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2015 DIGILAW 3353 (ALL)

Kismataul Nisha v. State of U. P.

2015-10-27

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya, J. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. 2. Under challenge in this petition is an order dated 15.08.2012, passed by the District Magistrate, Pratapgarh, whereby the administrative and financial powers of the petitioner of the office of Gram Pradhan of Gram Panchayat Yahiyapur, Development Block-Baba Belkhar Nath Dham, district Pratapgarh, have been seized and the said functions have been entrusted to a Committee comprising of three members, namely, (i) Smt. Litta Devi, (ii) Shri Aabad Ali and (iii) Shri Chandramani. 3. Submission of learned counsel for the petitioner is that the aforesaid power under the proviso appended to Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947 has been exercised by the District Magistrate, Pratapgarh ignoring that Section 95 (1)(g)(iii-a) has been declared to be ultra vires by this Court in the case of Hoti Lal vs. State of U.P., decided on 10.05.2002, Civil Misc. Writ Petition Nos.2579 and 2673 of 2002, and as such the impugned order cannot be permitted to be sustained. 4. A perusal of the order passed by the District Magistrate, Pratapgarh, which is under challenge in this petition, reveals that the only reason indicated by the District Magistrate while divesting the petitioner of her administrative and financial powers of the office of Gram Pradhan is that the petitioner, though was elected on the basis of a certificate issued to her certifying that she belongs to Other Backward Classes category, however, subsequently, the said certificate has been cancelled and as such the petitioner looses her right to be the Gram Pradhan. 5. Section 95 of the Act vests with the State Government certain powers in respect of the Gram Panchayat and the Gram Pradhan. The said provision empowers the State Government to remove a Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Committee or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat on the grounds mentioned in the said Section. The said provision empowers the State Government to remove a Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Committee or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat on the grounds mentioned in the said Section. Sub clause (iii-a) of sub section (g) of Section 95 (1) mentions a ground of removal of Gram Pradhan, according to which, in case the Gram Pradhan has taken benefit of reservation on the basis of a false declaration subscribed by him/her stating that he/she is a member of Scheduled Castes, Schedules Tribes or the Other Backward Classes, as the case may be, he/she is liable to be removed. Thus, as per sub clause (iii-a) of Section 95(1)(g) of the Act in case it is found by the State Government that the benefit of reservation has been taken on the basis of some false declaration by a Gram Pradhan stating that he/she belongs to the reserved category and in fact such a declaration is found to be false, he/she can be removed from his/her office. 6. The proviso appended to Section 95(1)(g) also empowers the State Government to divest a Pradhan of his/her financial and administrative powers, if on an enquiry it is found that the Gram Pradhan is found, prima facie, to have committed financial and other irregularities. The impugned order does not make a mention of any other ground including the ground of financial and other irregularities which may be attributed to the petitioner as Pradhan. The reason indicated in the impugned order is that she got elected on the basis of OBC certificate which was subsequently cancelled. It is also worth noticing that in the counter affidavit filed by the State nothing has been indicated as to whether any proceedings for removal as contemplated in Section 95(1)(g) have been initiated or concluded or not. The impugned order, thus, appears to have been passed in ignorance of the fact that sub clause (iii-a) of Section 95 (1) (g) of the Act has been declared to be ultra vires. In various cases, in similar circumstances, this Court has interfered with such matters. 7. Accordingly, in the result, the writ petition deserves to be allowed, which is hereby allowed. The impugned order dated 15.08.2012, passed by the District Magistrate, Pratapgarh, as is contained in Annexure No.1 to the writ petition, is hereby quashed. 8. In various cases, in similar circumstances, this Court has interfered with such matters. 7. Accordingly, in the result, the writ petition deserves to be allowed, which is hereby allowed. The impugned order dated 15.08.2012, passed by the District Magistrate, Pratapgarh, as is contained in Annexure No.1 to the writ petition, is hereby quashed. 8. As a result of this order, the petitioner shall immediately be given the charge of the office of Pradhan for the residual period. 9. However, there will be no order as to costs.