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1992 DIGILAW 295 (ALL)

Usha Singh v. District Magistrate

1992-02-26

MARKANDEY KATJU

body1992
JUDGMENT : M. Katju, J. I have heard the counsel for the Petitioner and the standing counsel for Respondent No. 1 to 4. I am proceeding to dispose of this petition finally in accordance with the Rules of the Court. 2. In the election to the Gaon Sabha, Jungle Rani Subhash Kunwari, Gorakhpur Amar Singh was elected as Pradhan, and Jokhu, Respondent No. 5 was elected as Up Pradhan. Amar Singh died on 21-12-1991, and it is alleged that thereafter a meeting of the Gaon Panchayat was held on 31-12-1991 to consider the situation which arose due to the death of Amar Singh. In this meeting Jokhu, Respondent No. 5 was also present. A resolution was passed in this meeting wherein it was stated that since Jokhu is an illiterate person, and is not in a position to make his signature, he will be incapable to perform the duties of Pradhan, and hence the officiating charge of the office of Pradhan may be given to the Petitioner. This resolution was alleged to have been passed unanimously, and it also purports to bear the thumb impression of Jokhu, Up Pradhan. A true copy of the said resolution is annexure-1 to the writ petition. 3. Thereafter the Petitioner moved an application to the Development Officer, Piprauli enclosing a copy of the aforesaid resolution. In this connection, the Development Officer wrote a letter to the District Panchayat Raj Officer mentioning the full facts, and enclosing the application of the Petitioner. An application was also made to the District Magistrate. Since no action was taken by these authorities, the Petitioner filed writ petition No. 2501 of 1992 (Smt. Usha Rani v. District Magistrate, Gorakhpur and Ors.) in this Court in which on 24-1-1992 the court observed that the Petitioner can approach the Respondent No. 1 with a request regarding taking over charge, and the said authority may pass appropriate orders. 4. In para 9 of the writ petition the Petitioner has stated that she took the certified copy of the order of this Court dated 24-1-1992, and produced it before Respondent No. 1 on 29-1-1992 with a request to pass appropriate orders Similar applications have also been moved to Respondent Nos. 2 to 4. 4. In para 9 of the writ petition the Petitioner has stated that she took the certified copy of the order of this Court dated 24-1-1992, and produced it before Respondent No. 1 on 29-1-1992 with a request to pass appropriate orders Similar applications have also been moved to Respondent Nos. 2 to 4. Subsequently, the Petitioner came to know that some order has been passed by the District Magistrate on 24-1-1992 authorising Jokhu, Respondent No. 5 to take over charge of post of Pradhan. A true copy of the said order is annexure-5 to the writ petition. This order has been passed u/s 12-J of the U.P. Panchayat Raj Act. 5. The Petitioner has stated that the order dated 24-1-1992 has been passed in ignorance of the resolution of the Gaon Panchayat which states that Jokhu is illiterate, and incapable of working as Pradhan. Jokhu has also allegedly moved an application with an affidavit before Respondent No. 1 on 6-2-1992 stating that he is an old and illiterate person, and will be incapable of doing the work of Pradhan, and he has endorsed the resolution of the Gaon Panchayat that the Petitioner should be allowed to work as Pradhan till a regular election. True copies of the application and affidavit of Jokhu are annexures-6 and 7 to the writ petition. The Petitioner has stated that no action has been taken on the said application of Jokhu. 6. A perusal of Section 12-J of U.P. Panchayat Raj Act shows that if the office of Pradhan becomes vacant then the Up-Pradhan would exercise the function of Pradhan. Sub-section (2) of Section 12-J of the Act states that if the offices of both Pradhan and Up-Pradhan are vacant, or if for any reason both Pradhan and Up Pradhan are incapable to act, the Prescribed Authority shall nominate a member of the Gaon Panchayat to discharge the functions of the Pradhan until the office of Pradhan or Up pradhan is filled up. Sub-section (2) does not state which member of the Gaon Panchayat should be nominated by the Prescribed Authority to discharge the functions of the Pradhan. Literally construed the said provision gives absolute discretion to the Prescribed Authority to nominate any member of the Gaon Panchayat for this purpose. Sub-section (2) does not state which member of the Gaon Panchayat should be nominated by the Prescribed Authority to discharge the functions of the Pradhan. Literally construed the said provision gives absolute discretion to the Prescribed Authority to nominate any member of the Gaon Panchayat for this purpose. Such an interpretation, however, would make the provision arbitrary and also unconstitutional since no guiding principle has been laid down as to how the discretion of the prescribed authority is to be exercised and in favour of which member of the Gaon Panchayat. However, it is a settled principle of interpretation that the courts should as far as possible try to avoid holding a statute to be unconstitutional, and if an interpretation can be found which makes the statute constitutional, such an interpretation should be accepted. In my opinion, since the Gaon Sabha and Gaon Panchayat are democratic bodies elected by the people, the proper interpretation of Sub-section (2) of Section 12-J would be that in case where the offices of both Pradhan and Up Pradhan are vacant, of when both Pradhan and Up Pradhan are incapable to act, the Prescribed Authority should ask the members of the Gaon Panchayat to hold a meeting, and such, members should decide among themselves which member should be nominated as Pradhan for the interim period until regular election, and such member should be nominated as officiating Pradhan u/s 12-J(2). Such an interpretation would be in consonance with the democratic principle underlying the U.P. Panchayat Raj Act, and would also make the statute constitutional. 7. No doubt such an interpretation is to some extent exercise of legislative functions by the court, but it is now accepted that to some extent the judiciary can exercise such legislative functions vide Ratan Chand Hira Chand v. Askar Nawasjung 1991 (2) SCC 67. In this decision the Hon'ble Supreme Court has held "The legislature often fills to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. It is, therefore not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society, or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society." 8. In view of the above, I hold that the Petitioner should have been nominated as officiating Pradhan until the regular election of Pradhan provided the allegations in the writ petition are correct. 9. The Petitioner will file a certified copy of this judgment before the Respondent No. 1, and the Respondent No. 1 will verify whether a meeting of the Gaon Panchayat was held on 31-12-1991 as alleged by the Petitioner, and whether Jokhu has participated in that meeting, and also whether Jokhu submitted the application and affidavit on 6-2-1992 as alleged in the writ petition. The Respondent No. 1 shall also verify the correct facts from Jokhu. If the Respondent No. 1 finds that the allegations in paragraphs 2 and 15 of the writ petition are correct, he will direct that the Petitioner shall be treated as officiating Pradhan until regular election. Respondent No. 1 will complete this inquiry within a month of production of a certified copy of this judgment before him. 10. With these observations the writ petition is disposed of finally. 11. A certified copy of this judgment may be given to the Petitioner on payment of usual charges within three days.