Hon’ble Ran Vijai Singh, J.—Heard Sri A.P.Tewari, learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents.

2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 31.12.2015 passed by the Collector, Basti, while exercising the power under Sub-Section 2 of Section 27 of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ‘the Act’) by which he has required the Pradhan to deposit 1/3rd of the total amount of surcharge Rs. 4,03,074/- and 1/2 of the total amount Rs. 18,900/- misused from the Gram Nidhi (fund).

3. Learned Standing Counsel appearing for the State respondents submits that the impugned order is appealable as against the order passed by the District Magistrate under Sub-Section 2 of Section 27, appeal lie to the State Government within thirty days from the date of such order and therefore the writ petition should be dismissed on the ground of alternative remedy. Whereas learned counsel for the petitioner submits that the availability of the alternative remedy under Sub-Section 3 of Section 27 of the Act is not disputed but here it is a case where the order has been passed in breach of principles of natural justice, therefore in view of the exception carved out by Hon’ble the Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, 1998 (8) SCC 1, the writ petition should be entertained and the petition should not be thrown on the ground of alternative remedy.

4. From the perusal of the impugned order passed by the District Magistrate it transpires that although the show-cause notice was issued to the petitioner and the petitioner has not filed any reply after expiry of long period but there is no such finding that the show-cause notice issued to the petitioner was ever served upon him. The case of the petitioner before this Court is that the impugned order has been passed without there being any notice or opportunity to the petitioner.

5. Learned counsel appearing for the State respondents could not show from the perusal of the impugned order any finding regarding service of notice upon the petitioner, therefore in my view, this writ petition falls in the ambit of exception carved out by the Apex Court for entertaining the writ petition under Article 226 of the Constitution of India. The writ petition is being entertained.

6. Sri Tewari, who appears for the petitioner, has invited attention of the Court towards the statutory provisions relating to the levying surcharge. The particular attention has been invited towards Section 27 of the Act and Rules 256 and 257 of the Rules known as U.P. Panchayat Raj Rules, 1947 (in short ‘the Rules’). For convenience, Section 27 of the Act as well as Rules 256 and 257 of the Rules are reproduced herein under :

“27. Surcharge—(1) Every Pradhan or of a (Gram Panchayat) every member of a (Gram Panchayat) or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property [belonging to the Gram Panchayat or Nyaya Panchayat] as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, member, Sarpanch, Sahyak Sarpanch or Panch;

Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later.

(2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realize it as if it were an arrear of land revenue.

(3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may