Civil Writ Petition No. 3513 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 3513 of 2010 Date of Decision: 10.8.2010 Gurdev Singh …Petitioner Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. R.S. Manhas, Advocate for the petitioner. Mr. Amit Goyal, Assistant Advocate General, Haryana, for respondents No.1 to 5. Mr.Manmohan Singh, Senior Advocate with Mr. M.P.Gupta, Advocate for respondent No.6. Kanwaljit Singh Ahluwalia, J. (Oral) Gurdev Singh, Ex-Sarpanch of village Rahan Kheri, Tehsil and District Fatehabad, has preferred the present writ petition with a prayer that order dated 10.7.2008 (Annexure P5), amounts to review of order dated 20.3.2008 (Annexure P4) as the same being not permissible, be set aside along with order dated 9.2.2010 (Annexure P8), passed by the Revisional Authority, whereby order dated 10.7.2008 (Annexure P5) was affirmed. Brief facts of the case are that the petitioner was elected as a Sarpanch of village Rahan Kheri, in the year 2000. His term as Civil Writ Petition No. 3513 of 2010 2 Sarpanch of the village came to an end in March 2005. It is averred that in January 2005, there was change in the Government in the State of Haryana and due to political vendetta, on the complaint, made by respondent No.6 Hardayal Singh, an enquiry was initiated against the petitioner. The Block Development and Panchayat Officer, Bhuna, District Fatehabad, in his enquiry report, found that the petitioner had misappropriated 2334 bricks, 12 bags of cement, 113 feet sand and labour charges amounting to Rs.2,341/-. As per the enquiry report, the petitioner was said to have misappropriated a sum of Rs.43,173/-. Aggrieved against the order of recovery dated 7.12.2007 (Annexure P3), passed by the Block Development and Panchayat Officer, Bhuna, Fatehabad, the petitioner preferred an appeal. The appeal was listed before the Deputy Commissioner, Fatehabad, who was exercising the powers of the Director, Panchayat. The Appellate Authority concluded that the assessment of the streets in the impugned order, under appeal, was wrong because site inspection of the road was conducted after five years. He further concluded that it was difficult, after five years, to say as to whether the bricks used were old and damaged. The Appellate Authority came to a conclusion that before the petitioner could be fastened with any liability, a laboratory report was required, to complete the investigation. The Appellate Authority further concluded that it was difficult to find out as to on what basis the loss of bricks, sand and cement was estimated. The Appellate Authority absolved the petitioner of charge of misappropriation on the ground that the amount in dispute was withdrawn under the order of the Block Development and Civil Writ Petition No. 3513 of 2010 3 Panchayat Officer, Bhuna. After returning the abovesaid findings, the Appellate Authority disposed of the appeal by ordering that the records and goods which are in custody of the petitioner, be returned to the Sarpanch in office. The matter came to an end. Thereafter, complainant/respondent No.6 had filed an application for review of the order (Annexure P4). The Appellate Authority reviewed the said order and directed that the record of the Panchayat be taken into possession and thumb impression of the petitioner, on the resolutions, be sent for comparison. The Appellate Authority accepted the review application. The earlier order, passed by the Appellate Authority, was recalled and it was ordered that recovery of Rs.43,173/- be effected from the petitioner. Such a procedure is totally alien to the provisions of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as “1994 Act”). The power to review does not vest with the Deputy Commissioner/Appellate Authority. It is well settled that unless a statute vests a power of review, no Authority can invoke the same. The petitioner, aggrieved against the order of review dated 10.7.2008 (Annexure P5), approached this Court by filing a Civil Writ Petition No. 20362 of 2009. The said writ petition was dismissed as withdrawn, by a Co-ordinate Bench of this Court, on 8.1.2010, with a liberty to the petitioner to avail of an alternative remedy, available to him. The petitioner filed a revision before the Financial Commissioner-cum-Principal Secretary to Government of Haryana, Department of Development and Panchayat, at Chandigarh, who, vide order dated 9.2.2010 (Annexure P8), had affirmed the order dated Civil Writ Petition No. 3513 of 2010 4 10.7.2008 (Annexure P5), passed by the Appellate Authority. Mr. Manmohan Singh, Senior Advocate, assisted by Mr.M.P.Gupta, Advocate, appearing on behalf of respondent No.6, has submitted that the incidental powers are always vested with the Appellate Authority to recall the order in case the same has not been complied with. It is submitted that as per order dated 20.3.2008 (Annexure P4), the petitioner was duty bound to hand over the items, which were available with him, to the present Sarpanch. It is further submitted that since the petitioner has failed to perform this part of the order, therefore, the passing of subsequent order dated 10.7.2008 (Annexure P5) is justifiable. It is further submitted that since the petitioner has invoked the jurisdiction of the Revisional Authority, it was implied acceptance of order (Annexure P5) and therefore, he cannot assail the same by filing the present writ petition. This Court is of the considered view that both the submissions, advanced by learned senior counsel, appearing for respondent No.6, are liable to be rejected at the very outset. The incidental powers are only to be used for incidental purposes. The same cannot change the entire reasoning and findings, which were arrived at after considering the material before the Appellate Authority. Once a finding was given that after a period of five years, the bricks used could not be counted and it cannot be said that the same were old or broken, while undertaking a review, this finding cannot be conveniently ignored as the same has been done in the impugned order (Annexure P5). If the procedure adopted by the Deputy Commissioner is allowed, then each incumbent Deputy Commissioner may review the Civil Writ Petition No. 3513 of 2010 5 orders passed by the previous Deputy Commissioner. The Appellate Authority, exercising jurisdiction, cannot review the order until it is justifiable. In the present case, the Appellate Authority had no power to review its earlier order (Annexure P4), therefore, order (Annexure P5) is bad in the eyes of law and is liable to be set aside. It is stated that since the order (Annexure P4) was not complied with, therefore, it was required to be reviewed. This argument also fails. If order (Annexure P4) was not complied with, then the execution proceedings could be undertaken and review of the order is not permissible and the petitioner cannot be fastened with the liability of the recovery of amount. Hence, for the reasons stated above, the present writ petition is accepted and orders dated 10.7.2008 (Annexure P5) and dated 9.2.2010 (Annexure P8), are quashed. (Kanwaljit Singh Ahluwalia) Judge August 10, 2010 “DK”