1 WP 4426.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4426 OF 2011 1. Digamber Bhillu Chavan Age : 58 Yrs., Occ. Social worker, R/o : Shivaji Nagar, Khadki, Tq. Tuljapur, Dist. Osmanabad. 2. Dharmabai Devidas Rathod Age : 50 Yrs., Occ. Household, R/o : Shivaji Nagar, Khadki, Tq. Tuljapur, Dist. Osmanabad. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through Secretary, Rural Development Department, Mantralaya, Mumbai. 2. The Additional Chief Executive Officer Zilla Parishad, Osmanabad. 3. The Tahsildar Tuljapur, Dist. Osmanabad. .... RESPONDENTS 2 WP 4426.2011 - [ J ] Mr. K.S.Bhore, Advocate for the Petitioners. Mr. K.J.Ghute Patil, Advocate for Resp.No. 2. Mr. R.P.Phatake, Asstt. Govt.Pleader for Resp.Nos.1 & 3 CORAM :S.V. GANGAPURWALA, J. DATE OF JUDGMENT :24/08/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The respondent no. 2 on 25/3/2011 issued a letter to the Tahsildar to take steps for creating charge of an amount of Rs.1,40,000/- upon the land of the petitioners. Accordingly, the respondent no. 3 directed the Village Talathi to create charge upon the lands belonging to the petitioners and submit report thereon. The order dated 25/3/2011 is assailed in the present Writ Petition. 4. Mr. Bhore, the learned counsel for the petitioners submits that in absence of the recovery certificate, no charge could have been created. No liability is crystalized against the petitioners. In absence of any 3 WP 4426.2011 - [ J ] liability being crystalized or any recovery certificate being obtained, the order directing the Tahsildar to take steps for creating charge over the property of the petitioners is illegal. 5. Mr. K.J.Ghute Patil, the learned counsel for respondent no. 2 submits that under the scheme, the work was undertaken and the petitioners mis-appropriated the amount of Rs. 1,40,000/-. In view of the fact that there was mis-appropriation at the hands of the petitioners, the parties were justified in creating charge over the property of the petitioners. The respondent no. 2 has filed affidavit in reply in that regard clarifying the position. 6. Mr. R.P. Phatake, the learned Assistant Govt. Pleader for respondent nos. 1 & 3 supports the arguments of Mr. K.J.Ghute Patil, the learned counsel and submits that they have rightly implemented the order passed by the respondent no. 2. 7. With the assistance of the learned counsel, I have gone through the order passed. 8. In the present case, no recovery certificate has been issued nor any provision is referred or pointed out by the learned counsel for 4 WP 4426.2011 - [ J ] the respondents, under which they have authority to create charge over the property of the petitioners. It is only on the basis of the audit report, the respondent no. 2 had issued letter to the Tahsildar to create charge over the property of the petitioners without there being any adjudication on the same. 9. When the statute requires that a particular act shall be done in a particular manner, it has to be done in that manner otherwise not to be done at all. It is only if the statute gives authority to the respondents to create charge over the property of the petitioners, then only it is permissible for them to create charge. The respondents are at loss to point out any such provision, by virtue of which the charge could be created over the property of the petitioners. 10. In view of the same, the Writ Petition is allowed. Rule is made absolute in terms of prayer clause ‘ B ’. No costs. Needless to state that the respondents are at liberty to take such recourse as is permissible in law. [ S.V. GANGAPURWALA, J.] KNP/WP 4426.2011 - [ J ] 5 WP 4426.2011 - [ J ]