High Court · 2025

2. It is argued by Sri Vikrant Pandey, learned counsel for the petitioner that without providing considerably time to submit reply to the show cause notice, order impugned has been passed in ex- parte manner which is in complete violation of principles of natural justice.

3. On the other hand, it is argued by the learned counsel for the respondents that order impugned has been passed after taking into consideration all the aspect of the matter, hence, same does not call for any interference by this Court specially under Article 226 of the constitution of India.

4. It is admitted between the learned counsel for the parties that though show cause notice dated 28.09.2024 issued to the petitioner by the respondent no.2 which was received by the petitioner, but reply could not be submitted by her.

5. It is argued by the learned counsel for the petitioner that petitioner was not present in the city and she was out of station, as such reply could not be filed.

6. 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."

7. 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.

8. Heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of the State-respondents and perused the record.

9. In the facts and circumstances of the case and also in the interest of justice, present writ petition is disposed of, directing the petitioner to submit reply to the show cause notice dated 28.09.2024 before the respondent no.2-District Magistrate, Basti within two weeks from today. If it is so, the respondent no.2- District Magistrate, Basti is directed to pass a fresh order strictly in accordance with law after providing opportunity of hearing to all the parties concerned, preferably within period of six weeks from the date reply was submitted by the petitioner.

10. It is made clear that the impugned order dated 29.11.2024 will be subject to the final out come of the writ petition. Order Date :- 26.5.2025 T.S. TRIBHUWAN SINGH TRIBHUWAN SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad

2. It is argued by Sri Vikrant Pandey, learned counsel for the petitioner that without providing considerably time to submit reply to the show cause notice, order impugned has been passed in ex- parte manner which is in complete violation of principles of natural justice.

3. On the other hand, it is argued by the learned counsel for the respondents that order impugned has been passed after taking into consideration all the aspect of the matter, hence, same does not call for any interference by this Court specially under Article 226 of the constitution of India.

4. It is admitted between the learned counsel for the parties that though show cause notice dated 28.09.2024 issued to the petitioner by the respondent no.2 which was received by the petitioner, but reply could not be submitted by her.

5. It is argued by the learned counsel for the petitioner that petitioner was not present in the city and she was out of station, as such reply could not be filed.

6. 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."

7. 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.

8. Heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of the State-respondents and perused the record.

9. In the facts and circumstances of the case and also in the interest of justice, present writ petition is disposed of, directing the petitioner to submit reply to the show cause notice dated 28.09.2024 before the respondent no.2-District Magistrate, Basti within two weeks from today. If it is so, the respondent no.2- District Magistrate, Basti is directed to pass a fresh order strictly in accordance with law after providing opportunity of hearing to all the parties concerned, preferably within period of six weeks from the date reply was submitted by the petitioner.

10. It is made clear that the impugned order dated 29.11.2024 will be subject to the final out come of the writ petition. Order Date :- 26.5.2025 T.S. TRIBHUWAN SINGH TRIBHUWAN SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad