JUDGMENT R.R. Yadav, J.
1. Heard the learned counsel for the petitioner.
2. Perused the averments made in the writ petition.
3. The present petition is posted today for admission, but with the consent of the learned counsel for the parties, I propose to decide it on merits at admission stage.
4. By filing the instant writ petition, the petitioner is seeking a relief for quashing the order Impugned dated 2.11.2001 (Annexure-8 to the writ petition) and order dated 26.12.2001 passed by the District Magistrate, Pillbhit under Section 95 (1) (g) of U. P. Panchayat Raj Act, a copy whereof is filed and marked as Annexure-10 to the writ petition, on the ground, inter alia, that no preliminary enquiry has been held against him by District Panchayat Raj Officer under the U. P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry, Rules, 1997 (hereinafter referred as Rules of 1997) to arrive at a prima facie conclusion that he has committed financial and other irregularities and no opportunity of showing cause has been afforded to him against the action proposed within the meaning of second proviso of Section 95 (1) (g) of U. P. Panchayat Raj Act, (hereinafter referred as Act of 1947), which provides that no action shall be taken under Clause (f) and Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed. By order dated 2.11.2001, the petitioner is deprived of to perform his financial and administrative powers and functions whereas by order dated 26.12.2001, three members Committee is ordered to be appointed to perform financial and administrative powers and functions until petitioner is exonerated of the charges in the final enquiry.
5. It is evident from a bare perusal of the order impugned in the present case that the preliminary enquiry was not held by the District Panchayat Raj Officer under the statutory Rules, 1997 nor the explanation of the petitioner was called for and considered by District Magistrate before passing the impugned orders as envisaged under Section 95 (1) (g) of the said Act. I am of the view that both the orders Impugned are per se illegal on the ground discussed hereinbelow.
6. Rule 4 of the Rules of 1997 provides that District Magistrate on whom power of State Government is delegated 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 finding out if there is prima Jade case for a formal final enquiry in the matter. Under Sub-rule (2) of Rule 4 of the Rules of 1997, the District Panchayat Raj Officer is to conduct the preliminary enquiry as expeditiously as possible and submit his report to the District Magistrate within fortnight of his having been so ordered by District Magistrate.
7. Rule 5 of the Rules, 1997, further provides that where the District Magistrate is of the opinion, on the basis of the report referred to in Sub-rule (2) of Rule 4 or otherwise that a final enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to Clause (g) of Sub-section (1) of Section 95, it shall, by an order, ask the Enquiry Officer to hold the final enquiry. The expression 'Enquiry Officer' has been defined under Rule 2 (c) of the Rules of 1997. The Rule 2 (c) of the said Rules reads as under ;
"2 (c) 'Enquiry Officer' means an officer not below the rank of District Panchayat Raj Officer, appointed as such, by the State Government."
It is not disputed before this Court that power of State Government is delegated to all District Magistrates of State.
8. A close scrutiny of Section 95 (1) (g) of Act of 1947 reveals that under the aforesaid section, the first action is contemplated to remove a Pradhan, Up Pradhan or Member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samitl or a Panch, Sahayak Sarpanch or Sarpanch or a Nyaya Panchayat on the grounds enumerated under Sub-clauses (i) to (v), whereas under first proviso of the said section, another action is contemplated in between Initiation of proceeding for removal and actual removal of a Pradhan or Up Pradhan to deprive him from his administrative and financial powers and functions. It is further provided that after passing of order under Section 95 (1) (g) of the Act, 1994, a 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 District Magistrate. Thus, after passing of order under Section 95 (1) (g) by District Magistrate depriving a Pradhan or Up Pradhan from his financial and administrative powers and functions during the pendency of final enquiry of removal, financial and administrative powers of a Pradhan or Up Pradhan is to be exercised and performed by a committee consisting of three members of Gram Panchayat appointed by District Magistrate, provided in a preliminary enquiry held by an officer not below the rank of District Panchayat Raj Officer, a Pradhan or Up Pradhan, is prima facie found to have committed financial or other irregularities.
9. A conjoint reading of Section 95 (1) (g) of Act of 1947 read with Rules 2 (c), 4 and 5 of the Rules of 1997 leads towards and inescapable conclusion that the District Magistrate considering the preliminary enquiry report submitted by the District Panchayat Raj Officer and explanation if any submitted by a Pradhan or Up Pradhan is to pass a speaking order either depriving a Pradhan or Up Pradhan from performing his financial and administrative powers and functions or refuse to pass such order on merits of each case. It is held that a Pradhan or Up Pradhan cannot be deprived of his financial and administrative powers and functions in a perfunctory manner as has been done in the present case against the mandatory provisions envisaged under Section 95 (1) (g) of Act of 1947 and statutory Rules of 1997, unless statutory preliminary enquiry is held by the District Panchayat Raj Officer and in that enquiry, he is prima facie found to have committed financial and other irregularities. Secondly, the Pradhans or Up Pradhans before being deprived of to perform their financial and administrative powers and functions are also entitled to show cause to the preliminary enquiry wherein prima "facie they are found to have committed financial or other Irregularities. Thirdly, after receipt of preliminary enquiry report from District Panchayat Raj Officer, if in such preliminary enquiry a Pradhan or Up Pradhan is prima facie found to have committed financial and other irregularities, a copy of preliminary enquiry is to be made available to such delinquent Pradhan or Up Pradhan asking his explanation, but if in preliminary enquiry conducted by District Panchayat Raj Officer. nothing is found against him, question of depriving of financial or administrative powers and functions does not arise.
10. In the present case, the order impugned passed by District Magistrate depriving the petitioner from his financial and administrative powers and functions and appointment of three members Committee is founded on a report submitted by the Assistant Engineer P.W.D., Pilibhit, which is per se Illegal within the meaning of Rules 2 (c), 4 and 5 of the Rules of 1997. The District Magistrate has no jurisdiction to deny reasonable opportunity of showing cause to the petitioner before passing the impugned order as envisaged under second proviso to Section 95 (1) (g) of Act of 1947.
11. As a result - of the aforementioned discussion, the Instant writ petition succeeds and it is allowed. The enquiry report submitted by the Assistant Engineer P.W.D., Pilibhit and the order passed by the District Magistrate dated 2.11.2001 (Annexure-8 to the writ petition) and the order dated 26.12.2001 (Annexure-10 to the writ petition) are hereby quashed. The matter is sent back to the District Magistrate. Pilibhit, to pass an order in accordance with law in the light of observations made hereinabove in body of order.
12. Till order in accordance with law is not passed by District Magistrate, Pilibhit the respondents are hereby restrained from interfering in exercising and performing the financial and administrative powers and functions of the petitioner as elected village Pradhan of Gram Panchayat Bundhi Bhur Block Puranpur, district Pilibhit.