SALIL KUMAR RAI, J. - (1.) Heard Sri Suresh Pratap Singh, counsel for the petitioner, the Standing Counsel representing respondent nos. 1 and 2 and Sri V.M. Zaidi, counsel for the caveator.
(2.) The petitioner is the elected Gram Pradhan elected in the elections held in 2015. Election Petition No. T-2016131601187 was filed under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as, 'Act, 1947') challenging the election of the petitioner on grounds, amongst others, that the petitioner had not disclosed correctly and in full the details regarding criminal cases pending against him especially an order of externment passed against the petitioner. The aforesaid election petition is still pending before the Election Tribunal. However, a notice dated 24.6.2016 under Section 5-A(g) of the Act, 1947 was issued to the petitioner by the Deputy District Magistrate, District Bijnor seeking his reply to the charges stated in the aforesaid notice. The notice stated that the Deputy District Magistrate, Bijnor had been appointed as Enquiry Officer by the District Magistrate i.e. respondent no. 1. The petitioner submitted his reply to the aforesaid notice on 8.7.2016. Subsequently, a show cause notice dated 9.9.2016/12.9.2016 was issued by the District Magistrate, Bijnor, i.e. respondent no. 1, to the petitioner stating that in his enquiry report, the Deputy District Magistrate had reported that criminal cases were pending against the petitioner and an externment order had been passed against him and the petitioner was asked to show cause as to why action should not be taken against him under Section 5-A(g) of the Act, 1947. The petitioner filed his reply to the show cause notice dated 9.9.2016/12.9.2016 on 17.10.2016. The District Magistrate exercising his powers under Section 95(1)(g)(v) of the Act, 1947, vide his order dated 25.11.2016, removed the petitioner from the post of Gram Pradhan on the ground that the petitioner had incurred a disqualification as prescribed under Section 5- A(g) of the Act, 1947. The order dated 25.11.2016 was quashed by this Court by its order dated 7.12.2016 passed in Civil Misc. Writ Petition No. 57653 of 2016 on the ground that the District Magistrate could not exercise his powers under Section 95(1)(g) (v) of the Act, 1947 removing an elected Gram Pradhan without a decision by the Prescribed Authority, under Section 6-A to the effect that the Pradhan had incurred a disqualification specified in Section 5A of the Act, 1947. In its judgment and order dated 7.12.2016, this Court further held that proceedings under Section 95(1)(g) of the Act, 1947 were started by the District Magistrate on an enquiry report submitted by the Deputy District Magistrate who was appointed Enquiry Officer by the District Magistrate and the said enquiry could not be treated as a reference to the Prescribed Authority and the report can not be treated as a declaration under Section 6-A of the Act, 1947. After the order dated 7.12.2016 passed by this Court in Civil Misc. Writ Petition No. 57653 of 2016, a show cause notice dated 10.4.2017 was issued to the petitioner by the Prescribed Authority/Deputy District Magistrate, Sadar, District Bijnor, i.e. respondent no. 2, to which the petitioner submitted his reply on 15.4.2017. The Prescribed Authority passed an order dated 28.9.2017 under Section 95(1)(g)(v) of the Act, 1947 removing the petitioner from the post of Gram Pradhan on the ground that the petitioner had incurred a disqualification as prescribed under Section 5-A(g) of the Act, 1947 because seven criminal cases relating to offences involving moral turpitude were pending against the petitioner. In his order dated 28.9.2017, the Prescribed Authority had also referred to an order of externment passed against the petitioner under the U.P. Control of Goonda Act, 1970 (hereinafter referred to as, 'Goonda Act'). The order dated 28.9.2017 has been challenged in the present writ petition.
(3.) It was argued by the counsel for the petitioner that the order dated 28.9.2017 was without jurisdiction as under Section 6-A of the Act, 1947, the Prescribed Authority was empowered to merely declare an elected Gram Pradhan to have incurred a disqualification under Section 5A of the Act, 1947 and is not empowered to remove the elected Gram Prahdan from his post as the said power vests with the State Government under Section 95(1)(g) of the Act, 1947 and the State Government has delegated the said power to the District Magistrates. It was also argued by the counsel for the petitioner that an order of externment under the Goonda Act is not a conviction and, therefore, the petitioner had not incurred any disqualification as prescribed under Section 5-A of the Act, 1947 and the order of the Prescribed Authority declaring him as disqualified under Section 5-A(g) of the Act, 1947 was vitiated by an error of law apparent on the face of record. Rebutting the arguments of counsel for the petitioner, counsel for the respondents have argued that in view of notification No. 4193 K/33-664, dated July 27, 1996, the State Government had delegated its power under Section 95(1)(g) of the Act, 1947 to the Sub-Divisional Magistrates and, therefore, the order passed by respondent no. 2 removing the petitioner from the post of Gram Pradhan was within the jurisdiction of respondent no. 2. It was also contended by the counsel for respondents that as an order of externment had been passed against the petitioner under the Goonda Act, therefore, it was not a fit case for interference under Article 226 of the Constitution of India and the writ petition was liable to be dismissed.;