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1967 DIGILAW 410 (ALL)

Harpal Singh v. Board of Revenue

1967-11-10

SATISH CHANDRA

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ORDER Satish Chandra, J. - This petition Under Article 226 of the Constitution seeks to quash an order of the Board of Revenue. 2. The Petitioner was elected as Pradhan of the Gaon Sabha. Ram Saran, Respondent No. 3, filed a complaint against him praying that he should be removed from the office. The Sub-Divisional Officer heard the complaint on merits and rejected it on 9-8-1963. The third Respondent went up in appeal. The appeal was dismissed on the ground that no appeal lay against an order passed u/s 95-G of the UP Panchayat Raj Act. He also held that Rule 115-KK of the UP ZA and LR Rules having been deleted before the passing of the order by the Sub Divisional Officer no appeal would lie. 3. Aggrieved the third Respondent went up in revision. The Commissioner recommended and the Board of Revenue has accepted the recommendation that the view taken by the Additional Collector was erroneous. 4. The Board of Revenue has held that Rule 115KK was in existence when the complaint was instituted, it having been deleted from the statute book during the pendency of the complaint. The right of appeal is a vested right. Hence Sub-rule (3) of Rule 115KK was available and the appeal was maintainable. 5. Rule 115-KK was framed by the State Government in pursuance of Section 127-A of the UP ZA and LR Act. Under this section the State Government could suspend or remove any member or Chairman of the Land Management Committee for reasons of misconduct. Rule 115-KK laid down the procedure and manner for the exercise of this power. Sub-rule (1) of Rule 115-KK specifically stated that the Assistant Collector incharge of the Sub Division may suspend or remove the Chairman u/s 127-A under the powers delegated to him in notification No. 2641-AZ/I-A-2393-59 dated 18-5-1967. It is thus clear that the power of suspension is to be exercised by the Assistant Collector u/s 127-A in view of the order of delegation. The power is not conferred by or exercised Under Rule 115-KK. The fact that Rule 115-KK was actually deleted after the institution of the complaint would hence be immaterial in view of this significant fact that Section 127-A itself was repealed by the Legislature by Section 273 of the UP Kshettra Samitis and Zila Parishads Adhiniyam, 1961, read with Schedule VIII thereof (item 28-A). The fact that Rule 115-KK was actually deleted after the institution of the complaint would hence be immaterial in view of this significant fact that Section 127-A itself was repealed by the Legislature by Section 273 of the UP Kshettra Samitis and Zila Parishads Adhiniyam, 1961, read with Schedule VIII thereof (item 28-A). As a result of this legislation, Section 127-A went out of the statute book with effect from 3-12-1951. The complaint was instituted by Respondent No. 3 on 6-6-1962, after the provision had gone out of the statute book. The reason which prevailed with the Board of Revenue, that a right of appeal gets vested on the date of the institution of the complaint, was inapplicable; on the date when the third Respondent instituted the complaint there was in existence no right of appeal. 6. The correct legal position was that Section 127-A having been repealed, Rule 115-KK became without the authority of law with effect from 3-12-1961. The complaint made by the third Respondent hence could not validly be Under Rule 115-KK. On that date the only provision under which the action for removal of a Pradhan could be taken was Section 95(1)(g) of the UP Panchayat Raj Act. u/s 66-A of the UP Panchayat Raj Act the State Government could delegate powers vested in it. By a notification No. 4483-p/XXXIII-50-57 dated 19-12-1958, the State Government delegated its power Under Clause (g) of Sub-section (1) of Section 95 to the Sub-Divisional Officer with; a proviso. The proviso stated: Provided that an order of removal passed by the Sub-Divisional Officer shall be subject to appeal before the District Magistrate within thirty days from the date of such order. Thus, only an order of removal was made appealable. Under Clause (g) of Section 95(1) an order of suspension could also be passed. Such an order was not appealable. It is clear that the State Government conferred a right I of appeal only against an affirmative order of removal. In the instant case the Sub Divisional Officer dismissed the complaint; an order dismissing the complaint was not made appealable. On 6-6-1962, when the third Respondent instituted the complaint, he had no vested right of appeal. If at all the Pradhan had a right of appeal on that date in case an order of removal was passed, Under the circumstances, the view taken by the Board of Revenue cannot be sustained. On 6-6-1962, when the third Respondent instituted the complaint, he had no vested right of appeal. If at all the Pradhan had a right of appeal on that date in case an order of removal was passed, Under the circumstances, the view taken by the Board of Revenue cannot be sustained. 7. The petition, therefore, succeeds and is allowed. The impugned order of the Board of Revenue is quashed. The Petitioner will be entitled to his costs.