JUDGMENT :

VINEET SARAN, J.

The petitioner was elected as a Councillor of Bhubaneswar Municipal Corporation in the year 1997. On a direction issued in some writ petition filed in the year 2000, the accounts of the Bhubaneswar Municipal Corporation were put to internal audit, and as per the interim audit report, it was alleged that the petitioner has mis-utilized/ill-spent/incurred unauthorized expenditure to the tune of Rs.36,000/- in connection with house rent towards the so-called ward office, and Rs.27,000/- towards hire charge of vehicle for self, which was in contravention of the provisions of the Orissa Municipal Act, 1950 and the Rules framed there under. In the final audit report, it was also found that an amount of Rs.3,000/- of the Corporation fund had been mis-utilized by the petitioner for observance of the Local Self Government Day.

2. Pursuant to the audit report, the Executive Officer, Bhubaneswar Municipal Corporation issued a notice dated 25.01.2002, requiring the petitioner to deposit the aforesaid amount of Rs.36,000/- plus Rs.27,000/-, which had become payable on the basis of the report of the Special Audit Team. Immediately on receiving the said notice for payment of the aforesaid amounts, the petitioner submitted his detailed reply on 06.02.2002 to the Executive Officer, Bhubaneswar Municipal Corporation denying the allegations, and giving his explanation to the effect that all the expenditure had been made on the basis of the resolution passed by the Municipal Corporation, which was duly communicated to the State Government. Even though no order was passed on the said reply dated 06.02.2002 submitted by the petitioner, the Director, Municipal Administration & Ex-Officio Addl. Secretary to Government of Odisha issued a notice dated 22.08.2002 to the petitioner, directing the petitioner to deposit the aforesaid amounts of Rs.36,000/- plus Rs.27,000/-.

3. Since the reply of the petitioner dated 06.02.2002 submitted in response to the notice dated 25.01.2002 was not considered by the Municipal Corporation and as no order was passed after submission of the reply, but still the petitioner was directed to deposit amount, the petitioner filed a writ petition bearing W.P.(C) No.7597 of 2003, which was disposed of by a Division Bench of this Court on 30.07.2003 requiring the petitioner to deposit the requisite amount within three days, without prejudice to his rights, and thereafter, the representation/reply of the petitioner was to be considered by the Executive Officer as expeditiously as possible.

4. It is not disputed that no order has yet been passed by the Municipal Corporation in response to the reply dated 06.02.2002 submitted by the petitioner. It is also not disputed that in compliance with the Court’s order dated 30.07.2003, the petitioner has deposited the entire amount of Rs.36,000/- plus Rs.27,000/- and also Rs.3,000/-. However, since in response to the notice dated 22.08.2002, the petitioner did not deposit the aforesaid amounts within fifteen days as directed, the Director, Municipal Administration & Ex-Officio Addl. Secretary to Government issued the impugned order dated 29.07.2003, according sanction for prosecution of the petitioner under Section 376 of the Orissa Municipal Act, 1950. Challenging the said sanction order, this writ petition has been filed.

5. We have heard Shri P.P. Mohanty, learned counsel for the petitioner as well as Shri R.K. Mohapatra, learned Government Advocate for the State-opposite parties No.1 and 2, and Shri D. Padhi on behalf of Sri S.N. Mishra, learned counsel for opposite party- Bhubaneswar Municipal Corporation, and have perused the record.

6. The submission of learned counsel for the petitioner is that by the notice dated 22.08.2002, the petitioner was required to deposit a sum of Rs.63,000/- which was not deposited by him within fifteen days and hence, the sanction has been accorded for prosecution of the petitioner. According to the petitioner, a perusal of the sanctio