Point of Law : Section 2(q)(ii) defines “Prescribed Authority” as an authority notified as such by State Government, whether generally or for any particular purpose. It would mean that the Prescribed Authority is to be notified conferring power under this Act. Section 110 of the Act provides that the State Government may, by notification in the Gazette, make Rules for carrying out the purposes of this Act.

ORDER :

Rajesh Bindal, CJ.

1. The matter has been placed before this Court for consideration of the following questions of law, on account of doubt expressed by learned Single Judge on the view expressed earlier by a Single Judge of this Court in Writ-C No. 24902 of 2019 (Uday Pratap Singh @ Harikesh Vs. State of U.P. and others) decided on 30.09.2019:

“(1) Whether in view of the U.P. Panchayat Raj (Amendment) Rules, 1969 by which Chapter-XIII with the heading ''SURCHARGE' was inserted in the U.P. Panchayat Raj Rules, 1947 in exercise of powers under Section 110 by the State Government, which have been notified in the Gazette on 31.05.1969, the District Magistrate is the ''Prescribed Authority' for imposing surcharge on Pradhan, Up-Pradhan and Members under Section 27 (2) in terms of Section 2(q)(ii) of the U.P. Panchayat Raj Act, 1947 or not ?, and whether the District Pachayat Raj Officer is the Prescribed Authority for imposing surcharge upon the Officers or servants of the Gaon Sabha or not ?

(2) Whether the decision rendered by a Single Judge Bench in Writ-C No. 24902 of 2019; Uday Pratap Singh @ Harikesh Vs. State of U.P. and others and connected petitions on 30.09.2019 lays down the law correctly with regard to Question No. 1 framed above ?"

2. As only legal issues have been referred to be considered by Larger Bench, we do not go much in the facts of the case as for that purpose the matter will go back before the learned Single Judge.

3. The argument raised by learned counsel for the petitioners is that the Prescribed Authority having not been notified in terms of the provisions of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “the Act”), the District Magistrate cannot exercise the power. A plain reading of Section 27 of the Act shows that the Prescribed Authority is to fix the amount of surcharge and certify the same to the Collector for recovery of the same as arrears of land revenue. It would clearly mean that two persons have to be different authorities. The Prescribed Authority cannot be the Collector (District Magistrate).

4. On the other hand, learned counsel for the State submitted that Section 2(q) of the Act defines “Prescribed Authority”. Clause (ii) thereof provides that the Prescribed Authority shall be the authority notified as such by the Government, whether generally or for any particular purpose. Chapter-XIII was added in the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as the “the Rules”) vide Notification dated May 22, 1969 published in Gazette on May 31, 1969. It clearly provides the procedure and the authority competent to take action in terms of Section 27 of the Act. This is in compliance to the requirements of Section 27 read with Section 2(q) of the Act.

5. From a plain reading of the Rules contained in Chapter XIII of the Act, it is evident that hierarchy of officers has been provided even for hearing the appeals against the orders passed by the authorities concerned. No separate notification, as such, is required to be issued as the Rules framed in exercise of powers conferred under Section 110 of the Act provides for the same. It is not a matter of dispute that the Rules were notified in the Gazette. He further submitted that merely because in Section 27(2) it is mentioned that the Prescribed Authority shall fix the amount of surcharge and certify this amount to the Collector for recovery as arrears of land revenue, it will not mean that both the authorities have to be different. If seen in the light of the definition of “Collector”, as provided in Section 2(e) of the Act, there are many officers who fall within the definition of Collector. Even otherwise, the same officer can exercise two powers. Recovery of an amount as arrears of land revenue is nothing but execution of the order passed by Prescribed Authority for recovering the amount as per procedure prescribed.

6. The matter came to be referred for decision by this Bench on account of opinion expressed by a Single Judg