Uttam Kumar Acharya vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

Brief facts of the case are that the petitioner has come up with the case in the writ petition, contending thereof that he is the resident of village Doara, Nazimabad, situated in block Sitarganj, District Udham Singh Nagar. It is from the said constituency that the petitioner was elected as a member of Zila Panchayat, Udham Singh Nagar, Ward No. 8 Gurugram, in the punchayat election which were held in 2019.

The grievance of the petitioner agitated in the present writ petition, is as against the impugned order dated 06.05.2022, passed by the Director, Punchayat Raj, while exercising its powers under Section 138 of the Uttarakhand Panchayati Raj Act, 2016.

The argument of the learned counsel for the petitioner is that the action taken by the respondent, is in violation to the procedure prescribed under the U.P. Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs and Up-Pramukhs, Adhyakshas and Up-Adhyakshas) Enquiry Rules, 1997.

In fact, if the Rules are taken into consideration, Rule 3 prescribes the procedure for dealing with the complaint and the manner in which it has to be processed, has been prescribed under sub Rule (4) of Rule 3, which relates to the members of Zila Panchayat as provided by Rules 1994, as framed by the Notification dated 21.09.1991. The Rules of 1994 relating to the members of the Zila Panchyat has been framed by the State while exercising its powers under Section 237 of the U.P. Kshettra Panchayat & Zila Panchayat Act of 1961.

By virtue of Section 194 of UK Panchyati Raj Act, 2016, the U.P. Kshettra Panchayat & Zila Panchayat Act of 1961, stood repealed. Section 194 of the Act of 2016 is extracted hereunder:-

“194. Repeal. - (1) The Uttar Pradesh Panchayat Raj Act, 1947 and Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961 (as applicable in Uttarakhand State) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said enactment shall be deemed to have been done or taken under the corresponding provisions of this Act.

The consequential effect would be that any of the subordinate legislation which had been framed under the said Act, would have stood repealed. But, it had been argued by the learned counsel for the petitioner that in view of the subsequent amendment, which was made under sub Section (35) of Section 2 of the Uttarakhand Panchayati Raj Act of 2016, by virtue of the amendment carried, it had prescribed and saved the Rules, as it was framed under the provisions of U.P. Kshettra Panchayat & Zila Panchayat Act of 1961. The provision of Section 2(35) of the Act of 2016 is extracted hereunder:-

“[2(35) “Rules” means rules made under this Act but until such rules are not promulgated rules means rules promulgated under the Uttar Pradesh Panchayati Raj Act, 1947 and the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961;]

In that eventuality, and because the savings clause provided under Section 2(35), the Rules framed under the U.P. Kshettra Panchayat & Zila Panchayat Act of 1961, would continue to apply, and in that eventuality, for the purposes of removal of the elected members of the Zila Panchayat, the procedure prescribed of sub Rule (4) of Rule 3 ought to have been strictly complied with in its strict sense before removing any elected member, which contemplates that apart from the fact that the State agency has to record its satisfaction and that too after conducting an enquiry justifying and necessitating the removal of the elected member of the Zila Panchayat, but before any action is taken for removal, he ought to have been provided with reasonable opportunity of hearing. The provision of sub Rule (4) of Rule 3 is extracted hereunder:-

“(4) The State Government may, after such enquiry as it considers necessary and after affording a reasonable opportunity of hearing to the parties, pass such orer as it considers just and proper.”

If the impugned order is taken into consideration it only gives a narration of set of facts and the alleged enquiry which has been conducted by the respondent, in order to come to a conclusion, as to whether at all the petitioner was at all instrumental in encroachment which was alleged to have been made by him upon a public land or the land belonging to the forest as the case at hand is in order to attract the provisions contained under sub Section (5) of Section 90 of the Uttarakhand Panchayati Raj Act, to hold the petitioner as to be disqualified to continue as a member of Zila Panchayat.

It is contended by the learned counsel for the respondents that the show cause notice which was issued to the petitioner on 31.03.2021, and even an enquiry report which was submitted on 20.03.2021, which constituted as to be the reason for passing the impugned order of removal of the petitioner from the membership of Zila Panchayat, while exercising its powers under Section 138 of the Uttarakhand Panchayat Raj Act, 2016. But, on a close scrutiny of the impugned order dated 06.05.2022, though it refers to the show cause notice, the enquiry report, and the parameters required for exercising of powers by the District Magistrate under Section 138, but in view of the amendment made under sub Section (35) of Section 2 of the Act, where the Rules framed under the Act of 1961, has been saved to be applied for the purposes of removal of members of Zila Panchayat also, and that too only after providing an opportunity of hearing as contemplated under sub Rule (3) of Rule 1994, the impugned order passed by the Director doesn’t speaks about, that apart from issuing the show cause notice, which was replied by the petitioner, the petitioner was effectively provided an opportunity of hearing in order to enable him to defend himself from the set of allegations, which constituted to be part of the show cause notice dated 31.03.2021, and which even constituted, as to be the part of enquiry report submitted on 20.03.2021, hence, the petitioner contends, that in the absence of strict compliance of the provisions contained under sub Rule (4) of Rule 3 of the Rules 1994, which relates to the elected members of the Zila Panchayat, the petitioner has been incapacitated to place his defence qua the set of allegations which constituted as to be the part of the show cause notice extracted for the purposes of invoking Section 138 of the U.P.Z.A. & L.R. Act, for removal of the petitioner from the office of member of Zila Panchayat.

After having heard the learned counsel for the parties at length and even after going through the impugned order though the impugned order apparently reflects all the procedural aspects, which has been resorted to by the respondent prior to passing of an order of removal, but it had nowhere recorded any findings that after submission of the reply to the show cause notice, which was based on the earlier enquiry report, the petitioner was ever issued with the show cause notice for attracting sub Section (5) of Section 90 of the Act for removal of the petitioner from the membership of the Zila Panchayat on the ground that the alleged set of allegation of having encroached upon the forest land.

Since, apparently, Rules 1994, had been saved to be made applicable in the proceedings, which has been resorted to for the removal of elected member of Zila Panchayat, and the Rules since being a part of the subordinate legislation, which has been saved to be applied by the Uttarakhand amendment made under Section 2(35) of the U.K. Panchayati Raj Act, it was necessarily required to be adhered to prior to passing any order of removal of an elected member of the Zila Panchayat in order to enable him to be provided with the fullest opportunity to defend the set of allegations, which has been levelled against him in the show cause notice or in the enquiry report, which was submitted against him. But, since in the absence of any such finding being recorded in the order dated 06.05.2022, that the respondents had ever complied with sub Rule (4) of Rule 3 of the Rules 1994 of hearing the petitioner prior to passing of the impugned order, on the allegation, which has been levelled against him, the impugned order would apparently suffered from the procedural vices of non-compliance of Rules 1994.

On this limited count itself, the writ petition would stand allowed. The impugned order dated 06.05.2022, would stand quashed. But, however, quashing of this order will be without prejudice to the rights of the respondents that if at all they contemplate to take any action of removal of the petitioner, that will be strictly resorted to only after adhering to the procedure prescribed under the Rules 1994, which has been saved to be applied by the Uttarakhand Amendment in the definition clause given in the Uttarakhand Panchayati Raj Act, 2016 under Section 2(35).

Subject to the aforesaid exception and the liberty left to the respondents to proceed afresh, the writ petition stands allowed.