- (1.) S. R. Singh, J. Heard SriAnurag Khanna,learned Counsel for the petitioner and learned Standing Counsel for the opposite parties.
(2.) IMPUGNED herein is the order dated 16-12-1997, a copy of which has been annexed as Annexure-1 to the writ petition. In addition to the prayer of issue of a writ of certiorari quashing the im pugned order, the petitioner has also made a prayer for issue of a writ of man damus directing the respondents not to register First Information Report against him. A perusal of the impugned order indicates that some complaint was made against the petitioner who is the Pradhan of the concerned Gram Panchayat, regard ing misappropriation' of Gaon Sabha property, viz. trees situate on plots men tioned in the impugned order. It appears that on the said complaint some enquiry was held by the Additional District Magistrate (Administration) pursuant to an order dated 29- 10-1997 of the District Magistrate and an enquiry report dated 7-11-1997 was submitted. Considering the said report, the District Magistrate passed the impugned order directing initiation of proceedings against the Pradhan for res titution of misappropriated property of Gaon Sabha with a further direction that a charge-sheet be issued against the petitioner and sub-committee be con stituted for exercise and performance of financial and administrative powers and functions of the Pradhan. It was also or dered that an FIR be lodged against the petitioner regarding misappropriation of Gaon Sabha property. The matter came up before the Court on 19-12-1997 on which date the following order was passed: "standing Counsel appearing for the Opp. Parties prays for and is granted four weeks time to file counter-affidavit. List for admission thereafter on 3-2-1998. Operation of the impugned order dated 16-12-1997 in so far as it directs lodging of the F. I. R. shall remain stayed until conclusion of the enquiry. " Till date, no counter-affidavit has been filed by the Standing Counsel and accordingly, I have heard the learned Counsel appearing for the parties and decided to dispose of the writ petition on the basis of the averments made in it.
(3.) SECTION 95 of the U. P. Panchayat Raj Act, 1947 empowers the State Government to remove a Pradhan on the ground or grounds stipulated in sub-clauses (i) to (v) of clause (g) of sub-sec tion (1) of SECTION 95 of the Act. The first proviso to SECTION 95 (1) (g) being ger mane to the matter at issue, is abstracted below - "provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan isprima facie found to have committed financial and other irregularities such Pradhan or Up-Prad han shall cease to exercise and perform the financial and administrative powers and func tions, 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 Grarn Panchayat appointed by the State Government. " The power under Section 95 (1) (g) of the Act, appears to have been delegated to the District Magistrate vide Notifica tion No. 1684/33-1-1997-123/97, dated April 20, 1997. Pre-requisite condition, on the satisfaction of which a Pradhan ceases to exercise and perform financial and ad ministrative powers and functions, is that he is prima facie found, as a result of an enquiry held by such person and in such manner as may be prescribed, to have committed financial and other ir regularities. The word 'prescribed' means prescribed by the Act or the Rules framed thereunder. So far as the Act is concerned, it is reticent about the manner or proce dure for holding enquiry as visualised by the first proviso to Section 95 (1) (g) and no Rules framed under the Act have been brought to my notice prescribing the man ner of holding such enquiry. However, in the absence of Rules, the District Magistrate to whom the power has been delegated is expected, in my opinion, to hold enquiry in consonance with the re quirements of rules of natural justice and it is upon such enquiry held in accord with the Rules of natural justice tha. the Dis trict Magistrate has to form an opinion as to whether or not the Pradhan has prima facie indulged in financial and other ir regularities so as to result in cessation of his financial and administrative powers and functions. To hold even prima facie, that the Pradhan has committed financial and other irregularities, is fraught with serious consequences in that it is on such holding that the Pradhan ceases to exer cise his financial and administrative powers and functions and thus, it tends to interfere with the Constitutional scheme envisaged by Chapter IX of the Constitu tion of India. Article 243-A of the Con stitution visualises that a Gram Sabha may exercise such powers and perform such functions at the village level as the Legis lature of State may, by law, provide. The functions of Gram Sabha are enumerated mainly in Section 11 of the U. P. Panchayat Raj Act, 1947. The meeting of Gram Panchayat as constituted by Section 12 of the Act is presided over by the Pradhan of the concerned Gram Panchayat as stipu lated in Section 11. There are many other financial and administrative functions and powers which are to be performed and exercised by the Pradhan under the provisions of the Act and the Rules made thereunder and thus a finding that the Pradhan has prima facie committed finan cial and other irregularities has the poten tial of resulting in serious constitutional and legal repercussions. The exercise of power by the District Magistrate in the matter, therefore, needs to be cushioned with some procedure and it is for this pur pose that proviso to Section 95 (1) (g) clearly visualises of enquiry being held in such a manner as may be prescribed. It appears that the Rules have not been framed and therefore, in my opinion, the enquiry stipulated in Section 95 (1) (g) has necessarily to be held in tune with the requirements of rules of natural justice as otherwise the exercise of power upholding that the Pradhan has committed financial and other irregularities and appointing a Three Member Committee for exercise of the powers and performance of functions of the Pradhan during the pendency of the enquiry would be impaired by the vice of arbitrariness.;