# Brijraj Nishad v. State of U.P. & Anr

- **Citation:** (2023) 12 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-23
- **Case number:** Writ-C No. 29945 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijraj-nishad-v-state-of-u-p-anr-49516
- **Pages:** 6

## Headnote

A. Local body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - Gram Pradhan
- Seizure of administrative and financial
power - Show Cause Notice - Notice
issued without clarifying the grounds of
action - Notice not in conformity with the
principle of natural justice - Permissibility
- Held, to ensure conformity with the
principles of natural justice, the show
cause notice is required to specify what
the consequences will be if the addressee
of the notice does not satisfy the grounds
on which the action is proposed. Besides
the notice being sufficient, it is also
necessary to state the grounds for need of
action and also to specifically and clearly
mention the proposed penalty - Held
further, an elected representative can be
removed only and strictly in accordance
with law and in this regard the law which
provides
for
removal
of
an
elected
representative has to be strictly construed
- High Court declared the show cause
notice
nullity
for
being
vague
and
ambiguous. (Para 16 and 21)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

12 All. Brijraj Nishad Vs. State of U.P. & Anr.
727
where there is a statutory duty imposed
upon the officer concerned and there is a
failure on the part of that officer to
discharge the statutory obligation."

28. The above exposition of law
makes it clear that writ of mandamus
cannot be issued on mere asking unless the
pre-conditions are satisfied. Such welldefined conditions are not satisfied in the
present case.

29. The writ petition is, accordingly,
dismissed with liberty to the petitioners to
approach the Prescribed Authority under
Section 25 of the Act, 1860, after the
election result is declared but certainly after
satisfying
the
statutory
requirements
contained under the said provision itself.
----------
(2023) 12 ILRA 727
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-C No. 29945 of 2023

Brijraj Nishad ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vivek Chaubey, Sri Nipun Singh

Counsel for the Respondents:
C.S.C., Sri Gyanendra Prakash Srivastava

A. Local body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - Gram Pradhan
- Seizure of administrative and financial
power - Show Cause Notice - Notice
issued without clarifying the grounds of
action - Notice not in conformity with the
principle of natural justice - Permissibility
- Held, to ensure conformity with the
principles of natural justice, the show
cause notice is required to specify what
the consequences will be if the addressee
of the notice does not satisfy the grounds
on which the action is proposed. Besides
the notice being sufficient, it is also
necessary to state the grounds for need of
action and also to specifically and clearly
mention the proposed penalty - Held
further, an elected representative can be
removed only and strictly in accordance
with law and in this regard the law which
provides
for
removal
of
an
elected
representative has to be strictly construed
- High Court declared the show cause
notice
nullity
for
being
vague
and
ambiguous. (Para 16 and 21)

Writ petition allowed. (E-1)

List of Cases cited:

1. UMC Technologies (P) Ltd. Vs F.C.I. & anr.;
(2021) 2 SCC 551

2. Oryx Fisheries Pvt. Ltd. Vs U.O.I. & ors.;
(2010) 13 SCC 427

3. State of Punjab Vs Davinder Pal Singh
Bhullar; (2011) 14 SCC 771

4. Badrinath Vs St. of T. N. & ors.; AIR 2000 SC
3243

5. State of Kerala Vs Puthenkavu N.S.S.
Karayogam & anr.; (2001) 10 SCC 191

6. Mangal Prasad Tamoli (dead) by Lrs. Vs
Narvadeshwar Mishra (dead) by Lrs. & ors.;
(2005) 3 SCC 422

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Nipun Singh, learned
counsel for the petitioner, Mr. Gyanendra
Prakash Srivastava, learned counsel for the
complainant and learned Standing Counsel
for the State-respondents.
728 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This writ petition has been filed by
the petitioner with a prayer to quash the
impugned order dated 07.08.2023 passed
by
the
respondent
no.2;
District
Magistrate/Prescribed Authority, Mau, vide
which the administrative and financial
power of the petitioner as Gram Pradhan
has been ceased and a further prayer to
direct the respondent not to interfere in the
peaceful functioning of the petitioner as
Gram
Pradhan
of
Gram
Panchayat
Madahapatti, Mau.

3. The facts, in brief, giving rise to the
present writ petition are as under:-

(i) The petitioner was duly
elected
as
Gram
Pradhan
of
Gram
Panchayat Madahapatti, Mau in the general
panchayat election held in the year 2021. It
appears that some complaint was made
against
him
for
not
carrying
out
development and welfare work of the
concerned village. Such complaint was
made by a person, who had assaulted the
petitioner for which the petitioner had
lodged an FIR against him.

(ii) On the aforesaid complaint, a
committee comprising of District Finance
and Statistics Officer, Mau and Executive
Engineer, Rural Engineering Department,
Mau was constituted to inquire into the
matter, which submitted its report on
19.12.2022. Relying upon the aforesaid
inquiry report, a show cause notice dated
14.02.2023
has
been
issued
to
the
petitioner, to which he submitted his reply
on 17.03.2023, relying upon which the
impugned order dated 07.08.2023 has been
passed ceasing financial and administrative
powers of the petitioner-Pradhan under
Section 95 (1) (g) of the Uttar Pradesh
Panchayat Raj Act, 19471. Hence, the
present writ petition has been filed.

4. Learned counsel for the petitioner
submits that it is settled law that the show
cause notice should be specific and
unambiguous and should also mention the
action proposed to be taken, in case the
petitioner is found guilty of the charges as
levelled against him. In support of his
contention, he has relied upon the judgment
of Apex Court in the case of UMC
Technologies
(P)
Ltd.
vs.
Food
Corporation of
India and
another2
reported in (2021) 2 SCC 551, wherein it
has been held thus:-

"13. At the outset, it must be
noted that it is the first principle of civilised
jurisprudence that a person against whom
any action is sought to be taken or whose
right or interests are being affected should
be given a reasonable opportunity to defend
himself. The basic principle of natural
justice is that before adjudication starts, the
authority concerned should give to the
affected party a notice of the case against
him so that he can defend himself. Such
notice should be adequate and the grounds
necessitating action and the penalty/action
proposed should be mentioned specifically
and unambiguously. An order travelling
beyond the bounds of notice is impermissible
and without jurisdiction to that extent. This
Court in Nasir Ahmad v. Assistant Custodian
General, Evacuee Property, Lucknow and
Anr., has held that it is essential for the notice
to specify the particular grounds on the basis
of which an action is proposed to be taken so
as to enable the noticee to answer the case
against him. If these conditions are not
satisfied, the person cannot be said to have
been granted any reasonable opportunity of
being heard."

5. He further submits that though the
show cause notice mentions about the
inquiry being conducted under Section 95
12 All. Brijraj Nishad Vs. State of U.P. & Anr.
729
(1) (g) of the Uttar Pradesh Panchayat Raj
Act, 1947 but the same also proposes about
the recovery to be initiated in case of noncompliance of reply to the show cause
notice. Thus, in case, the show cause notice
is considered for recovery of loss from the
petitioner under Section 27(1) of U.P.
Panchayat Raj Act, 1947 read with rule
256, the assessment should have been done
by the Chief Audit Officer. On the other
hand, in case the show cause notice is taken
for initiation of proceedings under Section
95 (1) (g) of the Uttar Pradesh Panchayat
Raj Act, 1947, the punishment as proposed
for initiating recovery proceedings against
the Pradhan cannot be sustained, therefore,
the show cause notice is bad and is non est
in the eye of law. Hence, the order
impugned
dated
07.08.2023
ceasing
administrative and financial powers of the
petitioner-Pradhan relying upon the said
show cause notice is illegal and the same is
liable to be set aside.

12. On the other hand, learned
Standing Counsel as well as learned
counsel for the complainant could not
dispute the aforesaid facts.

13. I have heard learned counsel for
the petitioner and learned Standing Counsel
and perused the records.

14. The question as to what would be
the proper contents of the notice to show
cause, so as to be consistent with the
principles of natural justice, was considered
by the Apex Court in the case of Oryx
Fisheries Pvt. Ltd. vs. Union of India &
Others3 and it was observed as under:-

"24. It is well settled that a quasijudicial authority, while acting in exercise
of its statutory power must act fairly and
must act with an open mind while
initiating a show-cause proceeding. A
show-cause proceeding is meant to give
the person proceeded against a reasonable
opportunity of making his objection
against the proposed charges indicated in
the notice.

25.
Expressions
like
"a
reasonable
opportunity
of
making
objections" or "a reasonable opportunity of
defence" have come up for consideration
before this Court in the context of several
statutes. A Constitution Bench of this Court
in Khem Chand v. Union of India11, of
course
in
the
context
of
service
jurisprudence, reiterated certain principles
which are applicable in the present case
also.

26. S.R. Das, C.J. speaking for
the unanimous Constitution Bench in Khem
Chand held that the concept of "reasonable
opportunity" includes various safeguards
and one of them, in the words of the
learned Chief Justice, is : (AIR p. 307, para
19)

"(a) An opportunity to deny his
guilt and establish his innocence, which he
can only do if he is told what the charges
levelled against him are and the allegations
on which such charges are based;"

27. It is no doubt true that at the
stage of show cause, the person proceeded
against must be told the charges against
him so that he can take his defence and
prove his innocence. It is obvious that at
that stage the authority issuing the
charge-sheet, cannot, instead of telling
him the charges, confront him with
definite conclusions of his alleged guilt. If
that is done, as has been done in this
instant
case,
the
entire
proceeding
initiated by the show-cause notice gets
730 INDIAN LAW REPORTS ALLAHABAD SERIES
vitiated by unfairness and bias and the
subsequent proceedings become an idle
ceremony.

28. Justice is rooted in confidence
and justice is the goal of a quasi-judicial
proceeding also. If the functioning of a
quasi-judicial authority has to inspire
confidence in the minds of those subjected
to its jurisdiction, such authority must act
with utmost fairness. Its fairness is
obviously to be manifested by the language
in which charges are couched and
conveyed to the person proceeded against.

29....

30. ...

31. It is of course true that the
show-cause
notice
cannot
be
read
hypertechnically and it is well settled that it
is to be read reasonably. But one thing is
clear that while reading a show-cause
notice the person who is subject to it must
get an impression that he will get an
effective
opportunity
to
rebut
the
allegations contained in the show-cause
notice and prove his innocence. If on a
reasonable reading of a show-cause notice
a person of ordinary prudence gets the
feeling that his reply to the show-cause
notice will be an empty ceremony and he
will merely knock his head against the
impenetrable wall of prejudged opinion,
such a show-cause notice does not
commence a fair procedure especially
when it is issued in a quasi-judicial
proceeding under a statutory regulation
which promises
to give
the
person
proceeded
against
a
reasonable
opportunity of defence.

32. Therefore, while issuing a
show-cause notice, the authorities must
take care to manifestly keep an open mind
as they are to act fairly in adjudging the
guilt or otherwise of the person proceeded
against and specially when he has the
power to take a punitive step against the
person after giving him a show-cause
notice.

33. The principle that justice must
not only be done but it must eminently
appear to be done as well is equally
applicable to quasi-judicial proceeding if
such
a
proceeding
has
to
inspire
confidence in the mind of those who are
subject to it."

15. The manner in which a show
cause notice is to be issued to constitute a
valid basis of a ceasing/blacklisting order
in the context of government contracts and
tenders was subject matter of consideration
in a recent decision in the case of UMC
Technologies Private Ltd. (supra) and
after explaining the principles in regard to
the same in detail, it was held that it is
essential for the notice to specify the
particular grounds on which an action is
proposed to be taken so as to enable the
notice to answer the case against him and
in the absence of the same, a person cannot
be said to be granted a reasonable
opportunity of being heard. It was stated
thus:-

"13. At the outset, it must be
noted that it is the first principle of civilised
jurisprudence that a person against whom
any action is sought to be taken or whose
right or interests are being affected should
be given a reasonable opportunity to
defend himself. The basic principle of
natural justice is that before adjudication
starts, the authority concerned should give
to the affected party a notice of the case
against him so that he can defend himself.
12 All. Brijraj Nishad Vs. State of U.P. & Anr.
731
Such notice should be adequate and the
grounds necessitating action and the
penalty/action
proposed
should
be
mentioned
specifically
and
unambiguously.
An
order
travelling
beyond
the
bounds
of
notice
is
impermissible and without jurisdiction to
that extent. This Court in Nasir Ahmad v.
Custodian General, Evacuee Property
[Nasir Ahmad v. Custodian General,
Evacuee Property, (1980) 3 SCC 1] has
held that it is essential for the notice to
specify the particular grounds on the basis
of which an action is proposed to be taken
so as to enable the noticee to answer the
case against him. If these conditions are
not satisfied, the person cannot be said to
have
been
granted
any
reasonable
opportunity of being heard.

14. Specifically, in the context of
blacklisting of a person or an entity by the
State
or
a
State
Corporation,
the
requirement of a valid, particularised and
unambiguous
show-cause
notice
is
particularly crucial due to the severe
consequences of blacklisting and the
stigmatisation
that
accrues
to
the
person/entity being blacklisted. Here, it
may be gainful to describe the concept of
blacklisting and the graveness of the
consequences occasioned by it. Blacklisting
has the effect of denying a person or an
entity the privileged opportunity of entering
into government contracts. This privilege
arises because it is the State who is the
counterparty in government contracts and
as such, every eligible person is to be
afforded
an
equal
opportunity
to
participate in such contracts, without
arbitrariness and discrimination. Not only
does blacklisting take away this privilege, it
also tarnishes the blacklisted person's
reputation
and
brings
the
person's
character into question. Blacklisting also
has long-lasting civil consequences for the
future business prospects of the blacklisted
person."

16. To ensure conformity with the
principles of natural justice, the show cause
notice is required to specify what the
consequences will be if the addressee of the
notice does not satisfy the grounds on
which the action is proposed. Besides the
notice being sufficient, it is also necessary
to state the grounds for need of action and
also to specifically and clearly mention the
proposed penalty. A show cause notice,
particularly in a case where it proposes to
impose
an
order
of
blacklisting
or
otherwise,
i.e.
recovery
or
ceasing
administrative or financial powers as the
case may be, it is required to adhere to the
principles of natural justice and for the said
reason, it is to fulfill the twin requirements
of stating in unambiguous terms the
grounds which according to the department
necessitates an action, and also the penalty
which is proposed to be taken in case the
noticee is unable to furnish an adequate
response to the grounds stated in the notice.

17. In the present case, though the
show cause notice mentions about the
inquiry being conducted under Section 95
(1) (g) of the Uttar Pradesh Panchayat Raj
Act, 1947 but the same proposes about the
recovery to be initiated in case of noncompliance of reply to the show cause
notice. Thus, in case the show cause notice
is considered for recovery of loss from the
petitioner under Section 27(1) of U.P.
Panchayat Raj Act, 1947 read with rule
256, the assessment should have been done
by the Chief Audit Officer. On the other
hand, in case the show cause notice is taken
for initiation of proceedings under Section
95 (1) (g) of the Uttar Pradesh Panchayat
Raj Act, 1947, the punishment as proposed
732 INDIAN LAW REPORTS ALLAHABAD SERIES
for initiating recovery proceedings against
the Pradhan cannot be sustained, therefore,
the show cause notice is bad and is non est
in the eye of law.

18. It is a settled legal proposition that if
an initial action is not in consonance with law,
all subsequent and consequential proceedings
would be vitiated. The Apex Court in the case
of State of Punjab vs. Davinder Pal Singh
Bhullar4, has held that if initial action itself is
illegal, all subsequent actions emanating from
that act are also a nullity.

19. In Badrinath v. State of Tamil Nadu
& others5 and State of Kerala v. Puthenkavu
N.S.S. Karayogam & Anr6, the Apex Court
observed that once the basis of a proceeding is
gone, all consequential acts, actions, orders
would fall to the ground automatically and this
principle is applicable to judicial, quasijudicial
and
administrative
proceedings
equally.

20. Similarly in Mangal Prasad Tamoli
(dead) by Lrs. v. Narvadeshwar Mishra
(dead) by Lrs. & Ors.7, the Apex Court held
that if an order at the initial stage is bad in law,
then all further proceedings, consequent
thereto, will be non est and have to be
necessarily set aside.

21. On perusal of the Act and the Rules,
the Court is of the clear view that an elected
representative can be removed only and
strictly in accordance with law and in this
regard the law which provides for removal of
an elected representative has to be strictly
construed. In the present case, the Court finds
that the show cause notice itself is bad as the
same is vague and ambiguous. Since the show
cause notice dated 14.02.2023 is nullity in the
eye of law, therefore, it cannot be sustained, so
its consequential proceedings, i.e. impugned
order dated 07.08.2023 ceasing administrative
and financial powers of the petitioner-Pradhan,
stand automatically vitiated and is liable to be
declared non est in view of law.

22. In view of the above, the impugned
order dated 07.08.2023 passed by the
respondent
no.2
ceasing
financial
and
administrative powers of the petitioner is
hereby quashed.

23.

However,
the
District
Magistrate/Prescribed Authority, Mau, i.e.
respondent no.2 is directed to proceed on
the basis of inquiry as already conducted on
the
complaint
so
made
against
the
petitioner and issue afresh and proper show
cause notice, in accordance with the
provisions of Uttar Pradesh Panchayat Raj
Act, 1947 and read with Rules 1997 and
pass a reasoned and speaking final order.
Consequences shall follow accordingly, in
accordance with law.

24. With the aforesaid observations and
directions, the writ petition is allowed.

25. Office is directed to give a copy of
this order to learned Chief Standing Counsel,
who shall communicate this order forthwith to
the respondent no.2, i.e. District Magistrate,
Mau for compliance.
----------
(2023) 12 ILRA 732
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SHEKHAR B. SARAF, J.

Writ-C No. 31059 of 2023

Ramlala ...Petitioner
Versus
State of U.P. & Ors. ...Respondents