HON’BLE SRI JUSTICE C.V. RAMULU W.P.No. 24398 of 2005 Date: 17-09-2010 Between: Smt. Lakshmi Bai ……….. Petitioner and The Government of Andhra Pradesh and others. ………. Respondents HON’BLE SRI JUSTICE C.V. RAMULU W.P.No. 24398 of 2005 ORDER: This writ petition is filed seeking Certiorari to call for the records pertaining to the Notice bearing No.B/1867/2000-1, dated 04-10-2005 from the second respondent and to quash the same as illegal and arbitrary. 2. It appears, the petitioner was elected as Sarpanch of Gulla (Big) village, Jukkal Mandal, Nizamabad District, for a period of five years from 1994-95 to 1999-2000. On 02-09-2000, the District Collector, Nizamabad, the fourth respondent herein, passed an order bearing proceedings No.525/2000-B5 (PTs) stating that the petitioner had committed grave financial irregularities and therefore, ordered for recovery of a sum of Rs.5,09,727/- under Section 265 of the A.P. Panchayat Raj Act, 1994 and also directed to launch criminal prosecution against her. Aggrieved by the said order, an Appeal was preferred before the Commissioner, Panchayat Raj. However, the said Appeal was dismissed on 05-12-2000. Against the dismissal of the Appeal, a Revision was preferred before the Government and the same was also dismissed on 02-11-2000. Aggrieved thereby, the petitioner filed W.P.No.25377 of 2003. In the counter filed by the Government in the said writ petition, it was stated that investigation has been made into the matter and the amount recoverable was not Rs.5,09,727/-, but it was about Rs.10,000/-. Thus the said writ petition was disposed of by this Court on 15-04-2004. The operative portion of the order reads as under: “Learned Government Pleader for Panchayat Raj submits that after filing the counter-affidavit, M. Books produced by the fourth respondent were scrutinized by the official respondents, which clearly shows that the fourth respondent executed certain works and hardly a sum of Rs.10,000/- is to be recovered from the fourth respondent. Having regard to the fact that official respondents have already taken necessary steps for due recovery of the misappropriated amount, and the fourth respondent filed objection petition for ascertainment of the amount under Revenue Recovery Act, this writ petition is disposed of direction the official respondents to make their endeavour to recover the amount due from the fourth respondent as early as possible. If the petitioner-Gram Panchayat is aggrieved by the ascertainment of the amount, to be recovered from the fourth respondent, and if the law permits, is open for them to question the correctness of the ascertainment so made before the appropriate forum. With the above direction, the writ petition is disposed of. No costs.” 3. In fact, it appear, a question was also raised before the Legislative Assembly with regard to the misappropriation allegedly made by the petitioner. A repot was called for by the Secretary to Government, Panchayat Raj and Rural Development Department from the Collector, Nizamabad. The Collector, Nizamabad, vide his proceedings No.525/2000, dated 10-11-2003 addressed a detailed letter to the Secretary to Government, Panchayat Raj and Rural Development Department, A.P., Hyderabad, setting out the entire facts, and ultimately stated that the petitioner has done works worth Rs.5,03,595/- as against unaccounted amount of Rs.5,09,727/- and as on that date, there was an unaccounted amount of Rs.6,131-75 ps only. In fact, on the basis of the said report, the Mandal Revenue Officer also issued notice on 25- 07-2005 calling upon the petitioner to pay a sum of Rs.6,131-75 ps. While that being so, a fresh notice was issued on 04-10-2005 under the impugned order calling upon the petitioner to pay a sum of Rs.5,09,727/- and threatened to recover the amount as land revenue arrears by attaching her movable properties under the provisions of the Revenue Recovery Act. Therefore, the present writ petition. 4. The facts are not in dispute. In the earlier writ petition in W.P.No.25377 of 2003, the Government filed a counter stating that hardly a sum of Rs.10,000/- is recoverable from the petitioner. The writ petition was disposed of as noticed above. Thus the amount recoverable had already attained finality. 5. However, it appears that on the complaint given by the then local MLA on 26-01-2002, again the matter was referred to the Deputy Executive Engineer (P.R), Vigilance & Q.C., Nizamabad and the Deputy Executive Engineer submitted a report to the Executive Engineer (P.R), Vigilance & Q.C. Division, Hyderabad on 15-07-2005. The report reads as under: “With reference to the subject cited, a detailed enquiry has been conducted by the Q.C & vigilance staff of Nizamabad District and a detailed report in the matter is here with submitted for perusal. Allegation:- Through his petition Dt, 26.01.2002, Sri, S. Gangaram, EX-MLA (Now present sitting MLA, Jukkal) Jukkal has alleged that the Assistant Engineer, Jukkal (m) and Dy Executive Engineer, PR. Sub-Division Madnoor have recorded and check measured the fraudulent measurements in support of the misappropriatioin done by the then sarpanch Gullapedda, Smt. Lakshmibai to the tune of Rs, 5,09,727=00. No action was initiated against the defaulting officers who recorded and check measured the measurements. Observations:- On local complaint against the Sarpanch Gullapedda a detailed enquiry has been conducted and the then sarpanch has been removed from the sarpanch post and recovery orders were issued for recovery of misappropriation amount of Rs, 5,09,727=00 by the District Collector, Nizamabad Dt,02.09.2002 9A detailed report as furnished by the District Collector Nizamabad is enclosed at Annexure-1). Subsequently the Ex-Sarpanch Smt, Lakshmibai Gullapedda has submitted an application to the District Collector stating that she has Executed works in support of Rs,5,09,727 and requested to drop the recovery orders (The Sarpanch Lr is enclosed at Annexure-II). The District Collector, Nizamabad has referred to the DPO in this matter for his report with reference to G.P. rules. The DPO has entrusted the works enquiry to the D.M. housing and EE(PR) Bodhan. The D.M. housing has submitted a detailed report on works executed by the Ex-sarpanch dated 6-8-2002 and the Executive Engineer PR Bodhan also furnished a report on works executed by the Sarpanch Dt,16-08-2002 (Both reports enclosed at annexure-III - & IV for reference). On verification of reports submitted by both D.M. housing and EE(PR) Bodhan, it is mentioned in the reports that the traces of works executed was present but the genuineness of the measurements recorded could not be find out now as the works executed are long back i.e., (six years back) and subsequently so many improvements on the works have been taken up. They expressed that it is very difficult to assess/verify the work done. The recorded works were not passed by any authority and there are no estimates Technically sanctioned available. The DLPO, Bodhan has submitted a report stating that he has verified the M. Books and found that Ex-Sarpanch Gullapedda, then executed the works as against the Recovery of Rs,5,09,727=00. In this connection the District Collector, Nizamabad has ordered Nodal officer Jukkal (M) to inspect the works and certify the genuineness of the works Executed by the then Sarpanch. The report is still awaited and the recovery process is under progress at District level. The Q.C & Vig., staff of Nizamabad (PR) sub-Division have visited the site on 8.04.2005 and the following observations are made: 1) The technical sanction register for the said works executed were verified and it is observed. That no technical sanction has been accorded for the said works. The T.S. register for the period 1999-2000 is not properly maintained simply the works were entered in the register without assigning any signature of authority. 2) The side drain works as mentioned in Annexure-II were physically verified and found that the traces of works executed were found but the period of execution and quantities and quality of works could not be assessed now. 3) The Formation of road works and improvements of road works as mentioned in the Annexure-II could not be assessed as the roads now are completely concreted and several improvements works have been taken up on the said works. 4) Construction of Bus Shelter has been verified and found that the work has been grounded and constructed up to lintel level. The work has not been recorded in any M. Book. 5) All the works executed are recorded in MB at Astretch in the MB,s without any proper pass orders from competent authority and withour recorded the same. Conclusion:- As seen from the above it is observed that at present the process of Revenue Recovery against the Ex-sarpanch, Smt. Lakshmibai, Gullapedda is under process and she has submitted application for dropping recovery orders stating that she has executed the works to the tune of recovery amount and submitted the measurement Books. The works Executed have been inspected by D.M. housing and EE (PR) Bodhan and expressed through their reports that quantities of works executed could not be assessed after six years. The District Collector Nizamabad has ordered the Nodal officer jukkal (M) for finding the genuineness of the works executed by the then sarpanch which is still awaited and the District Collector Nizamabad has not yet ordered any dropping orders against the Sarpanch Smt, Lakshmibai. On personal verification it is concluded that the works have been executed recorded and check measured without proper technical sanctioning the estimates. Recording and check measuring without technical sanction of the estimates is irregular on part of the officers. The recorded measurements are also not passed by any authority. More over the quantities of works executed recorded also could not be assessed hence under these circumstances. It is concluded that the measurement recorded & check measured are null and void & giving scope that the measurements are fraudulently recorded. The total amount recorded check measured may not be taken into consideration. Action deemed fit for lapses in Maintaining the records & recording check measurements may be taken against the defaulting officers.” From the above it is clear that after a lapse of six years, the report was called for, wherein it is stated that the traces of works executed were present, but genuineness of the measurements recorded could not be found out now, as the works executed long (six years) back and subsequently, so many improvements on the works have been taken up and as such, they have expressed that it is very difficult to assess/verify the works done. However, they have further added saying that the technical sanction against the said work etc., are not available. Except this, no other findings were made to say that the petitioner was liable for the unaccounted money etc. In fact on 10-11- 2003, the District Collector, Panchayat Wing, Nizamabad, addressed a letter to the Secretary to Government, Panchayat Raj and Rural Development Department, A.P., Hyderabad, stating as under: “Amount ordered for recovery is Rs.5,09,727-00 and the M. Books recorded are for Rs.4,87,595-25. The Assistant Engineer, P.R., Jukkal has given valuation certificate of Bus stand constructed up to lental level to a tune of Rs.16,000-00. Thus total work done amount comes for Rs.4,87,595-25 + Rs.16,000-00 = Rs.5,03,595-25 as against the un-accounted amount of Rs.5,09,727-00. Even if the works are taken into account still there is un-accounted amount of Rs.6,131-75 with the Ex-Sarpanch.” 6. In pursuance to the above report, a notice, dated 25-07- 2005 was issued to the petitioner demanding an amount of Rs.6131- 75 ps. But, immediately thereafter, in view of a vigilance report, another notice, dated 04-10-2005 was issued demanding an amount of Rs.5,09,727/-. Absolutely there is no evidence to say that the petitioner was put on any show cause notice before issuance of the second notice, dated 04-10-2005. These circumstances would go to show that on the basis of some vigilance report, the second respondent ignored the notice, dated 25-07-2005 and issued fresh notice, dated 04-10-2005. In the counter filed in the earlier writ petition, the respondents have stated that hardly an amount of Rs.10,000/- is recoverable from the petitioner and further the fact that when a Legislative Assembly Question was put, the Government submitted a report saying that the petitioner was liable to pay only an amount of Rs.10,000/- and as per the report, dated 10-11-2003, the recovery sought under notice, dated 25-07-2005 was Rs.6131-75 ps. 7. There is no necessity of going into all the details. The very report filed on 10-11-2003 gave all the detailed account of the works attended to by the petitioner wherein it was found that even if the works are taken into account, still there is unaccounted amount of Rs.6,131-75 with the Ex-Sarpanch. That amount, of course, the petitioner is liable to refund. All the details were not examined by any of the officers after the vigilance report, dated 15-07-2005 and just they have revived the earlier demand, which was the subject matter of the earlier writ petition before this Court, wherein in the counter filed by them they have conceded that hardly a sum of Rs.10,000/- is recoverable from the petitioner. 8. All these things would go to show that there is somebody behind the petitioner and the matter, which was examined in detail, and proper conclusions arrived at in the report, dated 10-11-2003 were given a go bye and on the basis of some vigilance report, where no details are available, the impugned notice, dated 04-10-2005 was issued, and in fact the vigilance report itself says that the traces of the works executed are available, but it is very difficult for them to give any finding as to the measurements etc. 9. Under these circumstances, the impugned order is liable to be quashed as null and void. Accordingly quashed. 10. The writ petition is, accordingly, allowed. No order as to costs. ____________ C.V. RAMULU, J Date: 17-09-2010 YCR