Devendra Shanker vs State of U.P.and others

M.P. Singh, J.—Section 95 of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) keeps a control over the functioning of the Pradhan, who is an elected person. Section 95(1)(g) empowers the SubDivisional Officer to remove him if:

(i) he absents himself without sufficient cause from more than three consecutive meetings or sittings.

(ii) he refused to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude,

(iii) he has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made there under or his continuance as such is not desirable in public interest,

(iv) he being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics,

(v) he suffers from any of the disqualifications mentioned in 1 Clause (a) to (m) of Section 5A of the Act.

By Amending Act 3 of 1973 one more subsection (gg) was added to this section.

Section 95(1)(gg) of the Act reads as follows:

''''suspend a Pradhan or UpPradhan or a Member of a Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch or a Nyaya Panchayat against whom proceeding under clause (g) are pending or contemplated or against whom prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is pending.

Provided that an order of suspension under this clause shall not affect the right, if any, of the Pradhan or the UpPradhan as the case may be, to take part in the proceedings of a meeting convened under Section 14 and to vote at such meeting�.

Under this provision, an order of suspension can be passed by the SubDivisional Officer against a person, against whom proceedings under Section 95(1)(g) of the Act are pending or contemplated.

By means of the present writ petition the petitioner has challenged the order dated 13890 passed by the SubDivisional Officer under Section 95(1)(g) removing him from the office or Pradhan.

SHORT FACTS:

The petitioner was elected as Pradhan of the Gaon Sabha, Pargana Jalalabad, Tehsil Modinagar, district Ghaziabad in the year 1982. Thereafter, he was again reelected in the year 1988.

On 121089 a show cause notice was issued to the petitioner. It was based on a report of the Tehsildar dated 101089. It was stated that the petitioners'' brother, Tejveer Singh has encroached upon plot No. 532 belonging to the Gaon Sabha. Proceedings under Section 122B of U.P. Zamindari Abolition and Land Reforms Act, were initiated against him, and an order of ejectment was passed. Then he filed a civil suit, in which an order of injunction was passed against the defendants restraining them from evicting him. Thus, Tejveer Singh continued in possession.

The petitioner submitted his reply on 151089 stating that he has never misused his power. Tejveer Singh is living separately from his family. On the other hand it was pointed out that the proceedings under Section 122B of U.P.Z.A. and L.R. Act were initiated on his complaint. The statement of the Lekhpal was also recorded, according to which Tejveer Singh came in possession in the year 1981 whereas the petitioner was elected as Pradhan in the year 1982. At the time when he occupied the land, the petitioner was not even in office.

The SubDivisional Officer passed an order of suspension on 9390 under Section 95(1)(gg) of the Act. The Tehsildar was appointed as Inquiry Officer.

The said order of suspension dated 9390 was challenged by the petitioner in revision. On 27390 the learned Commissioner stayed the operation of the order of suspension. The stay order dated 27390 is still in operation, but it has been made clear by the learned Commissioner that the enquiry shall go on.

The Tehsildar submitted his enquiry report on 2790. Relying upon this report, the impugned order of removal was passed under Section 95(1)(g) of the Act on 13890.

Against the order dated 13890, the petitioner has already filed an appeal before the learned Commissioner. The appeal is still pending.

In paragraph No. 2 of the writ petition it has been stated that the appellate authority has told the petitioner that on account of political pressure from Shri Raj Pal Tyagi M.L.A. it will not be possible to decide the appeal or dispose of the stay matter. Under these circumstances, the petitioner has approached to this Court.

Normally, when a person is pursuing an alternative remedy, he is not permitted to invoke writ jurisdiction of this Court, but in the instant case on account of extraordinary situation mentioned in the preceding paragraph, the petition is being entertained.

Ishwar Chand and Babli alias Naresh have moved an application for impleadment in this petition as respondents. The said application was allowed by me. They have also filed a counteraffidavit contesting the writ petition.

After hearing the learned counsel for the petitioner and learned counsel for the respondents as well as learned standing counsel the writ petition is being finally disposed of at the admission stage.

The first submission raised by learned counsel for the petitioner was that since there was stay order from the revisional court, it was not proper for the SubDivisional Officer to proceed further and to pass an order under Section 95(1)(g) of the Act removing the petitioner from the office. The submission has got no force.

The learned Commissioner has only stayed the operation of the suspension order, but has permitted the enquiry to proceed. The intention, it appears, was that the SubDivisional Officer may pass fresh order under Section 95(1)(g) of the Act in case he was satisfied that there was a case against the petitioner.

The next submission raised by learned counsel for the petitioner was that the impugned order is a quasijudicial order and as such it should have been passed by giving reasons and discussion of the material on record.

This argument has force. In the penultimate paragraph of the impugned order which is the only discussion on the merit of the case, only this much has been stated that he has looked into the report of the Tehsildar dated 2790 and in the next line he says that the charges have been proved against the petitioner. On this basis he passed an order removing the petitioner under Section 95(1)(g) of the Act.

The impugned order cannot be said to be a speaking order passed on reasons. It has to discuss the evidence on record and give his own reasons. It is Immaterial whether the reasons are sound or wrong. If reasons are there, the order will fulfil the attributes of a speaking order. Such order need not be long or exhaustive. The brevity will not deprive it, of the attributes of the speaking order so long it gives the reasons. In the instant case on account of basic omissions of discussing the evidence and reasons, the order becomes bad in law.

In a case reported in Hari Saran Das Dhillon v. S.D.M. Hapur, Meerut 1982 UPLBEC 116, a Division Bench of this court had an occasion to consider the scope of Section 95(1)(g) of the Act. In that case also without discussing the evidence and giving the reasons, order under Section 95(1)(g) was passed. The Court set aside the order on the ground that since the impugned order was without reasons, it was void in law.

In the result, the writ petition succeeds and is allowed. The order dated 13890 passed under Section 95(1)(g) is quashed.