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2013 DIGILAW 1288 (ALL)

Haseena v. State of U. P. and Others

2013-05-01

RITU RAJ AWASTHI

body2013
Ritu Raj Awasthi, J.;— Heard Mr. Y.K. Mishra, learned counsel for petitioner as well as learned Additional Chief Standing Counsel and Mr. Rahul Shukla, learned counsel for opposite party nos. 4 & 7. The writ petition has been filed challenging the order dated 08.03.2013 whereby the District Magistrate in exercise of powers under Section 95 (1) (g) of U.P. Panchayat Raj Act (for short 'the Act') has ceased the financial and administrative powers of petitioner being Pradhan and has constituted a three member committee to exercise the said powers. Learned counsel for petitioner submitted that under the Act it is only the State Government which is empowered to pass the order in exercise of powers under Section 95 (1) (g) of the Act whereas the order impugned has been passed by the District Magistrate. It is also submitted that no enquiry whatsoever was conducted prior to passing of the impugned order and no enquiry is pending or contemplated with regard to the allegations on which the order impugned has been passed. Learned Additional Chief Standing Counsel, on the basis of instructions, submitted that vide notification dated 30.4.1997 the State Government has delegated its power under Section 95 (1) (g) of the Act to the District Magistrates in Uttar Pradesh within the local limits of their respective jurisdiction, as such, for all practical purposes the opposite party no. 2 was fully empowered to pass the impugned order. It is further submitted that in view of the law laid down by Full Bench of this Court in the case of Vivekanand Yadav Vs. State of U.P. and another; [2011 (29) LCD 221] it is not necessary even to hold a preliminary enquiry before passing of the order by the District Magistrate in exercise of powers under Section 95 (1) (g) of the Act. As such, even if no preliminary enquiry was held or directed by the District Magistrate, the order impugned cannot be said to be bad. It is also submitted that the Basic Shiksha Adhikari had submitted his report dated 30.8.2012 to the concerning Sub Divisional Magistrate and considering the said report the petitioner was issued show cause notice on 02.11.2012. The petitioner had submitted his reply on 09.11.2012. It is also submitted that the Basic Shiksha Adhikari had submitted his report dated 30.8.2012 to the concerning Sub Divisional Magistrate and considering the said report the petitioner was issued show cause notice on 02.11.2012. The petitioner had submitted his reply on 09.11.2012. Considering the entire material facts including the reply submitted by petitioner, the District Magistrate has taken a decision to cease the financial and administrative powers of petitioner and has constituted a three member committee of members of Gram Panchayat to exercise the said powers of the Pradhan. I have considered the submissions made by the parties' counsel. In view of the fact that the State Government has already delegated its power to the District Magistrate concerned, the order impugned passed by the District Magistrate cannot be said to be bad. So far as the contention of learned counsel for petitioner that no preliminary enquiry was held prior to passing of the impugned order is concerned, it is to be noted that the Full Bench of this Court in the case of Vivekanand Yadav (supra), in the conclusions mentioned in para 107, has held that the District Magistrate may ask the preliminary enquiry to be conducted by any officer defined under Rule 2 (c) of the Enquiry Rules on a complaint or a report under Rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry, meaning thereby that the District Magistrate may hold the preliminary enquiry or may consider any other report or information for that purpose before passing the order ceasing financial and administrative powers of a sitting Pradhan in exercise of powers under Section 95 (1) (g) of the Act. As such, it is not necessary that the preliminary enquiry shall be held before passing of the said order. In this view of the matter, the contention of petitioner's counsel has no force. So far as the submission of learned counsel for petitioner that even no enquiry has been ordered i.e. pending or contemplated in pursuance of the impugned order is concerned, suffice is to observe that the District Magistrate shall hold the enquiry in accordance with law and pass appropriate orders in this regard, expeditiously. In view of above, the writ petition being devoid of merit is dismissed. _____________