B.L.Yadav - (1.) - By the present petition under Article 226 of the Constitution of India, the petitioner who is Pradhan of Gaon Sabha Pai, Tahsil Khaga, Fatehpur, has prayed for a writ of Certiorari quashing the order of suspension dated 13-7-1990 under Section 95 (1) (gg) of U. P. Panchayat Raj Act, 1947 (for short the Act), passed by the Sub-Divisional Magistrate, Khaga, district Fatehpur.
(2.) THE factual matrix of the case is that the petitioner was elected as Pradhan in 1988 and is working as such since then. A bare reading of the impugned order indicates that charge against him is that the petitioner, the Pradhan, through his family members, has occupied certain land of the Gaon Sabha and that he has executed certain fictitious lease deeds after obtaining illegal amounts from the residents of the village and that be has been threatening the Lekhpal of the village. On these allegations the Sub-Divisional Magistrate, Khaga, suspended the petitioner in exercise of his power under Section 95 (1) (gg) of the Act. Learned counsel for the petitioner Sri Shashi Nandan urged that Section 95 (1) (ii) of the Act indicates that the order of suspension cannot be passed pending enquiry unless the State Government, the Collector or the Sub-Divisional Officer is prima facie satisfied that the grounds on which action is proposed under that clause exist. As the prima facie satisfaction was not recorded, the impugned order was manifestly erroneous. Learned Standing Counsel, on the other hand, urged in support of the case on behalf of the State. He supported the impugned order. As the facts are almost admitted there is no necessity to grant time for filing counter affidavit. Both the learned counsel agreed that the petition can be decided on merits.
(3.) THE relevant statutory provisions, Ex Abundanti Cautela, are set out below : 95 (1) (gg):-THE State Government may suspend a Pradhan or Up Pradhan or a member of a Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sarpanch or Sahayak Sarpanch of a Nyays Panchayat against whom proceeding under clause (g) are pending or contemplated or against whom prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is pending : Provided that- (i) no action shall be taken under clause (f), clause (g) or clause (h) except after giving to the body or person concerned a reasonable opportunity of showing clause against the action proposed ; (ii) no action shall be taken under clause (gg) on the ground that proceedings under clause (g) are pending or contemplated unless the State Government is prima facie satisfied that the grounds on which action is proposed under that clause exist." The proviso carves out the general power of suspension under Section 95 (1) (gg). This power is not unconditional rather a particular mode for its exercise has been provided. There is a maxim "ACTUS LEG1TIMI NON RECEPIUNT MODUM" which connotes that when the doing of anything in a particular manner is sanctioned by law, then the thing cannot be done in a different way.;