Court No. - 18
Case :- WRIT - C No. - 35673 of 2018 Petitioner :- Smt. Asha Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kedar Nath Mishra,Manoj Kumar Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri K.N. Mishra, learned counsel for the petitioner and Shri Rahul Malviya, learned Standing Counsel for State respondents.
The petitioner, who is Ex-Gram Pradhan of Gram Sabha Dihpur, Block and Tehsil Phoolpur, Distt. Azamgarh is before this Court assailing the order dated 23.1.2018 passed by District Magistrate, Azamgarh as well as recovery citation dated 10.08.2018 issued by Tehsildar, Tehsil Phoolpur, Distt. Azamgarh and for a direction to the respondents not to take any coercive measure for realizing the recovery amount in pursuance of the order of District Magistrate dated 23.1.2018 and recovery citation dated 10.08.2018 issued by Tehsildar, Tehsil Phoolpur, Distt. Azamgarh.
At the very outset, learned Standing Counsel raise an objection regarding the maintainability of the writ petition on the ground that the impugned recovery of surcharge has been issued under the U.P. Panchayat Raj Rules, 1947 (in short "the Rules of 1947") and against the order impugned the petitioner has got alternative efficacious remedy to assail the validity of the same under Rule 258 before the Commissioner of the Division and as such the writ petition is liable to be dismissed on the ground of alternative remedy.
Learned counsel for the petitioner, in support of his submissions, has placed reliance on sub-rule (2) of Rule 257 of the Rules of 1947, which provides 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 a Pradhan, Up- Pradhan, Member, Officer or servant of the Gaon Panchayat whichever is later. It is contended that the petitioner as Lady Pradhan has relinquished the office way back in the year 2015 and in case no reprieve is extended, the petitioner would suffer irreparable loss and injury.
The Court has proceeded to examine the record in question and perused the relevant provisions of the Rules of 1947 and find that against the order impugned the petitioner has got alternative efficacious remedy to assail the validity of the same by preferring appeal before the Commissioner of the Division and as such no interference is required in the matter. However, in the interest of justice, it is provided that in case the appeal is preferred against the order impugned along with stay application within three weeks from today, this Court hope and trust that the appellate authority i.e. Commissioner, Azamgarh Region would proceed to pass order on the stay application within two months thereafter. For a period of three months or till the disposal of stay application, whichever is earlier, no coercive action, so far as surcharge is concerned, shall be taken against the petitioner pursuant to orders impugned.
The writ petition stands disposed of accordingly.
Order Date :- 26.10.2018 SP/