Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2903 (ALL)

Ramshri v. State Of U. P.

2023-12-22

MANJU RANI CHAUHAN

body2023
JUDGMENT : 1. Heard Mr. N.C. Tripathi along with Suchita Tripathi, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. The writ petition has been filed assailing the order dated 21.08.2023 passed by respondent no.3 vide which the financial and administrative powers of the petitioner Pradhan has been ceased. 3. Brief facts of the case are; that the petitioner was elected Pradhan of Gram Panchayat Tedhi, Tehsil Dataganj, District Budaun, for a period of five years as per the elections held in the year 2021. It appears that a complaint was made against the petitioner regarding serious irregularities in the development work in the concerned village. The District Magistrate by order dated 28.12.2022 directed the District Minority Welfare Officer and Assistant Engineer to conduct a preliminary enquiry, report of which, was submitted before the District Magistrate, on the basis of which a show cause notice dated 04.05.2023 was issued to the petitioner as to why the petitioner’s financial and administrative powers should not be ceased in exercise of powers under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947, (in short “Act of 1947”). The petitioner submitted an application dated 31.05.2023 requesting to provide copy of the complaint and enquiry report as referred in the show cause notice. The District Panchayat Raj Officer by letter dated 03.06.2023 sent one page complaint and photocopy of the preliminary enquiry report along with a covering letter dated 25.02.2023 directing her to file a reply within three days to the show cause notice dated 04.05.2023. As the petitioner required all the documents for submission of reply to the show cause notice, she applied for a copy of complaint along with affidavits filed in support thereof under Right to Information Act and she has been provided a copy of complaint along with all affidavits filed in support thereof vide covering letter dated 24.08.2023 issued by District Panchayat Raj Officer, Budaun. The petitioner submitted her reply in the first week of June, 2023 and the District Magistrate, without following the proper procedure as prescribed under law, has passed the impugned order dated 21.08.2023 ceasing the financial and administrative powers of the petitioner-Pradhan, hence, the present petition has been filed. 4. The petitioner submitted her reply in the first week of June, 2023 and the District Magistrate, without following the proper procedure as prescribed under law, has passed the impugned order dated 21.08.2023 ceasing the financial and administrative powers of the petitioner-Pradhan, hence, the present petition has been filed. 4. Learned counsel for the petitioner has referred to Sub Rule 5 of Rule 3 of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1947, (hereinafter referred as “Enquiry Rules 1997”) and submits that the complaint is not in accordance with the provisions as required under Rule 3 of the Enquiry Rules, 1997 as Rule 3 Sub Clause (2) clearly contemplates that every complaint shall be accompanied by complainant’s own affidavit in support thereof and also affidavits of all persons from whom she claims to have received information of fact relating to acquisitions, verified before notary, together with all documents in her possession of power pertaining to acquisition. 5. As per Rule 3(3) of Enquiry Rules 1997, every complaint and affidavit as well as any Schedule or Annexures thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavits respectively. The complaint as made by the petitioner does not comply with the aforesaid rules, thus, no proceedings under U.P. Panchayat Raj Act could have been initiated on such a complaint. In support of her submission, she has relied upon a judgement of this court passed in case of Kesari Devi Vs. State of U.P. and Others, 2005 4 AWC 3536 , wherein paragraph 167, Clause IX, the Court has concluded that as the complaint itself was not in accordance with the rules in view of the Clause 5 of Rule 3 of Rules of 1997, the Government could not have proceeded with the preliminary enquiry. 6. Learned counsel for the petitioner, therefore, submits that as the mandatory requirement of filing the complaint supported by an affidavit as laid down in detail in the 1997 Rules has not been complied with, therefore, the entire proceedings are bad. It is settled law that where a statute requires to do a certain thing in a certain way, the thing must be done in that particular way or not at all, thus, when the basic order is illegal, the consequential order cannot be given effect too. 7. It is settled law that where a statute requires to do a certain thing in a certain way, the thing must be done in that particular way or not at all, thus, when the basic order is illegal, the consequential order cannot be given effect too. 7. The second set of argument as raised by learned counsel for the petitioner is with respect to the complaint being vague. He further submits that the complaint should be such that the allegations as made against an elected member like Pradhan is in a position to give a reply to the same. He further submits that the allegations in the complaint should be supported by an affidavit as required under the relevant rules. In case, the allegations in the complaint are not supported by an affidavit as required under law, then, only the necessary particulars of the charge making out a prima facie case can be looked into and replied by the person against whom such a complaint is made and as to whether the complaint is genuine or a biased one. 8. In support of his submission, learned counsel for the petitioner has relied upon paragraph 12 of Supreme Court judgement passed in case of M/s. Sukhwinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 65 . 9. He has also relied upon Supreme Court judgement, passed in case of A.K.K. Nambiar v. Union of India and another, AIR 1970 Supreme Court 652, wherein, the reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit as evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on record. The importance of verification is to test the genuineness and authenticity of the allegations, thus, the complaint should be accompanied by proper and verified affidavits. 10. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on record. The importance of verification is to test the genuineness and authenticity of the allegations, thus, the complaint should be accompanied by proper and verified affidavits. 10. Placing reliance upon paragraphs 29 and 64 of Supreme Court judgement passed in case Amar Singh v. Union of India And Others, (2011) 7 SCC 69 , learned counsel for the petitioner submits that verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit as evidence of rival parties, in essence, verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. Learned counsel for the petitioner further submits that ceasing the financial and administrative powers of an elected Pradhan virtually amounts to dethroning an elected person in an undemocratic manner. If such matters of ceasing financial and administrative powers of elected persons are dealt with in such a casual manner, the very purpose of having a democratically elected person would be defeated, as they would always be at the mercy of executive. Thus, the same cannot be exercised in a routine course or casual manner. 11. In the present case, the charges are not specific and the reply as submitted by the petitioner has not been considered in detail, thus, not considering the reply submitted in response to the show cause notice means that the impugned order has been passed in a very casual manner, hence, cannot be sustained in the eyes of law. In support of his submission, he has relied upon the judgement of this Court passed in case of Smt. Jagbiri, Pradhan Gram Panchayat v. State of U.P., 2009 (106) RD 646 and Bhagwan Deen Verma v. State of U.P., 2005 (4) AWC 3281 . 12. Learned counsel for the petitioner lastly submits that when the initial proceedings i.e. complaint being filed as per Rule 3(3) is bad, the consequential proceedings on the basis of such complaint are also vitiated. It is settled provisions of law that the Act has to be done as required by the statute or not at all, thus, impugned orders are liable to be quashed. 13. It is settled provisions of law that the Act has to be done as required by the statute or not at all, thus, impugned orders are liable to be quashed. 13. Learned Standing Counsel on the other hand submits that the Pradhan has no right to object that complaint or report is not in accordance with Rule 3 of the Enquiry Rules. He submits that there is no illegality and infirmity in the order as from the records as placed before the Court, the complaint has been made in accordance with law and a notarized affidavit has been submitted by the complainant. 14. Heard learned counsel for the parties and perused the record. 15. Before discussion of the case on merits, it would be appropriate to quote Rule 3 of Rules of 1997, which is hereunder:- (1) Any person making a complaint against a Pramukh, Up-Pramukh, Adyaksha or Upadhyaksha may send his complaint to the Secretary to the State Government in the Panchayati Raj Department, Vidhan Bhawan, Lucknow. (2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of fact relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation. (3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavit respectively. (4) Not less than three copies of the complaint as well as of each of its Annexures shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions shall not be entertained.” 16. Accordingly, Rule 3 of the 1997 Rules provides, every complaint and affidavit shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter called 'C.P.C.') for the verification of the pleadings and affidavit respectively. Order VI Rule 15 C.P.C. Provides for verification of the pleadings. It provides that every pleading shall be verified at the foot by the party acquainted with the facts of the case. Order VI Rule 15 C.P.C. Provides for verification of the pleadings. It provides that every pleading shall be verified at the foot by the party acquainted with the facts of the case. The pleadings have to be numbered in paragraphs and he has to explain as to which paragraph is being verified on his personal knowledge and which upon information received and believes it to be true. The person verifying the pleadings shall also furnish an affidavit in support of his pleadings. 17. At this juncture, it has to be seen whether any provision is mandatory or directory, in addition to-the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve/ It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things. 18. Whether a provision is mandatory or directory, would, in the ultimate analysis, depends upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. 19. Legislative intent is clear from language of Rule 3 of the Enquiry Rules, which is titled procedure relating to a complaint and provides how a complaint may be made. It provides two ways, one by a private person that has to be supported by an affidavit and has to comply other conditions of sub-rule (1) to (4) of rule 3 {rule 3(1) to 3(4)}, the other by a public servant, and in this case the restrictions of the complaint by a private person do not apply. 20. Rule 4 of Rules of 1997 provides; that DM can order a preliminary enquiry on the complaint or report or otherwise. The word complaint or report refers to the complaint by a private person or to the report by a public servant under rule 3. The report of the public servant need not conform to the restrictions of a complaint by a private person. The word complaint or report refers to the complaint by a private person or to the report by a public servant under rule 3. The report of the public servant need not conform to the restrictions of a complaint by a private person. The question is what does the word ‘otherwise’ in Rule 4 mean. 21. Words and Phrases Permanent Edition Volume 30-A Page (230) explains, 'Otherwise means but for or under other circumstances...one of the usual meanings of otherwise is contrarily. The Black's Law dictionary explains it to the mean, 'In a different manner, in another way, or in other ways'. 22. The enquiry under rule 4 is a preliminary or a fact finding enquiry. It has to consider prima facie whether any financial or other irregularities have been committed by the pradhan or not. The final enquiry is yet to be done. Considering the object, there is no reason to give any restricted meaning to the word 'otherwise' in rule 4. The normal meaning of 'otherwise' should be adopted. The DM has power to refer a case for preliminary enquiry even if there is no complaint or report or in other words he has powers to act suo moto.” 23. Rule 3(5) of the Enquiry Rules provides that the complaint, which does not comply with any of the preceding sub-rules of rule 3 should not be entertained. However, even if the complaint is not to be entertained yet, the DM can always refer the matter for the preliminary enquiry, if he considers that it should be so enquired, he can act suo moto. 24. This Court does not agree with the submissions as made by learned counsel for the petitioner that the Pradhan has right to object to the format of the complaint. If the DM can order for the preliminary enquiry even in a case, where a complaint could not to be entertained, then what is the purpose of permitting a Pradhan to object regarding its non-conformity with rule 3(1) to 3(4). 25. This Court feels that any objection raised by Pradhan regarding non-conformity of complaint with Rule 3 of Rules 1997 appears to be a futile exercise. It is for the DM to consider whether he should entertain the complaint or not. 26. 25. This Court feels that any objection raised by Pradhan regarding non-conformity of complaint with Rule 3 of Rules 1997 appears to be a futile exercise. It is for the DM to consider whether he should entertain the complaint or not. 26. This Court is of the opinion that the word ‘otherwise’ in rule 4 means that the DM has suo moto powers to order a preliminary enquiry. In an appropriate case, the DM may order a preliminary enquiry even if there is no complaint or report or a defective complaint, not in accordance with rules 3(1) to 3(4). A pradhan has no right to object that a complaint is not in accordance with rule 3(1) to 3(4) of the Enquiry Rules, 1997. 27. A detailed discussion regarding the aforesaid views as taken by this Court finds place in Full Bench judgement passed in case of Vivekanand Yadav vs. State of U.P. and another reported in 2010(10) ADJ 1 (FB). 28. This Court feels that the objection as taken by learned counsel for the petitioner that the complaint was not given in proper format as prescribed in rule 3(3) of Rules of 1997 would be taken as an irregularity on the part of complainant and in case, such a complaint has not been given in proper format, it would not be an illegal complaint. There is clear distinction between irregularity and illegality, if irregularities are curable, it should not been allowed to defeat substantive rights and cause injustice to the parties. The procedure should never be a tool to deny justice. 29. The Hon’ble Apex Court in the case of Uday Shankar Triyar vs. Ram Kalewar Prasad Singh & Anr., (2006) 1 SCC 76, has held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. 30. This Court finds that an inadvertent mistake on the part of voter who has elected the Pradhan has to be ignored keeping in mind the purpose for which he has elected Pradhan, who is supposed to look into the development of the village where the voter resides. The financial and administrative powers of Pradhan are ceased on following grounds: “95. This Court finds that an inadvertent mistake on the part of voter who has elected the Pradhan has to be ignored keeping in mind the purpose for which he has elected Pradhan, who is supposed to look into the development of the village where the voter resides. The financial and administrative powers of Pradhan are ceased on following grounds: “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 for more than three consecutive meetings or sittings. ii-refuses 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 this 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) or Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled 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; 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." 31. In case a voter has pointed out in his way not always being literate, the way in which the Pradhan has abused his position, the same has to be looked into even if it has not been made in a proper format. 32. In case a voter has pointed out in his way not always being literate, the way in which the Pradhan has abused his position, the same has to be looked into even if it has not been made in a proper format. 32. In the case of A. Manju vs. Prajwal Revanna Alias Prajwal R And others, (2022) 3 SCC 269 , the Court has held that non filing of affidavit or non filing of proper verification is technical defect which is curable by allowing candidate/complainant to file proper affidavit. 33. Thus, non filing of complaint in proper format is an irregularity which was curable, in case, objection was raised at the right stage, even while submitting the reply, the petitioner has not raised any objection with respect to the aforesaid fact, any such objection should have been raised at the initial stage and no subsequent or new ground can be taken at that stage when final orders have been passed wherein the Court feels that there was no requirement of not entertaining the complaint on the ground as taken by the learned counsel for the petitioner. 34. In view of the discussions made above, no grounds for interference is made out, the writ petition is dismissed accordingly. 35. However, it is open to the authorities to complete final enquiry within a period of two months, in accordance with law, by means of reasoned and speaking order. The petitioner is directed to co-operate in the enquiry.