Raj Kumar Singh vs State Of U.P. Thru Secy. And 7 ...
2013 Latest Caselaw 6266 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											       A.F.R
 
Court No. - 39
 
Case :- WRIT - C No. - 55108 of 2013
 

 
Petitioner :- Raj Kumar Singh
 
Respondent :- State Of U.P. Thru Secy. And 7 Others
 
Counsel for Petitioner :- Amit Kumar Singh
 
Counsel for Respondent :- C.S.C.,Amit Kr. Rai
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Suneet Kumar,J.

(As per Hon. Suneet Kumar, J)

Heard the counsel for the petitioner as well as the learned standing counsel appearing for respondent nos.1 to 5 and the learned counsel appearing for respondent no.7.

The petitioner claims to be a social worker who has done various social works in the society and he belongs to the same Village Pijda of which the respondent no.7 is the duly elected village Pradhan. The petition is not a Public Interest Litigation.

It is alleged that the respondent no.7 was involved in huge financial irregularities and mis appropriation of funds pertaining to the Gram Panchayat. On the said complaints inquiry was conducted by the Block Development Officer, Block Pardaha, District Mau who submitted a detailed enquiry report dated 29.11.2012.

As a result of the said inquiry, the District Magistrate in exercise of its power under section 95(1)(g) of U.P Panchayat Raj Act 1947 vide orders dated 9.1.2012 ceased the financial and administrative power of respondent no. 7 with immediate effect and further constituted a three member committee for exercising financial and administrative power. It is further alleged that in the inquiry, the misappropriation of fund was proved and orders for recovery of the amount was passed.

Aggrieved by the order of the District Magistrate dated 9.1.2012 by which the financial and administrative power of respondent no. 7 was ceased and recovery was issued, the respondent no. 7 i.e the Gram Pradhan filed a Civil Misc. Writ Petition No. 17237 of 2012 (Smt.Urmilla versus State of U.P and others), the Hon'ble Court vide order dated 6.4.2012 relying upon a Division Bench judgement dated 31.1.2006 reported in 2006 (3) AWC 2787, (Indu Devi versus District Magistrate, Chitrakoot and others) held that no recovery can be made under section 27 of the U.P Panchayat Raj Act 1947 unless final enquiry was concluded. The court directed that the inquiry be concluded expeditiously and the Gram Pradhan shall cooperate in the said inquiry.

It is further stated that the respondent no. 7 filed another writ petition no.17116 of 2013 (Smt.Urmila Singh versus Stateof U.P & others ) assailing the order dated 9.1.2012 passed by the District Magistrate under section 95(1)(g) of the U.P Panchayat Raj Act seizing the administrative and financial powers of the Pradhan. This Court vide order dated 22.3.2013 passed the following orders:

"Heard the learned counsel for the parties.

The administrative and financial powers of the petitioner, who is an elected Pradhan, were ceased under the proviso to Section 95(1)(g) of the U.P Panchayat Raj Act,1947 by the order of the District Magistrate, Mau dated 9.1.2012.

According to the learned counsel for the petitioner thereafter neither any final inquiry has been conducted nor final orders have been passed and the petitioner is continuing without her administrative and financial powers for the last 15 months. In the circumstances it has been prayed that a direction may be issued to the District Magistrate, Mau to get the final inquiry concluded and a final decision taken in the matter within a fixed time frame.

Considering the facts and circumstances, this petition is disposed of with a direction to the District Magistrate, Mau to get the final inquiry concluded and the final decision taken under Section 95 (1) (g) of the said Act within a period of two months from today, failing which it would be open to the petitioner to apply before the District Magistrate, Mau to recall the order dated 9.1.2012 and in case the District Magistrate, Mau finds that the inquiry could not be concluded and the final decision could not be taken not on account of any delay being caused by the petitioner, he shall pass appropriate order withdrawing the earlier order dated 9.1.2012."

In pursuance of the aforesaid order, the Inquiry Officer after conducting preliminary inquiry submitted report dated 9.4.2013 to the Chief Development Officer/District Magistrate which is part of the record. The Inquiry Officer was of the opinion that the charges made against the respondent no.7, by the petitioner, is not substantiated and recommended that the suspension of financial and administrative powers be revoked. The District Magistrate in pursuance of the said inquiry report vide orders dated 4.9.2013 revoked the order ceasing financial and administrative powers. However, the District Magistrate was of the opinion that the pending regular inquiry would continue against the respondent no.7. The petitioner aggrieved by the order dated 4.9.2013 revoking the order ceasing financial and administrative powers has filed the present writ petition.

The learned standing counsel, as well as, the counsel appearing for respondent no. 7, at the outset have raised an objection that the present writ petition is not maintainable at the behest of the complainant as the petitioner is not an aggrieved person.

Section 95(1)(g) of U.P Panchayat Raj Act 1947 provides for the removal of Pradhan on the ground mentioned therein and first proviso to the said section provides that wherein an enquiry held by such person and in such manner as may be prescribed, a Pradhan prima facie found to have committed financial and other irregularities, such 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.

The Governor in exercise of the powers conferred by Section 110 read with clause(g) of sub-section(1) of Section 95 of the U.P Panchayat Raj Act, 1947, has framed the U.P.Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 hereinafter referred to as Rules.

Rule 3 provides for procedure relating to complaints and it states any person can make a complaint against the Pradhan and send his complaint to the State Government or any Officer that may be empowered in this behalf by the State Government. Sub section (3) provides as to how complaint is to be made and sub section (5) states that complaints which does not comply with any of the foregoing provisions of these rules, shall not be entertained.

Rule(4) provides for conducting Preliminary Enquiry with a view to find out if there is a prima facie case for a formal enquiry in the matter.

The State Government on the basis of the report referred to in sub section (2) of Rule 4 or otherwise is of the opinion that an enquiry should be held against the Pradhan under proviso to clause (g) of sub section (1) of Section 95, it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub section (1) of Section 95, of the Act and by an order ask and Enquiry Officer, other than the Enquiry Officer nominated under sub-rule(2) of Rule 4, to hold the enquiry.

In the present case, the impugned order revokes the order of cessation of financial and administrative powers on the preliminary report submitted by the Enquiry Officer. The petitioner who is complainant in the present case, certainly cannot be an aggrieved person.

Object of a preliminary enquiry is to find out if there is a prima facie case for conducting regular enquiry in the matter.

Prima Facie means- on the face of it, at first sight, based on the first impression. Sufficient evidence to make a case until it is contradicted or over come by opposing evidence.(CRAIG R.DUCAT- Constitutional Interpretation)

It is a term which means the first impression that can be had from the contents on the face of a documents or instrument, if any evidence contrary to it is disregarded.

At first sight on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the countrary. (State ex.rel.Harberi v. Whims, 68 Ohio App 39, 38 NE 2d 596,599,22 OO 110).

The Enquiry Officer did not find any prima facie case as alleged by the petitioner in his complaint, against the respondent no.7. Further the petitioner being a complainant is also not a person aggrieved by impugned order or the action taken by the District Magistrate in revoking the order ceasing the financial and administrative power of respondent no.7.

The meaning of the expression 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. One of the meanings is that person will be held to be aggrieved by a decision if that decision is materially adverse to him. The restricted meaning of the expression requires denial or deprivation of legal rights. A more legal approach is required in the background of statutes which do not deal with the property rights but deal with professional misconduct and morality. (Bar Council of Maharashtra v. M.V.Dabholkar, (1975) 2 SCC 702, 710-11, paras 27 & 28).

Broadly, speaking a party or a person is aggrieved by a decision when, it only operates directly and injuriously upon his personal, pecuniary and proprietary rights (Corpus Juris Seundem. Edn. 1, Vol.IV, p.356, as referred in Kalva Sudhakar Reddy v.Mandala Sudhakar Reddy, AIR 2005 AP 45,49 para 10)

The expression 'person aggrieved' means a person who has suffered a legal grievance i.e a person against whom a decision has been pronounced which has lawfully deprived him of something or wrongfully refused him something. The petitioner is not an aggrieved person by merely filing a complaint and order of revocation of cessation of financial and administrative powers do not affect him in any manner.

Recently Supreme Court in Ravi Yashwant Bhoir versus District Collector, Raigad and others (2012) 4 SCC 407 was dealing with the removal of the President of Uran Municipal Council under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. In the said case, the ex-President was the complainant and the Court was of the opinion that the complainant cannot be party to lis as he could not claim the status of an adversarial litigant. Paragraph 58, 59 & 60 is relevant and is as follows:

"58. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person whosuffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.

59.The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons i.e. a claim devoid of reasons.

60. Under the garb of being necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party. (Vide: Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General ofMaharashtra, AIR 1971 SC 385; Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed & Ors., AIR 1976 SC 578; Maharaj Singh v. State of Uttar Pradesh & Ors., AIR 1976 SC 2602; Ghulam Qadir v. Special Tribunal & Ors., (2002) 1 SCC 33; and Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors., (2008) 10 SCC 766). The High Court failed to appreciate that it was a case of political rivalry. The case of the appellant has not been considered in correct perspective at all."

Similarly the Supreme Court in Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and others (2013) 4 SCC 465, 466 was dealing with the issue of caste certificate being challenged by a person who did not belong to the reserved category. The Apex Court imposed cost of one lakh upon the stranger to the lis as he abused the process of the Court to harass the appellant.

The Supreme Court held (SCC PP 475-476 paras 9 and 10):

" 9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

10.A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361)."

After 73th & 74th constitutional Amendment, the local bodies have been conferred various powers under Part IX and IX A of the Constitution. Paragraph 22, 23 & 24 of Ravi Yashwant Bhoir case (Supra) is relevant:

"22. Amendment in the Constitution by adding Parts IX and IXA confers upon the local self Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional Institution besides being outrageous is dangerous to the democratic set-up of this country. Therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the Institution.

23. The democratic set-up of the country has always been recognized as a basic feature of the Constitution, like other features e.g. Supremacy of the Constitution, Rule of law, Principle of separation of powers, Power of judicial review under Articles 32, 226 and 227 of the Constitution etc. (Vide: His Holiness Keshwananda Bharti Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461; Minerva Mills Ltd. & Ors. v. Union of India & Ors., AIR 1980 SC 1789; Union of India v. Association for Democratic Reforms & Anr., AIR 2002 SC 2112; Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), AIR 2003 SC 87; and Kuldip Nayar v. Union of India & Ors., AIR 2006 SC 3127)

24. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State."

In Suresh Singh versus Commissioner, Moradabad Division, Moradabad and others (1993) 1 UPLBEC 414: 1993(1) AWC 601, this court considering similar case was of the view that Up Pradhan of the Gaon Sabha who was appointed to function as Pradhan during the period ceasing of administrative and financial powers had no right to be heard. Extract of paragraph-4 is as follows:

"4. The Act has conferred on the .........................The petitioner, who is Up-Pradhan of the Gaon Sabha and who claims to have made complaints and on the basis whereof an enquiry was conducted against respondent no.4, cannot be said to be a necessary party. He has no locus standi in such a case. He can at the best be a witness in the said enquiry. None of his personal or statutory rights are affected. He has no independent power under the Act except that he exercises the powers of Pradhan temporarily in his absence or in the event of his suspension or removal. It, therefore, follows that if the suspension or removal order is revoked and the Pradhan is reinstated, he has therefore, no right either to file a revision against the order passed by respondent no.2, by which the suspension of respondent no. 4 was recalled and he was reinstated to the post of Pradhan, or to file the present writ petition, as no such right to challenge the impugned order can be said to have been conferred on any person other than the person concerned, such as who has been suspended or removed..............................."

A Division Bench of this Court in Amin Khan versus State of U.P and others 2008(2) AWC 2002: (2008) 2 UPLBEC 1256 was of the opinion that the complainant who had made a complaint had no locus to challenge the order of the District Magistrate withdrawing the administrative and financial powers of the Pradhan. The Court relied upon Suresh Singh versus Commissioner of Moradabad, Moradabad(Supra) as well as Smt.Kesari Devi versus State of U.P & others 2005(4) AWC 3563.

The concept of master servant relationship as applicable in service jurisprudence is not applicable in case of elected heads of local bodies enjoying constitutional status. Full Bench decision in Hafiz Ataullah Ansari versus State of U.P & Others 2011(3) ADJ 502 (FB), considering historical background of the institution of the Local Self Government was of the view that they are no longer statutory bodies but after 73th and 74th constitutional amendments, have acquired Constitutional status. The Court held: (Paragraphs 93, 94 and 97 are reproduced below:

93.Under our Constitution, a head of local body is entitled to continue for his entire term unless he is unseated in an election petition. However, as there is no provision that he cannot be removed even if he is guilty of misconduct, a law can always be

enacted to provide his,

Removal on his committing irregularities; or

Suspension or cessation of financial and administrative powers during pendency of removal proceeding...........

94. A head of a local body is an elected person; he is not a government servant: it would improper to compare these proceeding with the departmental proceeding in service jurisprudence. We are not alone in saying this but are in company of the Supreme Court and another full bench of our court (see below).

97. A head of a local body is elected for a limited term. His term comes to end after five years. If during the removal proceeding, he is denuded from exercising financial and administrative powers then even if he is exonerated in the enquiry, the time spent during enquiry is lost: he does not get his period extended.

In the facts of the present case the Pradhan was not allowed to exercise his financial and administrative powers since 9.1.2012 until passing of the the impugned order dated 4.9.2013. Almost twenty months of his tenure was lost. Keeping the elected Pradhan out of office without concluding the enquiry is against the constitutional scheme of providing democratically elected local bodies at grass root level. The loss of tenure cannot be made good unlike in case of civil servants. Therefore, Rule 8 of the Rules mandates that enquiry be concluded within six months from the date of the complaint. (emphasis added).

This Court in Vivekanand Yadav versus State of U.P and another reported in 2010(10) ADJ 1 1 (FB) had the occasion to consider the scope of Section 95(1)(g) of U.P Panchayat Raj Act and further whether an opportunity is necessary before passing an order ceasing financial and administrative power of the Pradhan. Section 95(1)(g) read with its proviso envisages with two enquiries. Paragraph 46 & 47 of Vivekanand Yadav's case (Supra) is as follows:

"46. Section 95(1)(g) read with its proviso envisages two enquiries:

A preliminary or fact finding enquiry: On the basis of this enquiry, financial and administration powers of a pradhan can be ceased and a committee to perform these functions can be appointed. This takes place under rule 4 of the Enquiry Rules read with

proviso to section 95(1)(g) of the Act.

The final enquiry: It is done to remove a pradhan. This takes place under rule 6 of the Enquiry Rules read with section 95 (1)(g) clauses (i) to (v) as well as the proviso to section 95(1).

47. Section 95(1)(g) (providing removal of a pradhan) or proviso to section 95(1) (providing reasonable opportunity in the removal proceeding) do not contemplate any formal enquiry or rules to be framed. However the proviso to section 95(1)(g) providing cessation of financial and administrative powers does contemplate a preliminary enquiry by a person and procedure to be prescribed: the rules have to be framed for the same. The Enquiry Rules have been framed because it is so mandated in the proviso to section 95(1)(g) of the Panchayat Raj Act and not because of 95(1)(g) or the proviso to section 95(1)."

This Court was of the opinion after considering the decision and reasons detailed in the Hafiz case(Supra) the Pradhan is not entitled to be associated in the preliminary enquiry nor he is entitled to get the copy of the preliminary enquiry report, his only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed. Paras 68 and 71 of Vivekanand Yadav's case (Supra) is as follows:

"68.In view of our decision and reasons detailed in the Hafiz case, a pradhan is neither entitled to be associated in the preliminary enquiry nor is he entitled to get the copy of the preliminary enquiry report--his only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed.

71. It is not only necessary that the explanation or point of view or the version of the affected pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. Of course the consideration of the explanation does not have to be a detailed one. There should be indication that mind has been applied. This has also been explained in the Hafiz case."

The proceedings for removal of the Pradhan is to be conducted in accordance with Rules 6 onwards of the Rules, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. However, where right to exercise financial and administrative power is also to be ceased then procedure of Rules 3 to 5 has to be followed. Preliminary inquiry need not precede regular inquiry. Paragraphs 74, 94, and 96 of Vivekanand Yadav's case (Supra) is as follows:

"74.In our opinion there can be a proceeding for removal of a pradhan without ceasing his financial and administrative powers.

94. The procedure provided in rules 6 to 8 is for the final enquiry and not for the preliminary enquiry. A report by an enquiry officer defined under rule 2(c) is also a report by a person prescribed. It is not necessary for the enquiry officer to conduct the preliminary inquiry only on the direction given by the DM. His job is to submit a report, so that the DM may take a decision.

Whether there is prima facie case against the pradhan or not; and

Whether the final enquiry should be held after ceasing his powers.

96.A report by an enquiry officer defined under rule 2(c) is also a report by a person and the manner is prescribed under the Rules--irrespective of the fact that he was so asked by the DM or not. In our opinion, it is also a preliminary report within the meaning of the proviso to section 95(1) (g) of the Panchayat Raj Act."

The petitioner complainant shall have an opportunity during the course of regular enquiry to lead oral and documentary evidence as is provided for in sub section (11) of Section 6 of the Rules and further will also have an opportunity of hearing as contemplated under sub section 16 of Rule 6. Sub section (11) and sub section (16) of Rule 6 reads as follows:

"(11).On the date fixed for the enquiry, the oral and documentary evidence by which the articles of charge are proposed shall be produced and the witness shall be examined, by the Enquiry Officer by or on behalf of the complainant, if there is one, and may be cross-examined by or on behalf of the person against whom the Enquiry Officer is being held. The witnesses may be re-examined by the Enquiry Officer or the complainant, as the case may be, on any point on which they have been cross- examined, but no on any new matter, without the leave of the Enquiry Officer."

(16) The Enquiry Officer may, after the completion of the production of evidence, hear the complainant, if any and the the person against whom the enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases."

Thus it is evident from the scheme of the Act and the rules framed there under, the complainant only has a right to participate in the regular enquiry to the extent rules provided for, but he has no locus to challenge the order passed by District Magistrate either on the report of preliminary enquiry or that of final enquiry.

Rule 8 of the Rules provide that the Inquiry Officer shall conclude the inquiry within six months from the date of the receipt of the complaint and forward to the State Government the records of the inquiry. Since the inquiry is pending for the past 20 months, it is expected that it shall be concluded expeditiously within three months from the date of production of certified copy of this order.

The writ petition is dismissed.

No order as to costs.

Order Date :- 4.10.2013

IB