Nafees Khan vs State of Uttar Pradesh and Others

N.L. Ganguly, J.—The aforesaid three Petitioners by way of separate writ petitions under Article 226 of the Constitution of India have challenged the orders of the Sub-Divisional Officer concerned passed against each of them u/s 95(1)(g) and 95(1)(gg) of the Panchayat Raj Act (the Act, in brief,) respectively, suspending all of them from functioning as the Pradhan of the Gaon Sabha concerned. In the first two petitions the order is of removal u/s 95(1)(g) and the last one is one of passing of order u/s 95(1)(gg) of the Act. Sri S. A. Jilani for Nafis Khan, Sri H. S. M. Tripathi for the Petitioner in the Second petition Niyaz Ahmad. Sri Amar Nath Tripathi. for the Petitioner Bhola Nath Yadav in the third petition, have appeared for their respective Petitioner. Since the Petitioners are all Pradhans of the Gaon Sabha concerned and the other facts and arguments on behalf of the Petitioners are almost the same, all the aforesaid three writ petitions have been heard at the same time and is now being disposed by this common judgment, discussing the first petition of Nafis Khan as the leading case.

Nafis Khan is an elected Pradhan. Certain complaints and reports were levelled against him before the S.D.O. concerned. Show cause notice was issued listing the charges made against him. The Petitioner replied to the same. The allegation briefly against the Petitioner was that he misused the amount entrusted to him for the Jawahar Rojgar Yojna and had entered fictitious entries about the expenditure regarding the said scheme. The S.D.O. had received report from the Assistant Engineer about the said allegations against the Petitioner. The second allegation against the Petitioner is of preparing of incorrect and fictitious muster roll for the payment of wages to various labourers and workmen. It was also charged that the Petitioner had shown payment of wages in respect of certain persons twice and had made wrong entry in the record. The Tehsildar concerned had submitted the said report after investigation. The voluntary service rendered by the villagers in the scheme had allegedly been shown to have been done by the workmen which were falsely shown to have been paid therefor. The S.D.O. after issuing show cause notice on the said allegation and after giving due opportunity to reply the same to which the Petitioner duly replied, and considering the reply and the facts and reports against the Petitioner, and being satisfied that the Petitioner had prima facie misused his office and abused his position, removed the Petitioner by his order dated 26-2-1992 u/s 95 (1)(g) of the Act.

The Petitioner has admittedly without approaching the learned Commissioner of the division concerned by filing a revision against the impugned order has approached this Court under Article 226 of the Constitution. The Petitioner contends that the S.D.O. concerned has erred in law in not issuing a second show cause notice before passing the removal order u/s 95(1)(g) of the Act. He replies on decision in Jangali Singh v. S.D.O. Bhogaon, district Mainpuri 1977 ALR Summary of Cases No. 79 at page No. 74, in which the Division Bench of this Court was pleased to allow the petition on the ground that the Petitioner was not given a second show cause notice before has removal.

The Petitioner also pointed out that the original Act had not contemplated the revision or appeal under the Act and that the provisions of Section 95 of the Act is to be enforced by the State Government as is clear from the language of the section itself. This argument that the powers for delegation of right for appeal or revision cannot be provided by any other authority than the legislature specifically The learned Counsel for the Petitioner further submitted that the notification published in the U.P. Gazette vide Panchayati Raj Vibhag Notification II71-B-XXXII- 2-16-G -66 dated the 30th October, 1967, published in the U.P. Gazette (Part I), dated November, 11, 1957, page 4100, delegated powers u/s 95(1)(g) of the Act to the Sub-Divisional Officers and the orders of removal was made subject to the revision and appeal before the Commissioner of the Division. The learned Counsel for the Petitioner Sri S. A. Jihni argued the case at length and cited number of cases which I shall consider at a later stage.

Admittedly, the Petitioner had not filed any revision against the impugned order of the S.D .O. before the Commissioner, as stated aforesaid.

Learned standing counsel submitted that since the Petitioner has not filed any revision and thus has not availed the alternative remedy before coming to this Court, the present writ petition is not maintainable on this ground alone. In Matloob Ahmad v. Sub Divisional Officer, Najibabad, Bijnor 1987 ALK (Summary of Cases No. 76) at page 54 : 1986 AWC 1175, the Division Bench of this Court was pleased to dismiss the writ petition on the ground of non-filing of the revision before the Divisional Commissioner and thus without exhausting the alternative remedy the petition was not maintainable.

Learned Counsel for the Petitioner submitted that the objection of the learned Standing Counsel about the maintainability of the petition and bar of alternative remedy is misconceived. He submitted that in the Matloob Ahmad case (supra), the question of delegation of power u/s 96-A was not at all considered by the Division Bench, hence the submission was that unless this Court considers the submission advanced by the Petitioner about the validity of the delegation of the powers of revision, the bar of alternative remedy would not be attracted. Learned Counsel repeated his submissions that the legislature had not intended to provide such revision or appeal in proceedings u/s 95 of the Act As such, the addition of Section 96-A in the Act providing for delegation of power in exercise of powers of Section 95 are ultra vires and liable to be quashed. It is further submitted that the executive or administrative acts could be delegated by the competent authority to subordinate authority or any authority. Learned Counsel for the Petitioner submitted that it cannot be disputed that powers u/s 95(1)(g) and 95(1)(gg) of the Act are quasi-judicial powers. He submitted that such delegation is not permissible in view of the decision reported in Bombay Municipal Corporation Vs. Dhondu Narayan Chowdhary, He submitted that the Division Bench in Matloob Ahmad''s case (supra) had not considered this aspect of the matter at all and the said judgment is of no help in this case.

I have heard the learned Counsel for the Petitioner and the learned Standing Counsel at length on the aforesaid aspect. In Udai Bhan Singh v. S.D.O. 1976 (2) ALR 202 , the Division Bench of this Court had considered Bombay Municipal Corporation Vs. Dhondu Narayan Chowdhary, . The submission of the learned Counsel that the quasi judicial powers could not have been delegated can not be accepted in view of the observations by the Division Bench of 1976 (supra). The submission of the learned Counsel for the Petitioner that there must be specific provision in the Act permitting the delegation of quasi judicial powers was also repelled and the Division Bench of 1976 Udai Bhan Singh''s case, supra) held that the provisions of Section 96-A empowered the State Government to delegate all or any of the powers including the powers under Sub-section (1)(gg) of Section 95 of the Act, The learned Counsel for the Petitioner submitted that there is a conflict between the decision of Matloob Ahmad''s case (supra) and Udai Bhan''s case (supra). He submitted that in Matloob Ahmad''s case the Supreme Court case of 1965 page 1486 was not at all considered. The submission of the learned Counsel for the Petitioner is patently misconceived. In Udai Bhan Singh''s case of 1976 (supra), the Division Bench did consider the Supreme Court decision of 1965 page 1486 cited above. The learned Counsel is not correct in saying that there is conflict in the two decisions of the division bench of this Court. The 1976 case of Udai Bhan Singh (supra) holds still good and it cannot be said that: power of revision given to the Divisional Commissioner by the State u/s 96A is in any way bad in law.

The question was considered earlier by other Hon''ble Single Judge in D.S. Misra v. The Commissioner 1986 AWC 279 and Gopi Singh v. State of U.P. 1991 ALJ 85. The learned Single Judge relying on the decision of the Division Bench in Matloob Ahmad''s case upheld the delegation of powers to the Divisional Commissioner. Thus, in view of the settled law and I am also of the opinion that there had been a valid delegation of power of revision by the State to the Commissioner for revising the order passed by the S. D. O. Thus, the bar of alternative remedy would operate against the maintainability of this petition The other submissions of the learned Counsel for the Petitioner needs no further probe as these petitions are being dismissed on the ground of bar of alternative remedy itself.

In the result, all the aforesaid three petitions are dismissed summarily on the ground that; the Petitioners have not exhausted the alternative remedy before coming to this Court.