JUDGMENT :

Siddhartha Varma, J.

1. The petitioner no. 1-Dinesh Kumar is the Gram Pradhan, Gram Panchayat – Sewra Lal, Vikas Khand – Vikramjot, District – Basti; the petitioner no. 2-Hariom Pal is the Additional Development Officer, Gram Panchayat – Sewra Lala, Vikas Khand – Vikramjot, District – Basti; the petitioner no. 3-Awadhesh Jaiswal is the Gram Panchayat Adhikari, Gram Panchayat – Sewra Lala, Vikas Khan – Vikramjot, District – Basti; the petitioner no. 4-Suraj Kumar Pandey, is the Village Development Officer, Gram Panchaat – Sewra Lala, Vikas Khand – Vikramjot, District – Basti and the petitioner no. 5-Vijay Kumar Malviya, is the Technical Assistant, Gram Panchayat – Sewra Lala, Vikas Khand – Vikramjot, District Ballia.

2. A complaint was filed by one Prince Kumar Shukla regarding the alleged irregularities committed by the petitioners. On 12.5.2022, the Chief Development Officer passed an order for conducting an enquiry. On 1.6.2022, an enquiry report, which as per the petitioner was an ex-parte one, was submitted by the Deputy Director of Agriculture, Basti.

3. Thereafter, on the basis of the ex parte enquiry, the District Magistrate issued show cause notices to the petitioners asking them to submit replies to the charges levelled against them and to explain as to why under the provisions of Section 27 (2) of the U.P. Panchayat Raj Act, 1947 (hereinafter refer to as ‘the Act of 1947’) recovery of Rs. 19,95,110/- be not initiated jointly against the petitioners.

4. The petitioners submitted their replies and, thereafter, when on 29.8.2022, the District Magistrate, Basti, passed the order impugned, the instant writ petition was filed.

5. Learned counsel for the petitioners Sri Udayan Nandan, Advocate, argued that the order dated 29.8.2022 was passed on an enquiry report dated 1.6.2022 which report was a result of an enquiry which was conducted by the Deputy Director (Agriculture), Basti. As per the learned counsel for the petitioner, the Deputy Director (Agriculture), Basti, was not a person authorized to conduct the enquiry for the purposes of imposition of surcharge. Since the learned counsel for the petitioner relied upon Section 27 of the Act of 1947 and the Rules 256 and 257 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as “the Rules of 1947”), the same are being reproduced here as 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 [shall be liable to surcharge for the loss, waste or misapplication of money or property belonging to the Gram Panchayat, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan or Member]

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, realise 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, within thirty days of such order, appeal against the order of the State Government or such other appellate authority as may be prescribed.

(4) Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute suit for compensation for such loss, waste or misapplication, against the person liable for the same.”

CHAPTER XIII

SURCHARGE RULES

“256. (1) In any case where the Chief Audit Officer, Cooperative Societies and Panchayats, considers that there has been a loss, waste or misuse of any money or other property belonging to a Gaon Sabh