# Uday Pratap Singh @ Harikesh v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 1252
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-pratap-singh-harikesh-v-state-of-u-p-ors-44654
- **Pages:** 17

## Headnote

A. Civil Law-U.P. Panchayat Raj Act, 1947 -
Section 27 -District magistrate-not notified
as prescribed authority in notification u/s
27(2)-procedure under chapter XIII not
adhered-surcharge cannot be levied during
pending
enquiry-impugned
order
unsustainable.
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1253
Writ Petition allowed (E-9)
List of cases cited: -

## Text

_Characters 0–39,223 of 54,972. This is a partial read: ask again with offset=39223 for what follows._

1252 INDIAN LAW REPORTS ALLAHABAD SERIES
information'. Therefore, these provisions
shall be taken into consideration before
passing any order under Section 33 of the
Aadhaar Act. In order to exercise power
under Section 33 of Aadhaar Act, strong
case has to be made out by the aggrieved
person. However, in the present case, the
petitioner has not able to made out a case
for calling the record under Section 33 of
the Aadhaar Act. The bald allegations
made in para 19, 20 and 21 of writ
petition are not sufficient for the purpose.
Therefore, we are of the view that in the
present
facts
and
circumstances,
jurisdiction under Section 33 of Aadhaar
Act cannot be exercised by this Court at
this stage.

13. Section 33 of the Aadhaar Act
prohibits discloser of information without
prior order of ''Judge of High Court' and
now even an individual has a right to be
heard and he can oppose discloser on
certain grounds including Article 20(3) of
the Constitution of India. These strict
provisions are for keeping information
secret and to upheld the Right of Privacy.
Therefore, before an exercise of power
under Section 33 of the Aadhaar Act, the
Court has to ascertain whether in the facts
and circumstances of the case there exists
a very strong case to exercise such power.

14. It is also relevant to note here
that Shri Jai Prakash Gupta and Shri
Kiran Bedi Gupta, who are since
deceased as per the case of the petitioner,
have been made party in the present writ
petition as respondent Nos. 4 and 5
respectively therefore, the petition is also
defective on the ground of misjoinder.

15. It may be further noted that
amended Section 47 of the Aadhaar Act
now provides right to even an ''individual'
to make a complaint before the competent
court regarding commission of offence
punishable under the Aadhaar Act.
However, the petitioner has not availed
such remedy till date.

16.

In
view
of
the
above
discussions, the present writ petition is
liable to be rejected at this stage, with the
liberty to the petitioner, if so advised to
seek remedy as provided under Section 47
of the Aadhaar Act, to file a complaint
before the competent court in accordance
with law.

With this observation, this petition
stands finally disposed of.
----------

(2019)11ILR A1252

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2019

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ C No. 24902 of 2019 connected with
other cases

Uday Pratap Singh @ Harikesh
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law-U.P. Panchayat Raj Act, 1947 -
Section 27 -District magistrate-not notified
as prescribed authority in notification u/s
27(2)-procedure under chapter XIII not
adhered-surcharge cannot be levied during
pending
enquiry-impugned
order
unsustainable.
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1253
Writ Petition allowed (E-9)
List of cases cited: -
1. Indu Devi Vs District Magistrate, Chitrakoot &
ors., (2006) (3) AWC 2787 (Relied upon)
2.Smt. Bhanati Devi Vs St. Of U.P. & ors., (20170
(2) ALJ 374 (distinguished)

(Delivered by Hon'ble Yashwant Varma, J.)

1. This batch of writ petitions raises
the question of the jurisdiction of the
District Magistrate to pass orders of
surcharge as envisaged under Section 27
of the Uttar Pradesh Panchayat Raj Act
1947
["the
Act"].
The
principal
contention which has been addressed is to
the lack of jurisdiction inhering in the
District Magistrate to exercise powers
comprised
in
the
aforementioned
provision. Additionally it has been urged
that the impugned orders imposing
surcharge upon the petitioners have been
passed in clear violation of Chapter XIII
of the Uttar Pradesh Panchayat Raj
Rules 1947 [hereinafter for the sake of
brevity to be referred to as "the Rules"]
and more particularly Rules 256-259 as
comprised in that Chapter.

2. Bearing in mind the fact that the
issue was being raised in repeated
petitions, the Court had called upon the
State respondents to file affidavits. The
matter then again arose in the leading writ
petition in which the learned Chief
Standing Counsel was directed to obtain
instructions and address submissions. On
20 August 2019, this Court passed a
detailed order indicating and identifying
the issues which arose. Pursuant to the
liberty so granted, the State has filed an
affidavit dealing with the legal issues
raised and the learned Chief Standing
Counsel submitted that the said affidavit
be adopted in all writ petitions insofar as
the legal questions are concerned. The
State has also chosen to file independent
affidavits in some of the writ petitions.
The affidavit dealing with the legal issues
was circulated amongst the learned
counsels for parties with liberty to
respond. Pursuant to that order, responses
have been filed by and on behalf of the
petitioners. Thereafter the matter was
heard and judgment reserved. Before
proceeding to deal with the legal issues
that have been addressed, the Court
deems it apposite to briefly notice the
salient facts of each writ petition.

Writ-C No. 24902 of 2019

3. The petition impugns an order
dated 06 March 2019 passed by the Chief
Development Officer and consequential
orders imposing surcharge upon the
petitioner. The order records that it is
being issued with the approval of the
District Magistrate. These orders came to
be passed even prior to the issuance of a
show cause notice dated 30 May 2019
purporting to initiate proceedings under
Section 95(1)(g) of the Act.

Writ-C No. 25964 of 2019

4. The petition impugns orders
passed pursuant to directions issued by
the
District
Magistrate
holding
the
petitioner liable to pay surcharge.

Writ-C No. 26493 of 2019

5. The writ petition assails an order
imposing surcharge during the pendency
of an enquiry initiated under Section
95(1)(g) of the Act read with the Uttar
Pradesh Panchayat Raj (Removal of
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
Pradhans, Up Pradhans and Members)
Enquiry Rules 1997 ["the 1997 Rules"].
The order impugned has been passed
pending a final enquiry and upon the
financial and administrative powers of the
Pradhan being ceased.

Writ-C No. 29989 of 2019

6. This petition impugns the order of
the
District
Magistrate
dated
12
September 2018 seeking to recover
surcharge under Section 27 of the Act
pending
conclusion
of
enquiry
proceedings under the 1997 Rules.

Writ-C No. 30016 of 2019

7. This petition similarly challenges
an order passed by the District Magistrate
in purported exercise of powers conferred
by Section 27 of the Act pending
conclusion
of
enquiry
proceedings
initiated under the 1997 Rules.

Writ-C No. 17665 of 2019

8. The petition challenges the order
of the District Magistrate passed under
Section 27 of the Act. Additionally
challenge is laid to the order passed by
the Appellate Authority affirming the
same.

Writ-C No. 12607 of 2019

9. This petition has been preferred
by an erstwhile Pradhan assailing the
order of the District Magistrate imposing
surcharge in purported exercise of powers
comprised in Section 27 of the Act.

Writ-C No. 22075 of 2003

10. This petition too is by an
erstwhile Pradhan challenging an order of
surcharge
passed
by
the
District
Magistrate.

Writ-C No. 21265 of 2019

11. The petition here also is a former
Pradhan who assails an order passed by
the
District
Magistrate
imposing
surcharge.

Writ-C No. 21097 of 2019

12. This petition is similar to the
above and represents a challenge by a
Pradhan whose term had come to an end
to an order imposing surcharge.

Writ-C No. 21086 of 2019

13. This petition also is by a former
Pradhan challenging an order imposing
surcharge.

Writ-C No. 28430 of 2019

14. This petition challenges an order
issued by the District Magistrate seeking
recovery of surcharge during pendency of
the enquiry contemplated under the 1997
Rules.

Writ-C No. 27258 of 2019

15 This petition challenges an
order of the District Magistrate directing
recovery of surcharge. The order itself has
been passed in the backdrop of a show
cause notice issued calling upon the
petitioner to explain why further action
under Section 95(1)(g) of the Act be not
commenced and a three member interim
committee constituted.

Writ-C No. 26873 of 2019

16. The petition assails the order
passed by the District Panchayat Raj
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1255
Officer requiring the petitioner to deposit
the amount of surcharge as computed and
as directed by the District Magistrate.

Writ-C No. 26082 and 25734
of 2019

17. These two petitions assail orders
passed by the District Magistrate upon
conclusion
of
enquiry
proceedings
initially
commenced
under
Section
95(1)(g) of the Act. However it becomes
pertinent to note that the procedure as
prescribed under Rule 6 of the 1997 Rules
was neither followed nor a final enquiry
as contemplated thereunder undertaken.
The orders of surcharge have come to be
passed merely on conclusion of an
enquiry by the District Magistrate with
respect to loss caused.

18. From the brief recordal of the
individual facts of each petition, the
challenge laid to orders of surcharge
passed by the District Magistrate can be
conveniently classified as falling broadly
in three categories: -

(A)
Orders
of
surcharge
simpliciter made by invocation of Section
27 of the Act.

(B) Orders of surcharge passed
pending conclusion of a final enquiry
under the 1997 Rules and where financial
and
administrative
powers
of
the
concerned Pradhan may or may not have
been ceased.

(C) Orders of surcharge passed
upon conclusion of a final enquiry
conducted in accordance with the 1997
Rules.

19. The power to impose surcharge
stands comprised in Section 27 of the Act.
That provisions reads thus: -

"27.
Surcharge-
(1)
Every
Pradhan or Up-Pradhan of a Gram
Panchayat every member of a 3[Gram
Panchayat] or of a Joint Committee or
any other committee constituted under
this Act and every Sarpanch, Sahayak
Sarpanch or Panch of a Nyaya Panchayat
shall be liable to surcharge for the loss,
waste or misapplication of money or
property
3[belonging
to
the
Gram
Panchayat or Nyaya Panchayat] as the
case may be, if such loss, waste or
misapplication is direct consequence of
his neglect or misconduct while he was
such Pradhan, Up-Pradhan, member,
Sarpanch, Sahyak Sarpanch or Panch;

Provided that such liability shall
cease to exist after the expiration of the
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 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 sub-section (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."
1256 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Subsection (2) thereof provides
that the Prescribed Authority shall fix the
amount of surcharge according to the
procedure that may be prescribed. The
expression "Prescribed Authority" is
defined in Section 2(q) of the Act as
under: -

"2[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 Parishad or
the Kshettra Samiti, 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;"

21. By virtue of a notification dated
31 May 1969, Chapter XIII came to be
inserted in the Rules. Rules 256-259 set
out the procedure for imposition of
surcharge. Those rules are extracted
herein below: -

"Rule 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, Memher, 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.

Note- Any information required
by the Chief Audit Officer, Cooperative
Societies and Panchayats or any officer
subordinate to him not below the rank of
Auditor,
Panchayats
for
preliminary
enquiry, shall be furnished and all
connected papers and records shall be
shown to him by the Pradhan immediately
on demand.

(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.

(b) where loss has been caused
to the Gram Sabha by acceptance of a
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1257
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, Up-Pradhan 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.

(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, Up-Pradhan, Member, Officer or
servant of the Gram 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 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, 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
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, UpPradhan or Member of a Gram Panchayat
aggrieved with an order of surcharge
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

22. The power to impose surcharge
under the Act and the Rules has been
framed in order to recover the loss, waste
or misapplication of money or property
belonging to a Gram Panchayat, if that
loss, waste or misapplication be as a
direct consequence of the neglect or
misconduct of a Pradhan, Member,
Sarpanch, Sahayak Sarpanch or Panch. As
is evident from a reading of the proviso
appended to Section 27(1) the liability to
make good such loss or waste ceases to
exist upon expiration of a period of ten
years from the occurrence of such loss or
five years from the date when the person
liable ceases to hold office whichever be
later. Section 27(2) provides that the
Prescribed Authority shall fix the amount
of surcharge according to the procedure
that may be prescribed and thereafter
certify the amount to the Collector who
on being satisfied that the said amount is
due, realise the same as if it were arrears
of land revenue. Section 27(3) creates an
appellate forum providing an opportunity
to an aggrieved person to assail the order
of the Prescribed Authority fixing the
amount of surcharge by preferring an
appeal against that order either to the
State Government or such other Appellate
Authority as may be prescribed.

23. It becomes relevant to note here
that Section 2(q)(ii) defines a Prescribed
Authority to be such as may be notified
by
the
State
Government
whether
generally or for any particular purpose.
This Court is really not concerned with
the provisions made in Section 2(q)(i)
since Schedule-III of the Uttar Pradesh
Kshetra Panchayat And Zila Panchayat
Adhiniyam 1961 admittedly does not
deal with the levy of surcharge. It is
apposite to note at the outset itself that
despite repeated opportunities, learned
Chief Standing Counsel was unable to
place for the consideration of the Court
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1259
any notification issued by the State
Government designating or appointing a
Prescribed Authority in accordance with
Section 2(q)(ii) read with Section 27(2).
The Court's attention was drawn only to a
notification of 30 July 1966 in terms of
which the Commissioner of the Division
was
designated
as
the
"appellate
prescribed authority" with reference to
Section 27(2). The relevant extracts of
that notification are reproduced herein
below: -

"[210] English translation of
Panchayat
Raj
Vibhag
Notification
No.4191-K/XXXIII-6-64, dated 27th July,
1996, publishing in U.P. Gazette, Pt. I,
dated July 30, 1966, p. 3961.

In exercise of the powers under
clause (q) of Section 2 of the U.P.
Panchayat Raj Act, 1947 (U.P. Act
No.XXVI of 1947), the Governor of Uttar
Pradesh is pleased to notify the authorities
indicated in column 2 of the Schedule
below as prescribed authorities for
purposes of the sections and rules
mentioned in column 1 thereof in respect
of the whole of Uttar Pradesh except the
districts of Uttar Kashi, Pithoragarh and
Chamoli :

SCHEDULE

---------------------------------------
--------------------------------------------------
------------------------------------------

Section or rule

 Prescribed Authority

---------------------------------------
--------------------------------------------------
------------------------------------------ 1 2

......

27(2) ·

·
Commissioner of the Division as the

 appellate
prescribed authority.

.......

---------------------------------------
--------------------------------------------------
----------------------"

24. It is pertinent to note that
Section 27(2) does not deal with the
provision of appeal which is exclusively
governed by subsection (3) thereof.
Although the expression "Prescribed
Authority" is employed in Section 27(2)
the notification in question refers to the
Commissioner of the Division as the
"appellate prescribed authority". Surely
and in light of the structure of Section 27
the Appellate and Prescribed Authority
cannot possibly be the same person. That
provision does not envisage a dual role of
Prescribed and Appellate Authority being
performed
or
discharged
by
one
individual. However this anomaly could
not be explained by the learned Chief
Standing Counsel. In any case, it becomes
relevant to underline that no notification
was either relied upon or placed before
the Court to establish that the District
Magistrate had been designated as the
Prescribed Authority for the purposes of
Section 27(2).

25. The Court then proceeds to the
provisions engrafted in Chapter XIII of
the Rules. The rule making power is
comprised in Section 110 of the Act.
Section 110 (2)(xlvi) confers powers upon
the State Government to frame rules in
respect of matters that are to and may be
prescribed. Apart from this provision no
other part of Section 110(2) specifically
deals with the subject of surcharge or the
provisions made in Section 27 of the Act.
This provision, therefore, appears to be
the only source of power entitled to be
read in support of the provisions made in
Chapter
XIII
of
the
Rules.
This
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
additionally since Section 27(2) provides
that the Prescribed Authority shall fix the
amount of surcharge "according to the
procedure that may be prescribed".

26. Rule 256 envisages an enquiry
being initiated and undertaken by the
Chief
Audit
Officer,
Cooperative
Societies and Panchayat in case he
consider that loss, waste or misuse of
monies or property has occurred as a
direct consequence of the negligence of a
Pradhan or officer or servant of the Gram
Panchayat. Upon the Chief Audit Officer
being of that opinion, he is empowered to
elicit an explanation from the Pradhan,
officer or servant of the Gram Panchayat
to explain why he not be required to pay
the amount misused or the amount which
represents the loss or waste caused to the
Gram Panchayat or its property. Rule 256
then constructs a dichotomy between
Pradhan, Pradhans, Up-Pradhans and
members of the Gram Panchayat on the
one hand and officers and servants of that
local body on the other. The explanation,
which the Chief Audit Officer requires, is
to
be
called
through
the
District
Magistrate in the case of Pradhans, UpPradhans and members and through the
District Panchayat Raj Officer in the case
of officers and servants. Rule 256(2)
enumerates the contingencies in which
the Chief Audit Officer may call for an
explanation. Rule 256(3) then confers the
right upon the Pradhan, Up-Pradhan,
member officer or servant from whom an
explanation has been called to move the
concerned Gram Panchayat for inspection
of records connected with the requisition
for surcharge. In terms of the provisions
made in sub-rules (1) and (3) of Rule 256,
the Chief Audit Officer is obliged to grant
time not exceeding two months for the
furnishing of an explanation in respect of
the requisition for surcharge. The Chief
Audit Officer in terms of Rule 256(3) is
also empowered to grant a reasonable
extension of time for submission of an
explanation if circumstances so warrant.

27. Upon expiry of the period
prescribed in sub-rules (2) and (3) of Rule
256 and after examining the explanation
received by him, the Chief Audit Officer
is statutorily required to submit all papers
along with his recommendations to the
District Magistrate concerned in case of
Pradhans, Up-Pradhans and members and
to the District Panchayat Raj Officer in
the case of officers and servants. This
provision is made and put in place in
terms
of
Rule
257.
The
District
Magistrate or the District Panchayat Raj
Officer after examining and considering
the explanation, if any, that may be
submitted call upon the Pradhan, UpPradhan, member, officer or servant to
pay the whole or part of the sum of
surcharge for which he has been found
liable in accordance with Rule 257(2).
The first proviso to Rule 257(2) then
states that the District Magistrate or the
District Panchayat Raj Officer may not
order the recovery of surcharge if they be
satisfied that the loss was caused by an
act of the Pradhan, Up-Pradhan, member,
officer or servant in the bona fide
discharge of their duties. In terms of the
second proviso to Rule 257, the loss,
waste or misuse which occurs as a result
of a resolution of the Gram Panchayat or
any of its committees shall be recovered
equally from amongst all members of that
local body who are reported to have
participated in the passing of such
resolution.

28. Significantly, the fourth proviso
then prescribes that the Pradhan, Up-
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1261
Pradhan, member, officer or servant shall
not be liable to surcharge 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 when the
Pradhan, Up-Pradhan, member, officer or
servant ceases to be the holder of the said
position
in
the
Gram
Panchayat
whichever be later. The fourth proviso to
Rule
257(2)
thus
constructs
and
prescribes a period of limitation in stark
contrast and conflict with the first proviso
to Section 27(1) which prescribes the
limitation to be 10 or 5 years whichever
be
later
in
identical
contingencies.
However the Court only notices this
aspect and does not deem it necessary to
dwell on this issue further since the
validity of this part of Rule 257 is not
subject matter of the questions raised in
this batch.

29. In terms of Rule 258, any person
aggrieved by an order of surcharge passed
by the District Magistrate under Rule 256
may appeal to the Commissioner of the
Division if the order of surcharge be one
made against the Pradhan, Up-Pradhan or
the member of the Gram Panchayat. In
case the order of surcharge is one that is
made against an officer or servant of the
Gram Panchayat, Rule 258(2) entitles
them to assail the same by way of an
appeal to the District Magistrate. Rule
259 mandates that the amount of
surcharge to which the Pradhan, UpPradhan, member, officer or servant has
been held liable, shall be paid within three
months from the date of communication
of the order requisitioning surcharge. The
proviso to Rule 259(1) places this liability
in abeyance during the pendency of any
appeal that may be preferred under Rule
258. Rule 259(2) then prescribes that if
the amount of surcharge is not paid within
the time specified, it shall be recovered as
arrears of the land revenue.

30. Addressing submissions on
behalf of the petitioners, it has been
contended that the District Magistrate has
not been empowered under Section 27 to
make
an
order
of
surcharge. The
petitioners would contend that in the
absence of any notification designating
the District Magistrate as the Prescribed
Authority for the purposes of Section
27(2), the orders impugned are rendered
unsustainable. Referring to the provisions
made in the Rules, it was contended that
none of the impugned orders were
preceded by any enquiry initiated or
undertaken by the Chief Audit Officer in
accordance with Rule 256. In the absence
of the provisions of Rule 256 having been
adhered to, it was contended that the
District
Magistrate
could
not
independently and in the absence of a
recommendation in that respect of the
Chief Audit Officer existing proceed to
pass orders for recovery of surcharge. The
petitioners then contend that the order of
surcharge cannot be passed during the
pendency of an enquiry under Section
95(1)(g). It was submitted that the
financial and administrative powers of a
Pradhan come to be ceased by virtue of
powers enshrined in the proviso to
Section 95(1)(g) where the competent
authority is prima facie of the opinion
that the Pradhan has committed financial
or other irregularity. It was submitted that
since this power comes to be invoked at a
stage where the competent authority has
only reached a prima facie conclusion,
the impugned orders seeking to recover
surcharge
are
clearly
unsustainable.
Reliance was placed upon the provisions
made in the 1997 Rules to submit that
even after the competent authority arrives
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
at a conclusion that a formal enquiry is
warranted in light of the material gathered
in the course of the preliminary enquiry,
those rules lay down a detailed procedure
for an in-depth enquiry being initiated and
undertaken thereafter. It was pointed out
that in that enquiry charges are framed
and the response of the Pradhan elicited
and only after regular proceedings which
include the examination of witnesses are
completed that an order of removal may
ultimately come to be passed. It was
submitted that the imposition of surcharge
at the stage of conclusion of a preliminary
enquiry is wholly illegal and in any case
violative of the law as laid down by the
Division Bench of the Court in Indu Devi
Vs. District Magistrate, Chitrakoot and
Others1.

31. In Indu Devi the Division
Bench after examining the scheme of the
Act held thus:

9. A perusal of the Scheme
under Section 27 of the Act indicates that
a Pradhan is liable to surcharge for the
loss, waste or misapplication of money or
property
belonging
to
the
Gram
Panchayat, if such is direct consequence
of his neglect or misconduct while he was
such Pradhan. The said finding of
misconduct as referred to in Section 27
can be based from the inquiry under
Section 95(1)(g) when the misconduct is
proved against the Pradhan. On the basis
of finding of misconduct under Section
95(1)(g) of the Act, it is open for the
competent authority to issue surcharge
notice and pass appropriate orders. The
competent
authority
may
also
independently direct for surcharge under
Section 27 of the Act and pass appropriate
orders after being satisfied with the
misconduct.

...

11. The prima facie finding of
the competent authority under Section
95(1)(g), proviso is not same as finding of
misconduct
as
contemplated
under
Section 27 of the Act. We are satisfied
that on the basis of mere prima facie
finding of guilt, the order of surcharge
could not have been passed under Section
27 of the Act.

...

13. In view of the aforesaid, we
are satisfied that without conclusion of
final inquiry under Section 95(1)(g) of the
Act with regard to finding of misconduct
on the part of the Pradhan, the order of
surcharge could not have been passed."
(emphasis supplied)

32. Refuting the afore noted
submissions, the learned Chief Standing
Counsel submitted that Section 27(2)
empowers the imposition of a surcharge
in accordance with a procedure that may
be prescribed. That procedure, according
to the learned Chief Standing Counsel,
stands encapsulated in Chapter XIII of the
Rules and in view of the provisions made
therein the District Magistrate was clearly
empowered to pass the impugned orders.
According to the learned Chief Standing
Counsel since a detailed procedure stands
prescribed in Chapter XIII for the
imposition of surcharge, the District
Magistrate
must
be
recognized
as
statutorily empowered to requisition the
payment of surcharge even in the absence
of a notification issued under Section
2(q)(ii) read with Section 27(2). The
respondents principally place reliance
upon the judgment rendered by a Division
Bench of the Court in Smt. Bhanati Devi
Vs. State of U.P. and Others2 to submit
that the same is an authority which clearly
recognises the power of the District
3 All. Uday Pratap Singh @ Harikesh Vs. State of U.P. & Ors.
1263
Magistrate
to
impose
surcharge
independent of the provisions made in
Section 27 of the Act and in exercise of
powers comprised in Section 95(1)(g).

33. In Bhanati Devi, the Division
Bench held as under:

"12. In the present case much
issue is being raised on the fact that in
proceedings under Section 95(1)(g) of
1947 Act read with 1997 Rules, the
amount in question could not have been
directed to be recovered as it has been
done in the present case. Learned counsel
for the petitioner appellant, in support of
his argument, has relied on a judgment of
this Court in the case of Indu Devi Vs.
District Magistrate, Chitrakoot and others,
2006 (3) AWC 2787: (2006 (2) ALJ 747).

13. The said judgment in
question clearly gives the answer to the
question posed by the petitioner as in the
facts of the said case as therein final
enquiry under Section 95 (1) (g) of 1947
Act has not at all been concluded and
even then recovery proceedings have
been
initiated
at
the
stage
when
proceedings under Section 95(1)(g) of
1947 Act has not been concluded and
recovery has been directed, in such a
situation, the Division Bench has taken
the view that on the basis of mere prima
facie finding of guilt the order or
surcharge could not have been passed
under Section 27 of the 1947 Act. This
judgment in effect subscribed the view
that once finding of Competent Authority
has been returned under Section 95(1)(g)
of 1947 Act, then based on finding of
misconduct
as
contemplated
under
Section 27 of the 1947 Act orders of
surcharge can be passed. Paragraph 9 of
the said judgment provides for as follows:

"A perusal of the Scheme under
Section 27 of the Act indicates that a
Pradhan is liable to surcharge for the loss,
waste or mis-application of money or
property
belonging
to
the
Gram
Panchayat, if such is direct consequence
of his neglect or misconduct while he was
such Pradhan. The said finding of
misconduct as referred to in Section 27
can be based from the inquiry under
95(1)(g) when the misconduct is proved
against the Pradhan. On the basis of
finding of misconduct under 95(1)(g) of
the Act, it is open for the competent
authority to issue surcharge notice and
pass appropriate orders. The competent
authority may also independently direct
for surcharge under Section 27 of the Act
and pass appropriate orders after being
satisfied with the misconduct."

14.The extract of the judgment,
quoted above, would go to show that
under the scheme of the Act, a Pradhan is
liable to surcharge for the loss, waste or
mis-application of money or property
belonging to Gram Panchayat, if such is
direct consequence of his neglect or
misconduct while he was Pradhan. The
finding of misconduct or negligence that
has also resulted in loss, waste or misapplication of money or property can be
arrived at in proceedings under Section
95(1)(g) of the 1947 Act read with 1997
Rules and when misconduct/negligence is
proved in the said enquiry, it is also open
to the authority to issue surcharge notice
and pass appropriate order. Thus where
misconduct/negligence is substantiated in
the enquiry, then simultaneously as
District Magistrate is competent to pass
order of removal and can also pass order
of surcharge, the proceedings on this
score cannot be faulted. Once there is
duality of authority conferred in District
Magistrate and the requirement under the
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules is that direction for surcharge
should be preceded by show- cause
notice, then the composite notice issued
under Section 95 (1)(g) of the 1947 Act
read with 1997 Rules and Section 27 (2)
for surcharge cannot be faulted. The
competent authority is also free to
independently direct for surcharge under
Section 27 of the Act and pass appropriate
order after being satisfied with the
misconduct/negligence.

...

17. In the present case accepted
position is that proceedings under Section
95(1)(g) of the 1947 Act read with 1997
Rules has been undertaken and at the
point of time when notice has been given
to the petitioner appellant, she has been
categorically informed that she has
caused loss and for causing loss she can
be removed and amount in question can
also be recovered from her.