JUDGMENT S.R. Singh, J.
1. The petitioner, who is elected Pradhan of Gram Panchayat, Chauri Mandi, district Saharanpur, is aggrieved by the office order dated 10.7.1998 issued by the District Panchayat Raj Officer, Saharanpur, in pursuance of an order dated 8.7.1998 passed by the District Magistrate, Saharanpur, under the first proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act. 1947 (in short the Act) and consequential order dated 8.7.1998 of the Khand Vikas Adhikari, Saraswan, district Saharanpur, thereby informing the Branch Manager, District Co-operative Bank, Saraswan that Khata No. 3323 would hereafter be operated by the committee referred to in the order dated 10.7.1998 in place of the petitioner.
2. Section 95 (1) (g) of the Act empowers the State Government to remove Pradhan, Up-Pradhan or Member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, Sahayak Sarpanch or Surpanch of a Nyaya Panchayat on the ground enumerated therein. The first proviso to Section 95 (1) (g) of the Act visualise that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have corruptive 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 or the charges in final enquiry, be exercised and performed by a committee consisting of three members of Gram Panchayat appointed by the State Government.
3. The thereof of the submission made by the Vijendra Singh, learned counsel for the petitioner is that the impugned order are violative of the mandatory possession of Section 95 (1) (g) of the Act and those of the Rules known as U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 (in short the Enquiry Rules). Learned counsel for the petitioner urged that action under the first proviso to Section 95 (1) fg) of the Act can be taken only on the the basis of the report submitted by the Enquiry Officer under Rule 7 of the Enquiry Rules and not otherwise. Learned Standing counsel refuted the submissions made by Sri Vijendra Singh and submitted that the action under the first proviso to Section 95 (1) (g) of the Act can be taken even on the basis of the report submitted by the District Panchayat Raj Officer under Rule 4 (2) of the Enquiry Rules.
4. I have given my anxious consideration to the submissions made across the Bar. The answer to the questions raised in the present case is covered by the judgment of the Court in Civil Misc. Writ Petition No. 22130 of 1998, Chunmun v. District Magistrate, Sonbhadra and others, decided on 3.9.1998. Relevant expositions of law laid down in the said decisions are as under :
"A conspectus of various provisions of the U. P. Panchayat Raj Act and those of U. P. Panchayat Raj Rules, 1947 (in short the Rules) amended from time to time would show that Pradhan is not only an integral constituent of the Gram Panchayat as provided by Section 12 (1) (c) of the Act, but also he has been given pivotal roles to play in exercise of powers and discharge functions of the Gram Panchayat. It can not be gain said that the exercise of power under the first proviso to clause (g) of subsection (1) of Section 95 of the Act is fraught with and consequences besides being out-rageous to the scheme visualised by Part IX of the Constitution and therefore, the power conferred by the first proviso to clause (g) of sub-section (1) of Section 95 must be exercised in the manner prescribed and on fulfilment of the pre-requisite conditions visualised therein. The term 'prescribed' used in the first proviso means 'prescribed by Rules'. The proviso visualises that "where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have consulted financial and other irregularities such Pradhan or Up Pradhan shall cease to exercise and perform financial and administrative powers and functions which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by committee consisting of three members of the Gram Panchayat appointed by the State Government". The power vested in the State Government, as stated above, has been delegated in the District Magistrate. Consequences visualised by the first proviso will ensue if in the course of 'an enquiry held by such persons and in such manner as may be prescribed', the District Magistrate comes to a prima facie finding that the Pradhan or Up-Pradhan, as the case may be, has committed financial and other irregularities. Exercise of powers under the first proviso would be liable to be held arbitrary and violative of the constitutional scheme visualised by Part IX of the Constitution if the District Magistrate is left to be free to form the requisite opinion otherwise than on the basis of "an enquiry by Part IX of the Constitution. If the District Magistrate is left to be free to form the requisite opinion otherwise than on the basis of an enquiry held by such person and in such manner as may be prescribed."
x x x x x "The expression 'prima facie found' read with expression 'In an enquiry held by such person and in such manner as may be prescribed' used by the Legislature in the first proviso to Section 95 (1) (g) of the Act unequivocally suggests that the requisite prima facie finding must be arrive at on consideration of the preliminary enquiry report submitted by the District Panchayat Raj Officer under Rule 4 (2) or the report submitted by the Enquiry Officer under Rule 8 of the Enquiry Rules. Any other view of the matter would be tantamount to over reaching the first proviso to Section 95 (1) (g) of the Act."
x x x x x "The expression 'or otherwise' used in Rule 5, however, does not, in my opinion, empower the District Magistrate to form the requisite opinion under the first proviso on the basis of a report further than the ones submitted under the Enquiry Rules 1 and the report referred to in Rule 4 (2) or Rule 7 of the said Rules."
x x x x x "The District Magistrate on receipt of a complaint or report referred to in Rule 3 or 'otherwise' may order the District Panchayat Raj Officer to conduct preliminary enquiry with a view to finding if there is prima facie case for formal enquiry in the matter and in case he is so satisfied, he may take appropriate action under the first proviso to Section 95 (1) (g) of the Act. The District Magistrate may of course, order a formal enquiry to be held on the basis of the report received 'otherwise' than through the District Panchayat Raj Officer under Rule 4 of the enquiry Rules but in that event no action can be taken under the first proviso to Section 95 (1) (g) of the Act until receipt of the report prepared by the Enquiry Officer under Rule 7 of the Enquiry Rules."
The word 'otherwise' came up for consideration before the Supreme Court in the case of New India Public School v. H.U.D.A., (1996) 6 SCO 510, in the context of the provisions of Regulation 15 of Haryana Development (Disposal of Land and Buildings) Regulations, 1978, where in one of the modes of transfer of property was "public auction, allotment or otherwise". The Supreme Court held as under :
"When public authority discharges its public duty the word 'otherwise' would be construed to be consistent with the public purpose and clear and unequivocal guidelines or rules are necessary published for the public. Therefore the public authorities are required to make necessary specific regulations or valid guidelines to exercise their discretionary powers ; otherwise, the salutary procedure would be by public auction."
5. Regard being had to the language employed by the Legislature in the first proviso to Section 95 (1) (g) of the Act and the decisions aforestated. I am of the considered view that the District Magistrate cannot take an action under the first proviso to Section 95 (1) (g) of the Act except on consideration of the preliminary report, if any submitted under rule 4 (2) or final report prepared under Rule 7 of the Enquiry Rules. It may be pertinent to observe here that after the receipt of the final report, the District Magistrate is under an obligation to give an opportunity to the Pradhan, Up-Pradhan or the Member, as the case may be, to show cause as against the proposed action in view of the second proviso to Section 95 (1) (g) of the Act. In the instant case, however, action has been taken by the District Magistrate on the basis of the preliminary report submitted by the District Panchayat Raj Officer under Rule 4 (2) of the Enquiry Rules. It transpires from the averments made in the counter-affidavit that the District Panchayat Raj Officer, Saharanpur found during inspection made on 11.6.1998 of the construction work undertaken by the Gram Panchayat concerned, certain irregularities in the construction work undertaken by the Gram Panchayat besides misappropriation of funds by the Pradhan. The District Panchayat Raj Officer accordingly made a complaint to the District Magistrate who in turn directed the Assistant District Panchyat Raj Officer (Technical) to inquire into the matter and submit a report. The Assistant District Panchayat Raj Officer, it appears, submitted his report dated 25.6.1998 to the District Panchayat Raj Officer, a copy of which has been annexed as Annexure-2 to the writ petition. The report was communicated to the petitioner by the District Panchayat Raj Officer. Saharanpur vide letter dated July 3, 1998 (Annexure-1 to the writ petition) asking the former to submit his explanation by 7.7.1998. Thereafter, it appears. District Panchayat Raj Officer submitted a report to the District Magistrate who passed the order dated 8.7.1998 appointing the committee visualised by the first proviso to Section 95 (1) (g) of the Act. On the facts, the case, it is crystal clear that action under the first proviso to Section 95 (1) (g) of the Act has been taken on the basis of the complaint coupled with the report submitted by the District Panchayat Raj Officer along with the report of the Assistant District Panchayat Ra] Officer (Technical) showing commission of financial irregularities by the petitioner. The fact that the report was obtained by the Assistant District Panchayat Raj Officer (Technical), would not invalidate the action taken by the District Magistrate inasmuch as the report submitted by the Assistant District Panchayat Raj Officer (Technical) was made a part of the report of the District Panchayat Raj Officer. In the facts and circumstances of the instant case, it is crystal clear that the action has been taken on the basis of the report submitted by the District Panchayat Raj Officer under Rule 4 (2) of the Enquiry Rules. The decision taken by the District Magistrate under the first proviso to Section 95 (1) (g) of the Act in the instant case is quite in consonance with the provisions of the Enquiry Rules as interpreted by the Court in the case of Chunmun (supra). The submission that the action under the first proviso to Section 95 (1) (g) of the Act can be taken only on the basis of the report of the Enquiry Officer prepared under Rule 7 of the Enquiry Rules cannot be countenanced. In case of Chunmun (supra), it has been clearly held that action under the first proviso to Section 95 (1) (g) of the Act can be taken either on the basis of the preliminary report submitted by the District Panchayat Raj Officer under Rule 4 (2) or on the basis of the report submitted by the Enquiry Officer under Rule 8 of the Enquiry Rules. No interference is, therefore, warranted by this Court under Article 226 of the Constitution.
6. In the result therefore, the writ petition falls and is dismissed subject, of course, to the direction that the District Magistrate shall ensure conclusion of the final inquiry by the Enquiry Officer under the Enquiry Rules and final decision in the matter within a period not exceeding four months.