HON’BLE MR.JUSTICE R.SUBHASH REDDY Writ Petition No.17084 of 2008 Date: October 20, 2011 Between: Makka Lakshmi Parvathi, W/o.Durga Babu … Petitioner And The Government of Andhra Pradesh, rep. by its Secretary, Panchayat Raj Department, Secretariat, Hyderabad and others … Respondents Order: Petitioner, who was the Sarpanch of Gram Panchayat, Jagapathinagaram in Kirlampudi Mandal, East Godavari District, has filed this writ petition questioning the order dated 04.07.2008 passed in proceedings Roc.No.3901/2007/A1, by the 2nd respondent-District Collector, East Godavari, in exercise of power under Section 265(2) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, ‘the Act’) to recover, from her, an amount of Rs.7,87,000/- on the ground that she has misused the said money and also the order even dated placing her under suspension for a period of three months, referring to the allegations of misappropriation of money, under Section 249(6) of the Act. 2. Briefly, stated the facts of the case are as under: A representation was filed by Sri Thota Gopalakrishna, Member of Legislative Assembly, Peddapuram constituency before the 2nd respondent- District Collector, East Godavari, alleging that certain irregularities have been committed in executing works under SGRY Scheme and also 15 works under 12th Finance Commission. The same was referred by the 2nd respondent-District Collector to the 3rd respondent- Divisional Panchayat Officer, Peddapuram. Based on his report, petitioner was issued show-cause notices calling upon her to show cause as to why she should not be suspended as Sarpanch under Section 249(6) of the Act and also why an amount of Rs.7,87,000/- shall not be recovered in exercise of powers under Section 265 (1) of the Act. Petitioner submitted her explanation denying the allegations made against her. Thereon, by referring to the explanation filed by her, the 2nd respondent-District Collector called for the remarks of the Divisional Panchayat Officer. On the ground that the said officer has sent his remarks confirming that the petitioner-Sarpanch has incurred irregular expenditure of Rs.7,87,000/- towards execution of 15 works from the funds available under the 12th Finance Commission without having proper estimates and other connected records, viz. vouchers, bills etc., the 2nd respondent-District Collector has passed the impugned orders. 3. Heard Sri N.V. Anantha Krishna, learned counsel for the petitioner and learned Government Pleader for Panchayat Raj and Rural Development appearing for the respondents. 4. It is submitted by the learned counsel for the petitioner that in spite of the fact that the petitioner has filed valid explanation; without considering the same, the impugned orders are passed ordering recovery of alleged misappropriated amount from the petitioner and placing her under suspension. It is submitted that the works executed were already written in the cash book and the minutes book concerned and even in absence of any gross violation of mandatory procedure prescribed under Section 265 of the Act, the impugned orders are passed without assigning any valid reasons. 5. Though the writ petition is of the year 2008, no counter-affidavit is filed. When the matter is taken up, learned Government Pleader has produced the relevant file. 6. A perusal of the said file makes it clear that the show-cause notice itself indicates that report was sent by the Divisional Panchayat Officer. It is alleged therein that, with regard to certain works executed under SGRY Scheme, works costing about Rs.90,036/- were recorded in the minutes book, but no written expenditure is recorded in the cash book and the details of the works executed. Similarly, it is alleged that with regard to certain other works, there is a temporary misappropriation for an amount of Rs.7,87,000/-. In the show-cause notice, it is alleged that in absence of maintaining the required record with regard to execution of works, the amount is to be considered as misappropriated. To the said show-cause notice, petitioner filed her explanation giving the details of the works executed under the SGRY Scheme and also 12t h Finance Commission Funds. In spite of the same, the impugned orders are passed, merely based on the report of the Divisional Panchayat Officer, without recording any independent findings, by the 2nd respondent-District Collector. 7. Under Section 265 of the Act, the Commissioner/Collector, if he is of the view that there is a loss, waste or misapplications of any money or other property owned by or vested in the gram panchayat, by the Sarpanch of the Gram Panchayat, he is empowered to pass an order directing such person to reimburse such loss, waste or misapplication unless such person proves that he had acted in good faith. 8. Though the District Collector alone is the competent authority for passing an order, in the instant case, only referring to the remarks of the Divisional Panchayat Officer and without recording any independent finding with regard to misapplication, misuse or misappropriation of the funds of the Gram Panchayat, the 2nd respondent-District Collector has ordered recovery of money. The enquiry conducted by the DPO and the report submitted by him can be the basis for initiating proceedings, but once show-cause notice is issued, it is obligatory on the part of the District Collector himself to look into the allegations made and record his own findings with regard to alleged misappropriation before ordering recovery of money in exercise of power under Section 265(2) of the Act. Though it is pleaded by the learned Government Pleader for respondents that there is a right of appeal against the impugned orders, it is to be seen that this writ petition was admitted in the year 2008 and since then it has been pending. As this court is of the view that the District Collector has not considered the issue at all by recording his findings in support of the order of recovery, it is appropriate to remit the matter for fresh consideration by the District Collector. Further, though there is a remedy of appeal against the impugned orders, I do not find any ground to drive the petitioner at this stage to avail the said remedy. With regard to the order of suspension, it is to be noticed that as much the very tenure of Sarpanch is over by 22.08.2011, no such relief can be granted. 9. For the foregoing reasons, the order dated 04.07.2008 passed in proceedings Roc.No.3901/2007/A1, by the 2nd respondent-District Collector, East Godavari, in exercise of power under Section 265(2) of the Andhra Pradesh Panchayat Raj Act, 1994, to recover from the petitioner an amount of Rs.7,87,000/-, is set aside and the matter is remitted back to the 2nd respondent-District Collector with a direction to consider the matter afresh and pass a reasoned order on all the allegations made against the petitioner as expeditiously as possible. The petitioner may file additional explanation and other supporting papers in support of her plea within a period of six weeks from today. 10. Writ petition is allowed to the extent indicated above. No costs. ___________________ (R.SUBHASH REDDY, J) October 20, 2011 MRR