Court No. - 34
Case :- WRIT - A No. - 9855 of 2021 Petitioner :- Akhilesh Kumar Shukla Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sheetala Prasad Pandey Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
The petitioner who is a Gram Panchayat Adhikari challenges the impugned order of 08 February 2021 by which recovery in the form of surcharge is sought to be made. Undisputedly, the aforesaid order would be traceable to the provisions of Section 27 of the 1947 Act. Dealing with the issue of who would be liable to be recognized as the competent authority who may enforce a surcharge pursuant to the provisions made in Section 27 of the 1947 Act and the Rules framed thereunder, this Court in Uday Pratap Singh @ Harikesh Vs. State of U.P. And 4 Others [2019 (10) ADJ 443] held thus:
"On a consideration of the aforesaid conclusions the Court holds: -
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;
F. The prima facie findings of wrongdoing arrived at during the course of or in contemplation of an enquiry initiated under Section 95(1)(g) cannot form the foundation for levy or recovery of surcharge."
Before the Court, it is conceded that the Khand Vikas Adhikari is not the competent authority to pass an order of recovery of surcharge. In view of the aforesaid, it was submitted that the impugned order would merit being set aside with liberty being reserved to the competent authority to proceed in the matter afresh.
Accordingly, this writ petition is allowed. The impugned order dated 08 February 2021 shall stand quashed. Liberty shall stand reserved to the competent authority to proceed in the matter afresh.
Order Date :- 20.9.2021 Arun K. Singh