THE HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.7899 of 2006 ORDER: 1 This Writ Petition is filed by the Sarpanch of Konidena village, Ballikurava Mandal, Prakasam District seeking a direction by way of Mandamus to declare the order of the District Collector issued in Proceeding in ROC No.1435/2004 (Pts) A.1 dated 14.03.2006 removing the petitioner from the post of Sarpanch of the gram panchayat and also to declare the action of the respondents in taking steps for recovery of an amount of Rs.2,64,044/- from the petitioner as illegal and arbitrary. 2 The petitioner was elected as Sarpanch of Kondena gram panchayat in the elections held in the year 2001. The tenure of the office is for five years. When the petitioner was in the office of the Sarpanch, some ward members have made a representation before the District Collector alleging that she has drawn amounts of Rs.1,89,864/-, Rs.71,645/- and Rs.1,49,135/- from the General 11th Finance Commission Grant, SGRY funds and misappropriated them. Based on the said representation, the District Collector directed the Divisional Panchayat Officer to cause enquiry into the said allegations. Pursuant thereto, the Divisional Panchayat Officer had submitted a report in Proceedings Roc.No.410/2004 dated 27.09.2004 reporting that he has enquired into the contents of the representation filed by the ward members and reported that the petitioner failed to account for an amount of Rs.4,38,098/-, which she has drawn for different purposes and recommended action against the petitioner. At the first instance, the petitioner was placed under suspension and thereafter, after giving an opportunity to the petitioner, the impugned order of removal was passed. In view of the fact that the tenure of the office of the petitioner as Sarpanch itself was over, it is not necessary to go into the facts in detail, resulting in passing the order of removal. However, in view of the order of removal passed by the District Collector issued in Roc.No.1435/2004 (PTS) A.1, dated 14.03.2006, the District Collector had passed a further order on the even date in proceedings Roc.No.1435/2004 (PTS) A.1, directing the Mandal Revenue Officer, Ballikurava to recover an amount of Rs.2,64,044/- from the petitioner under the provisions of the Revenue Recovery Act and remit the same to the Gram Panchayat funds. The said orders passed by the first respondent removing the petitioner from the post of Sarpanch of the gram panchayat and consequential orders directing the Mandal Revenue Officer to recover the amount from the petitioner are under challenge in this Writ Petition. 3 Though this Writ Petition is of the year 2006, no counter affidavit has been filed on behalf of the first respondent. But, the District Panchayat Officer, Ongole has filed a detailed counter affidavit, in which, while denying the various allegations made by the petitioner, a reference with regard to the representation of the ward members is made. In the said counter affidavit, it is submitted that in view of the representation filed by the ward members, a report was called for from the Divisional Panchayat Officer and based on the report furnished by the Divisional Panchayat Officer, proceedings were initiated and at the first instance, the petitioner was placed under suspension and thereafter, after conducting an enquiry into the allegations and during the enquiry as it was found that the petitioner had misappropriated an amount of Rs.2,64,044/-, the first respondent, in exercise of powers under Section 249(1) of the A.P. Gram Panchayat Act, 1994, passed orders removing the petitioner from the post of Sarpanch. It is further submitted that the first respondent has issued further proceedings on the same day in proceedings Roc.No.1435/2004 (Pts) A1 for recovery of an amount of Rs.2,64,044/- from the petitioner. 4 When the matter is taken up for hearing, the learned counsel for the petitioner submitted that the subject matter of the Writ Petition to the extent of removal has become infructuous. But, it is submitted that without following due process of law, further steps are taken to recover an amount of Rs.2,64,044/- from the petitioner. It is further submitted that the petitioner has spent the said amount for various works and she did not misappropriate any amount and in spite of the same, without passing an order as required under Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short ‘the Act’) by the competent authority, the District Collector simply directed the Mandal Revenue Officer to recover an amount of Rs.2,64,044/- from the petitioner by invoking the provisions under Revenue Recovery Act. 5 On the other, the learned Assistant Government Pleader, with reference to the averments made in the counter affidavit, submitted that as much as it is found during the enquiry that the petitioner had misappropriated an amount of Rs.2,64,044/- the petitioner was removed from the office of Sarpanch and further orders were passed for recovery of the amount misappropriated by her. 6 Having heard the learned counsel for the petitioner and the learned Assistant Government Pleader, I have perused the order of removal and further order passed by the first respondent in which directions were issued to the Mandal Revenue Officer for recovery of an amount of Rs.2,64,044/- from the petitioner. 7 Section 249 of the A.P. Panchayat Raj Act, 1994 empowers the District Collector to remove the Sarpanch of the panchayat if he is of the opinion that the Sarpanch wilfully abused his position or is found guilty of misconduct in discharge of his duties. There is yet another provision under Section 265 of the said Act where under if the District Collector is of the opinion that if the elected Sarpanch has committed misconduct and such misconduct resulted in misapplication or misappropriation of funds, the District Collector can order for recovery and direct the Sarpanch for payment of such misappropriated amounts to the Gram Panchayat. Section 265 of the Act provides an opportunity of hearing before passing an order of recovery and there is also an appeal provided under section 265 (3) of the Act. 8 From a perusal of the impugned proceedings in the instant case, it appears that only an order of removal has been passed in exercise of powers under Section 249 of the Act, but, without passing any independent order under Section 265 of the Act the District Collector, has simply authorised the Mandal Revenue Officer to recover an amount of Rs.2,64,044/- from the petitioner. As stated supra, in absence of passing an independent order under Section 265 of the Act, by following the due procedure contemplated there under, it is not open for the first respondent to order for recovery of any amount by simply authorising the Mandal Revenue Officer to recover the said amount in exercise of powers under the Revenue Recovery Act. As much as no opportunity of hearing was given to the petitioner and no order is passed as contemplated under Section 265 of the Act and as the petitioner is not pressing for the validity of order of removal issued in Roc.No.1435/2004 (Pts) A.1 dated 14.03.2006 in exercise of power exercised under section 249 of the Act, I deem it appropriate to dispose of the Writ Petition directing the respondents not to recover any amount from the petitioner unless an order of recovery is passed under Section 265 of the Act. It is made clear that it is open for the respondents to initiate recovery proceedings under Section 265 of the Act and to pass appropriate orders in accordance with law by giving an opportunity to the petitioner to put forth her case. 9 In number of cases, this Court has noticed that though huge public amounts are being misappropriated in various gram panchayats, but at the same time in many of the cases, orders are not being passed by the competent authorities by duly following the procedure as contemplated under section 265 of the Act. Though Section 265 of the Act requires passing an independent order by following procedure, in most of the cases by passing an order of removal under section 249 of the Act, simply Mandal Revenue Officers are being authorised to recover the amounts. In view of the provisions contained in the Act, it is for the District Collector to give an opportunity to the persons concerned and pass order for recovery in cases of misapplication or misappropriation of the funds of the Gram Panchayat. In that view of the matter, this court is of the view that appropriate instructions need to be issued to ensure recovery of public monies, which are misappropriated, by issuing necessary instructions. Hence, a copy of this order shall be marked to the Chief Secretary, Government of Andhra Pradesh and also to the Principal Secretary, Panchayat Raj Department to look into the matter and to issue appropriate instructions in the matter. 10 Subject to the above observations and directions, this Writ Petition is disposed of. No order as to costs. --------------------------- R.Subhash Reddy, J. 08.11.2011 Kvsn Note: Registry to address a copy of this order to the Chief Secretary, Government of Andhra Pradesh, Hyderabad and also to the Principal Secretary, Panchayat Raj Department, Government of Andhra Pradesh, Hyderabad.