# Raj Kumar Singh v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-04
- **Case number:** Civil Misc. Writ Petition No.55108 of 2013
- **Bench:** V.K.Shukla, Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-singh-v-state-of-u-p-and-ors-42713
- **Pages:** 10

## Headnote

Rules
1997-Rule
3,4,6(16)-Petition
against
revocation
of
ceasing
financial
&
administrative
power
of
pradhan-based
upon
enquiry
report-challenged
by
complainant-whether can be treated as
'aggrieved person'?-held-No-objector can
participate in regular enquiry but can not
challenge the revocation of suspension
order-petition dismissed.

Held: Para-35
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

Case Law discussed:
2006(3) AWC 2787; (1975) 2 SCC 702, 71011; AIR 2005 AP 45,49; (2012) 4 SCC 407;
(2013) 4 SCC 465, 466; 2008(2) AWC
2002:(2008) 2 UPLBEC 1256; 2005(4) AWC
3563; 2011(3) ADJ 502; 2010(10) ADJ 11.

## Text

3 All] Raj Kumar Singh Vs. State of U.P. and Ors.
1395
CPC are with relation to the petitioner who is
in possession of the property at the instance
of the erstwhile decree holder and are to be
determined by the Executing Court which
shall have jurisdiction to decide such
questions. Therefore in view of the amended
provision of Rule 101 of Order XXI CPC the
court below could not deny an opportunity to
the petitioners obstructor to lead oral or
documentary evidence for the purpose of
proving his right, title and interest which
according to the petitioners has been disputed
and denied by the respondents.

19. In view of the aforesaid, the
impugned order dated 24.09.2013 passed by
the Executing Court in RM-100 of 2013
arising out of Execution Case No.15 of 1998
cannot
be
sustained.
The
petitioners
obstructor who is in possession through
erstwhile decree holder is therefore entitled
to lead oral and documentary evidence for
the purpose of prove of his right and interest
before the Executing Court. In view of the
aforesaid circumstances, the writ petition is
disposed of as under:-

20. The impugned order dated
24.09.2013 passed by the Civil Judge (Sr.
Division) Hathras in RM-100 of 2013 arising
out of Execution Case No.15 of 1998 is set
aside and as already observed above he is
entitled to lead his oral and documentary
evidence. The Executing Court is required to
consider the application paper no.21-C-2 of
the petitioner in accordance with law keeping
in mind the amended provision of Rule 101
of Order XXI CPC.

21. The petitioner cannot be
dispossessed unless the questions that
have arisen in his application under Order
XXI Rule 97 CPC are decided under Rule
101 of Order XXI CPC and otherwise in
accordance with law.

22. It is made clear that this Court
has not adjudicated on the claim made by
the petitioner of having status of a tenant
in the property and that has to be done by
the appropriate Court.

23. As prayed by learned counsel for
the parties, since the matter is quite old it
is expected that the Executing Court shall
decide it as expeditiously as possible
without
granting
any
unnecessary
adjournments to any of the parties and in
accordance with law.

24. No order is passed as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2013

BEFORE
THE HON'BLE V.K.SHUKLA, J.
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No.55108 of 2013

Raj Kumar Singh

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Amit Kr. Rai

U.P.Panchayat Raj(Removal of PradhansUP-Pradhan
&
Members)enquiry
Rules
1997-Rule
3,4,6(16)-Petition
against
revocation
of
ceasing
financial
&
administrative
power
of
pradhan-based
upon
enquiry
report-challenged
by
complainant-whether can be treated as
'aggrieved person'?-held-No-objector can
participate in regular enquiry but can not
challenge the revocation of suspension
order-petition dismissed.

Held: Para-35
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

Case Law discussed:
2006(3) AWC 2787; (1975) 2 SCC 702, 71011; AIR 2005 AP 45,49; (2012) 4 SCC 407;
(2013) 4 SCC 465, 466; 2008(2) AWC
2002:(2008) 2 UPLBEC 1256; 2005(4) AWC
3563; 2011(3) ADJ 502; 2010(10) ADJ 11.

(Delivered by Hon'ble Suneet Kumar, J.)

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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
3 All] Raj Kumar Singh Vs. State of U.P. and Ors.
1397
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."

7. 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.

8. 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.

9. 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.

10. 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
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
Members)
Enquiry
Rules,
1997
hereinafter referred to as Rules.

11. 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.

12. 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.

13. 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.

14. 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.

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

16. 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)

17. 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.

18. 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).

19. 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.

20. 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
3 All] Raj Kumar Singh Vs. State of U.P. and Ors.
1399
morality. (Bar Council of Maharashtra v.
M.V.Dabholkar, (1975) 2 SCC 702, 71011, paras 27 & 28).

21. 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)

22.

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.

23. 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 &
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

24. 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.

25. 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)."

26. After 73th & 74th constitutional
Amendment, the local bodies have been
conferred various powers under Part IX
3 All] Raj Kumar Singh Vs. State of U.P. and Ors.
1401
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."

27.

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 paragraph4 is as follows:

"4. The Act has conferred on the
.........................The petitioner, who is UpPradhan 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
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
have been conferred on any person other
than the person concerned, such as who has
been
suspended
or
removed..............................."

28. 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.

29. 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.

30. 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).

31. 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
3 All] Raj Kumar Singh Vs. State of U.P. and Ors.
1403
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)."

32. 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."

33. 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.
1404 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

34. 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."

35. 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.

36. 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.

37. The writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI,J.

Civil Misc. Writ Petition No. 56427 of 2013

Ghanshyam Prasad

 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents