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2003 DIGILAW 2331 (ALL)

Krishna Devi v. District Magistrate

2003-09-29

ANJANI KUMAR

body2003
ANJANI KUMAR, J. ( 1 ) THE petitioner, who is Gram Pradhan of concerned Gram Panchayat has challenged the order passed by the District Magistrate, Ghaziabad, dated 19th June, 2003, Anncxure-6 to the writ petition, whereby the District Magistrate restrained the petitioner from exercising financial and administrative powers and appointment of a Committee of three members of the Gram Panchayat in exercise of powers under the proviso of Section 95 (l) (g) of U. P. Panchayat Raj Act, 1947, reproduced below, which shall here-in-after referred to as first proviso: "[provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three members of Gram panchayat appointed by the State Government. ]" ( 2 ) HEARD learned Counsel appearing on behalf of the parties. ( 3 ) THE facts leading to the filing of present writ petition are that the petitioner, who was elected as Pradhan of concerned Gram Panchayat in July, 2000, was issued a show cause notice dated 24th April, 2002 by the District Magistrate, Ghaziabad under Section 95 (l) (g) of U. P. Panchayat raj Act, 1947, as amended in the year 1994, whereby the petitioner was asked to show cause as to why the petitioner be not restrained from exercising financial and administrative power and a committee be not appointed as contemplated under the aforesaid provision. The petitioner submitted reply to the aforesaid show cause notice, as alleged by the petitioner. Thereupon the district Magistrate has passed an order dated 19th June, 2003, Annexure-6 to the writ petition, restraining the petitioner from exercising financial and administrative power as Pradhan of Gram panchayat concerned. The petitioner has challenged the order dated 19th June, 2003 passed by the District Magistrate, Ghaziabad before this Court by means of Writ Petition No. 27788 of 2003. This Court vide its order dated 4th July, 2003 passed the following interim order, which reads thus: "learned Standing Counsel may file a counter affidavit within one month. Learned Counsel for the caveator may also file counter affidavit in the same period. This Court vide its order dated 4th July, 2003 passed the following interim order, which reads thus: "learned Standing Counsel may file a counter affidavit within one month. Learned Counsel for the caveator may also file counter affidavit in the same period. Rejoinder affidavit may be filed within two weeks thereafter. List thereafter. In the meantime, operation of the impugned order dated 19. 6. 2003 will remain stayed till further orders. Sd/ s. Harkauli,4. 7. 2003. " ( 4 ) LEARNED Counsel appearing on behalf of the petitioner stated that inspite of the order being served on the Respondent, the Block Development Officer issued a direction directing the petitioner that she will not make any payment and she will make payment only after the work is verified through the Executive Engineer. Rural Engineering Service. ( 5 ) LEARNED Counsel appearing on behalf of the petitioner takes note of the provision of Section 95 (I) (g) for the purposes of adjudication of the controversy, which reads thus: "95. Inspection.- (1) The State Government may (g) remove a Pradhan, Up-Pradhan or member of a Gram Panchayat, or a Joint Committee or bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he (i) absents himself without sufficient cause from more than three consecutive meetings or sittings; (ii) refused to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude; (iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or Rules made thereunder or his continuance as such is not desirable in public interest; or (iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the Schedule Castes, the Scheduled Tribes or the Backward classes. , as the case may be; (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics; or (v) suffers from any of the disqualifications mentioned in clauses (a) to (m) of Section 5-A. " ( 6 ) LEARNED Counsel for the petitioner submitted that it would be clear from the history of the aforesaid provision that the proviso, which is now terms as first proviso, has been introduced in the year 1994, whereas the second proviso was already on the Statute Book. The proviso introduced in the year 1994, which is referred to as "first proviso", reads thus:-" [provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three members, of Gram panchayat appointed by the State Government. ]" ( 7 ) LEARNED Counsel for the petitioner has submitted that in view of the provision of U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, the petitioner is entitled for an opportunity in accordance with 1997 Rules, referred to above, before passing of the impugned order and further since the enquiry relied upon by the District magistrate in passing the impugned order, whereby the Gram Pradhan has been restrained from exercising her financial and administrative powers has not been conducted in accordance with the provisions of Rules, 1997, therefore, the order impugned deserves to be quashed, as the same is contrary to the proviso of Section 95 (l) (g) of the Act, which shall be referred to as "second proviso". ( 8 ) THE second proviso is reproduced below-"provided that (i) no action shall be taken under clause (f), clause (g) except after giving to the body of person concerned a reasonable opportunity of showing cause against the action proposed; (ii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 9 ) LEARNED Counsel for the opposite side have relied upon a Division Bench decision, reported in 2003 (94) R. D. 312, Smt. Rajbiri Devi v. State of U. P. and Ors. , read with 1997 Rules and submitted that from the nature of the power as contemplated under the first proviso clearly demonstrate that the said power is only by way of interlocutory measure pending enqiry in the guilt of the Pradhan in proceedings of removal of Pradhan. The aforesaid controversy has been dealt with in the case of Smt. Sandhya Gupta v. District Magistrate and Ors. , reported in 1999 (1)LBESR 918 (All. ). ( 10 ) LEARNED Counsel for the petitioner emphasised relying on Smt. Sandhya Guptas case (supra)that the scheme of 1997 Rules, read with second proviso clearly demonstrates that whatever enquiry is to be conducted against the Pradhan be it for the purposes of the first proviso or for the purposes of second proviso is to be conducted in accordance with the proviso of 1997 Rules. ( 11 ) A bare reading of 1997 Rules clearly demonstrates that the enquiry conducted under the 1997 rules is to be followed only if the case of the proceeding is removal of the Pradhan as contemplated under Section 95 (l) (g) of the Act. The first proviso introduced in the year 1994 clearly makes a distinction between the two enquiries conducted under the first proviso and the second proviso and if this interpretation is not followed, both the proviso cannot be reconciled, as held by the Division Bench in. the case of Moti Lal v. District Magistrate, Lalitpur and Anr. , reported in 2003 (94) RD 327 : (2003) 1 UPLBEC 736 . (DB ). the case of Moti Lal v. District Magistrate, Lalitpur and Anr. , reported in 2003 (94) RD 327 : (2003) 1 UPLBEC 736 . (DB ). The first proviso is only for the purposes of arriving at the conclusion "prima facie" as to whether it is necessary to exercise the power contemplated under the second proviso or not, whereas the second proviso contemplates regular enquiry before the order 6f removal is passed against the Pradhan. The powers of first proviso is like emergency provision, which will be subject to any order that may be passed after enquiry in accordance with second proviso, read with 1997 Rule. By exercise of power under the first proviso, none of the rights of Pradhan affected as the suspension of financial and administrative power is only temporary in nature, which will always subject to final orders after an enquiry in accordance with the Scheme of second proviso, read with 1997 Rules. ( 12 ) IN this view of the matter, none of the argument advanced on behalf of learned Counsel for the petitioner can be sustained and I am in full agreement with the judgment of Division Bench, referred to above. For the reasons stated above, this writ petition has no force and is accordingly dismissed. . .