THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO. 24935 OF 2007 BETWEEN: T.Bhaskar Rao ------ PETITIONER AND The District Collector, Srikakulam District and one another ----- RESPONDENTS THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO. 24935 OF 2007 ORAL ORDER: 1. On 23.11.2007 Assistant Government Pleader for Irrigation had taken notice. 2. This Court issued Rule Nisi on 18.12.2007. It is stated that the counter affidavit had been filed and a request was made by the counsel on record for disposal of the Writ Petition. 3. The Writ Petition is filed for issuance of Writ or Order or direction more particularly one in the nature of Writ of Mandamus declaring the orders issued by the second respondent vide letter No. 1287/M/AB/A2/F-B/2, dated 2.11.2007, is arbitrary, illegal, without any jurisdiction, violation of Article 14,21 of the Constitution of India and consequently set aside the same and pass such other order or orders, as this Court may deem fit and proper in the circumstances of the case. 4. The order impugned in the Writ Petition reads as hereunder: “Government of Andhra Pradesh Irrigation and Cad Depar;tment From To Sri K. Venkata Rao B.Sc Sri T. Bhaskara Rao Engg.. Executive Engineer Ex. President, I&CAD.., Irrigation W.U.A. of Penubarthi Division, Srikakulam. Thadivalasa (V) Ponduru Mandal Srikakulam District. Letter No. 1287/AB/A2/F-B/2/date 2.11.2007 Gentleman, Sub: Legal notice received from Sri K.Tirumala Rao, Advocate, Illisiupuram of Srikakulam (District) regarding embezzlement of water Tax funds-Remittance-requested-Regarding. Ref: (1) This office Lr.o.815M/date 17.7.07 (2) This Office Lr.No.1001M/Dt 25.8.2007 (3) This Office Lr.No.1134M/Date. 25.9.2007 addressed to Sri K. Thirumala Rao, Advocate and copy marked t you. *** I invite your attention to the correspondence cited, wherein you were requested to remit back an amount of Rs. 64,000/- (Rupees Sixty Four Thousand Only) into the account of Water Users Association, Penubarthi which you have unlawfully withdrawn during 12/01 and 3.02. But so far there is no response from you. It was already informed that if you are failed to remit the amount, the matter will be brought to the notice of District Collector, Srikakulam to recover the amount duly implementing R&A Act of 1937. Hence, it is once again informed that if you failed to remit the said amount within 15 days after receipt of this letter, the matter will be reported to the District Collector, Srikakulam to implement R&R Act 1937 to recover the said amount. Please that this as a last choice to avoid unnecessary complications. Yours sincerely, Executive Engineer, I&CAD., igation Division, Srikakulam.” 5. Sri G. Tuhin Kumar, learned counsel representing the Writ Petitioner, had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also the counter affidavit filed on behalf of the second respondent and would maintain that the respondents without any application of mind and without verifying the records, which were handed over to them, issued notice to the petitioner to the effect that he had withdrawn an amount of Rs. 70,000/- without the knowledge of the association. Further, the learned counsel had drawn the attention of this Court to the correspondence and would submit that the Revenue Recovery Act, being a penal statute, such a drastic action not to be further proceeded with. Hence, counsel would submit that in the light of the facts and circumstances of the case, the Writ Petition is to be allowed. 6. The learned Assistant Government Pleader for Irrigation, on the contrary, had taken this Court through the contents of the counter affidavit and would maintain that proper enquiry was conducted and a copy of the enquiry report also had been placed before this court and the learned counsel also would submit that even otherwise, this is an appealable order and in the facts and circumstances of the case, the Writ Petition is liable to be dismissed. 7. Heard the learned counsel and perused the records. 8. The petitioner was Ex.President, Water Users Association, Penubarthi for the years 2001-2002 and he is aged about 68 years and suffering from paralysis and unable to move around and bed ridden. It is averred that the petitioner was President, W.U.A, Penubarthi was entrusted the work i.e., repairs to 8/7+20 Branch Channel of Narayanapuram rite branch Channel for Rs. 70,000/-, D.R.No. 608/2-3 by agreement No. 409/2-3. The value of the work is estimated as Rs. 69,182/- and the date of agreement is 13.6.2002. Pursuant to the agreement, the petitioner had completed the work, as conditions stipulated in the agreement and thereafter the authorities i.e., the Assistant Executive Engineer had verified and entered the same in the measurement book and the same was submitted to the office of the first respondent. It is needless to submit that only after verification and estimation of the work done by the contractor, the bill will be sanctioned for withdrawal. It is submitted that the petitioner had in fact, completed the work, as per the rules and regulation and the conditions laid down in the agreement and the authorities at no point of time till the date had raised any objection regarding the construction. 9. It is further averred that be that as it may, the respondents without any application of mind or verifying the records, which were handed over to them when the petitioner’s term was ended as President, which condition is mandatory, issued notice to the petitioner saying that he had withdrawn amount of Rs. 70,000/- without the knowledge of the association nor without executing the work and directed to pay the amount within three days for which the petitioner had given reply through an Advocate denying the contentions there under, and stated that he had executed the work as per the agreement and according to rules and regulations and the same was accepted by all the members of the association and the proposals were sent to the first respondent at Srikakulam in the year 2002-2003 itself. Afterwards, the Assistant Engineer on due inspection towards the work done and the same was recorded in the measurement book and on acceptance of the Assistant Engineer, the amount was withdrawn. It is submitted that the work is pertaining to 2002-2003 year and the work was also completed and at that particular point of time there was no objection whatsoever and now the respondent is constituently issuing notices without any application of mind or verifying the records as stated supra, which amounts to harassment. It is submitted that the first respondent is acting at the behest of the political leaders due to animosity, which amounts to gross violation of principles of natural justice and the rules. 10. It is also stated that if at all the petitioner had committed any error in executing the work or withdrawing the amount without any acceptance that would have certainly come to light at that particular point of time. Inspite of the fact, that the records were handed over to them without verifying the records harassing the petitioner is arbitrary, illegal and violation of Article 14,21 of the Constitution of India. It is submitted that later the respondents had issued letters on 19.3.2005, 28.3.2006, 25.8.2007 and 2.11.2007 vide letter No. 1287M/AB/A2/F- B/2 stating that if the amount is not paid the same will be referred to the District Collector, Srikakulam to recover the amount duly implementing R&R Act, 1937 giving 15 days time. 11. It is also further averred that to all the letters, the petitioners had given replies indicating that all the records were submitted in the year 2002-2003 itself and there is no record with the petitioner and also sought the respondents to cause any enquiry and take appropriate action. In one of the letters the second respondent had infact, asked the petitioner to assist them in the enquiry, so as to bring the truth, but contrary to the same the second respondent had issued the impugned orders hastily without conducting an enquiry or giving any opportunity of being heard. It is submitted that the impugned order Dated 2.11.2007 is illegal, arbitrary and contrary to the A.P.F.M.I.S.Act, 1997 and also without jurisdiction and without any application of mind. 12. It is further stated that it is needless to submit that the Revenue Recovery Act is a penal statute having execution powers and any matter referred, will be instantly taken without any notice. As indicated in the impugned order, when once the second respondent refers the matter to the first respondent, the same will be acted upon, thereby, depriving the petitioner with the opportunity of being heard and would be unjustly held for the act which he is not responsible. It is submitted that after a lapse of three years from the date of execution of the work, ie., 2002-2003 the notices were issued in the year 2005, seeking to remit the amount, which is bad in law and the same is only issued at the behest of political rivalry. It is submitted that the present impugned orders dated 2.11.2007 suffers from legal sanction, authority under law as without jurisdiction, illegal, arbitrary and in violation of Articles 14 and 21 of the Constitution of India an if the impugned orders are not suspended, the petitioner will be put to great hardship at the fag end of his life who is bed ridden suffering from paralysis. Since the first respondent himself is the authority to act under the ROR and being the penal authority and any attempt in preferring an appeal will be an empty formality. In such circumstances, the Writ Petitioner approached this Court praying for the relief specified above. The impugned order already had been referred to supra. 13. In the counter affidavit filed by the second respondent sworn to by the Executive Engineer (Full Additional Charge), Irrigation Division, Srikakulam District, it is averred that the contention of the petitioner i.e., execution of work, repairs to 8/7+20 Brach channel of N.R.S. Channel is false and incorrect. It is submitted that the APFM Act, 1977 specified certain procedure for execution of works and withdrawal of amount from the Bank by the President of Water Users Association. As per that Act, the Association should pass a resolution for execution of work in the jurisdiction of the particular Water Users Association and signed by the majority of the members (i.e. President, Vice President & T.C Members) of that Association, in the presence of the Assistant Engineer concerned. The Assistant Engineer concerned, will certify the feasibility of the work and submit to the Deputy Executive Engineer and in turn it will be submitted to the Executive Engineer. After that the concerned Assistant Engineer will prepare estimates and submit to the Deputy Executive Engineer and in turn to the Executive Engineer for sanction. After sanctioning the estimate, instructions will be given to the Deputy Executive Engineer to inform the President, Water Users Association to attend Division Office to conclude the Agreement with the Department. After conclusion of the Agreement, the President, Water Users Association will proceed for execution of work in the presence of the concerned Assistant Engineer. On satisfaction of Assistant Engineer, for the executed quantities, with reference to the agreement, he will record the measurements in the M.Book and the same will be check measured by the Deputy Executive Engineer, who is the competent to certify the work executed by the President. Then the Assistant Engineer will prepare the bill and submit to Deputy Executive Engineer and in turn the bill will be submitted to the Executive Engineer for passing and payment of the bill. After passing of the bill the same will be forwarded to the President, Water Users Association concerned, through Deputy Executive Engineer. Then only the President will withdraw the amount from the Bank in the Pass Book of Water Users Association, for which he is entitled to receive the amount with the joint signatures of Vice President. This is the departmental procedure as per rules. Whereas, in this issue the petitioner has withdrawn the amount from the Bank at his own decision, as detailed below with the following procedure mentioned supra. (a) The petitioner had withdrawn the amount of Rs. 39,000/- during 12/2001 vide cheque No. 667715 dt. 7.12.2001. (b) He had also withdrawn an amount of Rs. 25,000/- during 3/2002 vide Cheque No. 667716 dt. 26.3.2002 (totally Rs. Sixty Four Thousand Only) 14. It is averred that the petitioner had concluded the Agreement dated 13.6.2002 vide Divisional Agreement No. 409/02-03 but he had not executed any portion of the work. When he had not executed the work, there is no need to raise any question of objection with regard to the execution of work and also to file a petition in this Court. It is further averred that after thorough verification of records available in the Office, but not without application of mind, as stated by the petitioner, it is decided that the President had not executed any work and so it is not harassment, arbitrary and illegal and also not violative of Articles 14 and 21 of the Constitution of India. After making protracted correspondence with the President, it is decided to report the fact to the District Collector, Srikakulam as there is no other go to realize the amount from the President. There is no any behest or animosity with regard to the notices issued to the President. In view of the above circumstances, the action taken vide this Office letter No. 1287M/AB/A2/FB2 dt. 2.11.2007 is correct. 15. Further it is averred that the statement of the petitioner that there was no proper enquiry was made or giving any opportunity of being heard is not correct. The Superintending Engineer, Irrigation Circle, Bobbili had appointed the Executive Engineer, Special Investigation Division, Srikakulam to conduct discreet enquiry on the misappropriation of the amount of Rs. 64,000/-. The Enquiry Officer had conducted a detailed enquiry on the above subject and submitted the Enquiry Report to the Superintending Engineer, Irrigation Circle, Bobbili and in turn to this Office. A copy of the enquiry report is placed before this Court. The Enquiry Officer clearly stated that the withdrawn amount by the President should be recovered by making every effort. It is also submitted that the statement of Sri P. V. Ramana Rao, Assistant Engineer who was working at the time of withdrawal of amount and also the statement of Sri A. Appanna joined subsequently, as Assistant Engineer in that section, who has prepared the estimate are also enclosed for ready reference. It is also stated that in APFMIS Act, 1997 Rule 41(A) sub-rule (2) para VI and Rule 3 and 4 read as under: “41(A) Sub-rule(2) para VI: Incurred any of the dis-qualifications under the provisions of Act, the Government or, as the case may be, the Commissioner or the Officers designated in Sub-Section (1) may proceed either suo-motu or on a representation or application and may remove such President or Vice-President or Chairman or Vice- Chairman or the Member or Members of the Managing Committee after giving reasonable opportunity for making a representation against such action. Any amount fallen due to be recovered, consequent to any financial irregularity committed by the Chairman or Vice-Chairman or President or Vice President or Member or Members of the Managing Committee during their tenure, shall be recovered as per the A.P. Revenue Recovery Act, 1964 or any Act for the time being in force and be credited to the respective farmers organization or Government as the case may be. All appeals on the orders issued under Section (2) shall lay before on Appellate Authority not below the rank of District Collector as may be prescribed within a period of (30) days from the date of serving the said orders to the concerned person or persons and the decision of the Appellate Authority there on shall be final.” 16. It is further stated that matter came to the light during 1/05 with a paper clipping in ‘Eenadu’ that the then Water Users Association President (the Petitioner) had not handed over the records to his successor of the concerned Water Users Association. As there is no other alternative to this Department except to report the fact to the District Collector and Magistrate to implement R &R Act, 1937, as the petitioner has snatched the amount with malicious intention, it is necessary to implement R&R Act to safeguard the Government property and so it is not in violation of Articles 14 and 21 of the Constitution of India, as stated by the petitioner. 17. It is also averred that the contention of the petitioner that implementation of R&R Act, 1937 to realize the amount from him is in violation of Articles 14 & 21 of the Constitution of India is wrong and it is not correct. The petitioner had withdrawn the amount from the Bank very un-lawfully without following the norms laid down in the APFM Act, 1977 to mollify his own needs. As and when it came to the light every effort is being made and there is no other go except to implement R&R Act, 1937. 18. These are the respective stands taken by the parties. 19. On a careful verification of the records placed, the notice issued by the Bank to the Deputy Executive Engineer, Irrigation dated 15.4.2006 and the reply given by the Deputy Executive Engineer to the petitioner, further notice issued and the correspondence placed before this Court, the contention advanced by the counsel for the petitioner relating to violation of principles of natural justice also cannot be taken as an acceptable contention, in the light of the impugned order, since the contents of the impugned order appear to be self explanatory in this regard. It is not as though the impugned order was made all of a sudden and the same had preceeded with some correspondence, notice and replies as well in this regard. 20. Hence, viewed from any angle, the Writ Petition is devoid of merit but however, liberty is given to the petitioner to pursue other remedies available to the petitioner under law. 21. With the above observation, the Writ Petition is dismissed. No order as to Costs. __________________ P.S. NARAYANA, J DATE: 23--01--2008. KA