THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.21097 OF 2007 DATED 6TH JUNE, 2011 BETWEEN S.Aseervadam …Petitioner And The Collector (Panchayat Wing), Guntur, Guntur District and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.21097 OF 2007 ORDER: The former Sarpanch of Pedapalem Gram Panchayat, Ponnur Mandal, Guntur District, challenges the proceeding dated 18.09.2007 of the Collector (Panchayat Wing), Guntur, directing his criminal prosecution for having misappropriated Gram Panchayat funds. This Court, by order dated 01.11.2007, granted interim suspension of the impugned proceeding. The petitioner was the Sarpanch of Pedapalem Gram Panchayat during the years 2001-06. The District Panchayat Officer, Guntur District, by notice dated 10.08.2007 alleged that the petitioner had committed various irregularities in the administration of the Gram Panchayat and called upon him to show cause as to why the various amounts mentioned therein should not be recovered from him. This notice was obviously relatable to the powers conferred by Section 265 of the Andhra Pradesh Panchayat Raj Act, 1994 (for brevity, ‘the Act of 1994’). Thereupon, the Collector (Panchayat Wing), Guntur District, passed the impugned proceeding dated 18.09.2007 wherein he referred to the notice dated 10.08.2007 issued by the District Panchayat Officer, Guntur, and taking note of the petitioner’s failure to submit a reply thereto, the Collector (Panchayat Wing) directed that a complaint be lodged against the petitioner with the police authorities for having misappropriated the amounts. In the scheme of the Act of 1994, recovery of Gram Panchayat funds which were subjected to loss, waste or misapplication is governed by Section 265. The said provision speaks of the Commissioner of Panchayat Raj giving an opportunity of showing cause to the person concerned, be he the Sarpanch, Upa-Sarpanch, President, etc. and upon being satisfied that the loss, waste or misapplication of any money or property of the Gram Panchayat, Mandal Parishad or Zilla Parishad, as the case may be, was a direct consequence of misconduct or gross neglect on the part of such person, the Commissioner is empowered, by order in writing, to direct such person to refund the said amount. The powers of the Commissioner under Section 265 of the Act of 1994 were delegated to the District Collectors under a notification in Pro.No.29694/97 dated18.12.1998 in exercise of the powers of delegation under Section 260(2) of the Act of 1994. Therefore, the District Collector, Guntur, alone was competent to initiate action against the petitioner under Section 265 of the Act of 1994. However, in the present case, it was the District Panchayat Officer, Guntur, who independently issued a notice for recovery of the amounts allegedly misappropriated by the petitioner. Further, the silence on the part of the petitioner in response to this notice was itself treated as proof of his guilt in so far as the alleged misappropriation is concerned and on that basis the Collector (Panchayat Wing), Guntur, issued the impugned proceeding directing the criminal prosecution of the petitioner. Significantly, no order in writing was passed under Section 265 of the Act of 1994, as mandated therein, for recovery of the amounts allegedly due to the Gram Panchayat. There is therefore a blatant transgression of the prescribed statutory procedure in dealing with the petitioner. Without following the due procedure, the Collector (Panchayat Wing), Guntur, ought not to have concluded that the petitioner had committed misappropriation of amounts, thereby warranting his criminal prosecution. The very notice issued by the District Panchayat Officer, Guntur, was without jurisdiction and no legal consequences would flow from the failure of the petitioner to respond thereto. The direction of the Collector (Panchayat Wing), Guntur, to initiate criminal prosecution of the petitioner is therefore without legal basis. The impugned proceeding dated 18.09.2007 passed by the Collector (Panchayat Wing), Guntur, is accordingly set aside. The Writ Petition is allowed. In the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 6TH JUNE, 2011. VGSR/PGS