High Court · 2025

Petitioner :- Smt. Meena Sharma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Abhishek Kumar Yadav,Bhola Nath Yadav,Saumya Yadav Counsel for Respondent :- C.S.C.,Rabindra Bahadur Singh,Viveka Nand Rai Hon'ble Prakash Padia,J.

1. Order dated 21.02.2025 passed by Zila Magistrate, Agra- respondent no.2 is under challenge in the present writ petition, by which the financial and administrative power of the petitioner has been seized.

2. Facts in brief are that a complaint was made against the petitioner on 26.08.2023 by the complainant. On the basis of which, District Agriculture Officer, Agra and Assistant Engineer, Public Works Department Construction Division-2, Agra were appointed as inquiry officer. The aforesaid inquiry officers submitted their report on 21.11.2023. Pursuant to the same, show cause notice was issued to the petitioner on 18.07.2024. Reply to the same was submitted by the petitioner on 05.08.2024. On the basis of aforesaid, findings were recorded in respect of issue nos. 1 and 2. Subsequent to the same, Assistant Engineer, Public Works Department Construction Division-2, Agra submitted report dated 13/14.02.2025. Taking into consideration the aforesaid report issue no.3 was framed and decided.

3. It is argued by the learned counsel for the petitioner that at no point of time, copy of the report dated 13/14.02.2025 was provided to the petitioner. It is further argued that though in the order impugned subsequent report was taken into consideration, but at no point of time any fresh notice was issued to the petitioner. In view of the same, order impugned is bad in the eye of law, hence, same is liable to be set aside. He further argued that inquiry officers, who were appointed are not competent enough to conduct the inquiry as per Rule-4 of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Rules, 1997.

4. The question as to what would be the manner of exercising powers by the State Government/District Magistrate for ceasing financial and administrative powers of the Pradhan fell for consideration before a Full Bench of this Court in Hafiz Ataullah Ansari Vs. State of U.P. and others, 2011 (2) UPLBEC 889. A subsequent Full Bench in the case of Shamim (supra) has examined all previous judgments and the powers of District Magistrate for the purposes of exercise of jurisdiction under Section 95(1)(g) of the Act of 1947. The 73rd and 74th Constitutional Amendments have been noticed by the Full Bench to observe that Panchayats and Municipalities have now been conferred constitutional status. The question for consideration before the Full Bench has been noticed in para 23 of the judgment, which is reproduced hereinafter:- "23. In the backdrop of the legislative history and the status of an elected Pradhan, after the Constitutional Amendment, the primary issue is whether the power exercised by the State Government/District Magistrate under the proviso to Section 95(1)(g) of Panchayat Raj Act is a purely administrative or a quasi judicial. In other words whether State Government/District Magistrate while exercising power under the proviso to Section 95(1)(g) is a Tribunal." While answering the reference, the Full Bench observed as under in para 37 of the judgment in Shamim (supra):- "37. In Vivekanand, Hafiz Ataullah Ansari and thereafter reiterated in Paras Jain that the elected representative would have to be given an opportunity to raise objection to the findings returned in the preliminary enquiry and his/or her objections will have be considered, though prima facie, by the State Government/District Magistrate before an order ceasing the financial and administrative power and functions is passed. The consequence of the order passed in exercise of power under Section 95(1)(g) is serious consequence as it divests the elected representative from exercising power until exonerated in final enquiry and the decision of the State Government is final. The decision taken by the State Government is not based on any expediency or policy of the State, rather, it is a statutory power conferred upon the State Government exercising inherent judicial power after confronting the elected representative, with show cause notice based on the preliminary report, thereafter, taking a decision upon due application of mind on the objections of the elected Pradhan. Once such an order is passed, it is not open for the State Government to either review or modify the order during the course of final enquiry. The order, therefore, finally decides the issue between Pradhan and the Authority (State Government) in so far it relates to exercise of financial and administrative power. The office of the local body is an elected office of the constitutional democratic institution; the elected head is not a government servant and it would be improper to compare these proceeding with departmental proceeding in service jurisprudence. A head of a local body is elected for a limited term. If during the removal proceedings, he is denuded from exercising financial and administrative powers then even if he is exonerated in the enquiry the time spent during enquiry is lost, he does not get his period extended. The consideration about the presence of all or some of the trappings of a court is really not decisive. The main and basic test is whether the adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute and can be described as part of the State's inherent power exercised in discharging its judicial function. Applying this test there can be no doubt that the power which the State Government/District Magistrate exercises under proviso to Section 95(1)(g) is a quasi-judicial power exercised by a quasi- judicial authority."

5. Since the power to be exercised by the District Magistrate is quasi-judicial in nature and has serious consequences for elected representative, it is expected that the District Magistrate would apply his mind to the nature of charges levelled and would record a prima facie satisfaction with regard to existence of materials collected in the preliminary enquiry, which necessitates holding of regular enquiry and justify seizure of financial and administrative powers of Pradhan. The District Magistrate, therefore, is expected to look into the nature of charges as also the defence set up by the elected Pradhan or else the very object of issuing show cause notice would be frustrated. Law is otherwise settled that reason is the soul of an order and considerations which have prevailed in passing of the order must be reflected from the order itself. Merely stating that the explanation is not satisfactory would not suffice. In such circumstances this Court finds that the order of District Magistrate is wanting on relevant parameters, notice above, and therefore the order impugned cannot be sustained.

6. On the other hand, it is argued by the learned counsel for the respondents that after taking into consideration subsequent inspection made by the Assistant Engineer, Public Works Department Construction Division-2, Agra, decision has been taken by the respondent no.2.

7. Heard Sri Bhola Nath Yadav, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of the respondent nos. 1 to 6 and Sri R.B. Singh, learned counsel appearing on behalf of the complainant.

8. From the perusal of record, it is clear that impugned order has been passed by the respondent no.2 taking into consideration subsequent inspection made by the Assistant Engineer, Public Works Department Agra on 13/14.02.2025, copy of the same has never been provided to the petitioner, as such impugned order is liable to be set aside. Construction Division-2,

9. In that view of the matter, it would be appropriate to set aside the order of the District Magistrate, Agra/respondent No.2 dated

21.02.2025 and remit the matter to the District Magistrate, Agra to objectively consider the reply of the petitioner and to pass a fresh order, depicting application of mind to the materials collected in the preliminary enquiry as also the defence of petitioner in that regard.

8. Accordingly, the writ petition is allowed. Order Date :- 20.5.2025 T.S. TRIBHUWAN SINGH High Court of Judicature at Allahabad

Petitioner :- Smt. Meena Sharma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Abhishek Kumar Yadav,Bhola Nath Yadav,Saumya Yadav Counsel for Respondent :- C.S.C.,Rabindra Bahadur Singh,Viveka Nand Rai Hon'ble Prakash Padia,J.

1. Order dated 21.02.2025 passed by Zila Magistrate, Agra- respondent no.2 is under challenge in the present writ petition, by which the financial and administrative power of the petitioner has been seized.

2. Facts in brief are that a complaint was made against the petitioner on 26.08.2023 by the complainant. On the basis of which, District Agriculture Officer, Agra and Assistant Engineer, Public Works Department Construction Division-2, Agra were appointed as inquiry officer. The aforesaid inquiry officers submitted their report on 21.11.2023. Pursuant to the same, show cause notice was issued to the petitioner on 18.07.2024. Reply to the same was submitted by the petitioner on 05.08.2024. On the basis of aforesaid, findings were recorded in respect of issue nos. 1 and 2. Subsequent to the same, Assistant Engineer, Public Works Department Construction Division-2, Agra submitted report dated 13/14.02.2025. Taking into consideration the aforesaid report issue no.3 was framed and decided.

3. It is argued by the learned counsel for the petitioner that at no point of time, copy of the report dated 13/14.02.2025 was provided to the petitioner. It is further argued that though in the order impugned subsequent report was taken into consideration, but at no point of time any fresh notice was issued to the petitioner. In view of the same, order impugned is bad in the eye of law, hence, same is liable to be set aside. He further argued that inquiry officers, who were appointed are not competent enough to conduct the inquiry as per Rule-4 of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Rules, 1997.

4. The question as to what would be the manner of exercising powers by the State Government/District Magistrate for ceasing financial and administrative powers of the Pradhan fell for consideration before a Full Bench of this Court in Hafiz Ataullah Ansari Vs. State of U.P. and others, 2011 (2) UPLBEC 889. A subsequent Full Bench in the case of Shamim (supra) has examined all previous judgments and the powers of District Magistrate for the purposes of exercise of jurisdiction under Section 95(1)(g) of the Act of 1947. The 73rd and 74th Constitutional Amendments have been noticed by the Full Bench to observe that Panchayats and Municipalities have now been conferred constitutional status. The question for consideration before the Full Bench has been noticed in para 23 of the judgment, which is reproduced hereinafter:- "23. In the backdrop of the legislative history and the status of an elected Pradhan, after the Constitutional Amendment, the primary issue is whether the power exercised by the State Government/District Magistrate under the proviso to Section 95(1)(g) of Panchayat Raj Act is a purely administrative or a quasi judicial. In other words whether State Government/District Magistrate while exercising power under the proviso to Section 95(1)(g) is a Tribunal." While answering the reference, the Full Bench observed as under in para 37 of the judgment in Shamim (supra):- "37. In Vivekanand, Hafiz Ataullah Ansari and thereafter reiterated in Paras Jain that the elected representative would have to be given an opportunity to raise objection to the findings returned in the preliminary enquiry and his/or her objections will have be considered, though prima facie, by the State Government/District Magistrate before an order ceasing the financial and administrative power and functions is passed. The consequence of the order passed in exercise of power under Section 95(1)(g) is serious consequence as it divests the elected representative from exercising power until exonerated in final enquiry and the decision of the State Government is final. The decision taken by the State Government is not based on any expediency or policy of the State, rather, it is a statutory power conferred upon the State Government exercising inherent judicial power after confronting the elected representative, with show cause notice based on the preliminary report, thereafter, taking a decision upon due application of mind on the objections of the elected Pradhan. Once such an order is passed, it is not open for the State Government to either review or modify the order during the course of final enquiry. The order, therefore, finally decides the issue between Pradhan and the Authority (State Government) in so far it relates to exercise of financial and administrative power. The office of the local body is an elected office of the constitutional democratic institution; the elected head is not a government servant and it would be improper to compare these proceeding with departmental proceeding in service jurisprudence. A head of a local body is elected for a limited term. If during the removal proceedings, he is denuded from exercising financial and administrative powers then even if he is exonerated in the enquiry the time spent during enquiry is lost, he does not get his period extended. The consideration about the presence of all or some of the trappings of a court is really not decisive. The main and basic test is whether the adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute and can be described as part of the State's inherent power exercised in discharging its judicial function. Applying this test there can be no doubt that the power which the State Government/District Magistrate exercises under proviso to Section 95(1)(g) is a quasi-judicial power exercised by a quasi- judicial authority."

5. Since the power to be exercised by the District Magistrate is quasi-judicial in nature and has serious consequences for elected representative, it is expected that the District Magistrate would apply his mind to the nature of charges levelled and would record a prima facie satisfaction with regard to existence of materials collected in the preliminary enquiry, which necessitates holding of regular enquiry and justify seizure of financial and administrative powers of Pradhan. The District Magistrate, therefore, is expected to look into the nature of charges as also the defence set up by the elected Pradhan or else the very object of issuing show cause notice would be frustrated. Law is otherwise settled that reason is the soul of an order and considerations which have prevailed in passing of the order must be reflected from the order itself. Merely stating that the explanation is not satisfactory would not suffice. In such circumstances this Court finds that the order of District Magistrate is wanting on relevant parameters, notice above, and therefore the order impugned cannot be sustained.

6. On the other hand, it is argued by the learned counsel for the respondents that after taking into consideration subsequent inspection made by the Assistant Engineer, Public Works Department Construction Division-2, Agra, decision has been taken by the respondent no.2.

7. Heard Sri Bhola Nath Yadav, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of the respondent nos. 1 to 6 and Sri R.B. Singh, learned counsel appearing on behalf of the complainant.

8. From the perusal of record, it is clear that impugned order has been passed by the respondent no.2 taking into consideration subsequent inspection made by the Assistant Engineer, Public Works Department Agra on 13/14.02.2025, copy of the same has never been provided to the petitioner, as such impugned order is liable to be set aside. Construction Division-2,

9. In that view of the matter, it would be appropriate to set aside the order of the District Magistrate, Agra/respondent No.2 dated

21.02.2025 and remit the matter to the District Magistrate, Agra to objectively consider the reply of the petitioner and to pass a fresh order, depicting application of mind to the materials collected in the preliminary enquiry as also the defence of petitioner in that regard.

8. Accordingly, the writ petition is allowed. Order Date :- 20.5.2025 T.S. TRIBHUWAN SINGH High Court of Judicature at Allahabad