# Ram Vilas v. Commissioner Devi Patan Mandal Gonda & Ors

- **Citation:** (2021) 11 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-17
- **Case number:** Writ C No. 24902 of 2019
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-vilas-v-commissioner-devi-patan-mandal-gonda-ors-46627
- **Pages:** 7

## Headnote

Raj Act, 1947: Section 2(q)(ii), 27 - U.P.
Panchayat Raj (Amendment) Rules, 1969 -
By way of Amendment in Chapter XIII heading
"SURCHARGE" was inserted in the U.P. Panchayat
Raj Rules, 1947. The Court interpreted that the
District Magistrate is the "Prescribed Authority" for
imposing surcharge on Pradhan, Up-Pradhan and
the Members under Section 27(2) and the District
Panchayat Raj Officer is the Prescribed Authority
for imposing surcharge upon the Officers or
servants of the Gaon Sabha. (Para 20)

Reference is Answered. (E-10)

List of Cases cited:

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES
not undergone, the punishment will surrender to
the Jail authorities concerned, if he has not
preferred any appeal or no orders are passed.
----------
(2021)12ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 156 of 2008 & other cases

Ram Vilas ...Petitioner
Versus
Commissioner Devi Patan Mandal Gonda & Ors.
 ...Respondents

Counsel for the Petitioner:
M/s Mohan Singh, Rajiv Kumar Tripathi, Rama Kant
Dixit, Vinod Kumar Pandey, S. Chandra, Ganesh Nath
Mishra, Satendra Nath Rai

Counsel for the Respondents:
Mr. Manjive Shukla, Additional Chief Standing
Counsel, Mr. Brijesh Kumar Singh, Advocate

A. Interpretation of Statute - U.P. Panchayat
Raj Act, 1947: Section 2(q)(ii), 27 - U.P.
Panchayat Raj (Amendment) Rules, 1969 -
By way of Amendment in Chapter XIII heading
"SURCHARGE" was inserted in the U.P. Panchayat
Raj Rules, 1947. The Court interpreted that the
District Magistrate is the "Prescribed Authority" for
imposing surcharge on Pradhan, Up-Pradhan and
the Members under Section 27(2) and the District
Panchayat Raj Officer is the Prescribed Authority
for imposing surcharge upon the Officers or
servants of the Gaon Sabha. (Para 20)

Reference is Answered. (E-10)

List of Cases cited:

1. Uday Pratap Singh @ Harikesh Vs St. of U.P. & ors.
Writ C No. 24902 of 2019
(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. The matter has been placed before this
Court for consideration of the following
questions of law, on account of doubt expressed
by learned Single Judge on the view expressed
earlier by a Single Judge of this Court in Writ-C
No. 24902 of 2019 (Uday Pratap Singh @
Harikesh Vs. State of U.P. and others) decided
on 30.09.2019:

"(1) Whether in view of the U.P.
Panchayat Raj (Amendment) Rules, 1969 by
which
Chapter-
XIII
with
the
heading
''SURCHARGE' was inserted in the U.P.
Panchayat Raj Rules, 1947 in exercise of powers
under Section 110 by the State Government,
which have been notified in the Gazette on
31.05.1969, the District Magistrate is the
''Prescribed Authority' for imposing surcharge
on Pradhan, Up-Pradhan and Members under
Section 27 (2) in terms of Section 2(q)(ii) of the
U.P. Panchayat Raj Act, 1947 or not ?, and
whether the District Pachayat Raj Officer is the
Prescribed Authority for imposing surcharge
upon the Officers or servants of the Gaon Sabha
or not ?

(2) Whether the decision rendered by a
Single Judge Bench in Writ- C No. 24902 of
2019; Uday Pratap Singh @ Harikesh Vs. State
of U.P. and others and connected petitions on
30.09.2019 lays down the law correctly with
regard to Question No. 1 framed above ?"

2. As only legal issues have been referred
to be considered by Larger Bench, we do not go
much in the facts of the case as for that purpose
the matter will go back before the learned Single
Judge.

3. The argument raised by learned counsel
for the petitioners is that the Prescribed
Authority having not been notified in terms of
the provisions of the U.P. Panchayat Raj Act,
1947 (hereinafter referred to as "the Act"), the
District Magistrate cannot exercise the power. A
11 All. Ram Vilas Vs. Commissioner Devi Patan Mandal Gonda & Ors.
681
plain reading of Section 27 of the Act shows that
the Prescribed Authority is to fix the amount of
surcharge and certify the same to the Collector
for recovery of the same as arrears of land
revenue. It would clearly mean that two persons
have to be different authorities. The Prescribed
Authority cannot be the Collector (District
Magistrate).

4. On the other hand, learned counsel for
the State submitted that Section 2(q) of the Act
defines "Prescribed Authority". Clause (ii)
thereof provides that the Prescribed Authority
shall be the authority notified as such by the
Government, whether generally or for any
particular purpose. Chapter-XIII was added in
the U.P. Panchayat Raj Rules, 1947 (hereinafter
referred to as the "the Rules") vide Notification
dated May 22, 1969 published in Gazette on
May 31, 1969. It clearly provides the procedure
and the authority competent to take action in
terms of Section 27 of the Act. This is in
compliance to the requirements of Section 27
read with Section 2(q) of the Act.

5. From a plain reading of the Rules
contained in Chapter XIII of the Act, it is
evident that hierarchy of officers has been
provided even for hearing the appeals against the
orders passed by the authorities concerned. No
separate notification, as such, is required to be
issued as the Rules framed in exercise of powers
conferred under Section 110 of the Act provides
for the same. It is not a matter of dispute that the
Rules were notified in the Gazette. He further
submitted that merely because in Section 27(2) it
is mentioned that the Prescribed Authority shall
fix the amount of surcharge and certify this
amount to the Collector for recovery as arrears
of land revenue, it will not mean that both the
authorities have to be different. If seen in the
light of the definition of "Collector", as provided
in Section 2(e) of the Act, there are many
officers who fall within the definition of
Collector. Even otherwise, the same officer can
exercise two powers. Recovery of an amount as
arrears of land revenue is nothing but execution
of the order passed by Prescribed Authority for
recovering the amount as per procedure
prescribed.

6. The matter came to be referred for
decision by this Bench on account of opinion
expressed by a Single Judge of this Court in
Uday Pratap Singh's case (supra) holding as
under:

"A.
The
expression
"Prescribed
Authority" referred to in Section 27(2) of the
Act means an authority duly designated for that
purpose in accordance with the provisions made
in Section 2(q)(ii);

B. The State has failed to establish that
the District Magistrate was duly notified as the
Prescribed Authority in accordance with the
mandate of Section 2(q)(ii). In the absence of a
notification designating the District Magistrate
as the competent authority for the purposes of
Section 27(2), the orders of surcharge impugned
cannot be sustained;

C. The prescription of a procedure for
assessment and recovery of surcharge in Chapter
XIII of the Rules and the assignment of a role to
the District Magistrate or the District Panchayat
Raj Officer thereunder cannot be held to be a
compliance of the requirement of Section 27(2);

D. Rules 256-259 as contained in
Chapter XIII of the Rules are only an extension
of the requirement placed by Section 27(2) to
lay in place a structure to "fix the amount of the
surcharge according to the procedure that may
be prescribed";

E. Section 27(2) neither sanctions nor
envisages the designation of a Prescribed
Authority by way of a rule or other subordinate
legislation;".
682 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Heard learned counsel for the parties.

8. The relevant provisions of the Act are
extracted below:

"2. Definitions - In this Act, unless
there is anything repugnant in the subject or
context. -

x x x x

(e)
''Collector'
or
''District
Magistrate' or ''Sub-divisional Magistrate'
with reference to a Gram Sabha, means the
Collector, District Magistrate or Sub-Divisional
Magistrate of the District or the sub-division, as
the case may be, in which such Gram Sabha is
constituted; and shall respectively include
Additional
Collector,
Additional
District
Magistrate
and
Additional
Sub-Divisional
Magistrate;

x x x x

(q) ''Prescribed authority' means -

(i) for the purposes of the provisions of
this Act mentioned in Schedule III of the Uttar
Pradesh Kshettra Panchayat and Zila Panchayat
Adhiniyam, 1961, the Zila Panchayat or the
Kshettra Panchayat, as may be specified in
column 3 of that Schedule; and

(ii) in respect of any other provisions
of this Act, the authority notified as such by the
State Government whether generally or for any
particular purpose;

x x x x

27. Surcharge - (1) Every Pradhan 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,
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.

(4) Where no proceeding for fixation
and realization of surcharge as specified in subsection (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.

x x x x

110. Powers of State Government to
make Rules - (1) The State Government may,
by notification in the Gazette, make rules for
carrying out the purposes of this Act."

9. The Rules 256 to 260 of the Rules,
relevant for the purpose of this case, read as
under:
11 All. Ram Vilas Vs. Commissioner Devi Patan Mandal Gonda & Ors.
683

"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 Gram Sabha as a direct
consequence of the negligence or misconduct of
a Pradhan, Up-Pradhan, Member, Officer or
servant of the Gram Panchayat, 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 Gram 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 Gram
Panchayat shall be called for through the District
Magistrate and from the officer or servant
through the District Panchayat Raj Officer:

Provided also that no explanation shall
be called for from any member who is recorded
in the minutes of the Gram 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.

(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
Gram Sabha by acceptance of a higher tender
without sufficient reasons in writing.

(c) where any sum due to the Gram
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 Gram Sabha by neglect in realizing its dues;
or

(e) where loss has been caused to the
funds or other property of the Gram 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 Gram Panchayat shall give him
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.

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 Gram
Sabha is situated in case of Pradhan, UpPradhan 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.
684 INDIAN LAW REPORTS ALLAHABAD SERIES

(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, UpPradhan, 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, UpPradhan, 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 Pradhan,
Up-Pradhan, Member, Officer or servant of the
Gram Panchayat, whichever is later.

258. (1) Any Pradhan, Up-Pradhan or
Member of a Gram Panchayat aggrieved with an
order of surcharge passed by the District
Magistrate under Rule 256 may appeal to the
Commissioner of the Division within thirty days
from the date on which such order is
communicated to him and the Commissioner of
the Division may confirm, rescind or vary the
order passed by the District Magistrate or may
pass such orders as he thinks fit.

(2) Any Officer or servant of a Gram
Panchayat aggrieved with an order of surcharge
passed by the District Panchayat Raj Officer
may appeal to the District Magistrate within
thirty days from the date on which such order is
communicated
to
him
and
the
District
Magistrate may confirm, rescind or vary the
order passed by the District Panchayat Raj
Officer or may pass such orders as he thinks fit.

259. (1) A Pradhan, Up-Pradhan,
Member, Officer or servant of a Gram
Panchayat who has been surcharged, shall pay
the amount of surcharge within three months
from the date of communication to him of the
order of surcharge passed by the District
Magistrate or the District Panchayat Raj Officer,
as the case may be:

Provided that when an appeal has been
preferred under Rule 258 against the order of
surcharge passed by the District Magistrate or
the
District
Panchayat
Raj
Officer,
all
proceedings for recovery of the surcharge from
the persons who have preferred the appeal shall
be stayed until the appeal has been finally
decided.

(2) If the amount of surcharge is not paid within
the period specified in sub-rule (1) it shall be
recovered as arrears of land revenue.

260. Where a suit is instituted in a
Court to question an order of surcharge and the
District Magistrate, District Panchayat Raj
Officer or the Commissioner of the Division is a
defendant in such a suit, all costs incurred in
defending such a suit shall be paid by the Gaon
11 All. Ram Vilas Vs. Commissioner Devi Patan Mandal Gonda & Ors.
685
Panchayat and it shall be the duty of the Gaon
Panchayat to make such payment without undue
delay."

10. Section 27 of the Act provides that
every Pradhan of a Gram Panchayat and 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 in
discharge of his duties. The Prescribed Authority
has been given power to fix the amount of
surcharge according to the procedure as may be
prescribed. The amount has to be certified to the
Collector for realization as arrears of land
revenue. Sub-section (3) thereof provides that
any person aggrieved by an order of Prescribed
Authority fixing the amount of surcharge may
file an appeal against such order to the State
Government or such other appellate authority, as
may be prescribed.

11. Section 2(q)(ii) defines "Prescribed
Authority" as an authority notified as such by
State Government, whether generally or for any
particular purpose. It would mean that the
Prescribed Authority is to be notified conferring
power under this Act. Section 110 of the Act
provides that the State Government may, by
notification in the Gazette, make Rules for
carrying out the purposes of this Act.

12. It cannot be disputed that the purpose
of notifying Prescribed Authority is to carry out
the purposes of this Act. It is not only the
Prescribed Authority but in terms of Section
27(3) even an appellate authority is also to be
prescribed.

13. Chapter-XIII was added in the Rules
vide Notification dated May 22, 1969 published
in Gazette on May 31, 1969. Rule 256 of the
Rules provides different authorities for taking
action in terms of Section 27 of the Act. A
perusal of Rules 256 to 260 of Chapter XIII of
the Rules show that complete procedure has
been provided for fixation of the surcharge to be
recovered from different officers in Gram
Panchayat on account of loss, waste or misuse of
any money/property belonging to the Gaon
Sabha which is on account of a direct
consequence of negligence or misconduct of the
person
concerned.
Chief
Audit
Officer,
Cooperative Society and Panchayats is to
consider the same and after examination of the
explanation, if any, received from persons
concerned, submit the papers along with
recommendation to the District Magistrate of the
District in which the Gaon Sabha is situated, in
case of Pradhan, Up-Pradhan and Member. The
report along with recommendation has to be sent
by Chief Audit Officer to the District Panchayat
Raj Officer of the District in which Gaon Sabha
is situated, in case of Officers and servants. The
District Magistrate or the the District Panchayat
Raj Officer, as the case may be, is to finally fix
the amount, which is recoverable from the
person concerned.

14. Rule 258 provides the appellate
authority, in terms of Section 27 (3) of the Act.
An order passed by the District Magistrate is
appealable to the Commissioner of the Division,
whereas an order passed by District Panchayat
Raj Officer is appealable to the District
Magistrate.

15. The argument raised by learned
counsel for the petitioners that separate
notification had to be issued for specifying
Prescribed Authority for taking action for
assessment of surcharge is misconceived and
deserves to be rejected. A perusal of various
provisions of the Act, as have been referred
above, only shows that a notification has to be
issued. That would not mean that a separate
notification is to be issued only for notifying the
686 INDIAN LAW REPORTS ALLAHABAD SERIES
Prescribed
Authority.
Once
the
complete
procedure for fixation of surcharge and authority
concerned for the purpose has been prescribed in
the Rules framed under the Act, which have
been duly notified, in our opinion the mandate of
the law stands satisfied.

16. The District Magistrate is the
competent authority for fixation of amount of
surcharge recoverable from Pradhan, UpPradhan and Member and the District Panchayat
Raj Officer is competent authority for fixing the
amount of surcharge in case of officers and
servants.

17. The argument that the Prescribed
Authority as well as Collector have to be
separate persons is merely to be noticed and
rejected as the same authority can be conferred
with two different powers. In any case, recovery
of an amount due from any person is merely a
process of execution and power can be exercised
even by the same authority, or any other
authority prescribed under the Act.

18. It may also be seen in the light of the
fact that in the definition of "Collector", it is not
only "District Magistrate", rather Sub-divisional
Magistrate, Additional Collector, Additional
District
Magistrate
and
Additional
Sub
Divisional Magistrate are also included therein.

19. The opinion expressed by learned
Single Judge of this Court in Uday Pratap
Singh's case (supra) is not in correct
perspective of the provisions of the Act and the
Rules, hence may not be treated as precedent to
be followed, as it is does not lay down the law
correctly.

20. For the reason mentioned above, the
question no. 1, as referred to be considered by
Division Bench, is answered in positive. In
view of the U.P. Panchayat Raj (Amendment)
Rules, 1969, by which Chapter- XIII with the
heading ''SURCHARGE' was inserted in the
U.P. Panchayat Raj Rules, 1947 in exercise of
powers under Section 110 by the State
Government, as notified in the Official Gazette
on May 31, 1969, the District Magistrate is the
''Prescribed Authority' for imposing surcharge
on Pradhan, Up-Pradhan and Members under
Section 27(2) and the District Pachayat Raj
Officer
is the
Prescribed
Authority
for
imposing surcharge upon the Officers or
servants of the Gaon Sabha.

21. As far as the question no. 2 is
concerned, the answer thereof is in negative. The
decision rendered by learned Single Judge of
this Court in Uday Pratap Singh's case (supra)
whereby a bunch of petitions were decided, does
not lay down the law correctly.

22.

The reference is,
accordingly,
answered.

23. The matters shall now be placed before
learned Single Judge on January 17, 2021, for
further consideration.
----------
(2021)12ILR A686
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR URADHYAYA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No.21326 of 2020

Payal Agarwal & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Mr. Nadeem Murtaza,Mr. Anuj Dayal, Mr. Paavan
Awasthi, Mr. Prashant Singh Atal and Mr. Prashast
Puri

Counsel for the Respondents: