- (1.) S. K. Sen, C. J. Heard Shri R. C. Singh, learned Counsel for the appellant and Shri Ranvijay Singh, learned Counsel for the State- respondent.
(2.) THIS special appeal is directed against the order passed by the learned Single Judge in writ No. 35676 of 2000 dated 29-8- 2002 where the impugned order dated 21/22-6-2002 passed by District Panchayat Raj Officer, 'kushinagar at Padrauna has been challenged. The learned Single Judge held that stoppage of Bank Accounts does not amount to seizure or taking away of financial power. We are unable to agree with such view taken by the learned Single Judge. In effect when an order has been passed stopping the operation of the Bank Account, the same takes away the financial power of the Pradhan such order can only be passed by the District Magistrate. Section 95 (1) (g) Proviso of the U. P. Panchayat Raj Act, 1947 gives power to cease financial and administrative power of Pradhan : - "section 95. Inspection.- (1) The State Government may - (a ). . . (b ). . . (c ). . . (d ). . . (e ). . . (f ). . . (g) ("remove a Pradhan, Up-Pradhan or member of a Gram Panchayat") or a joint committee or Bhumi Prabhandhak Samiti (* * *) or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he - (i) absents himself without sufficient cause from 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 the Act or rules made thereunder or his cotinuance as such is not desirable in public interest, or (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in polities, or (v) suffers from any of the disqualification mentioned in Clauses (a) to (m) of Section 5-A. (Provided that where, in an enquiry held by such persons 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)"
(3.) RULES have been framed namely the U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry RULES, 1997. The enquiry which is referred to in Section 95 (1) (g) proviso is enquiry which is held in accordance with 1997 RULES. Rule 4 of the aforesaid Rule refers to preliminary enquiry. Rule 4 is quoted as below : "4. Preliminary Enquiry.- (1) The State Government may on the receipt of complaint or report referred to in Rule 3 or otherwise order to the District Panchayat Raj 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. (2) The District Panchayat Raj Officer shall conduct the preliminary inquiry as expeditiously as possible and submit his report to the State Government within a fortnight of his having been so ordered. " It has been stated before us that power under Section 95 (1) (g) of U. P. Panchayat Raj Act has been delegated to the District Magistrate and the order under Section 95 (1) (g) can only be passed by the Collector.;