Allahabad High Court
Keshav Dev vs District Magistrate 3 Others on 14 October, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- WRIT - C No. - 31782 of 2019 Petitioner :- Keshav Dev Respondent :- District Magistrate 3 Others Counsel for Petitioner :- Saurabh Pratap Singh Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Learned Standing Counsel fairly concedes that the order impugned in this petition shall not sustain in light of the judgment rendered in Writ -C No. 24902 of 2019 (Uday Pratap Singh @ Harikesh Vs. State of U.P. And 4 Others). In that decision, this Court recorded the following conclusions:-
A. The expression "Prescribed Authority" referred to in Section 27(2) of the Act means an authority duly designated for that purpose in accordance with the provisions made in Section 2(q)(ii);
B. The State has failed to establish that the District Magistrate was duly notified as the Prescribed Authority in accordance with the mandate of Section 2(q)(ii). In the absence of a notification designating the District Magistrate as the competent authority for the purposes of Section 27(2), the orders of surcharge impugned cannot be sustained;
C. The prescription of a procedure for assessment and recovery of surcharge in Chapter XIII of the Rules and the assignment of a role to the District Magistrate or the District Panchayat Raj Officer thereunder cannot be held to be a compliance of the requirement of Section 27(2);
D. Rules 256-259 as contained in Chapter XIII of the Rules are only an extension of the requirement placed by Section 27(2) to lay in place a structure to "fix the amount of the surcharge according to the procedure that may be prescribed";
E. Section 27(2) neither sanctions nor envisages the designation of a Prescribed Authority by way of a rule or other subordinate legislation;
F. The prima facie findings of wrongdoing arrived at during the course of or in contemplation of an enquiry initiated under Section 95(1)(g) cannot form the foundation for levy or recovery of surcharge."
Accordingly and following the principles enunciated in that decision, this petition is allowed. The impugned order dated 23 January 2019 is consequently quashed.
Order Date :- 14.10.2019 faraz