HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.7156 of 2008 Date : 22.09.2011 Between : T. Krishna Murthy Naidu. …..Petitioner And Government of A.P., rep. by its Special Chief Secretary to Government, Panchayat Raj & Rural Development (PTS.III) Department & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.7156 of 2008 ORDER : The petitioner was the ex-Sarpanch of Unukuru Grampanchayat in Regidi Mandal of Srikakulam District. On the ground that during his tenure as Sarpanch, he has withdrawn an amount of Rs.2,79,044/- and has not executed the works and retained the said money with him, the District Collector (Panchayat Wing), has passed orders on 17th of August 2007, issued in Lr.No.342/07 C, directing to recover the aforesaid amount from the petitioner under the Revenue Recoveries Act, by attaching the properties belonging to him. As against the same, the petitioner carried the matter by way of revision before the Government. The Government, based on the report of the District Panchayat Officer, in which, it is stated that the Sarpanch has not furnished the records for an amount of Rs.1,25,811/-, has confirmed the order of the primary authority by modifying the quantum of amount from Rs.2,79,044/- to Rs.1,25,811/-. Both the said orders are under challenge in this writ petition. 2. It is the case of the petitioner that he was the Sarpanch of Unukuru Grampanchayat for the period from 14th of August 2001 to 23.08.2006 and after expiry of his term, he has handed over the records to the newly elected Sarpanch. It is stated that the new Sarpanch, after taking over charge, has complained against him about certain irregularities, alleging that he has drawn the amounts of Grampanchayat, but not executed the works and kept the amount with him and misappropriated the same. On the said complaint, referring to the show cause notice dated 30th of March 2007, and the report sent by the Divisional Panchayat Officer, recovery is ordered by the District Collector, Panchayat Wing by order dated 17th of August 2007, issued in Lr.No.342/07 C and the same is erroneously confirmed by the revisional authority, by modifying the quantum of amount from Rs. 2,79,044/- to Rs.1,25,811/-. 3. It is the case of the petitioner that the respondents have not followed the procedure contemplated under the Panchayat Raj Act, 1994, and even the revisional authority has not considered the grounds in the revision petition and simply passed orders based on the report submitted by the District Panchayat Officer, by modifying the quantum of amount. 4. At the stage of admission, this Court granted interim stay on condition of depositing a sum of Rs.75,000/- within a period of six weeks and it is stated that the petitioner has deposited the said amount in compliance of directions issued by this Court. 5. In the counter filed by the respondents, while denying the allegations made by the petitioner, it is stated that the petitioner was Sarpanch for the period from 14th of August 2001 to 23rd of August 2006 and handed over the charge to his successor Sarpanch. It is stated that the successor Sarpanch has verified the accounts and found that certain amounts were not accounted for by the ex- Sarpanch i.e. the petitioner herein and informed the same to the District Collector. Thereupon, the Divisional Panchayat Officer has reported stating that no accounts were produced for an amount of Rs.2,79,044/-. It is stated that there upon, a show cause notice is issued by the District Panchayat Officer, Srikakulam to show cause why the amount should not be recovered under Revenue Recoveries Act and after considering the explanation filed by him, orders are passed to recover an amount of Rs.2,79,044/-. Further, it is stated that after giving due opportunity to the petitioner and basing on the report of the Divisional Panchayat Officer, Palakonda, the order dated 17th August 2007, issued in Lr.No.342/07C, is passed by the District Collector, in which, directions were issued to the Mandal Revenue Officer to recover an amount of Rs.1,25,811/- under the Revenue Recoveries Act. Further, it is stated that after filing of revision petition before the Government, the District Panchayat Officer, Srikakulam has visited the Grampanchayat and verified the records and submitted a final report to the Government, informing that the ex-Sarpanch i.e. the petitioner herein has not produced accounts for the advances drawn under different heads of account to the tune of Rs.1,25,811/-. It is stated that though the petitioner was given opportunity to verify the records, the petitioner has failed to avail the same, and in that view of the matter, after giving appropriate opportunity, orders are passed. 6. Heard the learned counsel for petitioner and also the learned Government Pleader appearing for respondents. 7. The impugned order of the District Collector is based on the report sent by the Divisional Panchayat Officer, and it is passed after issuing a show cause notice, dated 30th of March 2007, which is referred to under reference No.5 in the order passed by the District Collector. I have perused the copy of the show cause notice, issued by the District Panchayat Officer, which is placed on record along with the counter affidavit filed by the Government. A perusal of the said show cause notice shows that it is issued to the petitioner only to show cause as to why an amount of Rs.2,79,044/- should not be recovered from him by invoking the provisions under the Revenue Recoveries Act. When the matter was heard on the last occasion, it was adjourned to obtain further instructions by the Government Pleader to know whether any other orders are passed by the District Collector other than the order dated 17th August 2007, for recovery of amount from the petitioner. When the matter is taken up today, basing on the letter sent by the District Panchayat Officer, Srikakulam in Rc.No.342/07A2, dated 22.09.2011, it is submitted by the learned Government Pleader that except the order dated 17th August 2007, there is no other order, and the impugned order dated 07.02.2008 is passed, basing on the show cause notice dated 30th of March 2007. At this stage, it is appropriate to refer to the provision under Section 265 of the A.P. Panchayat Raj Act, 1994, as per which, the Commissioner is empowered to order for recovery in the event of causing any loss by the Sarpanch of the Grampanchayat by wastage or mis- application of the money of the Grampanchayat by his negligent or mis-conduct. In this case, it is clear that there is no order passed by the Commissioner, fixing the liability on the petitioner by giving him the opportunity of being heard. The show cause notice dated 30th of March 2007 is issued by the District Panchayat Officer to the petitioner, asking him to show cause as to why an amount of Rs.2,79,044/- should not be recovered by invoking the provisions under the Revenue Recoveries Act, and referring to the said show cause notice, order for recovery is passed by the District Collector. It is clear from the counter affidavit that no order is passed by the competent authority as contemplated under Section 265 of the A.P. Panchayat Raj Act, 1994, to recover any amount from the petitioner. It is settled law that unless the quantum of liability is fixed by passing appropriate order under the provisions of the aforesaid Act, no proceedings can be initiated to recover any amount straightaway, by referring to the provisions under the Revenue Recoveries Act. When the petitioner is disputing the liability, at first instance, order is passed by the District Panchayat Officer to recover an amount of Rs.2,79,044/- and when he filed revision before the Government, without recording any findings on the grounds of revision, the revisional authority has simply ordered to recover an amount of Rs.1,25,811/-, based on the report sent by the District Panchayat Officer. As this Court is of the view that there is no order at all passed by the competent authority under Section 265 of the A.P.Panchayat Raj Act by following the procedure contemplated thereunder and by giving opportunity to the petitioner, it is not permissible to the respondents to recover any amount from the petitioner pursuant to the impugned order dated 07.02.2008, as confirmed by the order of the revisional authority, dated 17.08.2007. Even the revisional authority has not considered any of the grounds raised by the petitioner, but simply modified the quantum of amount to be recovered from the petitioner, based on the report sent by the District Panchayat Officer. When there is statutory provision for revision before the Government, the revisional authority is expected to record his own findings based on the material, but the revision could not have been disposed of simply basing on the remarks sent by the District Panchayat Officer. As much as the order of the primary authority itself is illegal and is not preceded by any order by the authority under Section 265 of the Panchayat Raj Act, I deem it is a fit case to set aside both the orders and to allow the respondents to take steps in accordance with the provision under Section 265 of the A.P. Panchayat Raj Act, 1994. 8. For the aforesaid reasons, the writ petition is allowed and the order, dated 17.08.2007, passed by the 2nd respondent-District Collector, as confirmed by the order, dated 07.02.2008, passed by the 1st respondent- revisional authority, are set aside. As it is stated that pursuant to the interim order dated 11.04.2008, passed by this Court, the petitioner has deposited an amount of Rs.75,000/- before this Court and produced the receipt issued by the Accounts Officer of this Court, Registry is directed to refund the said amount to the petitioner by taking appropriate receipt. However, it is made clear that if there is any mis-application, negligence or mis- appropriation of the amounts of Grampanchayat by the petitioner, this order will not preclude the respondents from taking steps to recover such amount in accordance with Section 265 of the A.P.Panchayat Raj Act, 1994. 9. The writ petition is allowed subject to the above directions. No costs. ______________________ R. SUBHASH REDDY, J 22nd September 2011 ajr