# S.C. 494 and A.A. Mulla and others v. State of Maharashtra and another

- **Citation:** (2005) 2 ILRA 665
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-23
- **Case number:** Civil Misc. Writ Petition No. 49225 of 2005
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-c-494-and-a-a-mulla-and-others-v-state-of-maharashtra-and-another-40516
- **Pages:** 4

## Headnote

U.P. Punchayat Raj Act 1957 Section 95
(1) (g)-readwith U.P. Panchayat Raj
(Removal of Pradhan, Up-Pradhans and
Members) Enquiry Rules 1997-Rule-8Financial and administrative power of
Pradhan-ceasure
by
the
District
Magistrate-No enquiry as per provision
of Rules conducted for long spell of time
of 3 yrs.-held-the authorities failed to act
in conformity with statutory provisionoperation of impugned order quashed-as
the Pradhan are elected by democratic
process-interference must be in strict
conformity with statutory provision.
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
666
Held: Para 5 and 8

The period may not be mandatory but
still the authority are required to act
under law with all promptness in the
proceedings
initiated
against
the
Pradhan under Section 95 (1) (g) proviso
of the U.P. Panchayat Raj Act without
any uncalled for delay. It is to be kept in
mind
that
the
Pradhans
of
Gram
Panchayat are elected by a democratic
process, interference in powers of the
elected representatives of the people by
the administrative authorities must be in
strict conformity with the statutory
provision.

In such circumstances, this Court is
prima facie of the opinion that the
respondent-authorities have failed to act
in
conformity
with
the
statutory
provisions, by not getting a final enquiry
conducted
against
the
Pradhan
(petitioner), by a nominated officer
within reasonable time. Therefore, they
not be permitted to continue with the
ceasation
of
the
financial
and
administrative powers of the Pradhan.
Case law discussed:
1999 (2) UPLBEC-718

## Text

2 All] Shiv Devi V. State of U.P. and others 665
U.P. Vs. Kapil Deo Shukla, A.I.R. 1973
S.C. 494 and A.A. Mulla and others Vs.
State of Maharashtra and another,
1997 J.I.C. 212 (S.C.). In the said cases
reliance was placed on a number of
decisions of the Apex Court. A perusal of
the entire paper book shows that the
identical allegations were levelled against
the applicants four days prior to the
lodging of the instant complaint. The
application before the Additional District
Magistrate dated 26.3.1990, Annexure-6
to the affidavit, it is only narration which
has been given out in the instant
complaint which is Annexure-1 to the
affidavit. It is thus evident that repeated
allegations
at
the
instance
of
the
complainant is nothing short of an abuse
of the process of the court, specially when
the complainant has only narrated his
apprehensions on the basis of the so
called threat said to have been extended
by the applicants, such a long period has
gone by and nothing has come out,
therefore, mere threat to cause the injury
to his person and property is sheer
imagination of the complainant. It is not a
case where serious criminal offences are
alleged
in
the
complaint
and
the
applicants have been kept on waiting for
the outcome of the complainant, specially
the summoning order has been passed
after lapse of 8 years which can not be
overlooked by this Court. It is not a case
where inherent powers have been invoked
immediately
after
lodging
of
the
complaint but they have been summoned
after a considerable long span of eight
years.

6. A bare reading of the complaint in
the present case makes it clear that only
certain
apprehensions
against
the
applicants have been voiced by the
complainant for the reason that his son
and daughter-in-law had left his house
and started living separately. After lapse
of 15 years nothing has happened in
between
and
it
is
apparent
that
continuation of the criminal proceedings
on the basis of impugned complaint will
only amount to an abuse of the process of
the court and therefore, I therefore quash
the complaint which is registered as
Complaint Case No. 1007 of 1990-V.K.
Taneja Vs. Deena Nath Arora and others,
pending in the court of Chief Judicial
Magistrate, Bareilly. This application is
accordingly allowed. Application Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 49225 of 2005

Shiv Devi

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

Counsel for the Petitioner:
Sri M.P. Srivastava

Counsel for the Respondents:
Sri Ashok Srivastava
S.C.

U.P. Punchayat Raj Act 1957 Section 95
(1) (g)-readwith U.P. Panchayat Raj
(Removal of Pradhan, Up-Pradhans and
Members) Enquiry Rules 1997-Rule-8Financial and administrative power of
Pradhan-ceasure
by
the
District
Magistrate-No enquiry as per provision
of Rules conducted for long spell of time
of 3 yrs.-held-the authorities failed to act
in conformity with statutory provisionoperation of impugned order quashed-as
the Pradhan are elected by democratic
process-interference must be in strict
conformity with statutory provision.
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
666
Held: Para 5 and 8

The period may not be mandatory but
still the authority are required to act
under law with all promptness in the
proceedings
initiated
against
the
Pradhan under Section 95 (1) (g) proviso
of the U.P. Panchayat Raj Act without
any uncalled for delay. It is to be kept in
mind
that
the
Pradhans
of
Gram
Panchayat are elected by a democratic
process, interference in powers of the
elected representatives of the people by
the administrative authorities must be in
strict conformity with the statutory
provision.

In such circumstances, this Court is
prima facie of the opinion that the
respondent-authorities have failed to act
in
conformity
with
the
statutory
provisions, by not getting a final enquiry
conducted
against
the
Pradhan
(petitioner), by a nominated officer
within reasonable time. Therefore, they
not be permitted to continue with the
ceasation
of
the
financial
and
administrative powers of the Pradhan.
Case law discussed:
1999 (2) UPLBEC-718

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri M.P. Srivastava,
learned counsel for the petitioner, Sri
Ashok Srivastava, learned counsel for the
respondent no.3 and learned Standing
counsel on behalf of respondent nos. 1
and 2.

Respondents are granted three weeks
time to file counter affidavit. Rejoinder
affidavit may be filed within a week
thereafter.
List on 31st August, 2005.

2. The financial and administrative
of the elected Pradhan, namely, Shiv Devi
(petitioner) were ceased under order of
the District Magistrate, Sonbhadra dated
20th November, 2002. Feeling aggrieved
by the aforesaid order of the District
Magistrate the petitioner filed Civil Misc.
Writ Petition No. 5444 of 2002. In the
said writ petition the Court did not grant
any interim order to the petitioner, the
writ petition is still pending. Subsequently
the District Panchayat Raj Adhikari,
Sonbhadra passed orders dated 31st
March, 2003 and dated 5th April, 2003,
whereby the Pradhan as well as two other
persons namely, District Panchayat Raj
Adhikari and Secretary, were required to
deposit a sum of Rs. 29708/- said to be
loss caused to the Gram Panchayat.
Thereafter the District Magistrate passed
an order dated 23rd December, 2003
restoring the financial and administrative
powers of the Pradhan. Feeling aggrieved
by the said order of the District
Magistrate
Ramvyas
Vishawakarma
(respondent no.3) filed Civil Misc. Writ
Petition No. 162 of 2004 (Ramavyas
Vishwakarma Vs. District Magistrate,
Sonbhadra and others). In the said writ
petition initially an interim order was
granted by this Court on 7th January,
2004. However, the said writ petition was
disposed of finally on 5th March, 2004 by
this Court and order dated 7th January,
2004 was quashed with a direction to the
District Magistrate, Sonbhadra to take
final decision qua in the proceedings
initiated against the Pradhan strictly in
accordance
with
law.
The
District
Magistrate instead of getting final enquiry
conducted
against
the
Pradhan
in
accordance with the U.P. Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members)
Enquiry
Rules,
1997
(hereinafter referred to as the Rules of
1997), has proceeded to pass an order
dated 2nd August, 2004 whereby the
financial and administrative powers of the
2 All] Shiv Devi V. State of U.P. and others 667
Pradhan were restored with a direction
upon the Pradhan to deposit a sum of
Rs.19854/-. The order of the District
Magistrate
dated
2nd
August,
2004
restoring the financial and administrative
powers of the Pradhan was again
challenged before this Court by Sri
Ramvyas Vishwakarma (respondent no.3)
by means of writ petition no. 31601 of
2004. The writ petition filed by the
respondent no.3 was allowed, the order
dated 2nd August, 2004 was quashed vide
judgment and order dated 2nd March,
2005, in view of the provisions of Section
95 (1) (g) proviso of the U.P. Panchayat
Raj Act, 1947 as also in view of the
judgment reported in 1999 (1) UPLBEC
718. The Court in the said judgment
recorded a categorically finding that since
the final enquiry has not been conducted
against the Pradhan and he has not been
exonerated of the charges levelled against
her, therefore, there is no question of
administrative and financial powers of the
Pradhan being restored.

3. The District Magistrate has now
passed an order dated 21st June, 2005 in
alleged compliance of the judgment and
order of this Court dated 2nd March, 2005
whereby the earlier order dated 2nd
August, 2005 has been revoked and the
financial and administrative powers of the
Pradhan have again been ceased by
restoration of the order dated 30th
November, 2002. The order now passed
by the District Magistrate dated 2nd June,
2005
has
been
challenged
by the
petitioner by means of the present writ
petition amongst others on the ground that
under the provisions of Rules of 1997
specific
times
frame
for
holding
preliminary enquiry as well as for holding
final enquiry has been provided. The
authorities cannot keep the enquiry
pending for years and thereby interfere
with the rights of the elected Pradhan on
the basis of preliminary enquiry alone.
In order to appreciate the contention so
raised reference may be had to Rule 8 of
the Rules of 1997, which regulates the
time fixed for holding final enquiry and
reads as follows:

"8. Submitting the report to the
Government.---[Enquiry
Officer
shall
conclude the enquiry within six months
from the date of receipt of complaint and
forward to State Government the records
of the enquiry which shall include----
(a)
the report prepared by him under
Rule-7;
(b)
the written statement of defence, if
any, of the person against whom the
enquiry has been held;
(c)
the oral and documentary evidence
produced during the course of the
enquiry;
(d)
written briefs, if any, filed during
the course of the enquiry; and
(e)
the orders, if any, made by the State
Government
and
the
Enquiry
Officer in regard to the enquiry."

5. The period may not be mandatory
but still the authority are required to act
under law with all promptness in the
proceedings initiated against the Pradhan
under Section 95 (1) (g) proviso of the
U.P. Panchayat Raj Act without any
uncalled for delay. It is to be kept in mind
that the Pradhans of Gram Panchayat are
elected
by
a
democratic
process,
interference in powers of the elected
representatives of the people by the
administrative authorities must be in strict
conformity with the statutory provision.

6. This Court, while entertaining the
present writ petition on 15th July, 2005
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
668
required the learned Standing Counsel to
seek
instructions
from
the
District
Magistrate, Sonbhadra as to whether any
final enquiry in terms of Rule 8 (a) of
the Rules of 1997, in respect of the
proceedings
initiated
against
the
petitioner, Shiv Devi, Pradhan of village
Jhanmsheela, District Sonbhadra, has
been submitted till date or not. The
learned Standing Counsel has made a
statement before this Court today on the
basis of the instructions so received from
the office of the District Magistrate,
Sonbhadra
that
final
enquiry
was
conducted by the Commissioner of
Division against the petitioner and the
Commissioner, in its report has held that
the charges as have been levelled against
the petitioner are found to be corrected.

7. From the instructions so received
by the learned Standing Counsel, it is
apparently clear that final enquiry as
contemplated under the provisions of
Rules of 1997 by a nominated District
Level Officer has not been conducted
against the Pradhan till date nor any final
enquiry report referable to the statutory
rules have been obtained by the District
Magistrate, Sonbhadra. It is further
apparent
that
the
Commissioner
of
Division was not nominated by the
District Magistrate as the district level
officer, to conduct the final enquiry
against the Pradhan under the provisions
of Rule of 1997. A period of three years
have
been
elapsed,
since
the
administrative and financial powers of the
Pradhan under Section 95 (1) (g) proviso
of the Act of 1947 were ceased. Fresh
elections of the Gram Pradhan are to be
held in near future.

8. In such circumstances, this Court
is prima facie of the opinion that the
respondent-authorities have failed to act
in
conformity
with
the
statutory
provisions, by not getting a final enquiry
conducted
against
the
Pradhan
(petitioner), by a nominated officer within
reasonable time. Therefore, they not be
permitted to continue with the ceasation
of the financial and administrative powers
of the Pradhan.

9. The petitioner has made out a
prima facie case for grant of interim
order.

10. Till the next date of listing the
operation of the order dated 2nd June,
2005 passed by the District Magistrate,
Sonbhadra shall remain stayed and
respondents shall not interfere with the
administrative and financial powers of the
Pradhan (petitioner).

11. A copy of this order shall be
supplied to the learned counsel for the
petitioner on payment of usual charges by
27th July, 2005.Interim Order Passed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No.1808 of
2000

Rajdhar

...Applicant
Versus
State of U.P. & others ...Opposite parties

Counsel for the Applicant:
Sri A.K. Srivastava

Counsel for the Opposite Parties:
A.G.A.