Heard.
By means of this writ petition the petitioner is challenging an order dated 24.01.2019 passed by the District Magistrate Raebareli ceasing financial and administrative powers of the petitioner who was Gram Pradhan on the ground that in the preliminary inquiry her husband was found to be encroaching upon land of the Gaon Sabha and the petitioner has facilitated him thereby causing loss and danger to the property of the Gaon Sabha.
The contention of the learned counsel for the petitioner is that the Inquiry Officer/Committee was constituted for conducting an inquiry which was a necessary pre-requisite in terms of rule 2-C of the U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 (hereinafter referred to as 'the Rules, 1997') as the Sub Divisional Magistrate who was part of the inquiry committee is not a District Level Officer, even though, the other officers i.e. Chief Executive Officer Matsya Palak Vikas Adhikari Raebareli was such an officer. He relied upon a decision of this Court reported in 2014 (1) ALJ 116 (Shyamawati vs. State of U.P. & others) wherein such inquiry committee has been disapproved on account of being violative of rule 2-C of the Rules, 1997. He in fact submits that the petitioner had made complaint of encroachment of certain land of Gaon Sabha by others. On being asked as to whether the Inquiry Committee constituted was in confirmation of rule 2-C of the Rules, 1997 or not he could only say that one of the officer was a District Level Officer but could not deny that the other officer who was also part of the Inquiry Committee was not a District Level Officer nor that the action was in violation of the dictum of this Court in Shyamawati case (supra).
It is also the contention of learned counsel for petitioner Sri Shukla that in fact the inquiry was not conducted by the two inquiry officers but the same was got conducted through the Tehsildar. In this regard he has invited the attention of this Court to the letter of the Sub Divisional Magistrate Sadar, Mahrajganj, District Raebareli dated 10.09.2018 and it is the report of the Tehsildar which forms the basis for the report of the Inquiry Committee which is also not in accordance with law.
On 27.03.2019 this Court has passed the following order.
"Heard Shri Rama Pati Shukla, learned counsel for the petitioner and Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel for the State.
This writ petition under Article 226 of the Constitution of India is directed against an order dated 24.01.2019 passed by the District Magistrate, Raebareli by which the administrative and financial powers of the petitioner, who is the elected Gram Pradhan, have been ceased and a final inquiry has been ordered in the process of his removal appointing an Inquiry Officer to conduct the same.
The contention of Shri Rama Pati Shukla, learned counsel for the petitioner is firstly that as per Rule 2(C) of the U.P Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 a District Level Officer alone could have been appointed the Inquiry Officer, whereas, in this case the Chief Executive Officer, Fisheries Development Agency, Raebareli and S.D.M. Sadar, Raebareli were jointly appointed as Inquiry Officers. He says that the S.D.M. Sadar, Raebareli can by no stretch of imagination be teated to be a District Level Officer. Furthermore, he says that even these Officers did not conduct the inquiry themselves as is the requirement of law. In this regard he invited the attention of the Court to the letter of the S.D.M. Sadar, Raebareli dated 10.09.2018 which refers to the Inquiry and examination by the Tehsildar, Mahrajganj and his report dated 10.09.2018. The said letter is in the context of proceedings under Section 95-1(g)(3).
A detailed order was passed by the this Court on 17.03.2019 as under:-
"Learned Standing Counsel prays for and is granted a week's time to seek instructions in the matter.
The contention on the part of the petitioner is that by means of the impugned order dated 24.01.2019, a copy of which is Annexure-1 to the petition, the financial and administrative powers of the Gram Pradhan have been seized and the same have been given to a three members committee.
Learned counsel for the petitioner argues that cessation of such financial and administrative powers is contemplated under the provisions of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members), Enquiry Rules, 1997 (hereinafter referred to as the 'Rules, 1997'). Rule 2 (c) of the Rules, 1997, provides that an Enquiry Officer means a District Panchayat Raj Officer or any other District Level Officer to be nominated by the District Magistrate. It is contended that it is on the basis of such enquiry that such an action could have been taken against the Pradhan in terms of the proviso contained in Section 95(1)(g)(v) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act, 1947') which categorically provides that where, in an enquiry held by such person in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions which shall be exercised and performed by a Committee consisting of three members of Gram Panchayat. It is contended that once in terms of Rule 2(c) of the Rules, 1997 itself the enquiry which was got done by a two member Committee namely Chief Executive Officer of the Matsya Palak Vikas Abhikaran, Raebareli and Sub-Divisional Magistrate, Sadar, Raebareli, who cannot be said to be the District Level Officers, consequently the impugned order having been passed on the basis of the outcome of the said enquiry cannot be legally sustainable. In this regard, reliance has been placed on the judgment of this Court in the case of Sthis Court passedhyam Wati vs. State of U.P. and others - (2013) 3 UPLBEC 2269.
In the case of Shyam Wati (supra), this Court has held that in view of the prescriptions made under Rules 2(c), 4 and 5 of the Rules, 1997, the enquiry has to be held by an Enquiry Officer defined as such under Rule 2(c) and any enquiry held by a Committee with the participation of the public servants who could not be the Enquiry Officer at all, should not be taken and regarded at all as an enquiry report envisaged under Rule 4 of the Rules, 1997. Thus, placing reliance on the said judgment in the case of Shyam Wati (supra) as well as the definition of an Enquiry Officer as made under Rule 2(c) of the Rules, 1997 read with proviso to Section 95 (1) (g) of the Act, 1947, it is contended that the impugned order dated 24.01.2019 is patently vitiated in the eyes of law.
On the other hand, learned Standing Counsel submits that there are judgments to the effect that firstly any officer can be nominated by the District Magistrate and further in case a committee is constituted to enquire into the charges levelled against the Pradhan, it is not necessary that both the officers should be District Level Officers. However, he prays for some time to bring some case laws on the point.
In this view of the matter, list this case in the next week as fresh."
Everyday this Court finds that the District Magistrates in the districts do not go through the relevant Rules before taking action against the Gram Pradhan. Even while appointing an Inquiry Officer for conducting the preliminary inquiry, Rule 2(C) of the Rules, 1997 is not taken into consideration. In the present case admittedly the S.D.M., Sadar was not a District Level Officer yet he was also made an Inquiry Officer along with the other Officer, who may have been made a District Level Officer. In other cases also similar grounds are being raised by the Gram Pradhans. Furthermore, the Court finds that the Inquiry Officers so appointed in this case did not conduct any preliminary inquiry themselves, instead, as is prima facie evident from the order dated 10.09.2018 of the S.D.M., Sadar, Raebareli, it is the Tehsildar, Mahrajganj, who conducted the inquiry and submitted his report on 10.09.2018.
In view of the above, prima facie case is made in favour of the petitioner. Accordingly, the impugned order is hereby stayed till the next date of listing. However, if any financial decision pertaining to the MGNERGA work is taken by the Pradhan before the next date of listing the same shall be done only with the approval of the Project Coordinator, MGNERGA.
List/ put up on 02.04.2019 as fresh.
The original records pertaining to the Preliminary Inquiry shall be produced before the Court. Counter affidavit shall also be filed by the opposite parties before the next date, if they so desire."
By the aforesaid order the operation of the impugned order was stayed in certain conditions. Thereafter the matter was taken upon on 05.04.2019 and the following order:-
"Heard.
Shri J.P. Maurya, learned Additional Chief Standing Counsel for the State informs that the proceeding under Section 67(1) against the husband of the Gram Pradhan and other persons is at the stage of hearing, whereas, learned counsel for the petitioner says that hearing has already taken place.
Perused the counter affidavit filed by the State, which shows that the inquiry Committee had also conducted inquiry. The allegations prima facie are very serious and relate to inaction by the Gram Pradhan while her husband was usurping and misappropriating property belonging to the Gaon Sabha.
Be that as it may, if the matter is at the stage of hearing and there is no stay by any higher Court the Tehsildar shall proceed to conclude the proceedings and pass an order within a period of 15 days from today.
Shri J. P. Maurya, learned Additional Chief Standing Counsel shall communicate this order telephonically and in writing to the Collector, whose duty itself to ensure the compliance of this order.
List/ put up on 25.04.2019 as fresh.
By the next date the Collector shall file his affidavit of compliance. Thereafter, this matter shall be heard on the next date.
The interim order dated 27.03.2019 is clarified that if the committee appointed by the District Magistrate had already taken charge prior to passing of the said order, then, the benefit of the interim order shall not be available to the petitioner subject, however to further orders in this regard and without prejudice to her rights herein.
The records, which are available today, shall again be produced on the next date.
No adjournment shall be granted on the next date.
Let a copy of this order be given to the learned counsel for the parties today itself on payment of usual charges."
The Court was informed as noted in the above order that proceedings under Section 67(1) of the U.P. Revenue Code (hereinafter referred to as 'the Code') had been initiated against the husband of the petitioner on account of encroachment of Gaon Sabha land and a counter affidavit was also filed before the Court on the said date. The Court found the allegation to be very serious. The Court directed the Tehsildar to proceed under Section 67 of the aforesaid Code and conclude the proceedings. The interim order dated 27.03.2019 was clarified.
Thereafter the District Magistrate filed his affidavit in compliance of the order dated 05.04.2019 stating therein that the proceedings against the petitioner's husband Nand Kishore under Section 67 of the Code were were decided on 15.04.2019 and the Assistant Collector has ordered eviction of the petitioner's husband from the land bearing Gata No.361 which was found to be under unlawful occupation since last 25 years. Accordingly penalty was imposed. The affidavit further states that another case against the petitioner's husband was also pending with regard to encroachment of other Gaon Sabha land for the land 10 years which was also decided on 15.04.2019 and penalty was imposed.
At this stage the leaned standing counsel informs that against the aforesaid orders dated 15.04.2019 two Revisions were filed by petitioner's husband which have been decided on 30.05.2019 and the order passed by the Assistant Collector has been set aside thereby remanding the matter back to him for reconsideration.
On 25.04.2019 the following order was passed by the Court:-
"Second supplementary affidavit filed on behalf of the opposite party no. 4 is taken on record.
Heard.
Inspite of the orders of this Court dated 05.04.2019 except for passing the order under Section 67 the only other action taken is issuance of recovery certificate for recovery damages imposed but there is nothing on record to show that the encroachment has beeflimsy reportn removed.
This is not a happy state of affairs.
Let the Collector, Raebareli file his own affidavit in the light of the earlier orders passed by this Court positively by 30.05.2019 when the matter shall come up as fresh. The Collector shall also mention in his affidavit as to whether the complainant i.e. Avinash Kumar Awasthi, who has filed an application for impleadment in this case, also encroached any Gaon Sabha land. If so, whether any action has been taken in this regard.
List/ put up on 30.05.2019 as fresh.
Let a copy of this order be given to the learned counsel for the parties today itself on payment of usual charges."
The learned standing counsel states that after passing of the revisional order the exercise under Section 67 of the aforesaid Code against the petitioner is underway and appropriate action shall be taken against the petitioner after demarcation. As regards the other encroachments the Committees comprising of Lekhpal have been constituted in this regard for ascertaining the encroachment on Gaon Sabha land. The said exercise shall include the entire exercise of encroachment by the petitioner's husband.
Now as far as the merits of the case are concerned the error in the impugned order is apparent to the extent that the Inquiry Committee constituted is not in terms of rule 2-C of the Rules, 1997. The error is fundamental as the entire exercise under Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947 is based on the preliminary inquiry report, which is to be followed by a final inquiry, if, occasion so arises in terms of rules 4,5 and 6 of the Rules, 1997.
In view of the aforesaid, as the State has not been able to establish that Inquiry Committee was constituted in terms of rule 2-C of the Rules, 1997 the impugned order seizing financial and administrative powers of the petitioner is hereby quashed. However, the District Magistrate/Collector is directed to proceed afresh with the inquiry by constituting an Inquiry Committee or appoint an Inquiry Officer terms of rule 2-C of the Rules, 1997 within ten days on receipt of a certified copy of this order who shall thereafter conduct an enquiry in the matter with the assistance of other Revenue officers/authorities as the District Magistrate may provide and submit the inquiry report to the District Magistrate within a period of next six weeks. It is made clear that the other officers may assist the Inquiry Officer but shall not form part of the Inquiry Committee meaning thereby the assistance which is provided by them will be verified and scrutinized by the Inquiry Officer as to the facts and material collected. Based on such inquiry report a decision shall be taken by the District Magistrate under the proviso to Section 95(1)(g) of the Act, 1947 read with the Rules, 1997 as to whether the financial and administrative powers of the petitioner are required to be seized or not? Consequences shall follow accordingly accordance with law.
In the meantime, the proceedings under Section 67 of the Code against the petitioner's husband and other encroachers of the Gaon Sabha land, if any, shall be taken to its logical conclusion in accordance with law and final orders shall be passed at the earliest. Consequences in this regard shall also follow accordingly.
The writ petition is disposed of in the aforesaid terms.