Allowed

Shivananda M S v. State of Karnataka

Karnataka HC6 Sept 2022WP/38428/2015

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing notices issued by an Executive Officer to recover alleged misappropriated funds. The court held that the notices were illegal because no mandatory enquiry under the Karnataka Gram Swaraj and Panchayat Raj Act was conducted before issuance. The court maintained the petition despite the existence of an alternative appeal remedy due to this procedural v

What did the court decide?

The impugned notices dated 28.07.2014 and 09.11.2015 issued by Respondent No.3 calling for payment of Rs.3,63,947/- were quashed.

Shivananda M S Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

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WRIT PETITION No.38428 OF 2015(LB-RES)

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BETWEEN :

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SHIVANANDA M S S/O LATE P.P. SHIVAPPA AGED ABOUT 52 YEARS R/AT JANATHA COLONY 2ND BLOCK, MULLUSOGE VILLAGE KUSHALNAGAR HOBLI SOMAWARPET TALUK KODAGU DISTRICT-571234.

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...PETITIONER

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(BY SRI.P PRASANNA KUMAR, ADV. )

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AND

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1 . STATE OF KARNATAKA BY ITS SECRETARY TO DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYATH RAJ M.S. BUILDING, BANGALORE-01.

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2 . THE CHIEF EXECUTIVE OFFICER KODAGU DISTRICT PANCHAYATH MADIKERI-571201.

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3 . EXECUTIVE OFFICER TALUK PANCHAYATH SOMAWARPET.

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…RESPONDENTS

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(BY SMT. ANITHA, HCGP. FOR R1: R2 AND R3 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE PASSED BY THE R-3 DTD.28.7.2015 [WRONGLY DTD.AS 28.7.2014] VIDE ANNEX-E AND GRANT AN INTERIM ORDER TO STAY THE NOTICE PASSED BY THE R-3 DTD.28.7.2015 [WRONGLY DATED AS 28.7.2014] VIDE ANNEX-E.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed challenging the impugned notices dated 28.07.2014 and 09.11.2015 issued by respondent No.3 calling upon the petitioner and another to pay jointly for a sum of Rs.3,63,947/-, the amount which is alleged to have been misappropriated by the petitioner along with the Panchayat Development Officer.

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Learned counsel appearing for the petitioner submits the impugned notices are issued without conducting an enquiry as contemplated under Section 246(8) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for short). Hence,

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he submits that the impugned notices issued by respondent No.3 are not sustainable in law.

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Learned HCGP appearing for the State submits that the petitioner having misappropriated the amount alleged against him and also criminal case lodged against the petitioner, the impugned notices issued against the petitioner are in accordance with law and the same does not warrant any interference.

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She further submits that against the impugned notices, an alternative remedy of an appeal is provided under Section 246(9) of the Act. Hence, the writ petition is not maintainable.

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I have examined the submissions made by

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the learned counsel for the parties.

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The impugned notices are issued calling upon the petitioner to pay jointly a sum of Rs.3,63,947/- along with the Panchayat Development Officer which is alleged to have been misappropriated

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by the petitioner when he was Adhyaksha of Grama Panchayat in question.

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Section 246 (8) of the Act specifies that the Executive Officer may after making such enquiry as he may consider necessary, disallow any item of expenditure which appears to him to be contrary to law and surcharge the amount thereof on the person making or authorising the illegal payment and after taking the explanations of the person concerned, the Executive Officer may direct by an order in writing that such person shall pay to the Grama Panchayat the amount surcharged along with interest at 15% annum on the amount due.

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In the instant case, the Executive Officer of the Taluk Panchayat without conducting any enquiry against the petitioner has passed an order in writing that the petitioner shall pay to the Grama Panchayat

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the amount which is alleged to have been misappropriated by the petitioner. Hence, the impugned notices issued by respondent No.3 without holding an enquiry as contemplated under Section 246(8) of the Act is one without authority of law.

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Though an alternative remedy of appeal is provided under Section 246(9) of the Act, however, the impugned notices are issued without holding an enquiry as contemplated under Section 246(8) of the Act and the same is in flagrant violation of the principles of natural justice. Hence, the present petition filed without exhausting the alternative remedy of an appeal is held to be maintainable. Accordingly, I pass the following:

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ORDER

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1. The writ petition is allowed .

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The impugned notices dated 28.07.2014 and 09.11.2015 issued by

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respondent No.3 at Annexures - E and G, respectively are hereby quashed .

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Liberty is reserved to the respondent to take appropriate action against the petitioner in accordance with law, if so advised.

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Sd/JUDGE

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HA/-

Shivananda M S v. State of Karnataka

Case brief

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Shivananda M S v. State of Karnataka

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