S.R. Singh, J.
1. Impugned herein is the order dated 29.5.1998 passed by the District Magistrate. Sonbhadra in purported exercise of powers under the proviso to clause (g) of sub-section (1) of Section (95) of the U. P. Panchayat Raj Act (in short the Act) thereby appointing a three-member committee of the concerned Gram Panchayat for exercising and performing financial and administrative powers and functions of the Pradhan of the Gram Panchayal. The impugned order is based on the finding that the petitioner was found guilty of committing irregularities in the matter of selection of eligible candidates for allotment of houses built under 'Indira Awas and Nirbal Varg Awas' Scheme. )
2. I have heard Sri V. K, Jaiswal for the petitioner and Sri Ran Vijay Singh, learned, slanding counsel representing the opposite parties. The thrust of the submission made by Sri V. K- Jaiswal is that the petitioner has been deprived of his Financial and Administrative powers otherwise than in accordance with the postulates of the first proviso to Section 95 (1) (g) of the Act read with U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (in short the Enquiry Rules) made by the Governor in exercise of power conferred by Section 110 read with Section 95 (1) tg) of the Act published in the U. P. Gazette Extra, Part IV, Section (Kha) dated 29.5.1997. Learned counsel for the petitioner urged their 'enquiry' on the basis of which the impugned order came to be passed by the District Magistrate was no held 'by such person and in such manner' as has been prescribed by the rules aforestated and Instead it was held by a Junior Engineer who had no authority in law to hold an 'enquiry' under the Enquiry Rules. In opposition, learned standing counsel submitted that the District Magistrate could exercise the power under the first proviso to clause (g) of sub-section (1) of Section 95 of the Act not only on the basis of the preliminary enquiry conducted by the District Panchayat Raj Officer but he could do so even on the basis of a report received 'otherwise'.
3. In order to appreciate the submission made across the Bar, it would be apt and proper to refer to the related provisions of the Act. Section 95 (1) (g) of the Act read as under :
'95. Inspection--II) The State Government may--.........
(g) remove Pradhan, Up-Pradhan or member of a Gram Panchayal or a Joint Committee or Bhumi Prabandhak Samiti. 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 if 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 the Act or rules made thereunder or his continuance as such is not desirable in public interest : or
(iv) being a Sahayak Sarpanch or Sarpanch of the Nyaya Panchayat takes active part in politics, or
(v) suffers from any disqualification mentioned in clauses (a) and (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 Jade 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 final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government' ;
Provided that-
(1) 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.'
4. The power vested in the State Government under Section 95 (1) (g) of the Act has since been delegated to the District Magistrates by means of the Notification No. 1648/33-1-1997-123/97, Lucknow dated 30th April, 1997 Issued by the State Government in exercise of powers under Section 96A of the Act. It cannot be gainsaid that the Gram Panchayats have since been given constitutional status as Institutions of self-Government at village level by virtue of Part IX of the Constitution inserted by Constitution (Seventy-third Amendment) Act, 1992 and the Chair-person of a Panchayat has been conferred with the right to vote in the meetings of the Panchayat. According to Articles 243B and 243C, the constitution and composition of Gram Panchayats in the State of Uttar Pradesh shall be in accordance with the provisions contained in Part IX of the Constitution and those contained in the U. P. Panchayat Raj Act, 1947 as amended by U. P. Act No. 9 of 1994. Article 243G of the Constitution of India provides that subject to the provisions of the Constitution, the Legislature of State may, by law endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level subject to such conditions as may be specified therein with respect to-
'(a) the preparation of plans for economic development and social justice,
(b) the Implementation of scheme for economic development and social justice as may be entrusted to them Including those in relation to the matters listed in the Eleventh Schedule.'
Article 243H of the Constitution visualises that the State Legislature may. by law-
'(a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits ;
(b) assign Panchayat such taxes, duties tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits :
(c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State ; and
(d) provide for constitution of such funds for crediting all moneys received, respectively, by or on behalf of the Panchayats and also for the withdrawal of such moneys therefrom,
as may be prescribed by law.'
5. Rules 47 and 47A of the U. P. Panchayat Raj Rules, 1947 which lay down the duties and special powers of the Pradhan are quoted below for ready reference.
'47. Duties of the Pradhan of Gaon Panchayat--Unless prevented by reasonable cause, it shall be the duty of the Pradhan-
(a) (i) to convene and preside at all the meetings of Gaon Panchayat, and
(ii) to control the transaction of business at the meetings and preserve order ;
(b) to ' watch over the finance and superintend the executive administration of the Gaon Panchayat and bring to its notice any defect therein ;
(c) to superintend and control the establishment maintained by the Gaon Panchayat ;
(d) to carry out the resolution of the Gaon Panchayat ;
(e) to arrange for maintenance of the various registers provided under the ruies and to carry on all correspondence on behalf of the Gaon Panchayat ; and Gaon Sab ha ;
(f) to arrange for execution of various works for the custody of the property of the Gaon Panchayat and for the assessment and collection of taxes rates and fees imposed by the Gaon Panchayat ;
(g) to file civil case and launch prosecution on behalf of the Gaon Panchayat and the Gaon Sabha ; and
(h) to perform such other duties as are required of or imposed on him by or under the Act or any other law.
47A. Special powers of the Pradhan--in the case of any grave emergency and under intimation to the prescribed authority, Pradhan may do any work which the Gaon Panchayat has power to do without obtaining the prior sanction of the Gaon Panchayat, but the matter shall be placed before the Gaon Panchayat, at its next meeting.'
6. A conspectus of various provisions of the U. P. Panchayat Raj Act and those of U. P. Panchayat Raj Rules, 1947 (in short the Rules) as amended from time to time would show that Pradhan is not only an integral constituent of the Gram Panchayat as provided by Section 12 (1) (c) of the Act, but he has been given pivotal roles to pay in exercise of powers and discharge functions of the Gram Panchayal, it cannot be gainsaid that the exercise of power under the first proviso to clause (g) of sub-section (1) of Section 95 of the Act is fraught with evil consequences besides being outrageous to the scheme visualised by Part IX of the Constitution and, therefore, the power conferred by the first proviso to clause (g) of sub-section (1) of Section 95 must be exercised in the manner prescribed and on fulfilment of the prerequisite conditions visualised therein. The term 'prescribed' used in the first proviso means 'prescribed by rules'. The proviso visualises 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 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 theGram Panchayat appointed by the State Government'. The power vested in the State Government, as stated above, has been delegated to the District Magistrates. Consequences visualised by the first proviso will ensue if in the course of 'an enquiry held by such person and in such manner as may be prescribed', the District Magistrate comes to a prima facie finding that the Pradhan or Up-Pradhan, as the case may be. has committed financial and other irregularities- Exercise of powers under the first proviso would be liable to be held arbitrary and violatfve of the constitutional scheme visualised by Part IX of the Constitution if the District Magistrate is left to be free to form the requisite opinion otherwise than on the basis of 'an enquiry held by such person and in such manner as may be prescribed'. Rule 3 of the Enquiry Rules provides the procedure relating to complaints and Rule 4 speaks of a preliminary enquiry by the District Panchayat Raj Officer conducted with a view to finding out if there is a prtma facie case for a formal enquiry in the matter. Rule 5 of the Enquiry Rules empowers the District Magistrate to ask the Enquiry Officer to hold formal enquiry in the matter if he is of opinion, on the basis of the report referred to in Rule 4 or 'otherwise' that enquiry should be held against the Pradhan or Up-Pradhan or a Member under the proviso to Section 95 (1) (g) of the Act. Rule 6 contains a detailed procedure for conducting the enquiry by the Enquiry Officer and Rule 7 provides for preparation of report while rule 8 provides for the report being forwarded to the District Magistrate. Rules 3, 4 and 5 of the Enquiry Rules being relevant to the discussion on the questions Involved herein are quoted below :
'3. 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 Government.
(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 the pleadings, respectively.
(4) Not less than three copies of complaint as well as of each of its annexures shall be submitted by the complainant.
(5) A complaint which does not comply with any of the foregoing provisions of this rules 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.
4. Preliminary Enquiry--(I) The State Government may, on the receipt of a complaint or report referred to in Rule 3, or otherwise order to the District Panchayat Raj Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter.
(2) The District Panchayat Raj Officer shall conduct the preliminary enquiry as expeditlously as possible and submit his report to the State Government within a fortnight of his having been so ordered.
5. 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, by an order, ask the Enquiry Officer to hold the enquiry'.
7. The expression 'prima facie found' read with expression 'in an enquiry held by such person and in such manner as may be prescribed' used by the Legislature in the first proviso to Section 95 (1) (g) of the Act unequivocally suggests that the requisite prima facie finding must be arrived at on consideration of the preliminary enquiry report submitted by the District Panchayat Raj Officer under Rule 4 (2) of the report submitted by the Enquiry Officer under Rule 8 of the Enquiry Rules. Any other view of the matter would be tantamount to over-reaching the first proviso to Section 95 (1) (g) of the Act. The submission made by the learned Standing Counsel that the word 'otherwise' used in Rule 5 of the Enquiry Rules enables the District Magistrate to form the requisite opinion that a Pradhan or Up-Pradhan has prima facie committed financial and other irregularities within the meaning of the first proviso 'otherwise' than on the basis of the report of the preliminary enquiry conducted by the District Panchayat Raj Officer under Rule 4 or the report submitted by the Enquiry Officer under Rule 8 of the Enquiry Rules cannot be countenanced for the reason that it would offend the express language--'in an enquiry held by such person and in such manner as may be prescribed'--used by the Legislature in the first prouiso to Section 95 (1) (g) of the Act. The principle well-settled is that a subordinate legislation cannot, directly or indirectly, expressly or Impliedly, over-reach the provisions of the Act.
8. The expression 'or otherwise' used in Rule 4 !J] of the Enquiry Rules has a meaning ejusdem genets with 'complaint or report' and only enables the District Magistrate to order the District Panchayat Raj Officer to conduct preliminary enquiry with a view to finding out if there is prima facie case for a formal enquiry in the matter not only on the basis of a complaint received under Rule 3 of the Enquiry Rules but he may do so even on the basis of a report received 'otherwise1 disclosing the cause for holding a preliminary enquiry in the matter. A complaint by a public servant under Rule 3 (6) may partake the nature of a report received 'otherwise' within the meaning of rule 4 of the Enquiry Rules, Similar expression used in Rule 5 of the Enquiry Rules enables the District Magistrate to direct the Enquiry Officer to hold a formal enquiry on the basis of the report or information other than the one contained in Rule 4 (2) of the Enquiry Rules. 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 prouiso 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 prouiso 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.
9. A Junior Engineer is not competent to hold preliminary enquiry under Rule 4 of the Enquiry Rules and since no enquiry was held under Rule 6 of the Enquiry Rules, his report cannot be made the basis of an action under the first proviso to Section 95 (1) (g) of the Act. The District Magistrate on receipt of a complaint or report referred to under Rule 3 or 'otherwise' may order the District Panchayat Raj Officer to conduct preliminary enquiry with a view to finding out if there is prima facie case for formal enquiry in the matter and in case he is so satisfied, he may take appropriate action under the first prouiso to Section 95 (1) ig) of the Act. The District Magistrate may, of course, order a formal enquiry to be held even on the basis of reports received 'otherwise' than through the District Panchayat Raj Officer under Rule 4 of the Enquiry Rules but in that event, no action can be taken under the first prouiso to Section 95 (1) (g) of the Act until receipt of the report prepared by the Enquiry Officer under Rule 7 of the Enquiry Rules.
10. In view of the above discussion, I am of the considered view that the action taken by the District Magistrate under the first proviso to Section 95 (1) tg) of the Act on the basis of the report submitted by the Junior Engineer in the instant case is violative of the constitutional scheme and the provisions of theAct and those of the Enquiry Rules. It may be pertinently observed that the complaint, a copy of which has been annexed to the counter-affidavit, docs not comply with the requirement of sub-rules (2) and (3) of Rule 3 of the Enquiry Rules and, therefore, it was not liable to be 'entertained' in view of the mandate contained in sub-rule (5) of Rule 3 which provides in no uncertain language that the complaint which does not comply with any of the foregoing provisions of this rule 'shall not be entertained'. In the above perspective, the order impugned herein cannot be sustained and is liable to be quashed.
11. In the result, the writ petition succeeds and is allowed. The impugned order dated 29.5.1998 is quashed. The District Magistrate Is, however, given liberty to proceed in accordance with law.