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[2010(3) ADJ 395]
ALLAHABAD HIGH COURT
BEFORE : V.K. SHUKLA, J.
HET KISHAN ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 49305 of 2009, decided on 19th March, 2010)
(B) U.P. Panchayat Raj Act, 1947—Sections 95 (1) (g) and 110—U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997—Rules 3, 4 and 5—Power—Pradhan—Seizing of—On allegation of irregularities committed by petitioner in complaint—Contention of petitioner that no preliminary enquiry had been under taken, as such impugned order was unsustainable—Court held that as matter is of general importance, touching rights of continuance of office of Pradhan, who derives his authority and status under Constitution pursuant to 73rd Amendment, 1992, as such following question was being referred to larger Bench which require authoritative pronouncement from Court—"As to whether observation made in the case of Chunmun v. District Magistrate effect that the expression ‘or otherwise’ used in Rule 5 however, does not empower the District Magistrate to form requisite opinion under first proviso on basis of a report other than one submitted under Enquiry Rules i.e. report referred in Rule 4 (2) or Rule 7 of the said Rules, are correct observations and same makes the second part of Rule 5 as redundant and otios—And "as to whether D.M., even if no preliminary enquiry has been held, is otherwise equipped with material, prompting him to under take formal enquiry, even them obliged to direct for holding of preliminary enquiry or he is free to proceed in mater under Rule 5 which confers on him authority to proceed on report referred to in Rule 4 (2) "or otherwise". [Paras 17, 18, 19 and 21]
Hon’ble V.K. Shukla, J.—Present writ petition has been filed by the petitioner, questioning the validity of order dated 27.8.2009 passed by the District Magistrate, Budaun, proceeding to seize the administrative as well as financial powers of the Pradhan and constituting three-member committee to discharge the functions of Pradhan.
2. Brief background of the case, as is disclosed in the writ petition, is that the petitioner was holding the post of Pradhan of village Usmanpur, Block Dahgawan, Tehsil Sahsawan, District Budaun. One Abdul Rehman made complaint on 26.12.2008 regarding irregularities committed by the petitioner before the District Panchayat Raj Officer, Budaun. On the said complaint being made, the District Panchayat Raj Officer, on the same day, passed order asking the A.D.O. (P) to conduct enquiry into the matter and submit report. Thereafter, another complaint supported by affidavit was made on 2.1.2009 against the Pradhan. On the said complaint being made, from the office of the District Panchayat Raj Officer, letter was sent to the Secretary of the Gram Panchayat as also to the petitioner, requesting them to furnish entire details of the activities being carried out and the date fixed was 7.2.2009. Neither the Secretary nor the petitioner submitted any document. Thereafter, the District Panchayat Raj Officer on 23.3.2009 made recommendation to the District Development Officer. The District Magistrate after receipt of the said report issued show cause notice to the petitioner, to which reply was submitted by the petitioner, and thereafter, order impugned has been passed on 27.8.2009 seizing the administrative as well as financial powers of the Pradhan. At this juncture present writ petition has been filed.
3. Short counter affidavit has been filed through Sri Abdul Rehman, contending therein that prima facie there has been evidence against the petitioner, and at no point of time, in spite of asking, documents in question were ever produced and theory of loss of documents has been set up, as such this Court should refuse to interfere in the matter.
4. Apart from this, relevant record, in original, on the basis of which impugned decision has been taken, has also been produced, and thereafter with the consent of the parties, present writ petition has been taken up for final hearing and disposal.
5. Sri Sushil Kumar, learned counsel for the petitioner contended with vehemence that in the present case action which has been taken for seizing administrative as well as financial powers of the petitioner is unsustainable on the face of it, as the petitioner has been divested from exercising administrative as well as financial powers other than in accordance with the procedure provided under the Ist proviso to Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947 read with U.P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry Rules, 1997, as at no point of time, the District Magistrate had ever authorized the District Panchayat Raj Officer to make enquiry and in fact no preliminary enquiry had been undertaken, as such writ petition deserves to be allowed.
6. Learned Standing Counsel, as well as Sri Vijendra Singh, Advocate, on the other hand, contended that the District Magistrate has ample authority to take action as is envisaged under Enquiry Rules, 1997, and here the petitioner has set up false case of the documents being lost, and the report of the District Panchayat Raj Officer was there, which clearly enjoined the District Magistrate to take action, as such no fault can be found in the action taken. Once prima facie material was there and formal enquiry is yet to be conducted, this Court should refuse to interfere in the matter.
7. In order to appreciate the respective arguments, the provisions of Section 95 (1) (g) of the U.P. Panchayat Raj Act 1947 and Rule 3, 4, and 5 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 are being quoted below :
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