# Smt. Uma Singh v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 742
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-09
- **Case number:** Writ-C No. 37911 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-uma-singh-v-state-of-u-p-ors-49521
- **Pages:** 5

## Headnote

A. Local Body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - UP Panchayat
Raj Rules, 1947 - Rules 256 and 257 -
Gram Pradhan - Recovery of Surcharge -
Three members Committee, holding the
enquiry, did not include the Chief Audit
Officer - Validity of recovery proceeding
challenged - Held, the inquiry has not
been conducted by the Chief Audit Officer
in terms of relevant Rules, therefore, the
entire proceedings are vitiated as the
same cannot be sustained in the eyes of
law. (Para 13)

B. Local body - Imposition of Surcharge
against Gram Pradhan - Show cause
notice was issued with premeditation -
Authorities have proceeded to mention in
the notice that in case the explanation is
found unsatisfactory then the petitioner
shall deposit the recovery amount -
Permissibility - Held, while issuing show
cause notice, the authorities must keep an
open mind as they are to act fairly in
adjudging the guilt - High Court set aside
the impugned order passed by the District
Magistrate. (Para 12)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

742 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 89(4) of the Registration Act at the
earliest, without insisting for any further
fee.

24. Accordingly, this writ petition is
allowed. No order as to costs.
----------
(2023) 12 ILRA 742
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-C No. 37911 of 2023

Smt. Uma Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Local Body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - UP Panchayat
Raj Rules, 1947 - Rules 256 and 257 -
Gram Pradhan - Recovery of Surcharge -
Three members Committee, holding the
enquiry, did not include the Chief Audit
Officer - Validity of recovery proceeding
challenged - Held, the inquiry has not
been conducted by the Chief Audit Officer
in terms of relevant Rules, therefore, the
entire proceedings are vitiated as the
same cannot be sustained in the eyes of
law. (Para 13)

B. Local body - Imposition of Surcharge
against Gram Pradhan - Show cause
notice was issued with premeditation -
Authorities have proceeded to mention in
the notice that in case the explanation is
found unsatisfactory then the petitioner
shall deposit the recovery amount -
Permissibility - Held, while issuing show
cause notice, the authorities must keep an
open mind as they are to act fairly in
adjudging the guilt - High Court set aside
the impugned order passed by the District
Magistrate. (Para 12)

Writ petition allowed. (E-1)

List of Cases cited:

1. Dinesh Kumar & ors. Vs St. of U.P. & ors.;
2023(1) ADJ 181 (DB)

2. M/s Bcits Pvt. Ltd. Vs Purvanchal Vidhyut
Vitran Nigam Ltd. & anr.; 2022(7) ADJ 161 (DB)

3. Siemens Ltd. Vs St. of Mah. & ors.; (2006) 12
SCC 33

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Vineet Kumar Singh,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. This writ petition has been filed by
the petitioner with a prayer to quash the
impugned order dated 21.09.2023 passed
by the District Magistrate, Maharajganj and
a further prayer to direct the respondents
not to give effect to the impugned order
referred to above.

3. Brief facts of the case are that the
petitioner was elected Pradhan of Gram
Panchayat Thuthibari, Block Nichlaul,
District Maharajganj, whose tenure had
come to an end in the year 2020. A
complaint was filed by one Vijay Kumar
Maddheshiya
alleging
commission
of
financial
irregularities
in
undertaking
various
development
works
in
the
concerned Gram Panchayat. On the basis of
the aforesaid complaint, a three member
committee,
comprising
of
Consulting
12 All. Smt. Uma Singh Vs. State of U.P. & Ors.
743
Engineer,
Vikaskhand-Nichlaul,
Maharajganj,
Bhoomi
Sanrakshan
Adhikari, Maharajganj and Sub-Divisional
Magistrate, Maharajganj, was constituted to
inquire into the matter, which submitted its
report on 02.09.2023. On the basis of
which,
the
impugned
order
dated
21.09.2023 has been passed stating it to be
a show cause notice vide which the
petitioner has been directed to pay a sum of
Rs.1,21,777/- in the account of Gram
Nidhi-First within a period of one week
from the date of receipt of the notice failing
which, the same has to be recovered as an
arrear of land revenue. The petitioner was
also called upon to submit her reply within
a week in response to the allegations so
levelled.
Subsequently,
the
District
Panchayat Raj Officer, Maharajganj has
issued
a
reminder
dated
17.10.2023
directing the petitioner to submit her reply
within three days alongwith an evidence as
to why the financial and administrative
powers not be ceased by appointing a three
members' committee in terms of Section
95(1)(g) of U.P. Panchayat Raj Act, 1947.
Hence, the present writ petition has been
filed.

4. Learned counsel for the petitioner
submits that the three member committee
has submitted the inquiry report dated
02.09.2023 without jurisdiction as it is not
competent in law to hold such an inquiry
for the purpose of imposition of surcharge
in view of the legislative mandate engrafted
in Rules 256 and 257 of the U.P. Panchayat
Raj Rules, 1947, inasmuch as such inquiry
ought to have been conducted by the Chief
Audit Officer, which as per the order of
delegation made by him is now to be
conducted by the District Audit Officer. In
support of his contention, he has relied
upon the judgment of this Court in the case
of Dinesh Kumar and others vs. State of
U.P. and others reported in 2023(1) ADJ
181 (DB).

5. He further submits that the District
Magistrate, Maharajganj should have taken
care to keep its mind open to the issues
while
seeking
explanation
from
the
petitioner but in the instant case, the
impugned order has come to be passed in
the name of show cause notice with
premeditation which would not serve any
purpose as the respondent no.2 issuing the
alleged show cause notice has already
made up its mind.

6. He further submits that the show
cause notice issued to the petitioner is not
justified as it has been issued with
premeditation as at the time of issuing the
notice, it has been stated that if the
explanation is not found satisfactory then
the petitioner will have to deposit the
aforesaid amount or the same has to be
recovered as an arrear of land revenue,
which means that the authorities have
already made up their mind, while issuing
the notice. In support of his contention, he
has relied upon the judgment of this Court
in the case of M/s Bcits Pvt. Ltd. vs.
Purvanchal Vidhyut Vitran Nigam Ltd.
and another reported in 2022(7) ADJ 161
(DB) and he has also relied upon the
judgment of the Apex Court in the case of
Siemens Ltd. vs. State of Maharashtra and
others report in (2006) 12 SCC 33.

7. On the cumulative strength of the
aforesaid, learned counsel for the petitioner
submits that the impugned order dated
21.09.2023
passed
by
the
District
Magistrate, Maharajganj is liable to be set
aside.

8. Learned Standing Counsel could
not dispute the aforesaid fact.
744 INDIAN LAW REPORTS ALLAHABAD SERIES

9. When a notice is issued with
premeditation, a writ petition would be
maintainable. In the case of Siemens Ltd.
vs. State of Maharashtra and others report
in (2006) 12 SCC 33, the Apex Court has
held as under:-

"9. Although ordinarily a writ
court may not exercise its discretionary
jurisdiction in entertaining a writ petition
questioning a notice to show cause unless
the same inter alia appears to have been
without jurisdiction as has been held by
this Court in some decisions including
State of Uttar Pradesh v. Brahm Datt
Sharma and Anr. AIR 1987 SC 943, Special
Director and Another v. Mohd. Ghulam
Ghouse and Another, (2004) 3 SCC 440
and Union of India and Another v.
Kunisetty
Satyanarayana,
2006
(12)
SCALE 262], but the question herein has to
be considered from a different angle, viz,
when a notice is issued with premeditation, a writ petition would be
maintainable. In such an event, even if the
courts directs the statutory authority to
hear the matter afresh, ordinarily such
hearing would not yield any fruitful
purpose [See K.I. Shephard and Others v.
Union of India and Others (1987) 4 SCC
431 : AIR 1988 SC 686]. It is evident in the
instant case that the respondent has clearly
made up its mind. It explicitly said so both
in the counter affidavit as also in its
purported show cause."

10. The Division Bench of this Court
in the case of M/s Bcits Pvt. Ltd. vs.
Purvanchal Vidhyut Vitran Nigam Ltd.
and another has held as under:-

"5. In Siemens Ltd. vs. State of
Maharashtra and
Others,
2006
(13)
SCALE 297 a challenge was made to a
show cause notice on the ground that if it
has been issued with pre-meditation then
issuing notice and seeking explanation
would not serve any purpose as the person
issuing notice had already made up its
mind. The contention was upheld. The
relevant observations made in this behalf in
Paragraphs
No. 8, 9
and 10 are
reproduced below:-

"8. Although ordinarily a writ
court may not exercise its discretionary
jurisdiction in entertaining a writ petition
questioning a notice to show cause unless
the same inter alia appears to have been
without jurisdiction as has been held by
this Court in some decisions including
State of Uttar Pradesh v. Brahm Datt
Sharma and Anr. MANU/SC/0711/1987:
[1987] 2SCR444, Special Director and
Anr. v. Mohd. Ghulam Ghouse and Anr,
MANU/SC/0025/2004: 2004(164) ELT141
(SC) and Union of India and another v.
Kunisetty Satyanarayana MANU/ SC/5137/
2006: AIR2007SC906 but the question
herein has to be considered from a different
angle, viz, when a notice is issued with premeditation, a writ petition would be
maintainable. In such an event, even if the
courts directs the statutory authority to
hear the matter afresh, ordinarily such
hearing would not yield any fruitful
purpose [See K.I. Shephard and Ors. v.
Union
of
India
and
Ors.
MANU/SC/0643/1987: (1988) ILLJ162SC
]. It is evident in the instant case that the
respondent has clearly made up its mind. It
explicitly said so both in the counter
affidavit as also in its purported show
cause.

9. The said principle has been
followed by this Court in V.C. Banaras
Hindu University and Ors. v. Shrikant
MANU/SC/8170/2006:
AIR2006SC2304,
stating:
12 All. Smt. Uma Singh Vs. State of U.P. & Ors.
745

The Vice Chancellor appears to
have made up his mind to impose the
punishment of dismissal on the Respondent
herein. A post decisional hearing given by
the High Court was illusory in this case.

In K.I. Shephard and Ors. etc.
etc.
v.
Union
of
India
and
Ors,
MANU/SC/0643/1987 (1988): ILLJ162SC,
this Court held:

...It is common experience that
once a decision has been taken, there is
tendency to uphold it and a representation
may not really yield any fruitful purpose.

10. A bare perusal of the order
impugned before the High Court as also the
statements made before us in the counter
affidavit filed by the respondents, we are
satisfied that the statutory authority has
already applied its mind and has formed an
opinion
as
regards
the
liability
or
otherwise of the appellant. If in passing the
order
the
respondent
has
already
determined the liability of the appellant
and the only question which remains for its
consideration is quantification thereof, the
same does not remain in the realm of a
show cause notice. The writ petition, in our
opinion, was maintainable."

11. There is no doubt that at the stage
of show cause, the person against whom
any action has been taken must be informed
about the allegations made against him so
that he can defend himself and prove his
innocence. While issuing show cause
notice, the authorities should obviously
take care to keep an open mind as they are
to act fairly in adjudging the guilt or
otherwise of the person proceeded against
and specially when he has the power to
take a punitive step against the person after
giving him a show cause notice.

12. In the present case, while issuing
show cause notice, the authorities have not
kept an open mind as they, after calling for
an explanation, have proceeded to mention
in the notice that in case the explanation is
found unsatisfactory then the petitioner
shall deposit the recovery amount or the
same would be recovered as an arrear of
land revenue. Be that as it may, while
issuing show cause notice, the authorities
must keep an open mind as they are to act
fairly in adjudging the guilt, which has not
been done in present case.

13. Perusal of the record as well as
the inquiry report goes to show that the
inquiry
has
been
conducted
by
a
Committee
comprising
of
Consulting
Engineer,
Vikaskhand-Nichlaul,
Maharajganj,
Bhoomi
Sanrakshan
Adhikari, Maharajganj and Sub-Divisional
Magistrate, Maharajganj, relying upon
which the impugned order has been passed,
wherein recovery of Rs.1,21,777/- has been
made against the petitioner. Thus the
inquiry has not been conducted by the
Chief Audit Officer in terms of relevant
Rules, therefore, the entire proceedings are
vitiated as the same cannot be sustained in
the eyes of law.

14. Considering the submissions
advanced by learned counsel for the parties
and going through the material on record,
this Court finds that the order dated
21.09.2023
passed
by
the
District
Magistrate, Maharajganj is liable to be set
aside. It is, accordingly, set aside.

15. However, it is open to the
respondent authorities to look into the
matter and after giving proper notice and
providing
proper
opportunity,
in
accordance with the relevant provisions of
the U.P. Panchayat Raj Act and the Rules,
746 INDIAN LAW REPORTS ALLAHABAD SERIES
1947, conduct proper enquiry and pass
appropriate orders, in accordance with the
aforesaid Rules.

16. The writ petition stands allowed,
accordingly. No order as to costs.
----------
(2023) 12 ILRA 746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-C No. 39872 of 2018

Brij Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bidhan Chandra Rai

Counsel for the Respondents:
C.S.C.,Sri Krishna Mohan Asthana, Mrs. S.
Rathi, Sri Satish Chaturvedi

A. Civil Law - Civil Procedure Code -
Section 114 - O XLVII - Review - Scope
and ambit - Error apparent on the face of
record - Explained - Court's jurisdiction of
review, is not the same as that of an
appeal. A judgment can be open to review
if there is a mistake or an error apparent
on the face of the record, but an error that
has to be detected by a process of
reasoning, cannot be described as an error
apparent on the face of the record for the
Court to exercise its powers of review
under Order XLVII Rule1 CPC - This court
in the guise of exercising powers of
review, though can correct a mistake but
not substitute the view taken earlier
merely because there is a possibility of
taking two views in a matter. (Para 21 and
24)

Review application dismissed. (E-1)

List of Cases cited:

1. Banda Development Authority Vs Motilal
Agarwal; (2011) 5 SCC 394

2. St. of Assam Vs Bhasker Jyoti Sharma; (2015)
5 SCC 321

3. Col. Avatar Singh Sekhon Vs U.O.I. & ors.;
1980 Supp SCC 562

4. Parsion Devi & ors. Vs Sumitri Devi and
Others; 1997 (8) SCC 715

5. Kerala State Electricity Board Vs Hitech
Electrothermics & Hydropower Ltd. and Others;
2005 (6) SCC 651

6. Jain Studios Ltd. Vs Shin Satellite Public Co.
Ltd.; 2006 (5) SCC 501

7. Kamlesh Verma Vs Mayawati & ors.; 2013 (8)
SCC 320

8. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma; 2013 (8) SCC 337

9. West Bengal & ors.Vs Kamal Sengupta &
anr.; 2008 (8) SCC 612

10. S. Nagaraj & ors.Vs St. of Karn. & anr.;
1993 Supp (4) SCC 595

11. Patel Narshi Thakershi & ors. Vs Shri
Pradyuman Singhji Arjunsinghji; 1971 (3) SCC
844

12. Ram Sahu (Dead) through LRs & ors. Vs
Vinod Kumar Rawat and Others; 2020 SCC
Online SC 896

(Delivered by Hon'ble Printiker Diwaker,
C.J.
&
Hon'ble Ashutosh Srivastava, J.)

Order
on
Civil
Misc.
Delay
Condonation Application No. 9 of 2020: