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2018 DIGILAW 1914 (ALL)

Guddo Kushwaha v. State of U. P.

2018-09-04

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. The learned Standing Counsel as well as counsel for the petitioner have agreed that the writ petition may be disposed of on the basis of the averments made in the writ petition itself. 2. It appears from the records of the case that on a complaint filed against the petitioner, who is the elected Gram Pradhan of the village, a preliminary enquiry was instituted against the petitioner under Rule 4 of Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as 'Rules, 1997') and the District Panchayat Raj Officer, Hamirpur, i.e., respondent No. 3 (hereinafter referred to as, 'D.P.R.O.') was appointed Enquiry Officer to enquire into the charges made against the petitioner. A report of the preliminary enquiry was submitted on 5.4.2018, but as the report was incomplete and the findings recorded in the said report were vague, the D.P.R.O. was directed to hold a fresh enquiry and submit a comprehensive report regarding the allegations made against the petitioner. Subsequently, the D.P.R.O. submitted a report dated 3.8.2018 stating that the petitioner was guilty of misusing approximately Rs. 6,50,036/-and recommended that three member committee be constituted under Section 95(1)(g) of Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as 'Act, 1947') to exercise the powers of the Gram Pradhan. The aforesaid report was approved by the District Magistrate, Hamirpur on 3.8.2018 itself and subsequently vide his order dated 6.8.2018 the D.P.R.O. appointed a three member committee to exercise the financial and administrative powers of the petitioner. The approval granted by the District Magistrate, Hamipur, i.e., respondent No. 2 vide his order dated 3.8.2018 as well as order dated 6.8.2018 passed by the D.P.R.O. have been challenged in the present writ petition. 3. A reading of Section 95(1)(g) – I Proviso of the Act, 1947 as well as Rule 5 of the Rules, 1997 clearly show that a three member committee can be constituted to exercise the powers of the Gram Pradhan only when an order has been passed by the concerned District Magistrate ceasing financial and administrative powers of the Gram Pradhan under the aforesaid provision. The order passed by the District Magistrate ceasing the financial and administrative powers of the Gram Pradhan has to be passed after considering the enquiry report and the reply of the petitioner submitted in response to a show cause notice issued to him. The order passed by the District Magistrate under Section 95(1)(g) – I Proviso of the Act, 1947 read with Rule 5 of the Rules, 1997 has to be a reasoned order showing application of mind by the District Magistrate. 4. It is evident, that approval of the District Magistrate vide his order dated 3.8.2018 approving the recommendation of the D.P.R.O. for appointment of a three member committee has been passed without there being any order by the District Magistrate ceasing the financial and administrative powers of the petitioner and without seeking any reply from the petitioner to the report of the preliminary enquiry. No reasons have been given by the District Magistrate to approve the recommendations of D.P.R.O. and the approval shows total non-application of mind by the District Magistrate. 5. In the aforesaid circumstance, the approval of the District Magistrate approving the constitution of three member committee vide his order dated 3.8.2018, has been passed without fulfilling the necessary preconditions for passing such an order. 6. In view of the aforesaid, the approval of the District Magistrate, Hamirpur, i.e., respondent No. 2 vide his order dated 3.8.2018 and the consequential order dated 6.8.2018 passed by the D.P.R.O., i.e., respondent No. 3 are without jurisdiction and are hereby quashed. However, the District Magistrate, Hamirpur shall be at liberty to pass fresh orders in accordance with law, and in the light of the observations made by this Court in the present order. 7. With the aforesaid liberty, the writ petition is allowed.