# Chandrajit Raj Bhar v. District Magistrate, Pilibhit and others

- **Citation:** (2002) 1 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-07
- **Case number:** Civil Misc. Writ Petition No. 231 of 2002
- **Bench:** R.R. Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrajit-raj-bhar-v-district-magistrate-pilibhit-and-others-39792
- **Pages:** 4

## Headnote

U.P. Panchayat Raj Act-section 95 (1)
(g) the preliminary enquiry was not held
by the District Panchayat Raj officer
under the statutory Rules 1997 nor the
explanation of the petitioner was called
for and considered by District Magistrate
before passing the impugned orders as
envisaged under section 95 (1) (g) of the
said Act-the orders impugned are perse
illegal (Held in Para 11.)

In the present case, the order impugned
passed by District Magistrate depriving
the petitioner from his financial and
administrative powers and functions and
appointment
of
three
members
Committee is founded on a report
submitted by the Assistant Engineer
PWD, Pilibhit. Which is perse illegal
within the meaning of Rules 2 (c), 4 and
5 of the Rules of 1997. The District
Magistrate has no jurisdiction to deny
reasonable opportunity of showing cause
to the petitioner before passing the
impugned order as envisaged under
second proviso of Section 95 (1) (g) of
Act of 1947.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
198
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2002

BEFORE
THE HON'BLE R.R. YADAV, J.

Civil Misc. Writ Petition No. 231 of 2002

Chandrajit Raj Bhar

...Petitioner
Versus
District Magistrate and others

 ...Respondents

Counsel for the Petitioner:
Sri R.N. Sharma

Counsel for the Respondents:
Sri Ateeq Ahmad Khan
S.C.

U.P. Panchayat Raj Act-section 95 (1)
(g) the preliminary enquiry was not held
by the District Panchayat Raj officer
under the statutory Rules 1997 nor the
explanation of the petitioner was called
for and considered by District Magistrate
before passing the impugned orders as
envisaged under section 95 (1) (g) of the
said Act-the orders impugned are perse
illegal (Held in Para 11.)

In the present case, the order impugned
passed by District Magistrate depriving
the petitioner from his financial and
administrative powers and functions and
appointment
of
three
members
Committee is founded on a report
submitted by the Assistant Engineer
PWD, Pilibhit. Which is perse illegal
within the meaning of Rules 2 (c), 4 and
5 of the Rules of 1997. The District
Magistrate has no jurisdiction to deny
reasonable opportunity of showing cause
to the petitioner before passing the
impugned order as envisaged under
second proviso of Section 95 (1) (g) of
Act of 1947.

(Delivered by Hon'ble R.R. Yadav. J.)

1. Heard the learned counsel for the
petitioner.

2. Perused the averments made in
the Writ Petition.

3. The present petition is posted
today for admission. but with the consent
of the learned counsel for the parties I
propose to decide it on merits at
admission stage.

4. By filing the instant writ petition
the petitioner is seeking a relief for
quashing the order impugned dated
2.11.2001
(Annexure-8
to
the
writ
petition) and order dated 26.12.2001
passed by the District Magistrate, Pilibhit
under Section 95 (I) (g) of U.P. Panchayat
Raj Act, a copy whereof is filed and
marked as Annexure 10 to the writ
petition, on the ground interalia that no
preliminary enquiry has been held against
him by District Panchayat Raj Officer
under the Uttar Pradesh Panchayat Raj
(Removal of Pradhans, Up. Pradhans and
Members)
Enquireis
Rules
1997
(hereinafter referred as Rules of 1997) to
arrive at a prima facie conclusion that he
has
committed
financial
and
other
irregularities and no opportunity of
showing cause has been afforded to him
against the action proposed within the
meaning of second proviso of Section 95
(1) (g) of U.P. Panchayat Raj Act. (herein
after referred as Act of 1947) which
provides that no action shall be taken
under clause (f) and clause (g) except
after giving to the body or person
concerned a reasonable opportunity of
showing
cause
against
the
action
proposed. By order dated 2.11.2001 the
petitioner is deprived of to perform his
1All] Chandrajit Raj Bhar V. District Magistrate, Pilibhit and others
199
financial and administrative powers and
functions where as by order dated
26.12.2001 three members committee is
ordered to be appointed to perform
financial and administrative powers and
functions until petitioner is exonerated of
the charges in the final enquiry.

5. It is evident form a bare perusal of
the order impugned in the present case
that the preliminary enquiry was not held
by the District Panchayat Raj Officer
under the statutory Rules 1997 nor the
explanation of the petitioner was called
for and considered by District Magistrate
before passing the impugned orders as
envisaged under Section 95 (1) (g) of the
said Act, I am of the view that both the
orders impugned are perse illegal of the
ground discussed here in below.

6. Rule 4 of the Rules of 1997
provides that District Magistrate on whom
power of State Government is delegated
on the receipt of complaint or report
referred to in Rule 3 or otherwise order to
the District Panchayat Raj Officer to
conduct a preliminary enquiry with a view
to finding out if there is prima facie case
for a formal final enquiry in the matter.
Under sub-rule (2) of Rule 4 of the Rules
of 1997 the District Panchayat Raj Officer
is to conduct the preliminary enquiry as
expeditiously as possible and submit his
report to the District Magistrate within
fortnight of his having been so ordered by
District Magistrate.

7. Rule 5 of the Rules 1997 further
provides
that
where
the
District
Magistrate is of the opinion, on the basis
of the report referred to in sub rule (2) of
Rule 4 or otherwise that a final enquiry
should be held against a pradhan or UPPradhan or Member under the proviso to
clause (g) of subsection (1) of Section 95
it shall by an order ask the Enquiry
Officer to hold the final enquiry. The
Expression Enquiry Officer has been
defined under section 2 (C) of the Rule of
1997. The Rule 2 (C) of the said Rules
reads as under:

"2 (c) 'Enquiry Officer' means an
officer not below the rank of District
Panchayat Raj Officer., appointed as such
by the State Government."

8. It is not disputed before this Court
that power of State Government is
delegated to all District Magistrates of
State.

9. A Close scrutiny of Section 95 (1)
(g) of Act of 1947 reveals that under the
aforesaid Section the first action is
contemplated to 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 Srpanch or a Nayaya
Panchyat on the grounds enumerated
under subclauses (I) to (V), whereas
under first proviso of the said Section
another action is contemplated in between
initiation of proceeding for removal and
actual removal of a Pradhan or Up
Pradhan
to
deprive
him
from
his
administrative and financial powers and
functions. It is further provided that after
passing of order under Section 95 (I) (g)
of the Act 1994, a 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 District
Magistrate. Thus after passing of order
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
200
under Section 95 (1) (g) by District
Magistrate depriving a Pradhan Up
Pradhan
from
his
financial
and
administrative
powers
and
functions
during the pendency of final enquiry of
removal, financial and administrative
powers of a Pradhan or Up Pradhan is to
be
exercised
and
performed
by
a
Committee consisting of three members
of Gram Panchayat appointed by District
Magistrate provided in a preliminary
enquiry held by an officer not below the
rank of District Panchayat Raj Officer, a
Pradhan or Up Pradhan is prima facie
found to have committed financial or
other irregularities.

10. A conjoint reading of Section 95
(I) (g) of Act of 1947 read with Rules 2
(c), 4 and 5 of the Rules of 1997 leads
towards an inescapable conclusion that
the District Magistrate considering the
preliminary enquiry report submitted by
the District Panchayat Raj Officer and
explanation if any submitted by a Pradhan
or Up Pradhan is to pass a speaking order
either depriving a Pradhan or Up Pradhan
from
performing
his
financial
and
administrative powers and functions or
refused to pass such order on merits of
each. It is held that a Pradhan or Up
Pradhan can not be deprived of his
financial and administrative powers and
functions in a perfunctory manner as has
been done in the present case against the
mandatory provisions envisaged under
section 95 (I) (g) of Act of 1947 and
statutory Rule of 1997, unless statutory
preliminary enquiry is held by the District
Panchayat Raj Officer and in that enquiry
he is prima facie found to have committed
financial
and
other
irregularities.
Secondly the Pradhans or Up Pradhans
before being deprived of to perform their
financial and administrative powers and
functions are also entitled to show cause
to the preliminary enquiry where in prima
facie they are found to have committed
financial or other irregularities. Thirdly,
after receipt of preliminary enquiry report
from District Panchayat Raj Officer, if in
such preliminary enquiry a Pradhan or Up
Pradhan is prima facie found to have
committed
financial
and
other
irregularities a copy of preliminary
enquiry is to be made available to such
delinquent Pradhan or Up Pradhan asking
his explanation, but if in preliminary
enquiry conducted by District Panchayat
Raj Officer nothing is found against him,
question of depriving of financial or
administrative powers and functions does
not arise.

11. In the present case, the order
impugned passed by District Magistrate
depriving the petitioner for his financial
and administrative powers and functions
and appointment of three members
Committee is founded on a report
submitted by the Assistant Engineer
P.W.D. Pilibhit, which is perse illegal
within the meaning of Rules 2 (c) 4 and 5
of the Rules of 1997. The District
Magistrate has no jurisdiction to deny
reasonable opportunity of showing cause
to the petitioner before passing the
impugned order s envisaged under second
proviso of Section 95 (1) (g) of Act of
1947.

12.

As
a
result
of
the
aforementioned discussion the instant writ
petition succeeds and it is allowed. The
enquiry report submitted by the Assistant
Engineer P.W.D. Pilibhit and the order
passed by the District Magistrate dated
2.11.2001
(Annexure-8
to
the
writ
petition) are hereby quashed. The matter
is sent back to the District Magistrate
1All] Bobby alias Javed Khan and another V. State of U.P. and others
201
Piliphit to pass an order in accordance
with law in the light of observations made
herein above in body of order.

13. Till order in accordance with law
is not passed by District Magistrate,
Pilibhit, the respondents are hereby
restrained from interfering in exercising
and
performing
the
financial
and
administrative powers and functions of
the petitioner as elected village Pradhan
of Gram Panchayat Bundhi Bhur Block
Puranpur District Piliphit.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2002

BEFORE
THE HON'BLE S.R. SINGH, J.
THE HON'BLE R.K. DASH, J.

Civil Misc. Writ Petition No. 44 of 2002

Bobby alias Javed Khan and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Nasiruzzaman

Counsel for the Respondents:
A.G.A.

Constitution
of
India
Article
226
Directions issued to all the Chief Medical
Officers/ Superintendents to be followed
before issuing age certificate of a girl
any violation thereby may entail serious
consequences.

(Held is para 9).

Coming to the present case, we are of
the considered opinion that the FIR in
case crime no.321 of 2001 P.S. Sirsaganj
District Firozabad under Section 363 and
366 IPC cannot be quashed. It is,
however, provided that arrest of the
petitioners shall be stayed for a period of
six weeks from today within which they
shall produce km. Sangeeta before the
investigating officer who shall get her
medically
examined
by
way
of
ossification test for ascertaining her age
besides recording her statement under
Section 161 Cr.P.C. on receipt of the
medical report, the investigating officer
will
be
free
to
proceed
with
the
investigation in the manner as provided
under law.

(Delivered by Hon'ble R.K. Dash, J.)

1. These two petitioners arraigned as
accused for the offence punishable under
Sections 363 and 366 I.P.C. in case crime
no. 321 of 2001 P.S. Sirsaganj District
Firozabad have filed this writ petition
under Article 226 of the Constitution
seeking
quashing
of
the
FIR
and
restraining the police to arrest them in the
aforesaid
case.
Briefly
stated
the
prosecution case as borne out from the
FIR, copy where of at annexure-5, is that
on 12th November, 2001 Km Sangeeta
aged about 14 years daughter of Sanjeev
Kumar, the informant had been to market
during day hours but did not return. A
search was made in course of which two
persons namely, Sunil and Shivkant
disclosed that they had seen Sangeeta
going with present petitioners. The
informant made a written complaint to the
police on the basis of which the aforesaid
case has been registered under Section
363 and 366 I.P.C.

2. The case of the petitioners as
stated in the writ petition is that the
informant, father of Sangeeta was tenant
under their father and both the families
had cordial relationship. Both Javed khan
and Sangeeta were intensely lovelorn
which
drove
them
to
a
marriage.