Court No. - 6
Case :- WRIT - C No. - 11594 of 2018
Petitioner :- Mohd. Arif
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Ajendra Kumar,Manoj Kumar
Counsel for Respondent :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
Heard Sri Ajendra Kumar, learned counsel for the petitioner and the learned Standing Counsel for the State-Respondents.
The petitioner in the writ petition is seeking quashing of the order dated 23.03.2018 whereby the administrative and financial powers of the petitioner have been withheld by the District Magistrate in exercise of powers under Proviso 2 to Section 95 (1) (G) of the Uttar Pradesh Panchayat Raj Act, 1947. The impugned order does not anywhere mention that before the same was passed any explanation was called for from the petitioner.
A Full Bench of this Court in 2010 (10) ADJ 33 Vivekanand Yadav Vs. State of U.P. and others has held that before passing an order withholding the financial and administrative powers of the Gram Pradhan it is not only necessary that the explanation or point of view or the version of the affected Pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. The Full Bench has also held that the consideration of the explanation does not have to be a detailed one but it should indicate application of mind. The application of mind can be garnered from the order of the District Magistrate if he makes a reference to the reply of the Gram Pradhan to the show cause notice and then records his reasons for disagreeing with those findings.
Learned Standing Counsel prays for time to file counter affidavit.
I am not inclined to grant any time to the Standing Counsel for the simple reason that even assuming that the petitioner had submitted his explanation there is no discussion of the same in the impugned order which is also mandatory in view of the dictum of this Court in Vivekanand Yadav (supra). In paragraph 71 of the judgement it has been held that the word 'consideration' means the order of the District Magistrate must demonstrate application of mind to the explanation submitted by the Gram Pradhan. Paragraph 71 of the judgement of Vivekanand Yadav (supra) reads as under:
"It is not only necessary that the explanation or point of view or the version of the affected pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. Of course the consideration of the explanation does not have to be a detailed one. There should indication that mind has been applied. "
The impugned order does not make any reference to any explanation which may have been called for from the petitioner on the preliminary enquiry.
Learned Standing Counsel also could not demonstrate from the impugned order that there is any reference that any explanation was called for from the petitioner or that there is any discussion of any such explanation if ay, submitted by the petitioner.
For the reasons aforesaid the impugned order dated 23.03.2018 is an absolutely illegal and arbitrary order and in violation of the law laid down by the Full Bench of this Court in Vivekanand Yadav (supra) and is accordingly quashed.
The writ petition stands allowed.
However, it will be open for the respondents to pass fresh order in accordance with law.
Order Date :- 30.3.2018 N Tiwari