The Allahabad High Court has stayed the show cause notice issued by the District Magistrate Muzaffarnagar for recovery as surcharges of Rs 04,72,888.50 against the Gram Panchayat Secretary of Block Shahpur, Gaon Sabha Kamalpur.
A Single Bench of Justice Prakash Padia passed this order while hearing a petition filed by Sohanvir Singh.
The petition has been preferred by the petitioner inter alia with the following reliefs:-
“(i) Issue a writ order or direction in the nature of Certiorari quashing impugned Show Cause Notice dated 08.09.2023, issued by the Respondent No 2, under Section 27(1) of The Uttar Pradesh Panchayat Raj Act, 1947, with regard to recovery as surcharges Rs 09,45,777/- (Half amounts from the petitioner Rs 04,72,888.50) regarding financial year 2014-15, Block-Shahpur, Gram Panchayat Kamalpur.
(ii) Issue a writ order or direction in the nature of Mandamus commanding the District Magistrate Muzaffarnagar/Respondent No 2 to not proceed any proceedings against the petitioner on basis of impugned Show cause notice dated 08.09.2023, issued by Respondent No 2, under Section 27 (1) of the Uttar Pradesh Panchayat Raj Act 1947 regarding financial year 2014-15 with regard to Block-Shahpur, Gram PanchayatKamalpur, District- Muzaffarnargar.”
The Court noted that,
It is admitted between the counsel for the parties that identical controversy is pending before the Court in writ petition (Hanif Ahmad vs State of U.P and 4 Others).
The order dated 16.11.2023, passed in the aforesaid writ petition is quoted as under:-
“The petitioner is permitted to implement Arvind Mallappa Bangari, District Magistrate, Muzaffarnagar as a party respondent to the petition during the course of the day.
It is pointed out that the impugned order dated 08.09.2023, requiring the petitioner to show cause why an order of surcharge be not made against him for the loss caused, while a Secretary, Gram Panchayat from 2010 to 2016, has been made on the basis of audit reports for the year 2014-15, in regard to a total of thirteen Gram Panchayats. It is argued that loss on the basis of which surcharge has been proposed and show cause issued to the petitioner relates to the year 2014-15 and 2015-16, whereas the show cause notice has been issued on 08.09.2023. It is further pointed out that pursuant to the show cause notice issued by the Collector, Muzaffarnagar, the District Development Officer, Muzaffarnagar has issued a further order dated 15.09.2023 requiring the petitioner to show cause, as directed by the Collector.
The submission of the counsel for the petitioner is that the alleged loss being one relating to the financial year 2014-2015 and 2015-16, a show cause notice regarding the proposed surcharge issued on 08.09.2023 by the Collector, Muzaffarnagar is ex facie without jurisdiction in view of the third proviso to Rule 257(2) of the U.P Panchayat Raj Rules, 1947 as well as the first proviso to Section 27(1) of the U.P Panchayat Raj Act, 1947. It is submitted by the learned Counsel for the petitioner that the order directing issue of a show cause, that is patently barred by law, is a mala fide action of Arvind Mallappa Bangari, District Magistrate, Muzaffarnagar done in retaliation to an order of the Court passed in Writ-A No 6324 of 2023, whereby the Court had quashed the order of recovery dated 11.05.2022 earlier passed against the petitioner and ordered the respondents to refund the petitioner a sum of Rs 05,05,922/-. It is argued that this act of retaliation to the authority of this Court is one done to penalize and discourage the petitioner from seeking redress and the Collector has directed the issue of a show cause notice that is barred by law, which he knew to be barred by time.
Prima facie the contention appears to be correct and well founded.
Admit.
Issue notice to newly added respondent.
Notice is made returnable on 07.12.2023.
Steps to service be taken on or before 20.11.2023.
The Standing Counsel will file a counter affidavit by the date scheduled.
List for orders on 07.12.2023 along with a report regarding service and the postal track attached. The office shall also put in a report regarding status of pleadings.
By the date fixed, the District Magistrate, Muzaffarnagar shall file his personal affidavit answering the petitioner’s contention based on mala fide exercise of power. Order on Civil Misc Stay Application No 1 of 2023. Issue notice.
Until further orders of the Court, operation of the impugned order dated 15.09.2023 passed by the District Development Officer, Muzaffarnagar and the show cause notice dated 08.09.2023 issued by the District Magistrate, Muzaffarnagar shall remain suspended and no further action shall be taken on its basis.
Let this order be communicated to the District Magistrate, Muzaffarnagar and the District Development Officer, Muzaffarnagar by the Registrar (Compliance) within 24 hours. “
In view of the above, controversy involved in the petition is identical to the aforesaid petition. Hence, the petitioner is also entitled for the same relief, the court observed.
The Court granted six weeks’ time to file counter affidavit for the respondents and two weeks time to file rejoinder affidavit.
“List after exchange of affidavits along with the record of Writ-A No 19030 of 2023 (Hanif Ahmad vs State of U.P and 4 Others).
Until further orders of the Court, effect and operation of the order dated 8.9.2023 issued by respondent no 2- District Magistrate, Muzaffarnagar, shall remain suspended and no further action shall be taken on its basis”, the Court ordered.