THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION Nos. 12249 AND 12241 OF 2005 Dated: 29-07-2010 WRIT PETITION No. 12249 OF 2005 Between: Nagidi Ganapathi ... PETITIONER AND The District Collector, Eluru, West Godavari District and two others ... RESPONDENTS WRIT PETITION No. 12241 OF 2005 Between: Nagidi Tataiah ... PETITIONER AND The District Collector, Eluru, West Godavari District and two others ... RESPONDENTS THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION Nos. 12249 AND 12241 OF 2005 COMMON ORDER: As much as impugned orders are issued in both the writ petitions on similar set of facts by the same authority, the two writ petitions are heard together and disposed of by this common order. The petitioner in Writ Petition No. 12249 of 2005 was the Sarpanch of Deyyalatippa Village, Bhimavaram Mandal, West Godavari District for the period from 1995 – 2001. Her husband who is the petitioner in Writ Petition No. 12241 of 2005 was also the Sarpanch of the same village for the period from 2001 – 2005. In Writ Petition No. 12249 of 2005, the petitioner has questioned the proceedings dated 17-05-2005 issued by the District Collector, Eluru, the 1st respondent herein in Roc.No.6534/2004-A2 (Pts) directing the Mandal Parishad Development Officer, Bhimavaram, the 3rd respondent herein to recover an amount of Rs.1,77,300/- funds relating to the Gram Panchayat alleged to have been misappropriated by her. Writ Petition No. 12241 of 2005 is also filed questioning the order of the even date in Roc.No.6534//2004-A2 (Pts) wherein directions were issued to the 3rd respondent to recover an amount of Rs.11,675/- from the petitioner alleged to have been misappropriated by him. In view of the order which is proposed to be passed by this Court, it is not necessary to go into the facts in detail. It is suffice to say that complaints were made from the villagers and the members of the Gram Panchayat during the year 2005 stating that the petitioners have misappropriated certain amounts of the Gram Panchayat. Representations to that effect were made before the District Panchayat Officer, Eluru, the 2nd respondent herein who in turn has issued directions to the 3rd respondent to conduct enquiry. Based on the enquiry conducted by him, the 3rd respondent has submitted report dated 24-03- 2005 to the District Collector, Eluru, the 1st respondent herein and based on the same, the 1st respondent has passed the impugned orders. In both the writ petitions, the impugned orders are questioned mainly on the ground that they were not preceded by any show cause notice by the 1st respondent as contemplated under Section 265 of the Andhra Pradesh Gram Panchayat Act, 1994. According to the learned counsel for the petitioners, although a reference is made in the counter affidavit about the notices alleged to have been issued to the petitioners, that notices were issued by the 3rd respondent in the enquiry conducted by him based upon which report dated 24-03-2005 is submitted to the 1st respondent. It is fairly conceded by the learned Government Pleader appearing for the respondents that no show cause notice is issued to the petitioners by the 1st respondent before passing the impugned orders. It is appropriate to refer to Section 265 (1) and (2) of the Act which reads as under: “265. Liability of Sarpanch, President, “Chairperson” etc, for loss, waste or misapplication of property:- (1) If, after giving the Sarpanch, Upa- Sarpanch, President, Vice-President, “Chairperson”, “Vice-Chairperson” or the executive authority, the Mandal Parishad Development Officer, the Chief [Executive Authority] an opportunity of showing cause to the contrary, the Commissioner is satisfied that the loss waste or misapplications of any money or other property owned by or vested in the gram panchayat, Mandal Parishad, or as the case may be the Zilla Parishad is a direct consequence of misconduct or gross neglect, on the part of such person, the Commissioner may, by order in writing, direct such person to pay to the gram panchayat, Mandal Parishad or as the case may be, the Zilla Parishad before the date fixed by him, the amount required to be reimburse it for such loss, waste or mis- application, unless such person proves that he had acted in good faith. (2) If the amount is not so paid, the Commissioner shall cause it to be recovered as arrears of land revenue and credited to the fund of the Gram Panchayat, Mandal Parishad or as the case may be, Zilla Parishad.” From a perusal of the aforesaid provision, it is clear that before fixing liability on the Sarpanch on any allegations of misuse, misappropriation etc., it is obligatory on the part of the 1st respondent to issue show cause notice. However, in the instant case, it is clear from the counter and from the submissions made by the learned Government Pleader that except the notice issued by the 3rd respondent during the enquiry conducted by him, no show cause notice is issued within the meaning of Section 265 (1) of the Act. When the provision prescribes issuance of show cause notice by the Collector who is empowered to pass an order for recovery of the amounts belonging to the Gram Panchayat alleged to have been misappropriated, no order can be passed by the said authority on the notice said to have been issued by the Mandal Development Officer. In that view of the matter, on that short ground alone, the impugned orders are liable to be set aside and they are accordingly set aside. However, the 1st respondent is at liberty to issue show cause notices to the petitioners giving the details of the amounts alleged to have been misappropriated by them and pass appropriate orders, in accordance with law after giving opportunity to the petitioners. Subject to the above directions, the writ petitions are allowed. No order as to costs. R. SUBHASH REDDY, J 29-07-2010 ks