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1986 DIGILAW 707 (ALL)

Matloob Ahmad v. Sub-Divisional officer

1986-09-15

R.S.DHAON, V.K.KHANNA

body1986
JUDGMENT V.K. Khanna, J. - The Petitioner in the present writ petition was elected as Pradhan of village Bhanera, Pargana Kiratpur, Tehsil Najibabad, Disuict Bijnor, in the last General Election of 1982. The Sub-Divisional Officer, Najibabad by his order dated 20-8-86 has suspended the Petitioner from the office of Pradhan during the tendency of the enquiry initiated against him u/s 95 of the U.P. Panchayat Raj Act (hereinafter referred to as the Act). In the present writ petition it is this order of suspension dated 20-8-86 which has been challenged by the Petitioner. 2. At the very out-set the counsel appearing for the Petitioner was asked to address the Court on the question as to why the Court should exercise its extra-ordinary jurisdiction Under Article 226 of the Constitution of India when the Petitioner has got an alternative statutory remedy available by filing a revision before the Commissioner State Government. 3. Before noticing the arguments raised by the counsel on this preliminary question it will be useful to note the relevant legal provisions having bearing on this question. Section 95(1)(g) of the Act provides that the State Government may suspend a Pradhan against whom proceedings under Clause (g) are pending or contemplated or against whom prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is pending. Section 96A of the Act provides that the State Government may delegate all or of any of its powers under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. 4. The State Government by a Notification No. 4193-K-XXXII-64 dated 27-7-66 delegated its powers u/s 95(1)(g) of the Act to the Sub-Divisional Officer subject to an order for removal passed by him being appeal able to the District Magistrate. The State Government issued another Notification No. 1171-B/XXXII-2-116-D-66 dated 30.10.67 modifying the earlier Notification dated 27-7-66 and further imposed conditions on the exercise of powers of removal by the Sub-Divisional Officer. The State Government issued another Notification No. 1171-B/XXXII-2-116-D-66 dated 30.10.67 modifying the earlier Notification dated 27-7-66 and further imposed conditions on the exercise of powers of removal by the Sub-Divisional Officer. The State Government by Notification No. 5681-B/XXXIII-2-237-72 dated 14-10-76 in exercise of its powers u/s 96A of the Act was pleased to delegate the powers of the State Government under Clause (g) of Sub-section (1) of Section 95 of the Act to the Sub-Divisional Officer having jurisdiction subject to the condition that any order passed by the Sub-Divisional Officer in exercise of the said power, either before or after the date of this notification, shall be revisable by the Commissioner of the Division and also by the State Government. 5. In view of the aforesaid Notification issued by the State Government in exercise of its powers u/s 96A of the Act it is thus clear that the State Government delegated its powers u/s 95(1)(g) and 95 (1)(gg) of the Act to the Sub-Divisional Officer having jurisdiction and the exercise of those powers by the Sub-Divisional Officer was subject to the condition that in the case of suspension they were revisable by Commissioner of the Division and also by the State Government. 6. The counsel for the Petitioner has contended that the power, which the Sub-Divisional Officer has exercised, is the power of State Government and thus the State Government cannot sit in judgment over its own judgment. It has also been argued by him that the order passed u/s 95(1)(gg) by the Sub-Divisional Officer is final in view of the provisions of Section 95(3) of the Act. Lastly in this connection it has also been argued that the -Act itself provides no forum for filing a revision against the order of suspension and the State Government could not by a notification confer power of revision on the Commissioner and on itself. 7. Section 95(1)(gg) of the Act no doubt confers power of suspension on the State Government. Further in view of the provisions of Section 96A, the Act has given powers to the State Government to delegate all or any of its powers under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. Further in view of the provisions of Section 96A, the Act has given powers to the State Government to delegate all or any of its powers under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. The power thus given to the State Government authorizes it to place conditions and restrictions also while delegating the powers to the subordinate officer or authority. Similar argument was raised in connection with the delegation of powers by the State Government u/s 95(1)(g) of the Act and it was urged that there was no provision of appeal Under the Act and the rules framed there under and no appeal was competent before the District Magistrate as no appellate forum could be created by means of notification issued by the State Government as that would be in excess of the delegated powers. A learned Single Judge of this Court in the case of Birendra Pal Singh Vs. Additional District Magistrate and Others, AIR 1972 All 392 held: If the State Government while delegating the power of removal to Sub-Divisional Officer, thinks it proper to impose a condition that the order so passed by the Sub-Divisional Officer should not be final and, therefore, if it places a restriction on the exercise of that power by making provision for appeal against that order before the District Magistrate the restriction so placed is not in excess of the powers conferred upon the State Government u/s 96A of the Act. 8. The contentions raised by the counsel for the Petitioner that the revisional forum could not be created by means of notification and that the order passed by the Sub-Divisional Officer is the order passed by the State Government and that the order of the Sub-Divisional Officer should be treated to be final are there fore without substance. Section 96A of the Act in our opinion gave power to the State Government to place conditions and restrictions on the exercise of the power of the Sub-Divisional Officer and for that purpose the State Government could provide that the exercise of the powers by the Sub-Divisional Officer shall be subject to the revisional control by the Commissioner and the State Government. 9. 9. For the reasons stated above in our opinion the Petitioner has got an alternative statutory remedy available and can file a revision before the Commissioner/State Government and thus the present is not a fit case for interference in exercise of our Extra-ordinary jurisdiction Under Article 226 of the Constitution of India. The writ petition is accordingly dismissed in liming.