# Ram Naresh Verma v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 372
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-11
- **Case number:** Writ-C No. 11008 of 2023
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-verma-v-state-of-u-p-ors-50437
- **Pages:** 7

## Headnote

A. Local Body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - UP Panchayat
Raj (Removal of Pradhans, Up-Pradhans
and Members) Enquiry Rules, 1997 -
Rules 3, 4 & 5 - Removal of Pradhan -
Seizure of administrative and financial
power - Preliminary enquiry - Block
Development
Officer
constituted
the
enquiry committee, on the report of which
the
District
Magistrate
passed
the
impugned order of seizing the power -
Permissibility - Held, the preliminary
enquiry as is required to be conducted by
an Enquiry Officer contemplated under
Rule 2(c) of the Rules, 1997 namely either
the District Panchayat Raj Officer or any
other district level officer to be nominated
by the District Magistrate, has not been
conducted in the present case - An
elected representative can be removed
only and strictly in accordance with law -
The enquiry report dated 14.11.2022 can
only be treated as a complaint made by
the Block Development Officer, i.e. public
servant - High Court quashed the
impugned order declaring it bad in law.
(Para 24, 26, 27 and 28)

B. Interpretation of Statute - Circular -
Contradiction with the provision of an Act
and Rules - Applicability - Held, Circular
dated 28.02.2014 cannot prevail over the
provisions of the relevant Act and Rules as
the same is having no statutory force.
(Para 25)
C. Practice and Procedure - Constitution
of India,1950 - Article 226 - Writ - Matter
arising out of the action against the Gram
Pradhan - Locus standi of a member of
Gaon Sabha - Impleadment sought -
Permissibility
-
High
Court
rejected
impeadment application of the person
claiming as a member of Gaon Sabha -
Narendra Kumar's case relied upon. (Para
2 and 3)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

372 INDIAN LAW REPORTS ALLAHABAD SERIES

42. The writ petition is accordingly,
dismissed.

43. No order as to cost.
----------
(2023) 7 ILRA 372
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2023

BEFORE

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

Writ-C No. 11008 of 2023

Ram Naresh Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anant Vijay, Sri Ishir Sripat, Sri Pramod
Kumar Srivastava, Sri Shiv Singh, Sri Rahul
Sripat (Senior Adv.)

Counsel for the Respondents:
C.S.C.

A. Local Body - UP Panchayat Raj Act,
1947 - Section 95 (1)(g) - UP Panchayat
Raj (Removal of Pradhans, Up-Pradhans
and Members) Enquiry Rules, 1997 -
Rules 3, 4 & 5 - Removal of Pradhan -
Seizure of administrative and financial
power - Preliminary enquiry - Block
Development
Officer
constituted
the
enquiry committee, on the report of which
the
District
Magistrate
passed
the
impugned order of seizing the power -
Permissibility - Held, the preliminary
enquiry as is required to be conducted by
an Enquiry Officer contemplated under
Rule 2(c) of the Rules, 1997 namely either
the District Panchayat Raj Officer or any
other district level officer to be nominated
by the District Magistrate, has not been
conducted in the present case - An
elected representative can be removed
only and strictly in accordance with law -
The enquiry report dated 14.11.2022 can
only be treated as a complaint made by
the Block Development Officer, i.e. public
servant - High Court quashed the
impugned order declaring it bad in law.
(Para 24, 26, 27 and 28)

B. Interpretation of Statute - Circular -
Contradiction with the provision of an Act
and Rules - Applicability - Held, Circular
dated 28.02.2014 cannot prevail over the
provisions of the relevant Act and Rules as
the same is having no statutory force.
(Para 25)
C. Practice and Procedure - Constitution
of India,1950 - Article 226 - Writ - Matter
arising out of the action against the Gram
Pradhan - Locus standi of a member of
Gaon Sabha - Impleadment sought -
Permissibility
-
High
Court
rejected
impeadment application of the person
claiming as a member of Gaon Sabha -
Narendra Kumar's case relied upon. (Para
2 and 3)

Writ petition allowed. (E-1)

List of Cases cited:

1. Narendra Kumar Vs St. of U.P. & ors.;
2013(1) ADJ 228

2. Writ C No. 30938 of 2018; Mahmood Ansari
Vs St. of U.P. & ors. decided on 21.12.2018

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

1. This impleadment application has
been filed by one of the members of the
Gaon Sabha.

2. Learned counsel for the petitioner
submits that member of the Gaon Sabha
cannot file a petition as he has no locus and
has placed reliance upon the judgment of
this Court in the case of Narendra Kumar
vs. State of U.P. and others reported in
2013(1) ADJ 228.
7 All. Ram Naresh Verma Vs. State of U.P. & Ors.
373

3. In view of the above, the
impleadment application is rejected.

Order on the writ petition

1. Heard Sri Rahul Sripat, learned
Senior Advocate assisted by Sri Ishir
Sripat, learned Advocate, learned counsel
for the petitioner and Sri P.K. Giri, learned
Additional Advocate General assisted by
Sri Rishi Kumar, learned Additional Chief
Standing Counsel for the State-respondents.

2. This writ petition has been filed by
the petitioner with a prayer to quash the
impugned order dated 23.03.2023 passed
by District Magistrate, District-Chitrakoot,
seizing the administrative and financial
power of the petitioner as Gram Pradhan
and appointing three members committee
for discharging the duty of Gram Pradhan.

3. The facts, in brief, are that the
petitioner was duly elected as Gram
Pradhan
in
Village-
Pahari
Bujurg,
District-Chitrakoot
in
the
general
panchayat election held in the year 2021.
Subsequently, some irregularities were
found in the maintenance of Gaushala by
the concerned Block Development Officer,
therefore, to enquire about the matter, the
Block Development Officer entrusted the
same to a three member committee and
accordingly, the committee submitted a
report/complaint by letter dated 29.11.2022
informing the Chief Development Officer,
Chitrakoot that the Gram Pradhan and
Gram Panchayat Adhikari are not taking
interest in the work under the "Swachha
Bharat Mission". The aforesaid complaint
dated 14.11.2022 as well as letter dated
29.11.2022 was submitted before the
District Magistrate, Chitrakoot, who in
turn, vide order dated 30.12.2022, after
recording prima facie satisfaction regarding
dereliction of duty as per Section 95 (1) (g)
of the Uttar Pradesh Panchayat Raj Act,
19471 (hereinafter referred to as ''the Act,
1947''), issue notice calling upon the
petitioner
to
submit
his
explanation
alongwith relevant documents within 28
days. Pursuant to the aforesaid notice dated
30.12.2022,
the
petitioner
submitted
explanation through registered post dated
16.01.2023,
which
was
received
on
23.01.2023 in the office of District
Magistrate, Chitrakoot. After considering
the explanation as submitted by the
petitioner,
the
District
Magistrate,
Chitrakoot, based on the complaint of the
Block Development Officer, found that the
petitioner was prima facie guilty of
misusing his post and he in totality failed to
fulfil the duty and responsibilities attached
to his post and passed the order dated
23.03.2023 seizing his power to exercise
financial
and
administrative
functions
under ''the Act, 1947''. Hence the present
writ petition has been filed.

4. Learned counsel for the petitioner
submits that as per the provisions of
Section 95 (1)(g) of the U.P. Panchayat Raj
Act, 1947, which provides for the removal
of Pradhan, the District Magistrate is
empowered to pass an order of removal of
an elected Pradhan and pending final
enquiry, the financial and administrative
functions are to be performed by a
Committee consisting of three Members as
indicated in the proviso of Section 95(1)(g)
of "the Act, 1947". The learned counsel for
the petitioner has drawn the attention of
this Court to Rule 3 of the U.P. Panchayat
Raj (Removal of Pradhans, Up-Pradhans
and Members) Enquiry Rules, 19972
(hereinafter referred as "the Rule"), which
provides for a complaint to be made by a
complainant duly supported by an affidavit
of the complainant as well as the affidavit
374 INDIAN LAW REPORTS ALLAHABAD SERIES
of any other person from whom the
information is said to have derived.

5. Rule 4 of the said Rules provides
for the manner in which the District
Magistrate shall proceed after the receipt of
the complaint referred to in Rule 3. The
provision of Rule 4 is that on receiving a
report referred to in Rule 3, the State
Government or the District Magistrate shall
order an enquiry to be conducted known as
'preliminary enquiry' with a view to
finding, if there is prima-facie case for a
proper enquiry in the matter. The said
enquiry is to be conducted by Enquiry
Officer. The term of Enquiry Officer is
defined in Section (2) (c) of the Rules
which defines Enquiry Officers means
Deputy Panchayat Raj Officer or any other
District level officer, to be nominated by
the District Magistrate.

6. It is relevant to quote here Rule 2
(c) of the Rule, 1997, which reads as
under:-

"Enquiry Officer'
means
the
District Panchayat Raj Officer or any other
district level officer, to be nominated by the
District Magistrate."

7. In view of the specific provisions
of the Rules, counsel for the petitioner has
argued that the Rules are mandatory and
the Enquiry Officer who has conducted the
enquiry
and
on
whose
enquiry
the
impugned order has been passed is not an
officer, who is competent under the Rules
and thus, the impugned order relying upon
an enquiry which is without jurisdiction, is
liable to be held bad in law.

8. Learned counsel for the petitioner
further submits that in the present case, it is
the Block Development Officer, who has
constituted
a
committee
to
conduct
preliminary
enquiry,
which
is
clear
violation of the provisions of the aforesaid
rule as the Block Development Officer
cannot be taken as enquiry officer as
defined Rules 2(c) of Rules 1997.

9. Learned counsel for the petitioner
has drawn attention of the Court to the
proviso of Section 95 (1)(G) of the Act,
1947, which provides that where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pradhan or
Up-Pradhan is prima facie found to have
committed financial and other irregularities
such Pradhan or Up-Pradhan shall cease to
exercise and perform the financial and
administrative powers and functions, which
shall, until he is exonerated of the charges
in the final enquiry, be exercised and
performed by a Committee consisting of
three
members
of
Gram
Panchayat
appointed by the State Government.

10.

Explaining
the
aforesaid
provision, learned counsel for the petitioner
submits that as the alleged preliminary
enquiry has not been conducted in the
manner as provided in the Rules 1997,
therefore, the impugned order cannot be
sustained. However, ignoring the aforesaid,
if the enquiry conducted by the committee
constituted by the Block Development
Officer is accepted, no prima facie
satisfaction has been recorded by the
District Magistrate, Chitrakoot regarding
any financial irregularities done by the
Gram Pradhan. Thus the impugned order
cannot be sustained on the aforesaid ground
also.

11. In support of his submissions,
learned counsel for the petitioner has relied
upon the judgement of this Court in the
case of Mahmood Ansari vs. State of U.P.
7 All. Ram Naresh Verma Vs. State of U.P. & Ors.
375
and others. He lastly submits that prima
facie, the allegations levelled against the
petitioner do not invoke any clause of
Section 95(1)(G) of the Act, 1947, thus the
impugned order dated 23.03.2023 is liable
to be set aside.

12. On the other hand, learned
Standing Counsel submits that there is no
illegality in the order impugned in view of
Rule 3 (6) of the Rules 1997. It is relevant
to quote here Rule 3 of the Rule, 1997,
which reads as under:-

"3.
Procedure
relating
to
complaints.- (1) Any person making a
complaint against a Pradhan or UpPradhan may send his complaint to the
State
Government
or
any
officer
empowered in this behalf by the State
Government.

(2) Every complaint referred to in
sub-rule (1) shall be accompanied by the
complainant's own affidavits in support
thereof and also affidavits of all persons
from whom he claims to have received
information of facts relating to the
accusation, verified before a notary,
together
with
all
documents
in
his
possession or power pertaining to the
accusation."

(3) Every complaint and affidavit
under this rule as well as any schedule or
annexure thereto shall be verified in the
manner laid down in the Code of Civil
Procedure, 1908, for the verification of
pleadings and affidavits, respectively.

(4) Not less than three copies of
complaint as well as each of its annexures
shall be submitted by the complainant.

(5) A complaint which does not
comply
with
any
of
the
foregoing
provisions of this rules shall not be
entertained.

(6) It shall not be necessary to
follow the procedure laid down in the
foregoing provisions of this rule, if a
complaint against a Pradhan or UpPradhan is made by a public servant."

13. Learned Standing Counsel,
therefore, submits that in the present case
where the complaint is made by the Block
Development Officer, who in order to
verify as to whether the petitioner has
failed to perform the duty imposed by the
Act, constituted a three member committee,
wherein it was found that in the concerned
Gram Panchayat Bujurg 395 progeny
(Govansh) were preserved in the Mandi
Samiti Campus, Pahari, but in the morning
of 14.11.2022 at about 10:00 a.m., they
were made to run away, hence the
petitioner
has
not
co-operated
in
functioning of the aforesaid Gaushala. Thus
the aforesaid report being placed by the
Block Development Officer before the
Chief Development Officer as well as the
District Magistrate, Chitrakoot, can be
taken as a complaint by the public servant.
Hence as per the rule 3 (6) of the Rules
1997, the same can be treated as a
complaint.

14. As regards the argument placed
by the learned counsel for the petitioner
regarding the fact that the financial and
administrative powers of the Pradhan
cannot be seized unless there is financial
irregularities, learned Standing Counsel
submits that in the proviso of Section
95(1)(g) of the Act, 1947 itself the word
"other
irregularities"
included,
the
aforesaid situation wherein the petitioner
has not performed his duties and has
abused
his
position.
Therefore,
the
aforesaid provision is attracted in the facts
of the present case. He has drawn attention
376 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Court to Rule 95 (1)(g) of the Act,
1947, which is as follow:-

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

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

i-
absents
himself
without
sufficient cause for more than three
consecutive meetings or sittings.

ii- refuses to act or becomes
incapable of acting for any reason
whatsoever or if he is accused of or
charged for an offence involving moral
turpitude.

iii- has abused his position as
such or has persistently failed to perform
the duties imposed by this Act or rules
made thereunder or his continuance as
such is not desirable in public interest, or

[iii-a has taken the benefit of
reservation under sub-section (2) of Section
11-A or sub-section (5) or Section 12, as
the case may be, on the basis of a false
declaration subscribed by him stating that
he is a member of Scheduled Castes, the
Scheduled Tribes or the backward classes,
as the case may be.]

iv- being a Sahayak Sarpanch or
a Sarpanch of the Nyaya Panchayat takes
active part in politics, or

v- suffers from any of the
disqualifications mentioned in Clauses (a)
to (m) of Section 5-A;

Provided that where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pradhan
or Up-Pradhan is prima facie found to
have
committed
financial
and
other
irregularities
such
Pradhan
or
UpPradhan 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."

15. He, therefore, submits that in the
present situation, the petitioner has not
performed his duty of looking into the
proper functioning of the Gaushala from
where the cattles were made to run, thus
there is no illegality in the order impugned
passed by the respondent no.2.

16. He has also drawn attention of the
Court to para 3 of the Circular Dated
28.02.2014 issued by the State Government
to all the District Magistrates, which is as
under:-

"3. प्रारूंलभक जाूंच के आधार पर या
अन्यर्ा जहाँ राज्य सरकार/जजला मजजस्रेट की
यह राय हो फक धारा 95 की उपधारा (1) के खूंड
(छ) के प्रनतबन्धात्मक खूंड के अधीन फकसी
प्रधान या उप प्रधान के ववरुद्ध जाँच की जानी
चाहहए अर्ाघत की गयी फकसी प्रारूंलभक जाूंच में
प्रधान
प्रर्म
दृष्टट्या
ववत्तीय
और
अन्य
अननयलमतता का दोर्ी पाया जाए, वहाूं ऐसा प्रधान
ववत्तीय और प्रशाशननक शजक्तयों का प्रयोग और
कृत्यो का सूंपादन नहीूं करेगा और जब तक की
वह अूंनतम जाूंच में आरोपों से मुक्त न हो जाये,
ऐसी शजक्तयों का प्रयोग और कृत्यो का सूंपादन
राज्य सरकार/जजला मजजस्रेट द्वारा इस ननलमत्त
ननयुक्त ग्राम पूंचायत के तीन सदस्यों की एक
सलमनत द्वारा फकया जायेगा"

17. As per the aforesaid circular, the
financial and administrative powers of the
7 All. Ram Naresh Verma Vs. State of U.P. & Ors.
377
Pradhan can be seized, when State
Government/District
Magistrate
records
prima facie satisfaction and finds, on the
basis of preliminary enquiry or otherwise,
that the Pradhan has committed financial
and other irregularities. Therefore, no
illegality, infirmity or perversity is found in
the impugned order, hence no interference
is required by this Court.

18. To the aforesaid submission,
learned counsel for the petitioner submits
that the Circular dated 28.02.2014 as relied
upon the learned Standing Counsel does
not have statutory force as the same is
simply guidelines/directions to be followed
while conducting an enquiry against the
Pradhan on the complaint made in
accordance with the provision of Rule 3 of
the Rules 1997.

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

20. Perusal of the records goes to
show that the Block Development Officer
has constituted a committee to enquire into
the conduct of the petitioner and the same
has been placed before the District
Magistrate, Chitrakoot relying upon which
the impugned order has been passed.

21. This Court feels that though the
aforesaid complaint may be treated as
proper complaint as per Rule 3 of the
Rules, 1997 by a public servant, the District
Magistrate, Chitrakoot, on the receipt of the
complaint or report referred to in Rule 3, or
otherwise, order the Enquiry Officer to
conduct a preliminary enquiry with a view
to find out if there is a prima facie case for
a formal enquiry in the matter. Under Rule
5 of the Rules, 1997, 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 an enquiry should be
held against a Pradhan or Up-Pradhan or
Member, he shall forthwith constitute a
Three Member Committee and by an order
ask an Enquiry Officer, other than the
Enquiry Officer nominated earlier, to hold
the enquiry. The enquiry officer for
conducting the preliminary enquiry should
be the District Panchayat Raj Officer or any
other 'district level officer' to be nominated
by the District Magistrate.

22. It is, therefore, to be examined
whether the aforesaid provisions of the
Rules had been followed by the District
Magistrate while passing the order under
Section 95(1)(g) of the Act.

23. The records indicate that the
Block Development Officer on receiving
some complaint, in order to verify the same
constituted a three member committee, and
the report of the committee was placed
before the District Magistrate, on the basis
of which, impugned order has been passed.

24. The preliminary enquiry as is
required to be conducted by an Enquiry
Officer contemplated under Rule 2(c) of
the Rules, 1997 namely either the District
Panchayat Raj Officer or any other district
level officer to be nominated by the District
Magistrate, has not been conducted in the
present case. The District Magistrate could
found his prima facie satisfaction for
holding a final enquiry only on the basis of
the report submitted by the Enquiry Officer
defined under Rule 2(c) of the Rules, 1997.

25. As regards the Circular dated
28.02.2014 as mentioned in the order
impugned, the Court is of the opinion that
the same cannot prevail over the provisions
of the relevant Act and Rules as the same is
378 INDIAN LAW REPORTS ALLAHABAD SERIES
having no statutory force and being simply
a
direction
issued
by
the
Chief
Secretary/State Government to be followed
by all the District Magistrates while
conducting enquiry against the Pradhan.

26. This Court finds that the report
dated 14.11.2022 placed by the Block
Development Officer before the District
Magistrate, Chitrakoot can be treated as
proper complaint as per Sub-rule (6) of
Rule 3, hence the District Magistrate,
Chitrakoot ought to have appointed an
Enquiry Officer under Rule 2(c) of the Rule
1997 to conduct a preliminary enquiry.

27. 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. The enquiry report
dated 14.11.2022 can only be treated as a
complaint made by the Block Development
Officer, i.e. public servant. However, the
error in the impugned order is apparent to
the extent that the Inquiry Committee
constituted is not in terms of rule 2-C of the
Rules, 1997 and the order impugned is
based upon the said enquiry report dated
14.11.2022, therefore, the order impugned
is held to be bad in law.

28. In view of the above, the
impugned order dated 23.03.2023 passed
by the respondent no.2 seizing financial
and administrative powers of the petitioner
is hereby quashed. However, the District
Magistrate/Collector, i.e. respondent no.2 is
directed to proceed afresh with the inquiry
by constituting an Inquiry Committee or
appoint an Inquiry Officer in terms of rule
2-C of the Rules, 1997 within 15 days on
receipt of a certified copy of this order,
who shall, thereafter, conduct an enquiry in
the matter with the assistance of other
Revenue officers/authorities as the District
Magistrate may provide and submit the
inquiry report to the District Magistrate
within a period of next four weeks. Based
on such inquiry report, after following
proper procedure, a decision shall be taken
by the District Magistrate under the proviso
to Section 95(1)(g) of the Act, 1947 read
with the Rules, 1997 as to whether the
financial and administrative powers of the
petitioner are required to be seized or not?
Consequences shall follow accordingly, in
accordance with law.

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

30. 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,
Chitrakoot
for
compliance.
----------
(2023) 7 ILRA 378
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ-C No. 12380 of 2023

Windsor
Park
Residents
Welfare
Association ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Abhijeet
Mukherji,
Ms.
Sushmita
Mukherjee

Counsel for the Respondents: