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Ram Naresh v. State Of U.P. And Others - WRIT - C No. - 43509 of 2007  RD-AH 15417 (12 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc. Writ Petition No. 43509 of 2007.
Ram Naresh (Pradhan) .......... Petitioner
The State of U.P. and others ........... Respondents
Hon'ble Ashok Bhushan, J.
Heard counsel for the petitioner, Sri Jitendra Prasad Mishra, learned counsel for the caveator and learned standing counsel. With the consent of the parties' counsel, the writ petition is being finally disposed of at this stage.
By this writ petition, the petitioner has prayed for quashing the order dated 17th August, 2007 passed by the District Magistrate by which the financial and administrative power of the petitioner has been seized by the District Magistrate in exercise of power under proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947.
The order passed by the District Magistrate mentioned that after receiving the complaints against the petitioner preliminary enquiry has been conducted by Tahsildar, Karvi and on the basis of the said preliminary enquiry report order is being passed for seizing the financial and administrative powers by constituting a three members committee to discharges the said function.
Learned counsel for the petitioner, challenging the order, contended that preliminary enquiry in accordance with the provisions of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 is to be conducted by the Enquiry Officer as defined in Section 2(c). Rule 2(c) of the 1997 Rules is quoted below:-
"'Enquiry Officer' means an officer not below the rank of District Panchayat Raj Officer, appoint as such, by the State Government."
Petitioner's contention is that Tahsildar not being a district level officer, the preliminary enquiry is not in accordance with the U.P. Panchayat Raj (Removal of Pradhan, Up Pradhan and Members) Enquiry Rules, 1997, hence the order is erroneous.
Learned counsel for the caveator relying on a judgment of this Court reported in 2004(96) resolution dated 47; Satish Chandra Tripathi vs. State of U.P. and others contended that writ petition is not maintainable against the order seizing the financial and administrative powers. He further contended that there are serious allegations against the petitioner. Learned standing counsel also supported the impugned order.
I have considered the submissions and perused the record.
The financial and administrative powers of Pradhan can be seized in accordance with the provisions of U.P. Panchayat Raj (Removal of Pradhan, Up Pradhan and Members) Enquiry Rules, 1997. The power for seizing financial and administrative powers can be exercised by the District Magistrate on the basis of preliminary enquiry report and the financial and administrative powers can be seized when prima facie Pradhan is found guilty in such preliminary enquiry report. In the present case, the preliminary enquiry having not been held by an officer within the meaning of Rule 2(c) of U.P. Panchayat Raj (Removal of Pradhan, Up Pradhan and Members) Enquiry Rules, 1997, the said power cannot be exercised under proviso to Section 95(1)(g) of U.P. Panchayat Raj Act, 1947.
The submission of learned counsel for the caveator that writ petition is not maintainable as per the law laid down in Satish Chandra Tripathi's case is to be considered. In Satish Chandra Tripathi's case no such proposition was laid down that writ petition cannot be entertained against the order seizing financial and administrative powers of a Pradhan. In the present case the order has been passed by the District Magistrate, who is a State authority and the writ petition under Article 226 of the Constitution of India is fully maintainable.
Considering the facts and circumstances of the case, ends of justice be served in setting aside the order dated 17th August, 2007 passed by the District Magistrate leaving it open to the District Magistrate to get another preliminary enquiry conducted by competent officer and take appropriate decision in accordance with law. The order of the District Panchayat Raj Officer dated 13th August, 2007, which is based on the same preliminary enquiry report also cannot be sustained and is hereby set-aside. However, in order to protect the funds of the Gaon Sabha, it is provided that petitioner may operate the accounts of the Gaon Sabha only with the prior approval of the District Panchayat Raj Officer.
The writ petition is disposed of with the aforesaid directions.
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