# Smt. Shashi Rawat v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Case number:** Misc. Single No. 24283 of 2019
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shashi-rawat-v-state-of-u-p-ors-44610
- **Pages:** 3

## Headnote

Panchayati Raj Act-Section 95(1)(g)-
proceedings u/s.95(1)(g)-initiated by the D.M.
upon a defective complaint as per the Rules,
1997- regarding return of money advanced for
building toilets by 16 doubtful beneficiariespassed an impugned order ceasing petitioner's
(Gram Pradhan)-financial and administrative
powers -DM has discretionary power of
initiating preliminary inquiry even on his own-
writ not maintainable.

Held :- direction to the D.M to endeavour to
pass a final order under section 95(1)(g), after
holding inquiry as per order VI of Rules 1997
within a period of four months. (Para 13)

Writ Petition Disposed of (E-8)

## Text

2 All. Smt. Shashi Rawat Vs State of U.P. & Ors.
1589
have to be taken before the suit can be
completely disposed of. It is final when
such adjudication completely disposes of
the suit. It may be partly preliminary and
partly final; "

15. As can be seen from the definition,
'decree' would mean a formal expression of
adjudication which conclusively determines
the rights of parties and may either be
preliminary or final. It would deem to
include rejection of a plaint. As such, it can
be seen that rejection of application for
condonation of delay would definitely
determine the rights of parties conclusively
so far as it regards the court expressing it.
As such, it can be safely held that rejection
of application for condonation of delay in
filing first appeal would definitely amount
to a decree as contemplated under Section
2(2) of the Code of Civil Procedure even
without a separate order dismissing the
appeal.

16. In view of the aforesaid, it is
clear that against the order impugned in
the present petition, the only remedy for
the petitioner lies in filing a second appeal
and not a petition under Article 227 of the
Constitution of India, which would, thus,
not be maintainable.

17. In view of the aforesaid, the
petition
being
devoid
of
merit
is
accordingly dismissed. The petitioner
would be at liberty to avail remedy
available to him in accordance with law.
----------

(2019)10ILR A 1589

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.09.2019

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 24283 of 2019

Smt. Shashi Rawat ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Pati Shukla, Sri Jay Krishna Shukla.

Counsel for the Respondents:
C.S.C.

Panchayati Raj Act-Section 95(1)(g)-
proceedings u/s.95(1)(g)-initiated by the D.M.
upon a defective complaint as per the Rules,
1997- regarding return of money advanced for
building toilets by 16 doubtful beneficiariespassed an impugned order ceasing petitioner's
(Gram Pradhan)-financial and administrative
powers -DM has discretionary power of
initiating preliminary inquiry even on his own-
writ not maintainable.

Held :- direction to the D.M to endeavour to
pass a final order under section 95(1)(g), after
holding inquiry as per order VI of Rules 1997
within a period of four months. (Para 13)

Writ Petition Disposed of (E-8)

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(1). Heard learned counsel for the
parties.

(2). This petition has been filed
challenging the order dated 29.07.2019
passed
by
the
District
Magistrate,
Lucknow, ceasing the financial and
administrative powers of the petitioner
who is Gram Pradhan of Village Barauna,
Development
Block,
Sarojni
Nagar,
Lucknow.

(3). Learned counsel for the
petitioner submits that the impugned
1590 INDIAN LAW REPORTS ALLAHABAD SERIES
order is non-speaking as it does not
consider the reply submitted by the
petitioner in detail to the notice issued to
her. It has also been submitted that the
finding recorded in the impugned order
regarding return of money advanced for
building
toilets
by
16
doubtful
beneficiaries is arbitrary as money was
returned before notice was issued to them
to return the money and therefore, it
cannot be said by the D.M. that there is an
admission on the part of the Gram
Pradhan regarding money being advanced
by the Pradhan and Gram Secretary under
Swachha Bharat Mission to ineligible
persons.

(4). It has also been submitted by
learned counsel for the petitioner that the
proceedings under Section 95(1)(g) of the
Panchayati Raj Act were initiated by the
D.M. only on the basis of a complaint and
not on the basis of a complaint supported
by an affidavit as is required under the
Rules, 1997.

(5). This Court has heard learned
Standing Counsel, Shri Tushar Verma
also in the matter. He has pointed out
from the reply of the petitioner filed as
Annexure No. 4 of the writ petition that
the petitioner had admitted in para nos. 2,
5, 8, 10, 11 and several paragraphs
thereafter, that money had been returned
by the ineligible persons and therefore, no
specific reply with regard to such
ineligible persons in the show-cause
notice dated 21.02.2019 is required. It has
also been pointed out by Shri Tushar
Verma that in the impugned order, the
District Magistrate has considered the
reply and then come to the conclusion that
the petitioner having admitted that at least
16 beneficiaries had returned the money
being alleged to be ineligible for being
advanced the same. It amounted to an
admission on the part of the Gram
Pradhan that such 16 beneficiaries had
been wrongfully benefited. In advancing
money from the Gram Sabha Nidhi.

(6). Shri Tushar Verma has also
pointed out the judgment of the Full
Bench of this Court in the case of
"Vivekanand Yadav Vs. State of U.P.
and Anr., reported in 2011, (29) LCD
page 21" that a question with regard to
whether a complaint not being in
accordance with the rules can also be
entertained by the D.M. for initiation of
inquiry under the Rules has been
answered by the Full Bench in para 55
onwards, wherein it has been observed
that the inquiry initially conducted is only
preliminary or a fact finding inquiry. It
has to consider prima facie whether any
financial
irregularities
have
been
committed by the Gram Pradhan or not.
The final inquiry is yet to be done.
Considering the object, there is no reason
to give any restricted meaning to the word
"Otherwise" as suggested by the counsel
for the petitioner. The normal meaning of
"otherwise" should be adopted.

(7). The D.M. has to refer a case for
preliminary inquiry even if there is no
complaint or report or in other words, he
has power to act "suo moto".

(8). In para 60 of the said judgment,
the Full Bench has observed thus "Rule
3(5) of the Inquiry, Rules provide that the
complaint which does not comply with
any of the provisions of Rule 3 should not
be entertained. However, even if the
complaint is not entertained, the D.M. can
always refer the matter for the preliminary
enquiry, if he considers that it should be
so enquired; he can act as if "suo moto".
2 All. M/S Rajdoot Trading Co. & Anr. Vs Debt. Recovery Tribunal University Road Lko. & Ors. 1591

(9). In para 61, the contention
raised by learned counsel for the petitioner in
this petition was also raised by learned
counsel for petitioner before the Full Bench.

(10). It is upto the D.M. to consider
whether he should entertain the complaint
or not.

(11). It was held in para 63 and para
64 of the judgement as follows:-

"63. If the D.M. can order for
the preliminary enquiry even in a case,
where
a
complaint
could
not
be
entertained, then what is the purpose of
permitting a pradhan to object regarding its
non-conformity with rules 3(1) to 3(4). To us,
it appears to be futile exercise. It is for the
D.M. to consider whether he should
entertain the complaint or not.

64. (i) The word "otherwise" in
Rule 4 means that the D.M. has suo moto
powers to order a preliminary inquiry;

(ii) In an appropriate case, the
D.M. may order a preliminary inquiry even if
there is, No complaint or report; or a
defective complaint, not in accordance with
Rules 3(1) to Rule 3(4);

(iii) A pradhan has no legal right
to object that a complaint is not in
accordance with Rule (1) to Rule 3(4) of the
Enquiry Rules."

(12). Having considered the Full
Bench decision of the Court, this Court is
of the considered opinion that the order
passed by the D.M. dated 29.07.2019
challenged in this writ petition, there is no
ground to show interference under Article
226 of the Constitution of India.

(13). This writ petition is disposed
of with a direction to the D.M. to
endeavour to pass a final order under Section
95 (1)(g), after holding inquiry as per Order 6
of the Rules of 1997 say, within a period of
four months from the date, a certified copy of
the order is produced before her.
----------
(2019)10ILR A 1591

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.09.2019

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 25896 of 2019

M/S Rajdoot Trading Co. & Anr.
 ...Petitioners
Versus
Debt. Recovery Tribunal University
Road Lko. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Suneet Kumar Sharma, Sri Amarjeet Singh
Rakhra.

Counsel for the Respondents:
C.S.C., Sri Vinay Shanker.

Securitization
and
Reconstruction
of
Financial
Assets
and
Enforcement
of
Security Interest Act, 2002- Sections 13(4),
17 & 14- petitioners took a loan against a
residential property-on failure to repay the loanthe Bank proceeded u/SARFAESI Act, 2002-The
petitioners
preferred
the
Securitization
Application before DRT challenging the sale
notice-rejected on the ground of no jurisdiction
to entertain it.-appeal to be filed u/proviso to sec.
18-Writ petition not maintainable.

Held: - writ not maintainable-the right of appeal is
a remedy created under a statute -the statutory
remedy should have been availed.

Writ Petition Disposed of (E-8)

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)