*THE HON'BLE SRI JUSTICE P.S.NARAYANA +WRIT PETITION NO : 12033 of 2009 & W.P.No.14199 of 2009 % 18-8-2009 # Battini Srihari S/o.Sammaiah Mogullapalle, Mugulapalle Mandal, Warangal District. ..... PETITIONER Vs. $ The Government of Andhra Pradesh, represented by its Principal Secretary, Panchayat Raj Department, Secretariat, Hyderabad. and others …. RESPONDENTS <GIST: >HEAD NOTE: ! Counsel for the Petitioner:MR.T.SRIKANTH REDDY ^ Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. ? CASES REFERRED: 1. 2006(4) ALD 1 2. (1999) 3 S.C.C. 422 3. 2003(1) D.T. 269 (A.P. 4. AIR 1969 S.C. 267 5. 1991(1) ALT 472 6. AIR 1936 P.C. 253(2) 7. AIR 1975 S.C. 915 8. (1993) 3 S.C.C. 161 9. AIR 1969 S.C. 634 10. 1875(1) Ch.D. 426 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 12033 of 2009 Between: Battini Srihari S/o.Sammaiah Mogullapalle, Mugulapalle Mandal, Warangal District. ..... PETITIONER AND 1. The Government of Andhra Pradesh, represented by its Principal Secretary, Panchayat Raj Department, Secretariat, Hyderabad. 2 The District Collector, Warangal, Warangal District. 3 The District Panchayat Officer, Warangal, Warangal District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records of the 3rd respondent in proceedings No.1255/A2/2009-8, dated 1-6-2009 purporting to cancel the petitioner’s cheque power with regard to the BRGF funds while issuing show cause notice to the petitioner to show cause why action could not be initiated against him under the provisions of the Panchayat Raj Act and to quash the same as arbitrary, illegal, unconstitutional, without jurisdiction and violative of principles of natural justice and pass to pass such other suitable orders. Counsel for the Petitioner:MR.T.SRIKANTH REDDY Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. WRIT PETITION NO : 14199 of 2009 Between: Battina Srihari S/o. Sammayya Mogulapalle Village, Mogulapalle Mandal, Warangal District. ..... PETITIONER AND 1 The Government of A.P., Rep. by its Principal Secretary, Secretari, hyderabad. 2 The District Collector, Warangal, warangal District. 3 The District Panchayat Officer, Warangal, Warangal District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records of the 3rd respondent in proceedings No. 1255/A2/2009-8, dated 20.06.2009 purporting to cancel the cheque power with regard to the SFC, TSF and BRGF funds and quash the same as arbitrary, illegal, unconstitutional, without jurisdiction and violative of principles of natural justice and pass such other suitable orders. Counsel for the Petitioner:MR.T.SRIKANTH REDDY Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : COMMON ORDER: 1. Sri Battini Srihari, Sarpanch, Mogullapalle filed W.P.No.12033/2009 praying for issuance of a writ of certiorari calling for records of 3rd respondent in proceedings No.1255/A.2/2009-8, dated 1-6-2009 purporting to cancel the cheques power with regard to the BRGF funds while issuing show cause notice to the fpetitioner to show cause why action could not be initiated against him under the provisions of Panchayat Raj Act and to quash the same as arbitrary, illegal, unconstitutional, without jurisdiction and violative of principles of natural justice and to pass such other suitable orders. This Court issued rule nisi on 19-6-2009 and granted interim suspension in W.P.M.P.No.15505/2009. 2. The said writ petitioner also filed W.P.No.14199/2009 praying for issuance of a writ of certiorari calling for records of the 3rd respondent in proceedings No.1255/A2/2009-8, dated 20-6-2009 purporting to cancel the cheques power with regard to the SFC, TSF and BRGF funds and to quash the same as arbitrary, illegal, unconstitutional, without jurisdiction and violative of principles of natural justice and to pass such other suitable orders. This Court on 14/7/2009 made the following order: “Prima facie, it appears that the petitioner misappropriated the S.F.C., T.S.F. and B.R.G.F. funds based on the interim Order dated 19- 6-2009 passed by this Court in W.P.M.P.No.15505 of 2009 in W.P.No.12033 of 2009 suspending the show cause notice dated 1-6- 2009 issued by the 3rd respondent purporting to cancel the petitioner’s cheque power with regard to BRGF funds. According to the petitioner, in spite of the order of suspension, the 3rd respondent issued the impugned proceedings dated 20-6-2009 purporting to cancel the petitioner’s cheque power with regard to the BRGF funds. Under the circumstances, the learned Government Pleader is directed to file counter affidavit. List the matter after a week along with W.P.No.12033 of 2009.” 3. This Court issued rule nisi on 11-8-2009 and after hearing the Counsel on record, in both these Writ Petitions orders had been reserved and thus both these Writ Petitions are being disposed of by a common order in view of the commonality of the questions of fact and questions of law involved and the writ petitioner being the same. 4. Sri Srikanth Reddy, the learned Counsel representing the petitioner had taken this Court through the respective stands taken by the parties and also strongly relied upon a decision of this Court in Somagani Venkata Subbamma Vs. District Panchayat officer, Krishna District and another [1] and would maintain that in the light of the same, especially in the peculiar fact- situation, since the mere existence of alternative remedy would not be a bar, the Writ Petitions are to be allowed. The learned Counsel also would point out that in spite of interim suspension granted in W.P.M.P.No.15505/2009 in W.P.No.12033/2009, the order which is under challenge in W.P.No.14199/2009 had been made and in such circumstances, the writ petitioner was left with no other option but to challenge the said order as well. The learned Counsel also made certain submissions how the orders made by this Court had been deliberately violated. 5. Per contra, the learned Assistant Government Pleader for Panchayat Raj had taken this Court through the stand taken in the counter affidavit and would maintain that inasmuch as sufficient opportunity had been given an order had been made in accordance with law, the Writ Petition to be dismissed. Further, the learned Counsel pointed out that inasmuch as an effective alternative remedy is available, it would be just and proper to grant the relief prayed for in the present Writ Petition and at the best opportunity be given to the petitioner to invoke the said alternative remedy. 6. Heard the Counsel on record and perused the respective pleadings of the parties and also the material placed before this Court. 7. The petitioner was elected as Sarpanch of Mogullapalle village, Mogullapalle Mandal, Warangal District in the year 2009 and had been functioning without any demur from any quarter whatsoever for about three years. However, it is stated that attempts were being made to dislodge him from the office of the Sarpanch, Mogullapalle village inasmuch as he belongs to Telugu Desam Party. It is also averred that in the year 2007-08, the Gram Panchayat had passed resolutions for sending proposals for construction of compound wall to the school building and side drainages in the village. The said proposals were forwarded to the Mandal Parishad and the said proposals had been sanctioned and the funds were released to the said works and the amounts sanctioned pursuant to the above sanctions were deposited in the Gram Panchayat account opened in the State Bank of India, Mugallapalle branch for this specific purpose which is being operated by the petitioner alone in the capacity of the Sarpanch of Mogullapalle village. While so the works were executed and are in the final stage and there is pressure on the petitioner or paying the bills to the persons who supplied the material and also the labour and hence the petitioner had withdrawn the amounts mentioned in the show cause notice which were paid to the labour and the persons who supplied the materials. It is also averred that the petitioner was not informed at any point of time that he has to take the counter signature of the Extension Officer on the cheques being drawn by him. As the account is opened in the name of the petitioner’s in the capacity of Sarpanch, Mogullapalle village there was no occasion or requirement for signature of any other persons on the cheque and as such even the Bank people had not objected for passing of the said cheque. While so, the 3rd respondent while issuing show cause notice asking for explanation why action cannot be initiated against the petitioner purporting to be under the provisions of the Panchayat Raj Act on 1-6-2009 and immediately cancelled the petitioner’s cheque powers which is a punishment imposed on the petitioner without hearing the petitioner. The said show cause notice dated 1-6-2009 and the proceedings canceling the cheque power dated 1-6-2009 were received by the petitioner only on 3-6-2009 for which the petitioner had submitted a reply dated 10-6-2009. In spite of the said reply the 3rd respondent had not restored my cheque powers and against the said action, the petitioner preferred W.P.No.12033/2009 questioning the said show cause notice and in W.P.M.P.No.15505/2009 this Court suspended the said show cause notice dated 1-6-2009. In spite of the interim orders of this Court in W.P.M.P.No.15505/2009 dated 19-6-2009, the 3rd respondent had passed final orders canceling the petitioner’s cheque power permanently. In spite of the knowledge of the orders of this Court the 3rd respondent passed orders ante- dated. Against the said action of the 3rd respondent the petitioner reserved right to initiate contempt proceedings against the respondents. Further it is also averred that in the show cause notice except the alleged fictitious and non-existent technical defect of obtaining the counter signature of the Extension Officer, there is no allegation of misappropriation of funds nor there is any allegation of projected work not being executed and only after filing of the earlier Writ Petition in the final order misappropriation of the funds had been alleged. It is also further averred that apart from the mala fides which are apparent and eloquent on the very face of the whole campaign, the show cause notice dated 1-6-2009 and the action taken suspending the petitioner’s cheque powers under BRGF funds were on the same day without giving any notice much less any opportunity of hearing and passing of the final orders dated 20-6-2009 in spite of interim direction granted by this Court in the earlier Writ Petition suspending the show cause notice dated 1-6-2009 which is the basis for passing the final order dated 20-6-2009 is absolutely misconceived, illegal and against the very provisions of the Panchayat Raj Act. Though the show cause notice dated 1-6-2009 nor the proceedings purporting to cancel the cheque power relating to BRGF funds does not contain any particular provisions of the Panchayat Raj Act, the action of the 3rd respondent can be traceable to the provisions of Section 249(6) of the Panchayat Raj Act. In fact, there is no provision under the Panchayat Raj Act for canceling the cheque power given to a Sarpanch under the provisions of the Act. Section 249(6) of the Pancyayat Raj Act reads : “If the District Collector is of the opinion that a Sarpanch or a Upa- Sarpanch or any member of a Gram Panchayat or the Government are of the opinion that any President or Vice-President or the Chairperson or Vice-Chairperson or any member of a Mandal Praja Parishad or Zilla Praja Parishad willfully omitted or refused to carry out the orders of Government for the proper working of the concerned local body or abused his position or the powers vested in him, and that the further continuance of such person in office would be detrimental to the interests of the concerned local body or the inhabitants of the village, Mandal or District, the District Collector or as the case may be, Government may, by order, suspend such Sarpanch or Upa-Sarpanch or President or Vice-President or as the case may be, the Chairperson or Vice-Chairperson or member from office for a period not exceeding three months, pending investigation into the said charges and action thereon under the foregoing provisions of this section: Provided that no order under this sub-section shall be passed unless the person concerned has had an opportunity of making a representation against the action proposed; Provided further that it shall be competent for the Government to extend, from time to time, the period of suspension for such further period not exceeding three months, so however that the total period of suspension shall not exceed six months; Provided also that a person suspended under this sub-section shall not be entitled to exercise the powers and perform the functions attached to his office and shall not be entitled to attend the meetings of the concerned local body except a meeting held for the consideration of a no-confidence motion.” It is also averred that from a reading of the above provision it is eloquently clear that no order of punishment can be imposed without providing reasonable opportunity and there cannot be any dispute about the mandatory nature of the procedure contemplated. When the Legislature had made such specific provision to provide opportunity before taking any action the same cannot be waived and the said proviso applies to all situations. The procedure was intended to avoid any misuse of power on flimsy grounds more so, in view of the elected post. It is also further averred that even under the relevant Rules viz., Rules relating to tax and lodging of monies and payment of monies by Gram Panchayat, Rule 42 of the Rules says that it is not competent of the District Panchayat Officer to prohibit Sarpanch from drawing Panchayat funds permanently. This provision enables the authority to prohibit the Sarpanch from drawing the funds only for such period as may be specified in the authority and as such the authority cannot suspend the cheque drawing powers of the Sarpanch permanently and in the instant impugned order no such period was specified and hence the impugned Order is liable to be set aside. It is also further averred that without prejudice to any of the contentions of the petitioner referred to above, the petitioner had given an explanation to the show cause notice dated 1-6-2009 explaining the factual and legal position. Further it is averred that the exercise of powers by the 3rd respondent are contrary to the Constitutional provisions enacted in Part IX thereof and the said action is absolutely illegal and unconstitutional. Further it is averred that Article 243-G of the Constitution of India provides that subject to the provisions of the Constitution, the Legislature of a State by law endow the Panchayats with such power and authority as may be necessary to enable them to function as institution of self-government and devolution of powers and responsibilities with respect to preparation of plans for economic development and social justice more particularly in relation to the matters listed in XI Schedule of the Constitution. It is thus clear that the creation of Gram Panchayat is under a Constitutional mandate for the purpose of enabling to function as an institution of self Government relating to the matters enumerated in the XI Schedule. It is further averred that it may be appreciated that in certain matters enumerated in XI Schedule, the Gram Panchayat functions as institution of self governance. It is also further averred that in the context of rival political parties functioning in the State which is often conceived as a rivalry between different political parties are not allowed to function as institutions exercising complementary powers of self government. Whenever rival parties come into power it had been invariably trying to oust these institutions of self government from power in order to substitute their own political subordinates therein which is obviously a mala fide action. Further, the authorities of the present Government are proclaiming to have been announced a policy of “Akarsha” which came in the news papers and pursuant to the said policy the official authorities are pressurizing the petitioner and other similarly placed Sarpanchs in the said District to join the present political party and no cases would be filed against the persons who joined the present ruling party or else they have to face the consequences of facing all these charges. It is further averred that in the petitioner’s Mandal only 11 Sarpanchs belong to the opposite party and were made to suffer like this. The action of the 3rd respondent in issuing the impugned Order dated 20-6-2009 in spite of the orders of this Court suspending the show cause notice dated 1-6-2009 in W.P.M.P.No.15505/2009 in W.P.No.12033/2009 dated 19-6-2009 is nothing but mala fide exercise of power which vitiated the impugned proceedings itself. In such circumstances, the above Writ Petitions had been filed praying for appropriate reliefs as already aforesaid. 8. It may be appropriate to have a glance at Rule 42 for better appreciation and the said Rule 42 aforesaid reads as hereunder:- “(1) The District Panchayat Officer concerned may, for sufficient reasons to be recorded in writing prohibit by an order any Sarpanch from drawing the moneys of the Gram Panchayat for such period as may be specified in such order. Provided that no such order shall be passed unless opportunity of making representation has been given to the Sarpanch concerned. Provided further that the District Panchayat officer may issue an interim direction to the Sarpanch not to draw the moneys of the Gram Panchayat pending the exercise of his powers under this sub-rule. (2) Any Sarpanch aggrieved by an order passed by the District Pancayat Officer concerned under sub-rule (1) may prefer an appeal in writing to the District Collector concerned within seven days of the receipt of the order and the decision of the District Collector thereon shall be final. (3) Every order passed under sub-rule (1) shall specify the name of the person or the authority shall draw the monyes of the Gram Panchayat during the period during which the Sarpanch is prohibited from drawing such moneys. (4) A copy of every order passed under sub-rule (1) or sub-rule(2) shall be communicated to all banks and treasuries in which the moneys of the Gram Panchayat are lodged. (5) On and from the date of receipt of such order by any bank or treasury, no payment shall, for the period specified in such order, be made to the Sarpanch who is prohibited by such order from drawing the moneys of the Gram Panchayat.” The first proviso to Rule 42(1) specifies to the effect that no such order shall be passed unless opportunity of making representation has been given to the Sarpanch concerned. No doubt, Rule 42(2) aforesaid specifies that Any Sarpanch aggrieved by an order passed by the District Pancayat Officer concerned under sub-rule (1) may prefer an appeal in writing to the District Collector concerned within seven days of the receipt of the order and the decision of the District Collector thereon shall be final. 9. In the counter affidavit filed by the 3rd respondent, several of the allegations had been denied. It is stated that the Extension Officer, PR & RD, Mogullapally vide Lr.Rc.No.G.Pt/Enquiry/2009 dated 29-5-2009 had submitted a report stating that the Sarpanch of the following Gram Panchayat had drawn BRGF (Backward Regions Grant Fund) with self cheques, without counter signature of the Extension Officer (PR&RD), Mogullapally and violated the rules. 1 Gram Panchayat Cheque No. Date Amount Total 1. Mogullapally 860626 10-10-2008 70000-00 2,40,000 860627 27-10-2008 100000-00 860828 11-11-2008 15000-00 860829 27-05-2009 55000-00 It is further stated that for making payment from the Gram Panchayat funds, the following procedure has to be followed: - Administrative & technical sanctions for the works have to be taken up from the concerned authorities. - The works have to be recorded in Measurement Books and Check measured by the Engineering Authorities - Stock Register for the material has to be maintained, if required. - Bill has to be passed by the executive authority for making payment after approval from the body of the Gram Panchayat. - Bills, vouchers and other connected records have to be maintained properly - Payment has to be made to the concerned Contractor/Party by issuing a cheque in favour of the concerned Contractor/Party. It is also further stated that the Collector (Panchayat Wing), Warangal, vide proceedings No.1852/2001/A2, dated 28-6-2008 had issued orders for drawl of BRGF funds. The Sarpanchas of Non-notified Gram Panchayats shall draw the BRGF funds with the counter signature of the Extension Officer (PR&RD). Rule 42 of the Rules aforesaid had been explained and it is stated that accordingly a show cause notice was given to the petitioner Sarpanch by the District Panchayat officer, Warangal vide Notice No.1255/A2/2009-8, dated 1- 6-2009. Meanwhile, the interim directions were also issued by the District Panchayat officer, Warangal vide No.1255/A2/2009-8, dated 1-6-2009 to the Sarpanch and Panchayat Secretary not to draw G.Pt., SFC, TFC & BRGF Grand funds until further orders to protect public revenue. It is also further stated that the Sarpanch, Gram Panchayat Mogullapally had submitted reply to the show cause notice which was received in the office of the District Panchayat Officer, Warangal on 19-6-2009 and in the said reply he accepted the withdrawal, but the petitioner did not say to whom the payment was made. Further, the petitioner requested to consider it as a first mistake and restore the cheque powers but the Sarpanch had not produced any records or bills or documents in support of his reply, namely Administrative & Technical sanction, Measurement Book, Check Measurement, Gram Panchayat approval for payment. It is also further stated that based on the reply submitted by the petitioner, it is clearly established that the BRGF grant amount had been drawn by the Sarpanch without following the procedure and without records and violated the Rules issued for drawl of BRGF grant. Further it is stated that the following irregularities had been also noticed: - the Sarpanch had drawn the amount through self cheques without issuing cheques to be concerned parties/contractors - the Sarpanch had drawn the amount without obtaining the counter signature of the Extension Officer (PR&RD) concerned though for drawl from BRGF the counter signature of the Extension Officer (PR&RD) is mandatory. - the Sarpanch himself had accepted that he committed mistake in drawl of BRGF grant fund without following the procedure for drawl of BRGF. Further it is stated that the reply notice issued by the petitioner had been examined and cheque drawing powers of the Sarpanch, Gram Panchayat Mogullapally had been withdrawn by the District Panchayat Officer, Warangal vide proceedings No.1255/A.2/ 2009-8 dated 20-6-2009 and alternate arrangements were made for drawl of Gram Panchayat, SFC, TFC & BRGF funds. It is also further stated that the Extension Officer (PR&RD), Mogullapally had submitted a report stating that the Sarpanchs of 11 Gram Panchayats of Mogullapally Mandal had drawn the BRGF grand funds through self cheques/vouchers without obtaining the counter signature of the Extension Officer (PR&RD) including the petitioner and the said details are as hereunder:- S.No. Gram Panchayat Cheque No. Date Amount 1 Akinapally Voucher 17-2-2009 100000-00 2 Dubyala 918752 25-5-2009 41000-00 3 Gudipahad Voucher 14-10-2008 45000-00 4 Gundlakarty 177351 11-10-2008 20000-00 177352 17-10-2008 3000-00 5 Issipet Voucher 21-7-2008 123000-00 6 Korkishala 177326 20-1-2009 60000-00 177327 14-5-2009 13000-00 7 Medarmetla 176626 10-10-2008 70000-00 176627 18-10-2008 7000-00 Voucher 30-4-2009 22000-00 8 Mogullapally 860626 10-10-2008 70000-00 860627 27-10-2008 100000-00 860828 11-11-2008 15000-00 860829 27-5-2009 55000-00 9 Mulkalapally 177001 10-10-2008 30000-00 177002 11-10-2008 40000-00 10 Pidicilla 732--- 21-2-2009 71000-00 11 Rangapur Voucher 12-8-2008 100000-00 Voucher 4-10-2008 2000-00 474044 23-4-2009 39000-00 It is further stated that accordingly show cause notice had been issued to all the Sarpanchas, interim directions were issued to all the Sarpanchas on