision of any suit or
proceeding. Here no suit or proceeding has
been finally decided. The suit under
Section 229 B is still pending and even by
the impugned order it was not decided.
Therefore, the forum to prefer revision was
not available to the petitioner. In the cited
case the matter under Section 122B and
right of the petitioner under Section 122B
(4-F)
was
finally
and
completely
adjudicated by the S.D.O. Hence, the
revision was maintainable which should
have been decided on merit but in this case
it is not so. The petitioner has levelled the
charges against the revisional Court but to
establish the same he has not filed the
certified copies of the order-sheet to
establish that the date was fixed only for
order on stay application. Considering the
facts of the case this Court is also in
conformity with the view expressed by
Additional Commissioner expressed in his
order on 31.1.1998 that the petitioner wants
to keep the matter pending for an indefinite
period.

21. Facts of this case and the cited
case are not similar. Hence there was no
occasion to look into the legality and
propriety of the order of the lower Court
and there was no need to summon the
records of the lower Court only on this
ground that revision has been preferred. By
summoning the records the proceeding of
the Lower Court are discontinued and the
length of the case becomes too longer. Thus
this petition is devoid of the merit and is
dismissed with cost.

22. Let the copy of the judgment be
sent to the District Magistrate, Etah to
direct Additional S.D.O. Ist Aliganj, to
proceed with the case No. 122/15/71/1993
under Section 122 B of the U.P. Z.A. &
L.R. Act after affording the opportunity to
both the parties at the earliest as the matter
has already become so old.
----------
(2022) 12 ILRA 276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ C No. 28230 of 2022

Dinesh Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Udayan Nandan, Sri Shashi Nandan (Sr.
Advocate)

Counsel for the Respondents:
12 All. Dinesh Kumar & Ors. Vs. State of U.P. & Ors.
277
C.S.C., Sri Vinay Kumar Pathak, Sri H.N.
Singh (Sr. Advocate)

A. Civil Law - UP Panchayat Raj Act, 1947
- Section 27 - UP Panchayat Raj Rules,
1947 - R. 256 & 257 - Allegation of
committing irregularities of public money
against Pradhan & ors. - Enquiry was
conducted
by
Deputy
Director
of
Agriculture, not by Chief Audit Officer -
Effect - Surcharge for the loss etc. -
Validity challanged - Held, there is not an
iota of doubt that the enquiry, which was
conducted
by
the
Deputy
Director
(Agriculture), Basti, was an enquiry which
was without jurisdiction - As per Rules
256 and 257 of the 1947 Rules, the
enquiry ought to have been conducted by
the Chief Audit Officer and now as per the
order of delegation made by the Chief
Audit Officer by the District Audit Officers
- High Court set aside the impugned
order. (Para 15)
Writ petition allowed. (E-1)
List of Cases cited:
1. Smt. Shyam Wati Vs St. of U.P & ors.; 2013
(6) AWC 6339
2. Uday Pratap Singh @ Harikesh Vs St. of U.P.
& ors.; 2019 (10) ADJ 443
3. Ram Vilas Vs Commissioner Devi Patan
Mandal Gonda & ors.; 2022 (1) ADJ 1
(Delivered by Hon'ble Siddhartha Varma, J.)

1. The petitioner no. 1-Dinesh Kumar
is the Gram Pradhan, Gram Panchayat -
Sewra Lal, Vikas Khand - Vikramjot,
District - Basti; the petitioner no. 2-Hariom
Pal is the Additional Development Officer,
Gram Panchayat - Sewra Lala, Vikas
Khand - Vikramjot, District - Basti; the
petitioner no. 3-Awadhesh Jaiswal is the
Gram Panchayat Adhikari, Gram Panchayat
- Sewra Lala, Vikas Khan - Vikramjot,
District - Basti; the petitioner no. 4-Suraj
Kumar Pandey, is the Village Development
Officer, Gram Panchaat - Sewra Lala, Vikas
Khand - Vikramjot, District - Basti and the
petitioner no. 5-Vijay Kumar Malviya, is
the Technical Assistant, Gram Panchayat -
Sewra Lala, Vikas Khand - Vikramjot,
District Ballia.

2. A complaint was filed by one
Prince Kumar Shukla regarding the alleged
irregularities committed by the petitioners.
On 12.5.2022, the Chief Development
Officer passed an order for conducting an
enquiry. On 1.6.2022, an enquiry report,
which as per the petitioner was an ex parte
one, was submitted by the Deputy Director
of Agriculture, Basti.

3. Thereafter, on the basis of the ex
parte enquiry, the District Magistrate issued
show cause notices to the petitioners asking
them to submit replies to the charges
levelled against them and to explain as to
why under the provisions of Section 27 (2)
of the U.P. Panchayat Raj Act, 1947
(hereinafter refer to as ''the Act of 1947')
recovery of Rs. 19,95,110/- be not initiated
jointly against the petitioners.

4. The petitioners submitted their
replies and, thereafter, when on 29.8.2022,
the District Magistrate, Basti, passed the
order impugned, the instant writ petition
was filed.

5. Learned counsel for the petitioners
Sri Udayan Nandan, Advocate, argued that
the order dated 29.8.2022 was passed on an
enquiry report dated 1.6.2022 which report
was a result of an enquiry which was
conducted
by
the
Deputy
Director
(Agriculture), Basti. As per the learned
counsel for the petitioner, the Deputy
Director (Agriculture), Basti, was not a
person authorized to conduct the enquiry
for the purposes of imposition of surcharge.
Since the learned counsel for the petitioner
278 INDIAN LAW REPORTS ALLAHABAD SERIES
relied upon Section 27 of the Act of 1947
and the Rules 256 and 257 of the U.P.
Panchayat Raj Rules, 1947 (hereinafter
referred to as "the Rules of 1947"), the
same are being reproduced here as 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 [shall be liable to
surcharge
for
the
loss,
waste
or
misapplication of money or property
belonging to the Gram Panchayat, if such
loss, waste or misapplication is direct
consequence of his neglect or misconduct
while he was such Pradhan or Member]

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, realise 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
of 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 suit for
compensation for such loss, waste or
misapplication, against the person liable for
the same."

CHAPTER XIII

SURCHARGE RULES

"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-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, Co-operative
Societies and Panchayats or any officer
subordinate to him not below the rank of
auditor,
Panchayats
for
preliminary
enquiry, shall be furnished and shall be
connected papers and records shall be
shown to him by the Pradhan immediately
on demand.

(2) Without prejudice to the
generality or the provisions contained in
sub-rule (1) the Chief Audit Officer, Cooperative Societies and Panchayats, may
call for the explanation in the following
cases:
12 All. Dinesh Kumar & Ors. Vs. State of U.P. & Ors.
279

(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 funds 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 who an explanation has been
called for, the Gaon Panchayat shall give
his necessary facilities for inspection of the
records 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.

Explanation. - Making of an
appointment in contravention of the Act,
the
rules
or
the
regulations,
made
thereunder shall amount to misconduct or
negligence and payments to employees of
salaries and other dues on account of such
irregular appointments shall be deemed to
be a loss, waste or misuse of Gaon Fund.

257.(1) After the 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 along with
his recommendations to the District
Magistrate of the district in which the
Gaon Sabha is situated in case of
Pradhan, Up-Pradhan and Members and
to the District Panchayat Raj Officer of
the district in which

(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 Gaon
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 a Gaon Panchayat would be
required to make good the loss, if from
the explanation of the Pradhan, UpPradhan, Member, Officer or servant
concerned or otherwise the District
Magistrate of 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 case
of loss, waste or misuse occurring as a
result of a resolution of the Gaon
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 Gaon
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
280 INDIAN LAW REPORTS ALLAHABAD SERIES
from the date of his ceasing to be a
Pradhan, Up-Pradhan, Member, Officer or
servant of the Gaon Panchayat whichever is
later."

6. Learned counsel for the petitioners
submitted that a perusal of Section 27 of
the Act of 1947 read with Rule 256 of the
Rules of 1947 clearly shows that surcharge
was leviable on an enquiry which was
conducted by the Chief Audit Officer and
which had to be forwarded to the District
Magistrate in the case of Pradhan, UpPradhan and Members of Gram Panchayat
and to the District Panchayat Raj Officer in
the cases of officers and servants of the
Gaon Sabha.

7. Learned counsel for the petitioners,
therefore, submitted that it was the Chief
Audit Officer of the Cooperative Societies
and Panchayat who was the officer
authorized to conduct the enquiry for the
purposes of the imposition of surcharge.

8. He further submitted that after the
report was submitted to the District
Magistrate, the order ought to have been
passed by the Competent Authority and the
learned
counsel
for
the
petitioners
submitted that since there was yet no
competent authority appointed, the order of
the District Magistrate was also beyond
jurisdiction.

9. To bolster his argument, learned
counsel for the petitioners relied upon the
judgement of this Court in Smt. Shyam
Wati vs. State of U.P and others reported
in 2013 (6) AWC 6339. This judgement
was cited to show that if the enquiry was
not conducted by the Chief Audit Officer
then the enquiry as had been done in this
case by the Deputy Director (Agriculture)
Basti, was without jurisdiction. He further
submitted
that
when
there
was
no
Prescribed Authority as has been referred to
in Section 27(2) of the Panchayat Raj Act
then the District Magistrate had no
jurisdiction to impose the surcharge. For
this purpose, learned counsel for the
petitioner relied upon Uday Pratap Singh
@ Harikesh vs. State of U.P. and others
reported in 2019 (10) ADJ 443.

10. Sri H.N. Singh, Sr. Advocate,
assisted by Sri Vinay Kumar Pandey,
learned counsel for the complainant while
making
the
submissions
very
fairly
conceded that as far as the jurisdiction with
the Deputy Director (Agriculture), Basti,
was concerned, it was only the Chief Audit
Officer who was authorized to conduct the
enquiry. He, however, submitted and also
placed a written submission that now when
the Panchayat had attained constitutional
status and as per Article 243, 243(A) to
243(O) of the Constitution of India there
were provisions in the Constitution to
provide for a three tier Panchayat system
such as the Village Panchayat, Kshetra
Panchayat and the District Panchayat
instead of the Chief Audit Officer, some
more powerful body should be brought into
existence. He submitted that further since
as per Article 243(I) of the Constitution, a
Finance
Commission
to
review
the
financial position of Panchayats had been
formed, on which there was the duty to
enquire into the financial deals of the
Panchayat then the finances of a gram
panchayat should be monitored by a much
more powerful body. While making his
submissions, he also submitted that under
Article 243 (G), there were various powers,
authorities and responsibilities bestowed
upon the Panchayat, so much so that under
Article 243 (H) even powers to impose
taxes had been given to the panchayats. He
submits that though various amendments
12 All. Dinesh Kumar & Ors. Vs. State of U.P. & Ors.
281
had been made in the Panchayat Raj Act,
the provision for enquiry for the purposes
of surcharge had remained only with the
Chief Audit Officer. He submits that the
various
Panchayat
work
had
to
be
supervised and had to be audited and there
were times that even before the audit could
take place after the completion of work, the
responsibilities had to be fixed for the
works which had commenced and which
were not being done properly.

11. The relevant portions of the
written submissions which Sri H.N. Singh,
Sr. Advocate assisted by Sri Vinay Kumar
Pathak learned counsel for the complainant,
had submitted are being reproduced here as
under:

"I. By 73rd Amendment of
Constitution with effect from 24.4.1993,
the
Panchayats
have
attained
the
constitutional status and in Article 243,
243-A to 243-O Constitutional provisions
has been provided for Constitution of 3 tier
Panchayat
such
as
Gram
Panchayat,
Kshetra Panchayat and Zila Panhcayat and
Article 243-I for Constitution of Finance
Commission to review financial position of
the Panchayt whereas Article 243-G
provide
for
powers,
authority
and
responsibilities of Panchayats whereas
Article 243-H empowers the Panchayats to
impose taxes. The U.P. Panchayat Raj Act
was amended in the year 1994 according to
the Constitutional Mandate and now the
huge fund is being made available by the
State Government to Gram Panchayat as
provided under Section 32 of the Act of
1947 and function of the Gram Panchayat
is provided under Section 15 of the
Panchayat Raj Act. U.P. Panchayat Raj
Rules,
1947,
is
an
old
Rule
and
consequently amendment in the Rule has
not been made in view of the Amendment
in Panchayat Raj Act according to 73rd
Amendment of the Constitution of India.

II. Rules of 1947 appears to have
been framed to prescribe the procedure of
surcharge under Rule 256 to 259 keeping in
view the position as was in the year 1947 when
hardly the fund was available to Gram
Panchayat and very nominal fund was available
which was to be audited by the Chief Audit
Officer.

III. By the time the Finance
Commission has been constituted, huge fund
for development work is being released to the
Gram
Panchayat
by
which
the
Gram
Panchayats are making constructions which
requires monitoring on spot, whether amount
has
been
actually
utilized,
construction
according to norms has been done and material
has been used as per standards prescribed.

IV. To monitor the spot position and
to prevent the misappropriation of the huge
fund release mere audit on record is not
sufficient and it requires monitoring and
supervision on spot and also require enquiry by
any technical person having knowledge in the
field. In this view of matter the Rules 256 to
259 of Rules of 1947 is not competent. In view
of the amendment of the Constitution and
Panchayat Raj Act for removal of the Pradhan,
a specific rule has been framed known as Uttar
Pradesh Panchayat Raj (Removal of Pradhans,
Up-Pradhans and Members) Enquiry Rules,
1997 but no fresh rule has been framed for
fixing surcharge and supervision of the
utilization of the fund released to Gram
Panchayat.

V.
That
in
the
facts
and
circumstances in view of the change which has
taken place from 1947 till date it has become
necessary to prescribe a specific Rule for
utilization of the fund by the Gram Panchayat
and for determining the liabilities of the
Pradhan, Members of Gram Panchayat and
concerned officer and servants of Gram
Panchayat."
282 INDIAN LAW REPORTS ALLAHABAD SERIES

12.

Learned
counsel
for
the
complainant, however, submitted that so far
as the jurisdiction under Section 27(2) of the
1947 Act for imposing the surcharge with the
District Magistrate had been questioned, the
question was no longer res intergra as now a
Division Bench of this Court in the case of
Ram Vilas vs. Commissioner Devi Patan
Mandal Gonda and others reported in 2022
(1) ADJ 1 had decided that the District
Magistrate could impose the surcharge.

13. Learned Standing Counsel though
was asked to place before the Court the
record of the Chief Audit officer by the
order of this Court dated 19.9.2022, a
counter affidavit has been filed in which he
had appended two Government Orders
dated 14.8.2019 and 8.6.2022. By the
Government Order dated 14.8.2019, he has
only brought on record the Government
Order by which the enquiry as per the U.P.
Panchayat Raj (Removal of Pradhans, UpPradhans and Members) Enquiry Rules,
1997, was to be conducted. With regard to
the Government Order dated 8.6.2022,
suffice it to say that the learned Standing
Counsel has brought on record the fact that
the District Magistrate had been made the
Prescribed Authority.

14. Still further the learned Standing
Counsel has brought to the notice of the
Court an order dated 26.9.2022 by which the
Chief Audit Officer had delegated his powers
to the District Audit Officers.

15. Having heard the learned counsel
for the parties, there is not an iota of doubt
that the enquiry which was conducted by the
Deputy Director (Agriculture), Basti, was an
enquiry which was without jurisdiction. In
fact, as per Rules 256 and 257 of the 1947
Rules, the enquiry ought to have been
conducted by the Chief Audit Officer and
now as per the order of delegation made by
the Chief Audit Officer by the District Audit
Officers.

16. Under such circumstances, the
impugned order dated 29.8.2022 passed by
the District Magistrate, Basti, is quashed and
is set aside.

17. However, the Court suggests that
the Law Commission may take up the matter
and as per the conditions prevailing now i.e.
as per the various powers which have been
bestowed upon the Panchayats after the
amendment of the Constitution of India by
the 73rd Amendment by which Articles
243(A) to 243 (O) have been added in the
Constitution of India and the Panchayats
have attained constitutional status, a body
which has powers to supervise the working
of the Pradhans and its officials should be
constituted for monitoring of the Panchayats
and for supervising the work which is being
done by them.

18. For the reasons stated above, the
writ petition stands allowed.

19. A copy of this order be sent by the
Registrar General of this Court to the State
Law Commission.
----------
(2022) 12 ILRA 282
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022 &
30.05.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 29479 of 2021

Shweta Pathak ...Petitioner
Versus
U.O.I. & Ors. ...Respondents