Jalaluddin vs State Of U.P. Thru Secy. And 3 ...
2013 Latest Caselaw 4991 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
COURT NO.2
 

 
Civil Misc. Writ Petition No. 38222 of 2013
 

 
  Jalaluddin   
 
Vs.
 
 State of U.P. and others
 
				 **********
 
Hon'ble Tarun Agarwala,J.

Impleadment application has been filed on behalf of the complainant which is taken on record and is allowed. Necessary correction in the array of the parties be carried out during the course of the day.

Heard the learned counsel for the parties.

The petitioner was convicted and sentenced to imprisonment for 2 years. The petitioner field an appeal before the High Court and during its pendency, was enlarged on bail. In the meanwhile, on account of his conviction, the District Magistrate exercised his powers under Section 95(1)(g) of the U.P.Panchayat Raj Act, 1947 (hereinafter referred to as "the Act") and, by the impugned order, has removed the petitioner from the post of Pradhan.

The petitioner, being aggrieved, has filed the present writ petition, contending that the impugned order is patently illegal and in violation of the second proviso to Section 95(1)(g) of the Act, which stipulates that no action would be taken under Section 95(1)(g) of the Act, unless a reasonable opportunity of showing cause against the action proposed was not given. It was contended that no notice or opportunity of hearing was provided.

In order to appreciate the arguments of the learned counsel, the provision of Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 is extracted hereunder:

"95. Inspection - (1) The State Government may -

(g). remove a pradhan or member of a Gram Panchayat or a Joint Committee of Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-

(i) absents himself without sufficient cause from more than three consecutive meetings of sittings,

(ii) refused 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) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the 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 Panchat takes active part in politics, or

(v) suffers from any of the disqualification mentioned in clauses (a) to (m) or 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]:

Provided that-

(i) no action shall be taken under clause (f), clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed;"

A perusal of the second proviso indicates, that no action can be taken for the removal of the Pradhan except after giving the person concerned a reasonable opportunity of showing cause against the proposed action.

Section 95(1)(g)(v) of the Act provides for the removal of the Pradhan, if he suffers from any disqualification mentioned in Clauses (a) to (n) of Section 5-A of the Act. For facility, Section 5-A of the Act is extracted hereunder:-

'[5-A. Disqualification of membership - A personal shall be deisqualified for being chosen as, and for being, 2[the Pradhan or] a member of a Gram Panchayat, if he -

(a) is so disqualified by or under any law for the time being in force for the purposes of elections of the State Legislature;

Provided that no person shall be disqualified on the ground that he is less than twenty-five years age, if he has attained the age of twenty-one years;

(b) is a salaried servant of the Gram Panchayat or a Nyaya Panchayat;

(c) holds any office of profit under a State Government or the Central Government or a 3[local authority, other than a Gram Panchayat or Nyaya Panchayat; or a Board, Body or Corporation owned or controlled by a State Government or the Central Government;]

(d)has been dismissed from the service of State Government, the Central Government or a local authority or a Nyaya Panchayat for misconduct;

(e) is in arrears of any tax, fee, rate or any other dues payable by him to the Gram Panchayat, Kshettra Panchayat or Zila Panchayat for such period as may be prescribed, or has, in spite of being required to do so by the Gram Panchayat, Kshettra Panchayat or Zila Panchayat failed to deliver to it any record or property belonging to it which had come into his possession by virtue of his holding any office under it;

(f) is an undischarged involvement;

(g) has been convicted of an offence involving moral turpitude;

(h) has been sentenced to imprisonment for a term exceeding three months for contravention for any order made under the Essential Commodities Act, 1955;

(i)has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under theEssential Supplies (Temporary Powers) Act, 1946 or the U.P. Control of Supplies (Temporary Powers) Act, 1947;

(j) has been sentenced to imprisonment for a term exceeding three months under the U.P. Excise Act, 1910;

(k) has been convicted of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985;

(l)has been convicted of an election offence;

(m)has been convicted of an offence under the U.P. Removal of Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955; or

(n) has been removed from office under sub-clauses (iii) or (iv) of Clause (g) of sub-section (1) of Section 95 unless such period, as has been provided in that behalf in the said section or such lesser period as the State Government may have ordered in any particular case, has elapsed;

Provided that the period of disqualification under Clauses (d), (f), (g), (h), (i), (j),(k), (l) or (m) shall be five years from such date as may be prescribed;

Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record of property, as the case may be;

Provided also that a disqualification under any of the clauses referred to in the first proviso may in the manner prescribed, be removed by the State Government."

Some of the disqualifications mentioned therein is, being convicted in an offence involving moral turpitude or being sentenced under the Essential Commodities Act or under the U.P. Excise Act or Narcotic Drugs and Psychotropic Substance Act,1985 or convicted in an election offence or convicted under the U.P. Removal of Social Disabilities Act, 1947 or Protection of Civil Rights Act, 1955.

The Counter Affidavit of the State reveals that no notice was given to the petitioner before removing him from the post of Pradhan.

Having heard the learned counsel for the parties, the Court finds that the second proviso to Section 95(1)(g) of the Act clearly indicates a mandatory provision of issuing a show cause notice before removing a Pradhan on any of the grounds mentioned therein.

In the instant case admittedly no opportunity was given. Consequently, the impugned order cannot be sustained and is quashed. The writ petition is alloweed.

The Court directs the District Magistrate to issue a show cause notice within 10 days from the date of the receipt of this order and give an opportunity to the petitioner of showing cause against the action proposed. The authority is thereafter required to pass a final order within two weeks from the date of the receipt of the reply.

Considering the fact that the petitioner has been convicted, pursuant to which a three member committee had already been appointed, the Court directs that till the disposal of the matter, the three member committee will continue to function and discharge the duties of the Pradhan.

Order Date :- 8.8.2013

AKJ

(Tarun Agarwala,J.)