Vivekanand Yadav vs State of U.P. and Others

Yatindra Singh, J.—A pradhan of a gram panchayat can be removed for his misconduct under Sub-section (1) (g) of Section 95 [Section 95(1) (g)] of the U. P. Panchayat Raj Act, 1947 (the Panchayat Raj Act). He ceases to exercise and perform the financial and administrative powers and functions (in short, exercise the financial and administrative powers), the moment a show cause notice is issued against him satisfying the conditions of the proviso to Section 95(1) (g) of the Panchayat Raj Act. The main question involved in this reference revolves around, The right of a pradhan before an order ceasing his powers is passed and the meaning of the word ''otherwise'' in Rule 5 of the U. P. Panchayat Raj (Removal of Pradhan and Up Pradhans and Members) Enquiry Rules, 1997 (the Enquiry Rules).

THE FACTS

The Petitioners in these four writ petitions (W. Ps.) are pradhans of different gram panchayats. The show cause notices were issued to them and their right to exercise financial and administrative powers was ceased under proviso to Section 95(1) (g) of the Panchyat Raj Act. They have filed the writ petitions (W. Ps.) against the same. The W. Ps. have been referred to the larger Bench.

There is one reference in W.P. 36881 of 2008 (the first writ petition) and W.P. 45576 of 2008 (the second writ petition). In W.P. 49305 of 2009 (the third writ petition) and W.P. 69511 of 2009 (the fourth W.P.) another single Judge has passed two separate but similar referring orders. For convenience, we are mentioning the facts of the first and third W.P.

The First W.P.

In the first W.P., the Petitioner was elected as the pradhan of gram panchayat, Barua, district Mau. Some complaints were filed against him. On the basis of the same, a preliminary enquiry was conducted.

In pursuance of the preliminary enquiry report, a notice was issued to the Petitioner in the first W.P. on 2.6.2008 by the District Magistrate (D.M.) Mau. It was mentioned in the notice that in case no cause is shown or if it was found unsatisfactory then action under Panchayat Raj Act would be taken.

The Petitioner replied the same on 24.6.2008. After considering his reply, an order was passed on 21.7.2008:

� The Petitioner was held to be prima facie guilty of committing financial and other irregularities and his right to exercise the financial and administrative powers was ceased ;

� A committee of three members of the gram panchayat was appointed to exercise the powers of the pradhan till the finalisation of the final inquiry;

and � The District Youth Welfare Officer, Mau was appointed as the inquiry officer to conduct the final inquiry against the Petitioner.

� The first writ petition is against the same.

A single Judge of this Court, entertained the first and second W. Ps. and passed an interim order on 22.9.2008 in the first and second writ petition Smt. Kamli Devi Vs. State of U.P. and Others, By this order,

� Two questions were referred to the larger Bench for decision ;

� The orders ceasing the financial and administrative powers of the Petitioners were stayed ; however,

� Liberty was granted to the authorities to proceed and complete the final enquiry.

The Third W.P.

In the third W.P., the Petitioner was elected as pradhan of gram panchayat, Usmanpur, district Budaun. A complaint was filed against him mentioning financial irregularities. A copy of this complaint was also given to the District Panchayat Raj Adhikari (D.P.R.O.), Budaun.

The D.P.R.O. sent a letter on 2.1.2009 to the Petitioner in the third W.P. as well as secretary of the gram panchayat, requiring them to furnish the entire documents in respect of money allotted to the gram panchayat and work done from 2005 by the Petitioner as pradhan.

They did not produce the records. A recommendation was made on 23.3.2009 to take departmental action against the secretary and a report was submitted against the Petitioner.

On the basis of the aforesaid report, a show cause notice dated 10.7.2009 was issued by the D.M. It was mentioned in the notice that in case no cause is shown or was found to be unsatisfactory then an order to cease the right to exercise financial and administrative powers would be passed against the pradhan and three member committee would be constituted.

The Petitioner submitted his reply. In the reply no objection was taken by the Petitioner that:

� The report of the D.P.R.O. is not the preliminary enquiry report ; or

� No action can be taken against the Petitioner as no preliminary enquiry had been conducted ; or

� A copy of report be given to him before passing any order?

The only explanation was that,

� The secretary was taking the records to show them to the D.P.R.O. but they were lost on the way ; and

� The Petitioner is willing to face any enquiry.

The third W.P. was entertained and was referred to the larger Bench by order dated 19.3.2010, Het Kishan v. State of U.P. 2010 (3) ADJ 395, to be decided along with the first and second W. Ps. By the referring order,

(a) The impugned order ceasing the right to exercise financial and administrative power was kept in abeyance ;

(b) The pradhan was free to exercise the Administrative power ;

(c) In respect of exercise of financial power some distinction was made.

(i) The financial transactions under Chapter X of the U. P. Panchayat Raj Rules, 1947 are to be performed by the concerned D.P.R.O. on the recommendations of the concerned gram panchayat ;

(ii) Qua other financial matters,

� Consent is to be taken from the concerned D.P.R.O. ; and

� In the matter of the mid-day meal, from the District Basic Education Officer.

(d) Liberty was granted to the Respondents to conclude the final enquiry as envisaged under Rules 6 to 9 of the Enquiry Rules.

Similar but separate interim order as well as referring order was passed in the fourth W.P.

QUESTIONS REFERRED

The counsel for the parties have formulated the following questions from the referring orders that are referred to us:

(i) Whether the pradhan is required to be associated in the preliminary enquiry under the proviso to Section 95(1) (g) of the U. P. Panchayat Raj Act?

(ii) In case, the preliminary enquiry is adverse to the pradhan then, whether an opportunity is necessary before passing an order ceasing financial and administrative powers of the pradhan?

(iii) If the District Magistrate has sufficient material to undertake a formal enquiry then, is he still required to hold a preliminary enquiry?

(iv) Whether the following observations in Chunmun Vs. District, Magistrate and another, (the Chunmun case) are correct:

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 other than the ones submitted under the Enquiry Rules, i.e., the report referred to in Rule 4 (2) or Rule 7 of the said Rules. At the risk of repetition, it may be observed that the consequences visualised by the first proviso can ensue only upon a prima facie finding being recorded by the District Magistrate on the basis of a report submitted under Rule 4 (2) or Rule 7 of the Enquiry Rules.

Before we proceed further, it would be appropriate to mention historical background of the local bodies and notice legislative history of the Panchayat Raj Act.

HISTORICAL BACKGROUND

Panchayats--Constitutional Status

These writ petitions were heard along with W.P. No. 62427 of 2008, Hafiz Ataullah Ansari v. State of U.P. and Ors., (the Hafiz case), where similar questions in respect of a president of a municipality was involved. In the Hafiz case, a final inquiry has been ordered against the president of a municipality ceasing his financial and administrative powers. Some of the questions involved here have been answered in the Hafiz case. A part of historical perspective has also been mentioned there. Some other points relevant to the panchayats are detailed below.

A district consists of urban and rural areas. Urban areas are governed by the municipalities and rural areas by the panchayats. Our majority lives in rural areas, yet there was no reference to panchayats in the draft constitution (October, 1947), prepared by Sri B. N. Rau, the constitutional adviser. This led Mahatama Gandhi to say,

I must confess that I have not been able to follow the proceedings of the Constituent Assembly....(The cor Respondent) says that there is no mention or direction about village Panchayats and decentralisation in the foreshadowed Constitution. It is certainly an omission calling for immediate attention if our independence is to reflect the people''s voice. The greater the power of the Panchayats, the better for the people (Harijan, 21 December 1947)

The draft constitution was settled by a drafting committee before its introduction in the constituent assembly on November 4, 1948 by its chairman, Dr. B. R. Ambedkar. This settled draft was criticised, as it also did not have any reference to panchayats.

While introducing the Draft Constitution and referring to criticisms thereof, Ambedkar had expressed himself strongly against the system of village panchayats. Characterising the village as "a sink of localism" and "a den of narrow-mindedness", he had observed: "I am glad that the Draft Constitution has discarded the village and adopted the individual as its unit" The expression of such a view by Ambedkar had evoked strong resentment and protests from a number of members. (C.A. Deb. Vol VII, pp 39-9).(The Framing of India''s Constitution: A study ; published by the Indian Institute of Public Administration, New Delhi, page 330, footnote 3)

Subsequently, an amendment (Article 31A) was adopted on November 22, 1948 without any comments from Dr. Ambedkar. This became Article 40 of the Constitution, one of the Directive Principles of State Policy. It lays down that the State shall take steps to organize panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government.

Sri Jai Prakash Narain in a foreword to the book ''''Panchayat Raj and Indian Politics'' by Dharampal: Collected Writings says, ''''During the freedom struggle, because of Gandhiji''s formative influence upon the political thinking of those who fought for freedom, it was more or less taken for granted that gram raj would be the foundation of swaraj. In other words, the concept political and economic decentralisation was axiomatic with the fighters for freedom. But when the constitution came actually to be constructed, that concept somehow was forgotten, or, to be more precise, remembered only as an after-thought.''

Our experience with panchayats in independent India had not been happy. These institutions were not able to acquire the status and dignity of viable and responsive people''s bodies due to a number of reasons including absence of regular elections, prolonged suppressions, insufficient representation of weaker sections like scheduled castes scheduled tribes and women, inadequate devolution of powers, and lack of financial resources. It was considered necessary that some basic and essential features of Panchayati Raj Institutions be enshrined in the Constitution to impart certainty, continuity, and strength to them.

Accordingly, a new Part IX relating to Panchayats was added in the Constitution by 73rd Constitutional Amendment Act. So far as relevant for this case, it, inter alia provides for,

� Devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic development and social justice and for the implementation of development schemes (Article 243G) ;

� Sound finance of the Panchayats by securing authorisation from State Legislatures for grants-in-aid to the Panchayats from the Consolidated Fund of the State, as also assignment to, or appropriation by, the Panchayats of the revenues of designated taxes, duties, tolls and fees (Article 243H) ;

� Bringing existing laws in conformity with provisions contained in Part IX of the Constitution within one year. (Article 243N).

LEGISLATIVE HISTORY

Article 243B in Part IX envisages three tier system of panchayats ; one at village level, one at district level, and one at intermediate level. In our State, rural areas of a district are divided into blocks that in turn consists of villages and three levels of panchayats were already in existence.

� A gram panchayat is a local body governing a village ; it could comprise more than one village as well. It is governed by the Panchayat Raj Act ;

� A kshettra panchayat governs a block (intermediate level) and zila panchayat a district. They are governed by U. P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, (the Kshettra-Zila Panchayat Act).

Section 95 of the Panchayat Raj Act is in Chapter VII. It is titled as ''External Control''. Section 95 is titled ''Inspection''. Section 95(1) (g) of the Panchayat Raj Act provides for removal of a pradhan.

Initially, Section 95(1) (g) provided for suspension as a punishment, but there was no specific provision for suspension during tendency of removal proceeding. It was claimed that power to suspend during removal proceeding is included in power to remove as it was necessary for its execution. This was negated by the courts. Section 95(1) (g) as it stood at that time is given in Appendix-2 ; whereas Appendix-1 is the index of other appendices and includes abbreviations used in the judgment.

Subsequently, Section 95(1) was amended and Sub-section (gg) was inserted by U. P. Act No. 3 of 1973 giving power to suspend during tendency of removal proceedings. A proviso was also inserted at the end of Section 95(1) . It provides reasonable opportunity before taking proceeding, apart from others, u/s 95(1) (g). It is referred to as the proviso to Section 95(1) of the Panchayat Raj Act. The relevant parts of U. P. Act No. 3 of 1973 and Section 95(1) of the Panchayat Raj Act after this amendment are given in Appendix-3 and 4.

Subsequently, Section 95(1) of the Panchayat Raj Act was again amended by U. P. Act No. 9 of 1994 to bring it in conformity with the 73rd Constitutional Amendment Act. The relevant parts of the U. P. Act No. 9 of 1994 and Section 95(1) after amendment are given in Appendix-5.

By the aforesaid amendment, Section 95(1) (gg), providing for suspension, was deleted however a proviso to Section 95(1) (g) was inserted. It provides ceasing of financial and administrative power of a pradhan during removal proceeding on fulfillment of conditions mentioned therein. This proviso is referred to as proviso to Section 95(1) (g). The other proviso mentioned earlier is referred as proviso to Section 95(1) . The relevant part of Section 95(1) at the time of passing of the impugned orders is given in Appendix-6.

The proviso to Section 95(1) (g) contemplates an enquiry before ceasing financial and administrative powers by such person and procedure, as may be prescribed. The State Government has framed the Enquiry Rules in pursuance of the same. The relevant part of these rules is given in Appendix-7.

The Kshettra-Zila Panchayat Raj Act also has similar provisions for removal and cessation of financial and administrative powers of pramukh of a block kshettra panchayat (Section 16) and adhayakha of a zila panchayat (Section 29). The State Government has framed U. P. Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas Enquiry) Rules, 1997 (the Kshettra-Zila Panchayat Enquiry Rules). These rules are similar. Its relevant rule, namely Rule 5, is given in Appendix-8.

Power Delegated to D.M.

Section 96A of the Panchayat Raj Act empowers the State Government to delegate all or any of its powers under the Panchayat Raj Act to any authority subordinate to it. The power u/s 95(1) (g) as well as under the Enquiry Rules has been delegated by the State Government to the D.M. by notification No. 1648/31-1-1979-123/97 Lucknow dated 30.4.1997.

Section 95(1) (g) as well as the Enquiry Rules use the words ''State Government'' but as its power has been delegated to the D.M., we are using the words ''the D.M.'' in this judgment in place of the words ''State Government'' wherever it has been delegated.

POINTS FOR DETERMINATION

We have heard the counsel for the parties. The questions referred to the larger Bench have been mentioned under the heading ''Questions Referred''. We have reformulated them into the following points for determination. The answer to the questions referred will depend on their answers.

(i) Whether the proviso to Section 95(1) of the Panchayat Raj Act providing for opportunity applies to the preliminary enquiry under the proviso to Section 95(1) (g) or only to the main Section 95(1) (g) ;

(ii) Whether the rules are necessary to be framed for the preliminary and final enquiry under the proviso to Section 95(1) (g) ;

(iii) What is the meaning of word ''otherwise'' in Sub-rule (1) of Rule 4 [Rule 4 (1)] of the Enquiry Rules ;

(iv) Can a pradhan object to a complaint on the ground that it is not in conformity with Rule 3 of the Enquiry Rules ;

(v) In case the answer to the first point is in the negative then, whether a pradhan is entitled to be associated in the preliminary enquiry on the ground that principles of natural justice are applicable to it ;

(vi) In case a pradhan is entitled to be associated or given opportunity then what is the extent of his rights ;

(vii) Whether a pradhan is entitled to an opportunity before the order ceasing the financial and administrative powers is passed against him under the proviso to Section 95(1) (g).

(viii) Can there be proceeding for removal of a pradhan u/s 95(1) (g) of the Panchayat Raj Act, without ceasing his financial and administrative powers ;

(ix) In case answer to the preceding question is in the affirmative then, will Rule 6 of the Enquiry Rules providing the procedure in the final enquiry apply to the case where power is not so ceased ;

(x) What is the meaning of word ''otherwise'' in Sub-rule (1) of Rule 5 [Rule 5 (1) of the Enquiry Rules] ;

(xi) Whether a preliminary report submitted by the D.P.R.O. or an officer defined as enquiry officer under Sub-rule (c) of Rule 2 [Rule (2) (c) of the Enquiry Rules]--without being formally asked to conduct the preliminary enquiry--can be accepted under Rule 5 to,

� Constitute a three member committee to exercise financial and administrative powers ; and

� Appoint an enquiry officer to conduct the final enquiry under Rule 6.

1st Point: PROVISO TO SECTION 95

(1)--NOT APPLICABLE TO PRELIMINARY ENQUIRY

The counsel for the Petitioner submitted that:

� The proviso to Section 95(1) (g) provides for the enquiry before ceasing financial and administrative powers ;

� The proviso to Section 95(1) provides that no action can be taken under Clause 95(1) (g) without reasonable opportunity of showing cause ;

� It applies to the proviso to Section 95(1) (g) also that provides for the preliminary enquiry ;

� A pradhan is entitled to be associated in the preliminary enquiry under the proviso to Section 95(1) (g) ; and

� He should be afforded opportunity before ceasing his financial and administrative power during tendency of removal proceeding.

Section 95(1) (g) contemplates removal of a pradhan. The proviso to Section 95(1) (g) contemplates an enquiry before ceasing financial and administrative powers during tendency of a removal proceeding. It could only be done if in the enquiry, the pradhan is prima facie found to have committed financial and other irregularities. This shows that enquiry under proviso to Section 95(1) (g) is a preliminary or a fact finding enquiry. This is how this enquiry is also referred to in the Enquiry Rules. It has to be conducted under Rule 4 of the Enquiry Rules.

The final inquiry is to remove the pradhan and it is to be conducted under Rule 6 of the Enquiry Rules. In this final enquiry admittedly opportunity has to be offered under proviso to Section 95(1) . This is also detailed in Rule 6 of the Enquiry Rules. The question is:

Does the proviso to Section 95(1) also apply to the proviso to Section 95(1) (g).

In order to understand it, it would be relevant to refer the legislative history of Section 95(1) of the Panchayat Raj Act.

Historically--Not Meant to Apply

The changes in Section 95(1) of the Panchayat Raj Act have been indicated under the heading ''Legislative History''. It shows that proviso to Section 95(1) was inserted along with Section 95(1) (gg) providing for suspension of a pradhan (See Appendix-1). Initially, proviso to Section 95(1) had two sub-clauses namely (i) and (ii). Sub-clause (i) is still there but Sub-clause (ii) has been now deleted by U. P. Act No. 9 of 1994.

Section 95(1) (g) always provided grounds as well as power to remove a pradhan earlier. The proviso to Section 95(1) provided that no action would be taken u/s 95(1) (g) without giving reasonable opportunity. The suspension at that time was u/s 95(1) (gg). The proviso to Section 95(1) shows that the opportunity under this proviso was to be provided only for the proceedings u/s 95(1) (f), 95(1) (h) and 95(1) (g) and it was never meant to apply to proceeding for suspension u/s 95(1) (gg).

By the U. P. Act No. 9 of 1994, Section 95(1) (gg), which provided for suspension during removal proceeding, was deleted and in substance was inserted as first proviso to Section 95(1) (g). This proviso provides for cessation of financial and administrative powers of the pradhan instead of suspension. It is substantially the same except that the person may not be called a suspended pradhan. In fact, it is less drastic than the suspension. It seems strange that the proviso to Section 95(1) did not apply when the provision was more drastic but would apply when effect became less drastic.

The legislative intent shows that the proviso to Section 95(1) was meant to apply to main Section of 95(1) (g) of the Panchayat Raj Act contemplating removal and not to any other provision like the proviso that might be added subsequently. This is also borne out from the present scheme of the section as well.

Language Shows--Not Applicable

Justice G. P. Singh in ''Principle of Statutory Interpretation'' 12th edition pages 195 and 196) explains,

The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment... As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule.... The proper function of a proviso is that it qualifies the generality of the main enactment.

Jagdish Swarup ''Legislation and Interpretation'' Fourth Edition explains, ''It is often in the nature of a condition precedent to the enforcement of the operative Clause (page 353).

It is fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso (page 355).

A proviso must prima facie be limited in its operation and must be considered in relation to the principal matter to which it stands as a proviso (page 360) ''.

The main enactment is Section 95(1) (g) ; it provides for removal and not cessation of financial and administrative power, which is provided in its proviso. The two provisos qualify the main provision namely removal proceeding and not each other. Had the Legislature intended that proviso to Section 95(1) should also qualify the proviso to Section 95(1) (g) then, it would have so provided.

These two provisos act in different fields:

� One [proviso to Section 95(1) ] provides reasonable opportunity in the removal proceedings ;

� The other [proviso to Section 95(1) (g)] provides cessation of financial and administrative powers during removal proceeding.

In our opinion, the proviso to Section 95(1) provides for reasonable opportunity in proceedings for removal of a pradhan u/s 95(1) (g). But it does not apply to the proviso to Section 95(1) (g) providing preliminary or fact finding enquiry: the purpose of this enquiry is to find out if there is any prima facie case against the pradhan or not.

2nd POINT: RULES NECESSARY--ONLY FOR PRELIMINARY ENQUIRY

Section 95(1) (g) read with its proviso envisages two enquiries:

� A preliminary or fact finding enquiry: On the basis of this enquiry, financial and administrative powers of a pradhan can be ceased and a committee to perform these functions can be appointed. This takes place under Rule 4 of the Enquiry Rules read with proviso to Section 95(1) (g) of the Act ;

� The final enquiry: It is done to remove a pradhan. This takes place under Rule 6 of the Enquiry Rules read with Section 95(1) (g) Clauses (i) to (v) as well as the proviso to Section 95(1) .

Section 95(1) (g) (providing removal of a pradhan) or proviso to Section 95(1) (providing reasonable opportunity in the removal proceeding) do not contemplate any formal enquiry or rules to be framed. However the proviso to Section 95(1) (g) providing cessation of financial and administrative powers does contemplate a preliminary enquiry by a person and procedure to be prescribed: the rules have to be framed for the same. The Enquiry Rules have been framed because it is so mandated in the proviso to Section 95(1) (g) of the Panchayat Raj Act and not because of Section 95(1) (g) or the proviso to Section 95(1) .

It is relevant to point out that Kshettra-Zila Panchayat Raj Act has similar provisions (Sections 16 and 29) and similar rules have been framed. In the Municipalities Act, there is neither any proviso similar to the proviso to Section 95(1) (g) mandating enquiry nor any rules have been framed.

Rule 2 of the Enquiry Rules is the definition clause. Rule 3 provides, how a complaint may be filed against a pradhan. Rule 4 provides for conducting a preliminary enquiry. It is on the basis of this preliminary enquiry that action can be taken under the proviso to Section 95(1) (g). This is explained in Rule 5 of the Enquiry Rules.

Rule 6 provides the procedure in the enquiry. This is for the final enquiry for removal of the pradhan. This procedure is not applicable in the preliminary enquiry under Rule 4. Had there been any such intention then it would have been clarified. It also does not make sense to provide the same lengthy procedure and repeating it twice.

Rules 7 and 8 provide for submission of the final report prepared under Rule 6 and the order made thereupon.

The reading of Section 95(1) shows that rules were to be prescribed for conducting the preliminary enquiry under the proviso to Section 95(1) (g) of the Panchayat Raj Act ; but they have been framed for the final enquiry also, which has to done in consonance with the proviso to Section 95(1) of the Panchayat Raj Act.

There is no prohibition in the Panchyat Raj Act that rules for the final enquiry could not be framed. In fact, it is better that they are framed so that affected person knows how the final enquiry would proceed.

In deciding point-8, we have held that there can be removal proceeding without ceasing the power. The procedure in Rules 6 to 8 of the Enquiry Rules applies even to those proceeding as well though the earlier Rules 3 to 5 might not apply to them. This is also clarified there.

3rd & 4th POINT: WORD ''OTHERWISE'' IN RULE 4--WIDE

Rule 3 of the Enquiry Rules is titled ''Procedure relating to a complaint'' and provides how a complaint may be made. It provides two ways:

� One, by a private person that has to be supported by an affidavit and has to comply other conditions of sub-rules (1) to (4) of Rule 3 [Rule 3 (1) to 3 (4)] ;

� The other by a public servant, and in this case the restrictions of the complaint by a private person do not apply.

Rule 4 is titled as ''Preliminary enquiry''. The D.M. can order a preliminary enquiry on the complaint or report or otherwise. The word complaint or report refers to the complaint by a private person or to the report by a public servant under Rule 3. The report of the public servant need not conform to the restrictions of a complaint by a private person. The question is, ''What does the word ''otherwise'' in Rule 4 mean?''

The counsel for the Petitioner submitted that:

� The word ''otherwise'' should take the same colour as the words accompanying it, namely complaint or report under Rule 3 ;

� A complaint not satisfying Rule 3 (1) to (4) cannot be entertained under Sub-rule (5) of Rule 3 [Rule 3 (5)] ;

� A pradhan has right to object to a complaint that does not comply with Rule 3 (1) to 3 (4).

Words and Phrases permanent edition volume 30A page (230) explains, ''Otherwise means but for or under other circumstances...one of the usual meanings of otherwise is contrarily''.

The Black''s Law dictionary explains it to the mean,

In a different manner ; in another way, or in other ways.

The enquiry under Rule 4 is a preliminary or a fact finding enquiry. It has to consider prima facie whether any financial or other irregularities have been committed by the pradhan or not. The final enquiry is yet to be done. Considering the object, there is no reason to give any restricted meaning to the word ''otherwise'' in Rule 4 as suggested by the counsel for the Petitioner. The normal meaning of ''otherwise'' should be adopted: the D.M. has power to refer a case for preliminary enquiry even if there is no complaint or report or in other words he has powers to act suo motu.

Rule 3 (5) of the Enquiry Rules provides that the complaint, which does not comply with any of the preceding sub-rules of Rule 3 should not be entertained. However, even if the complaint is not to be entertained yet the D.M. can always refer the matter for the preliminary enquiry, if he considers that it should be so enquired: he can act as suo motu.

The counsel for the Petitioners cited rulings taking the view that a pradhan has a right to object to the format of the complaint. With due respect, we do not agree with the same.

If the D.M. can order for the preliminary enquiry even in a case, where a complaint could not to be entertained, then what is the purpose of permitting a pradhan to object regarding its non-conformity with Rule 3 (1) to 3 (4). To us, it appears to be futile exercise. It is for the D.M. to consider whether he should entertain the complaint or not.

In our opinion:

(i) The word ''otherwise'' in Rule 4 means that the D.M. has suo motu powers to order a preliminary enquiry ;

(ii) In an appropriate case, the D.M. may order a preliminary enquiry even if there is,

� No complaint or report ; or

� A defective complaint, not in accordance with Rule 3 (1) to 3 (4).

(iii) A pradhan has no right to object that a complaint is not in accordance with Rule 3 (1) to 3 (4) of the Enquiry Rules ;

5th to 7th POINT: PRELIMINARY ENQUIRY--NOT ENTITLED TO PARTICIAPTE

In the Hafiz case, one of the question was regarding providing opportunity before ceasing financial and administrative power of a president during his removal proceeding under the Municipalities Act. Though the words of the Municipalities Act are different but the same reasoning applies here.

The Municipalities Act contemplates cessation of power on notices being issued, fulfilling the conditions under proviso to Section 42 (2) of the Municipalities Act. Apart from other conditions, one of the conditions is that the State Government should have reason to believe that the allegation against the president are not groundless and he is prima facie guilty of the charges. In Hafiz case, we have held that the belief of the State Government or satisfaction has to based on the material. The basic question involved there was:

� Should the president be involved while collecting the material ;

� Is the president entitled to any opportunity before ceasing his financial and administrative powers.

The aforesaid questions are also involved in these cases as well. It is for this reason that these questions, in connection of pradhan of a gram panchayat, were also considered in the Hafiz case. It is held there that:

It is not necessary to involve a head of a local body in the process of collecting material or in the preliminary inquiry. However, it is necessary to ask and consider his explanation, or point of view or version regarding charges before issuing notice under the relevant provisos under the different enactments. [see 6th and 7th Point: President''s Explanation Should Be Seen (paragraph 132)].

In these cases, there was an additional argument for opportunity being given namely applicability of proviso to Section 95(1) to the proviso to Section 95(1) (g). However, we have negated it, while deciding the first point.

In view of our decision and reasons detailed in the Hafiz case, a pradhan is neither entitled to be associated in the preliminary enquiry nor is he entitled to get the copy of the preliminary enquiry report--his only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed.

In the cases, cited before us from the Petitioners'' side (see below), it was held that association of the head of the local body in the preliminary inquiry was necessary. With due respect, we do not agree with them.

In the other set of cases, cited from the Respondents side (see below), contrary view was taken that no opportunity--even asking explanation or point of view to the charges--was necessary before ceasing financial and administrative powers. With due respect, they require modification.

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 be indication that mind has been applied. This has also been explained in the Hafiz case. Nevertheless, we would like to clarify it.

In the first and the third W. Ps., the explanations of the affected pradhans were not only asked but were also considered. There has been application of mind. The order in these two W. Ps. cannot be faulted on the grounds that:

� The copy of the preliminary report was not given to them ;

� The explanation was not asked from them ;

� Their explanation was not considered.

Some of these points are applicable in the other W. Ps. but we have not examined them ; we leave them to be considered by the Bench concerned.

8th and 9th POINT: THERE CAN BE--BUT PROCEDURE HAS TO SAME

In the Hafiz case, we have held that there can be proceeding without ceasing financial and administrative powers (see sub-heading ''Position in the Rural-Areas Enactments--Similar'' of the heading ''2nd to 4th Point: There Can Be Proceeding Without Ceasing Power). Similar reasoning applies here.

In our opinion there can be a proceeding for removal of a pradhan without ceasing his financial and administrative powers.

Section 95(1) (g)--or proviso to Section 95(1) empowering removal of a pradhan do not contemplate any preliminary or formal enquiry before removing a pradhan. They only envisage reasonable opportunity to be given before removal. The preliminary enquiry is mandated by the proviso to Section 95(1) (g) that stipulates cessation of financial and administrative powers during tendency of the removal proceeding. The Enquiry Rules have been framed in pursuance of the same.

Section 95(1) (g) or any of the provisos do not contemplate formal final enquiry for removal but in the Enquiry Rules, a detailed procedure (Rule 6) for the final enquiry has been framed. To us, it appears that these rules were meant to apply in those cases where it was considered expedient to cease the financial and administrative power. However, as there can be proceeding for removal of a pradhan without ceasing his power, does it mean that procedure of Rule 6 does not apply to a removal proceeding if it is undertaken without ceasing power?

In our opinion, this cannot be done, as this will amount to discrimination.

The proceeding for removal has to be conducted in accordance with Rule 6 onwards of the Enquiry Rules, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. However, where right to exercise financial and administrative power is also to be ceased then procedure in Rules 3 to 5 has to be followed otherwise there is no necessity to follow them.

In other words, preliminary enquiry may not be necessary if the proceeding for removal is to be undertaken without ceasing the power of the pradhan. With this in background, let''s consider the meaning of the word ''otherwise'' in Rule 5.

10th and 11th POINT: OTHERWISE IN RULE 5--LIMITED

The counsel for the Petitioner submitted that:

� The proviso to Section 95(1) (g) contemplates ceasing of financial and administrative powers only on a preliminary enquiry ;

� The preliminary enquiry cannot be conducted unless the enquiry officer is asked to do so ;

� Any other report would merely be a report under Rule 3 (6) of the Enquiry Rules and on its basis only preliminary enquiry under Rule 4 can be ordered and not an order ceasing financial and administrative powers or a final enquiry ;

� The word ''otherwise'' in Rule 5 is ultra vires the proviso to Section 95(1) (g) of the Panchayat Raj Act.

Some Words in Rule 5--Useless

Rule 5 of the Enquiry Rules (see Appendix-7) also contains the words ''under the proviso to Clause (g) of Sub-section (1) of Section 95''. We have not been able to understand the meaning or purpose of these words. These words make Rule 5 unworkable. Rule 5 only makes sense if they were not there or at least some words were not there and some others were added there. The counsel for the parties were equally at loss to explain what was meant by these words or their purpose.

The Kshettra-Zila Panchayat Raj Act also provides similar provision for removal and cessation of financial and administrative powers of Pramukh and Adhayakha. The Kshettra-Zila Panchayat Enquiry Rules have been framed. They are similar to the Enquiry Rules. Its Rule 5 (see Appendix-8) does not contain the aforesaid words: it makes sense.

A comparison of Rule 5 of the Enquiry Rules and the Kshettra-Zila Panchayat Enquiry Rules suggest that the words ''under the proviso to Clause (g) of Sub-section (1) of Section 95'' in the Rule 5 of the Enquiry Rules (see Appendix-7) is a mistake and are useless. The State Government will do well to correct it.

Rule 5--Limited by Proviso to Section 95(1) (g)

Rule 5 is titled as ''Enquiry Officer''. It provides that, on the basis of the report under Rule 4 (2) or otherwise, the D.M. may:

� Constitute a committee as envisaged in the proviso to Section 95(1) (g) to exercise the financial and administrative powers of the pradhan ; and

� Ask an enquiry officer other than the one who had conducted the preliminary enquiry, to hold the final enquiry to consider the removal of the pradhan. This final enquiry has to be conducted under Rule 6.

The question is, what is the meaning of word ''otherwise'' in Rule 5:

� Can it include a report by anyone or information coming into hands of the D.M. ;

� Has the D.M. suo motu power to cease the power and refer the case for the final enquiry?

The counsel for the Respondents submitted that:

� The word ''otherwise'' in Rule 5 should be interpreted as widely as the word ''otherwise'' in Rule 4 ;

� The D.M. has right to refer the matter for the final enquiry without any preliminary report if he considered proper.

A word used in different parts of the rules or an enactment may have different meaning. It depends upon the context and manner of its use. Justice Homes explains [Towne v. Eisner 245 US 418 (1918)], ''A word is not crystal, transparent and unchanged. It is skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used''.

Under proviso to Section 95(1) (g) right to exercise financial and administrative powers can only be ceased if the D.M. prima facie finds that the pradhan was guilty of financial and other irregularities in an enquiry (preliminary or fact finding) by such person and in the manner prescribed. It is only on such a report that might come within the purview of the word ''otherwise'' in Rule 5 of the Rules. All kinds of reports or information may not be relied under Rule 5 lest the rule may be hit by the statutory provision.

In our opinion, in view of proviso to Section 95(1) (g) it cannot be given as wide a meaning as we gave to the words ''otherwise'' in Rule 4. It has to have restricted meaning. Let''s consider, what kind of reports may be covered by the proviso to Section 95(1) (g) and the word ''otherwise'' in Rule 5 of the Enquiry Rules.

Rule 2 (c) defines ''Enquiry Officer''. It means the D.P.R.O. or any other district level officer to be nominated by the D.M. The following contingencies may be there:

(i) A complaint can be made directly to the D.M. who may ask the enquiry officer as defined under Rule 2 (c) to conduct a preliminary inquiry under Rule 4 ; or

(ii) A complaint can be made directly to the enquiry officer defined u/s 2 (c), who may submit a report without the D.M. asking for it ; or

(iii) A complaint can be made to the D.M. with copy to the enquiry officer, who may submit a report without the D.M. asking for it ; or

(iv) A D.M. can himself conduct a preliminary enquiry ; or (v) A report can be submitted by any other public servant.

In all the aforesaid alternatives, a preliminary enquiry is conducted and a preliminary report is there. The question is, which one of these can be acted upon under Rule 5 to cease the power under proviso to Section 95(1) (g) of the Panchayat Raj Act. According to,

� The Petitioners only first of the aforesaid report can be relied upon ;

� The Respondent''s all five reports can be relied upon.

� In our opinion, answer lies somewhere in between and only the first four reports can be so relied.

There is no dispute so far as first contingency is concerned. The fifth one has to be rejected. In case it is accepted, then this would make Rule 3 (6) otiose. In our opinion this cannot be the case. However this cannot be said about contingencies number two to four.

Rule 6 provides a detailed procedure for the final enquiry. However, there is no detailed procedure provided for the preliminary enquiry under Rule 4. A pradhan is not required to be associated in the preliminary enquiry.

The procedure provided in Rules 6 to 8 is for the final enquiry and not for the preliminary enquiry. A report by an enquiry officer defined under Rule 2 (c) is also a report by a person prescribed. It is not necessary for the enquiry officer to conduct the preliminary inquiry only on the direction given by the D.M. His job is to submit a report, so that the D.M. may take a decision,

� Whether there is prima facie case against the pradhan or not; and

� Whether the final enquiry should be held after ceasing his powers.

It is not necessary for the D.M. to specifically ask the enquiry officer to conduct a preliminary enquiry. There seems to be no point in asking the enquiry officer to conduct a preliminary enquiry again even if he submitted a report after the enquiry. It would be futile exercise unless the D.M. disagrees with the report of the enquiry officer.

A report by an enquiry officer defined under Rule 2 (c) is also a report by a person and the manner is prescribed under the Rules--irrespective of the fact that he was so asked by the D.M. or not. In our opinion, it is also a preliminary report within the meaning of the proviso to Section 95(1) (g) of the Panchayat Raj Act.

The D.M. exercises the powers of the State Government u/s 95(1) (g) as well as under the Enquiry Rules as the powers are delegated to him. He also appoints the enquiry officer. He is higher than all enquiry officers. He can himself conduct a preliminary enquiry. It would be anomalous that on a preliminary report of a subordinate officer, a final enquiry and cessation of power can be ordered but the D.M., who appoints him, cannot conduct a preliminary enquiry.

In our opinion, action under proviso to Section 95(1) (g) can also be taken on the preliminary report of the D.M. as well as on a report of a person defined as enquiry officer under Rule 2 (c) of the Enquiry Rules. Only these reports would be covered in the word ''otherwise'' of Rule 5. Any other report would be a report under Rule 3 (6) of the Enquiry Rules or can be considered by the D.M. under his suo motu power to order a preliminary enquiry but final enquiry with cessation of power cannot be ordered on its basis.

We would like to explain our point of view as well.

In the third W.P., the report is by the D.P.R.O.. He is defined as an enquiry officer under Rule 2 (c) of the Enquiry Rules. On his report, the power of pradhan can be ceased and the final enquiry can be ordered. The order in the third W.P. cannot be invalidated on this account.

The Chunmun Case--Observations Should be Limited

The observations of the single Judge in the Chunmun case, mentioned in the fourth question under the heading ''Questions Referred'', should be seen in the light of the facts of that case.

In the Chunmun case, a report was sent by a junior engineer. It is not clear from the judgment whether the junior engineer was nominated by the D.M. as the enquiry officer or not but the single Judge had held that a junior engineer was not competent to hold enquiry under the Enquiry Rules. In view of our decision, this report could be treated under Rule 3 (6) and could be referred for a preliminary enquiry but on its basis alone neither the three members committee could be appointed nor powers of the pradhan could be ceased.

The judgment on the facts of the Chunmun case is correct but the broad proposition that are extracted by the single Judge, referring the third and fourth W. Ps. to the larger Bench--are not correct and they require modifications and have to be limited to facts of that case only.

In our opinion, the word ''otherwise'' in Rule 5 includes, and the D.M. can rely upon, the following reports only to cease financial and administrative powers and direct for the final enquiry.

� A report of a person, who is also defined as an enquiry officer under Rule 2 (c) of the Enquiry Rules--irrespective whether he was directed by the D.M. to conduct the preliminary inquiry or not ;

� A preliminary enquiry report conducted by the D.M. himself.

However, a report by any other officer or any other information cannot be relied upon by the D.M. to constitute a three member committee ceasing financial and administrative powers. In such a situation, it should be treated as a report under Rule 3 (6) or would come under word ''otherwise'' in Rule 4 (1) and at the most only a preliminary enquiry can be ordered.

A SUGGESTION

Under sub-heading ''Some Words in Rule 5--Useless'' of point-10 and 11, we have indicated that, the words ''under the proviso to Clause (g) of Sub-section (1) of Section 95'' of Rule 5 of the U. P. Panchayat Raj (Removal of Pradhan and Up-Pradhans and Members) Enquiry Rules, 1997 do not make sense. Neither we could make out why are they used, nor any of the counsel appearing for the parties. These words are also not there in Rule 5 of the Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules, 1997.

It appears that the aforesaid words are there by mistake. The State Government will do well to clear its intention by re-framing or changing Rule 5 of the U. P. Panchayat Raj (Removal of Pradhan and Up-Pradhans and Members) Enquiry Rules, 1997.

CONCLUSIONS

Our conclusions are as follows:

(a) The D.M. may ask the preliminary enquiry to be conducted by any officer defined under Rule 2 (c) of the Enquiry Rules on a complaint or a report under Rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry ;

(b) A pradhan has no right to object that complaint or report is not in accordance with Rule 3 of the Enquiry Rules ;

(c) A pradhan is neither entitled to be associated in the preliminary enquiry nor is entitled to the copy of the preliminary report. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered ;

(d) In the first and the third W. Ps., the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the pradhan. The impugned orders in these W. Ps. cannot be faulted on this ground ;

(e) In our opinion the word ''otherwise'' in Rule 5 includes and the D.M. can rely upon the following reports only to cease financial and administrative power and direct the final enquiry:

� A report of a person who is also defined as an enquiry officer under Rule 2 (c) of the Enquiry Rules--irrespective of whether he was directed by the D.M. to conduct the preliminary inquiry or not ;

� A preliminary enquiry report conducted by the D.M. himself.

(f) In the third writ petition, the report was submitted by the D.P.R.O., who is defined as an enquiry officer under Rule 2 (c) of the Enquiry Rules. The impugned order cannot be faulted on the ground that the D.P.R.O. was not asked by the D.M. to conduct the preliminary enquiry ;

However, it is open to the Petitioners in the first and third W. Ps. to raise other points before the appropriate Bench.

Our conclusions also answer the questions referred. Let the files of these writ petitions along with connected petitions be placed before appropriate Bench for decision on merit.

Appendix-1

Index of all other appendixes and the abbreviations used in the judgment

Appendix-1: Index of all other appendixes and the abbreviations used in the judgment

Appendix-2: The relevant part of Section 95(1) of the Panchayat Raj Act before the amendment by U. P. Act No. 3 of 1973.

Appendix-3: The relevant part of U. P. Act No. 3 of 1973 amending Section 95(1) of Panchayat Raj Act.

Appendix-4: The relevant part of Section 95(1) just before the amendment by U. P. Act No. 9 of 1994.

Appendix-5: The relevant part of the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994 (U. P. Act No. 9 of 1994).

Appendix-6: The relevant part of Section 95(1) (g) of the Panchayat Raj Act at the time of passing of impugned orders.

Appendix-7: The relevant part of the Panchayat Raj Enquiry Rules.

Appendix-8: The relevant part of Kshettra-Zila Enquiry Rules.

Words and Abbreviations

Abbreviation

Words

Ceases to exercise financial and administrativ e powers

Ceases to exercise, perform, and discharge the financial and administrative powers and functions

Heads of the local bodies

President or a chairman of a Municipality, Adhyaksh of a Zila Panchayat, Pramukh of Kshettra Panchayat, and Pradhan of a Gram Panchayat

D.M.

District Magistrate

D.P.R.O.

District Panchayat Raj Officer

S.D.M.

Sub-Divisional Magistrate

The Kshettra-Zila Panchayat Act

U. P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961

The Municipalitie s Act

U. P. Municipalities Act, 1916

The Panchayat Raj Act

U. P. Panchayat Raj Act, 1947

The Enquiry Rules

Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997

Ap pendix-2

The relevant part of Section 95(1) (g) just before the amendment by U. P. Act No. 3 of 1973 was as follows:

Inspection (1).--The State Government may--

(g) suspend or remove a member of a Gaon Panchayat or Joint Committee [or Bhumi Prabandhak Samiti], an office bearer of a Gaon Sabha or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat, if he--

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

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

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

(v) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5A.

Appendix-3

The relevant part of U. P. Act No. 3 of 1973 amending Section 95(1) of Panchayat Raj Act, is as follows:

Amendment of Section 95.--In Section 95 of the principal Act, in Sub-section (1),--

(i) in Clause (g) for the opening paragraph, the following paragraph shall be substituted, namely:

(g) remove a member of a Gaon Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, an office-bearer of a Gaon Sabha or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he--

(ii) after Clause (g), the following Clause (gg) shall be inserted, namely:

(gg) suspend a Pradhan or Up-Pradhan or a member of a Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat against whom proceedings 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 Up-Pradahan, as the case may be, to take part in the proceedings of a meeting convened u/s 14 and to vote at such meeting.

(iii) at the end, the following proviso shall be inserted, namely:

Provided that--

(i) no action shall be taken under Clause (f), Clause (g) or Clause (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed ;

(ii) no action shall be taken under Clause (gg) on the ground that proceeding under Clause (g) are pending or contemplated unless the State Government is prima facie satisfied that the grounds on which action is proposed under that clause exist.

Appendix-4

The relevant part of Section 95(1) just before the amendment by U. P. Act No. 9 of 1994 was as follows:

Inspection (1).--The State Government may--

(f) ...

(g) remove a member of a Gaon Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, an office-bearer of a Gaon Sabha or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he--

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

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

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

(v) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5A ;

(gg) suspend a Pradhan or Up-Pradhan or a member of a Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat against whom proceedings under Clause (g) are pending or contemplated or against whom procecution 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 effect the right, if any, of the Pradhan or the UP-Pradhan, as the case may be, to take part in the proceedings of a meeting convened u/s 14 and to vote at such meeting ;

(h) remove a person, if, having been elected as Pradhan, he does not possess the qualification specified in Section 5B:

Provided that--

(i) no action shall be taken under Clause (f), Clause (g) or Clause (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed ;

(ii) no action shall be taken under Clause (gg) on the ground that proceeding under Clause (g) are pending or contemplated unless the State Government is prima facie satisfied that the grounds on which action is proposed under that clause exist.

Appendix-5

The relevant part of the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994 (U. P. Act No. 9 of 1994) are as follows:

Amendment of Section 95--

In Section 95 of the principal Act--

(a) in Sub-section (1)--

(i) in Clause (a), the words "by a Gaon Sabha" shall be omitted ;

(ii) in Clause (f),

(a) the words ''suspend, supersede or'' shall be omitted ;

(b) the words "Gaon Sabha", wherever occurring, shall be omitted ;

(c) the Explanation shall be omitted ;

(iii) in Clause (g)--

(a) for words ''remove a member of a Gaon Panchayat'', the words ''remove a Pradhan, Up-Pradhan or member of a Gram Panchayat'' shall be substituted ;

(b) the words "an office bearer of a Gaon Sabha'' shall be omitted ;

(c) at the end, following proviso shall be inserted, namely:

Provided 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 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, until he is exonerated of the charges in the final enquiry, be exercised and performed by Committee consisting of three members of Gram Panchayat appointed by the State Government.

(iv) Clause (gg), shall be omitted ;

(v) Clause (h) shall be omitted ;

(vi) in the proviso (i) the words "or Clause (h) " shall be omitted ;

(vii) proviso (ii) shall be omitted ;

(b) in Sub-section (4) -

(i) the words ''Gaon Sabha'' shall be omitted ;

(ii) for the words ''superseded'' the words ''dissolved'' shall be substituted.

Appendix-6

The relevant part of Section 95(1) (g) of U. P. Panchayat Raj Act, 1947 at the time of passing of impugned orders is as follows:

Inspection.--(1) The State Government may--

(f) ... or dissolve any Gram Panchayat, Joint Committee, Bhumi Prabandhak Samiti or Nyaya Panchayat if in the opinion of the State Government such Gram Panchayat, Joint Committee, Bhumi Prabandhak Samiti or Nyaya Panchayat has abused its position or has continuously failed to perform the duties imposed upon it by or under this Act or if its continuance is not considered desirable in public interest.

(g) remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-

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

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

(iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made there under or his continuance as such is not desirable in public interest, or (iii-a) has taken the benefit of reservation under Sub-section (2) of Section 11A or Sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or Untitled the backward classes, as the case may be.

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

(v) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5A:

Provided 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 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, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government.

(gg) Deleted by U. P. Act No. 9 of 1994 (h) Deleted by U. P. Act No. 9 of 1994 Provided that--

(i) No action shall be taken under Clause (f), Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed ;

Appendix- 7

The relevant part of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (the Rules) are as follows:

Definitions.--In these rules unless the context otherwise requires-

(a) ''Act'' means the United Provinces Panchayat Raj Act, 1947 ;

(b) ''Pradhan and Up-Pradhan''. shall respectively mean the Pradhan and the ''Up-Pradhan'' of the Gram Panchayat ;

(c) ''Enquiry Officer'' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.

Procedure relating to complaints.-

(1) Any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any officer empowered in this behalf by the State Goverment--

(2) Every complaint referred to in Sub-rule (1) shall be accompanied by the complainant''s own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation.

(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits, respectively.

(4) Not less than three copies of the complaint as well as of each of its annexure shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions of this rule shall not be entertained.

(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule if a complaint against a Pradhan or Up-Pradhan is made by a public servant.

Preliminary Enquiry.-

(1) The State Government may, on the receipt of complaint or report referred to in Rule 3, or otherwise order the Enquiry Officer to conduct a preliminary inquiry with a view to finding out if there is a prima facie case for a formal inquiry in the matter.

(2) The Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered.

Enquiry Officer.--Where the State Government is of the opinion, on the basis of the report referred to in Sub-rule (2) of Rule 4 or otherwise that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to Clause (g) of Sub-section (1) of Section 95 it shall forthwith constitute a committee envisaged by proviso to Clause (g) of Sub-section (1) of Section 95, of the Act and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated under Sub-rule (2) of the Rule 4, to hold the enquiry.''

Procedure of the enquiry.-

(1) The substance of the imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry Officer by the State Government.

(2) The inquiry officer shall draw up -(a) the substance of the imputations into definite and distinct articles of charge ; and (b) a statement of the imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.

(3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of the imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.

(4) On receipt of the written statement of defence, the Inquiry Officer shall enquire into such of that articles of charges as are not admitted and where all the article of charge have been admitted in the written statement of defence, the inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.

(5) If the person who has not admitted any of the articles of charge in his written statement of defence, appears before the Inquiry Officer, he shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiry officer shall record the plea, sign the record and obtain the signature of that person thereon, and return a finding of guilt in respect of those charges.

(6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry Officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence--

(a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in Sub-rule (2) ;

(b) submit a list of witnesses to be examined on his behalf ;

(c) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for the discovery or production of any documents that are relevant to the inquiry and are in the possession of the State Government, but not mentioned in the list referred to in Sub-rule (2).

(7) The person against whom the inquiry is being held may take the assistance of any other person to present the case on his behalf, and the Inquiry Officer may appoint any person as a Presenting Officer to assist him in conducting the inquiry.

(8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in Sub-rule (2), the Inquiry Officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved.

(9) The Inquiry Officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:

Provided that the Inquiry Officer may ; for reasons to be recorded in writing, refuse to requisition such of the documents as are, in his opinion, not relevant to the case.

(10) On the receipt of the requisition referred to in Sub-rule (9), every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer:

Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest or security of the State, it shall inform the Inquiry Officer accordingly and the Inquiry Officer shall, on being so informed, communicate the information to the person against whom the inquiry is being held and withdraw the requisition made by him for the production or discovery of documents.

(11) On the date fixed for the enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Inquiry Officer by or on behalf of the complainant, if there is one, and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be re-examined by the Inquiry Officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry Officer.

(12) The Inquiry Officer may allow production of evidence not included in the list given to the person against whom the inquiry is being held, or may itself call for new evidence or recall and re-examine any witness and in such case the said person shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice.

Note--New evidence shall not be permitted or called for and witnesses shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(13) When the evidence for providing the articles of charge against the person against whom the inquiry is being held, is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defendce is made orally it shall be recorded, and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any.

(14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry Officer according to the provisions applicable to the witnesses for proving the articles of charge. 1977 does not arise. Objection so raised on behalf of the Petitioner has been rejected under the impugned order dated 6th March, 1990. It has been held that the possession of the surplus land was required to be taken immediately on conclusion of the ceiling proceedings at the appellate stage in the year 1979. If possession of the surplus land had not been taken, in pursuance thereof, no objection can be taken by the Petitioner because of subsequent proceedings initiated in the year 1982, which were misconceived. It is against this order that the present writ petition has been filed.

Learned Counsel for the Petitioner submits that the subsequent proceedings u/s 10(2) of Act, 1960 will render the earlier proceedings as abated and no action can be taken in pursuance of earlier order dated 31st January, 1977. He has placed reliance upon the judgment of this Court in the case of Mohar Singh and Ors. v. Third Additional District Judge, Muzaffarnagar and Anr. passed in Writ Petition No. 2614 of 1977 decided on 29th November, 1978, wherein it was held that once a second notice was issued to the recorded tenure holder with the aid of the provision contained in Section 27 (3) of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Ordinance, 1975, then the earlier proceedings stood abated.

For appreciating the said plea, the Court may refer to Section 27 (3) of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Ordinance, 1975 (U. P. Ordinance No. 3 of 1975), which reads as follows:

Transitory provisions.-

(1) All proceedings under Sub-sections (3) to (7) of Section 14 of the principal Act, as it stood immediately before the commencement of this Ordinance pending before any Court or authority immediately before the date of such commencement shall abate.

(2) Where an order determining the surplus land in relation to a tenure-holder has been made under the principal Act before January 17, 1975 and the Prescribed Authority is required to predetermine the surplus land u/s 9 of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1974 (U. P. Act II of 1975), then notwithstanding anything contained in Sub-section (2) of Section 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (U. P. Act XVII of 1973), every appeal u/s 13 of the principal Act or other proceedings in relation to such appeal, preferred against the said order on or after January 17, 1975, and pending immediately before the date of commencement of this Ordinance shall abate.

(3) Where an order determining surplus land in relation to a tenure-holder has been made under the principal Act before the commencement of this Ordinance, the Prescribed Authority (as defined in the principal Act) may at any time within a period of two years from the commencement of this Ordinance predetermine the surplus land in accordance with the principal Act as amended by this Ordinance, notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land.

(4) The provisions of Section 13 of the principal Act shall mutatis mutandis apply to every order predetermining surplus land under Sub-section (3) of this section or Section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974:

Provided that the period of thirty days shall, in the case of an appeal against the order referred to in Section 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974, be computed from the date of such order or the date of commencement of this Ordinance, whichever is later.

(5) The provisions of Section 13A of the principal Act shall mutatis mutandis apply to every predetermination of surplus land under this section or u/s 9 of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1974.

(6) Where any tenure-holder has received before June 8, 1973, any compensation in accordance with the provisions of Chapter III of the principal Act read with the Schedule, as they existed before the commencement of this Ordinance, then notwithstanding the amendments made in the said Chapter and the Schedule by this Ordinance, no tenure-holder shall be liable to refund the whole or part of any such compensation to the State Government.

Suffice it to record that Sub-sections (1) and (2) of Section 27 have no application in the facts of the present case, inasmuch as the ceiling limits of the Petitioner were determined under an order dated 29th May, 1976 and appeal filed against the said order was dismissed on 31st January, 1977, which made the determination final.

Sub-section (3) of Section 27 will also have no application in the facts of the present case, as the ceiling limits of the recorded tenure holder were determined subsequent to the date of commencement of the Ordinance, 1975, i.e., 10th day of October, 1975.

This Court finds that the second notice issued to the Petitioner in the year 1982 is not referable to any of the provisions contained in Section 27 of U. P. Imposition of Ceiling on Land Holdings (Amendment) Ordinance, 1975 and therefore, the judgment relied upon by the learned Counsel for the Petitioner has no application.

Notice u/s 27 (3) of the U. P. Imposition of Ceiling on Land Holdings (Amendment) Ordinance, 1975 could be issued within two years of the enforcement of the said Ordinance. In the facts of the present case, second notice was issued in the year 1982. Therefore, the plea that the earlier proceedings stood abated cannot be accepted by this Court.

This Court may record that the learned Counsel for the Petitioner could not point out any other provisions under which the second notice could be issued in the year 1982 and therefore, in the facts of the present case, this Court holds that subsequent notice of 1982 is of no legal consequence.

The determination of the ceiling limits of the Petitioner under the order of the appellate authority dated 31st January, 1977 is final as per Section 13(2) of the Act, 1960. The authoriteis are entiteld to take possession of the surplus land in pursuance thereof.

The present writ petition is accordingly dismissed.