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2016 DIGILAW 2995 (ALL)

SALMA KHATOON v. STATE OF U. P.

2016-08-31

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Adya Prasad Tewari, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Ramendra Asthana, alongwith Sri Tripathi B.G. Bhai, learned counsel for the caveator/complainant. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 12.8.2016 passed by the District Magistrate, Sant Kabir Nagar, by which the petitioner’s financial power has been ceased and simultaneously, the direction has been issued to the Sub Divisional Officer/Tehsildar, Mehdawal, District Sant Kabir Nagar to recover an amount of Rs. 55,449/- and deposit the same in the nodal A/c No. 4101000100047352 of Mahatma Gandhi National Rural Employment Guarantee Act (in short, MANREGA’), in Punjab National Bank, Khalilabad under Section 27 of the U.P. Panchayat Raj Act, 1947 (in short, ‘the Act’). 3. The impugned order has been challenged on the following grounds: (1) the preliminary inquiry was not conducted as per Rule 2 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (in short, ‘the Rules of 1997’); and (2) assuming, for the sake of argument, the preliminary inquiry was conducted by the competent officer, even then, on the basis of the prima facie satisfaction, no order could be passed for realization of an amount of Rs. 55,449/- as a surcharge, as for realizing an amount as a surcharge, there is a separate rule under the U.P. Panchayat Raj Rules, 1947 (in short, ‘the Rules of 1947’). The relevant rules in this regard happen to be Rules 256 to 259 of the Rules of 1947. 4. On being confronted as to whether learned counsel for the respondents want to file counter-affidavits, they submitted that the writ petition may be decided on the existing facts and law and they do not propose to file counter-affidavit. 5. With the consent of learned counsel for the parties, the writ petition is taken up for final disposal. 6. The facts of this case, in brief, are that the petitioner happens to the Gram Pradhan of Gram Panchayat Pakari Arazi, Block Belhar Kala, Tehsil Mehdawal, District Sant Kabir Nagar. Against her, a complaint was made by few persons, namely, Ahmad Husain, Ahmad and others under Section 95(1)(g) of the Act. 6. The facts of this case, in brief, are that the petitioner happens to the Gram Pradhan of Gram Panchayat Pakari Arazi, Block Belhar Kala, Tehsil Mehdawal, District Sant Kabir Nagar. Against her, a complaint was made by few persons, namely, Ahmad Husain, Ahmad and others under Section 95(1)(g) of the Act. On the aforesaid complaint, the Chief Development Officer, Sant Kabir Nagar got the matter inquired through Block Development Officer, Belhar Kala, Sant Kabir Nagar, who submitted his preliminary inquiry report stating therein that without constructing new Nala, only by removing soil, Rs. 1,54,512/- has been paid; whereas, soil could be removed only in Rs. 32,269/- and in this way, excess payment has been made to the tune of Rs. 1,22,243/-. Likewise, in construction of medhbandh, as against Rs. 20,624/-, Rs. 64,728/- has been shown to be paid. 7. For the aforesaid reason, a show-cause notice was issued to the petitioner. The petitioner filed her reply and after considering the petitioner’s reply, the District Magistrate has ceased the financial and administrative powers of the petitioner while exercising powers under Section 95(1)(g) of the Act and also directed to recover an amount of Rs. 55,449/- and get it deposited in the nodal A/c No. 4101000100047352 ofMANREGA, Punjab National Bank, Khalilabad. 8. Sri Tiwari, learned counsel for the petitioner, while assailing this order, has submitted that the preliminary inquiry was not conducted by the district level officer, as required in under rule 2 of the Rules of 1997. In his submission, the ‘inquiry officer’ means, the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate, here, although the District Magistrate has authorized the Chief Development Officer to hold an inquiry, but he delegated the power to the Block Development Officer, who held the inquiry. Furthermore, the Block Development Officer is not the district level officer and he happens to be the officer of block level, therefore, entire proceeding is without jurisdiction. 9. Learned standing counsel as well as counsel for the respondents could not dispute this fact that the Block Development Officer is a block level officer and not the district level officer. The Rules of 1997 are mandatory in nature as once the statute provides to do a particular thing in a particular manner, then that thing has to be done in that very manner. The Rules of 1997 are mandatory in nature as once the statute provides to do a particular thing in a particular manner, then that thing has to be done in that very manner. Reference may be had to the judgments of the Apex in Taylor v. Taylor, (1876) 1 Ch D 426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253 ; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 ; Haresh Dayaram Thakur v. State of Maharashtra and others, (2000) 6 SCC 179 ; Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9 ; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633 as well as this Court in Atar Singh v. State of U.P. and others, 2013(1) ADJ 43 , Bankey Lal and another v. Deputy Director of Consolidation and others, 2013(5) ADJ 51 , Phoolpati v. State of U.P. and others, 2014 2 AWC 1291 All, Paras and another v. and others, 2013(8) ADJ 253 , Ram Pratap v. Deputy Director of Consolidation and others, 2013(6) ADJ 457 , Rambali and others v. State of U.P. and others, 2013(2) ADJ 91 . Therefore, in my considered opinion, if the Rule requires that inquiry officer has to be an officer of the district level, then only district level officer can hold the inquiry. 10. Here, although the District Magistrate has directed the Chief Development Officer to hold the inquiry, but the Chief Development Officer, instead of holding the preliminary inquiry himself, deputed the Block Development Officer to hold the inquiry. This transmission of power, in my opinion, amounts to delegation of power, which had been delegated by the District Magistrate to the Block Development Officer. It is settled that delegated power cannot be further delegated to some other person. Reference may be had Barium Chemicals Ltd. and another v. The Co. This transmission of power, in my opinion, amounts to delegation of power, which had been delegated by the District Magistrate to the Block Development Officer. It is settled that delegated power cannot be further delegated to some other person. Reference may be had Barium Chemicals Ltd. and another v. The Co. Law Board and others, AIR 1967 SC 295 , Union of India and others v. P.K. Roy and others, AIR 1968 SC 850 , Sahni Silk Mills (P) Ltd. and others v. Employees’ State Insurance Corporation, 1994 (5) SCC 346 , Director General ESI and others v. T. Abdul Razak, etc., 1996 (4) UPLBEC 2820, Promod K. Pankaj v. State of Bihar and others, AIR 2004 SC 746 and Sidhartha Sarawgi v. Board of Trustees for the Port of Kolkata and others, AIR 2015 SC 1271 . Therefore, the preliminary inquiry conducted by the Block Development Officer, in my opinion, is without jurisdiction. 11. So far as the finding regarding financial irregularity of the Gram Pradhan, alongwith Gram Panchayat Officer and Technical Assistant of MANREGA to the tune of Rs. 1,66,347/- is concerned, that finding has been recorded only on the basis of prima facie satisfaction. 12. I have gone through the impugned order. The District Magistrate has only observed that the Gram Pradhan has although submitted his explanation, but the same was found to be unsatisfactory. Why the explanation was not satisfactory, the reason for that has not been recorded by the District Magistrate. Not only that, the contents of the show-cause notice and the petitioner’s explanation to that effect have also not been discussed, at all. Therefore, there may have been a prima facie satisfaction, but there could not be a definite satisfaction, which has persuaded the District Magistrate to recover 1/3 amount of Rs. 1,66,347/-, i.e., Rs. 55,449/-, as arrears of land revenue under Section 27 of the Act. 13. Otherwise also, for realizing an amount as a surcharge, there is a separate Rules known as ‘U.P. Panchayat Raj Rules, 1947’ and rules 256 and 257 of the Rules of 1947 are relevant rules for holding an inquiry for realizing the amount as surcharge and the procedure prescribed under rules 256 and 257 of the Rules of 1947 has not been followed, therefore also, the impugned order to recover an amount of Rs. 55,449/- as arrears of land revenue and deposit the same in the nodal account number of MANREGA is arbitrary and cannot be sustained in the eye of law in view of the law laid down by this Court in Ram Shankar v. District Magistrate, Basti and others, 2010 (111) RD 336 and Dhruva Chand v. State of U.P. and others (Writ C No. 2004 of 2016, decided on 20.1.2016). 14. In view of the foregoing discussions, I am of the opinion that the impugned order dated 12.8.2016 passed by the District Magistrate, Sant Kabir Nagar cannot be sustained in the eye of law. The same is hereby quashed. The writ petition succeeds and is allowed. However, this order will not preclude the District Magistrate to proceed in accordance with law and conclude the inquiry, if any, expeditiously in accordance with law, if possible, within a period of three months from the date of receipt of certified copy of the order of this Court.