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2007 DIGILAW 2304 (ALL)

MOHD. YASIN KHAN v. STATE OF UTTAR PRADESH

2007-09-07

ASHOK BHUSHAN

body2007
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Counsel for the petitioner and learned Standing Counsel. 2. By this writ petition the petitioner has prayed for quashing the order dated 3rd September, 2007 by which the petitioner’s authorization/nomination to work as Pradhan has been withdrawn. 3. The Pradhan of the Village died on 30th April, 2007 causing a vacancy. Exercising power under Section 12-J(2) of U.P. Panchayat Raj Act, 1947 an order was passed by District Magistrate on 13th June, 2007 nominating the petitioner to discharge the duties of the Pradhan (copy of the said order has been filed as Annexure-2 to the writ petition). The order itself indicates that the nomination of the petitioner was purely temporary and can be withdrawn without any notice. Subsequently the District Magistrate by the impugned order dated 3-9-2007 has withdrawn the nomination of the petitioner and appointed another person to function as Pradhan. 4. Learned Counsel for the petitioner contended that the said order has been passed without any opportunity and, hence, it is wholly illegal. He further contended that according to Section 12-J (2) nominated person is authorized to continue till the vacancy in the office of Pradhan is filled, hence, he could not have been removed in between. 5. Learned Standing Counsel appearing for the respondents supported the order and contended that the petitioner’s nomination being temporary he can be removed without any notice. 6. Section 12-J(2) of the U.P. Panchayat Raj Act provides for arrangements of temporary vacancy in the office of Pradhan, Section 12-J (2) is as follows : “Where the offices of both, Pradhan and Up-Pradhan are vacant for any reason whatsoever, or when both, Pradhan and Up-Pradhan are incapable to act for any reason whatsoever, the prescribed authority shall nominate a member of (Gram Panchayat) to discharge the duties and exercise the powers of the Pradhan until such vacancy in the office of either the Pradhan or Up-Pradhan is filled in, or until such incapacity of either of two is removed”. 7. Submission of the petitioner is that the nomination is till the vacancy is filled, hence before the vacancy is filled up the petitioner was not removable. 8. Section 12-J(2) provides nomination for a member, when a statute confers a power of a statutory authority to do a particular thing that power can be exercised from time to time. 7. Submission of the petitioner is that the nomination is till the vacancy is filled, hence before the vacancy is filled up the petitioner was not removable. 8. Section 12-J(2) provides nomination for a member, when a statute confers a power of a statutory authority to do a particular thing that power can be exercised from time to time. To nominate under Section 12-J(2) was not a one time power which after nominating the petitioner exhausted. The power shall continue with the prescribed authority to nominate, re-nominate as the exigency may arise. In case the interpretation put by the petitioner is accepted the power of District Magistrate shall come to an end after once nominating a person to discharge the duties of Pradhan. If such interpretation is accepted that will not advance the object of provisions of Section 12-J(2) of the Act 1947. U.P. General Clauses Act provides that power conferred by a statute is to be exercisable from time to time. Section 14 of the U.P. General Clauses Act is quoted as below : “Power conferred on the State Government to be exercisable from time to time.—Where, by any (Uttar Pradesh) Act, any power is conferred [***] then that power may be exercised from time to time as occasion requires.” 9. From the provisions of the General Clauses Act, it is clear that when an act confers a power unless the different intention is there such power can be exercised from time to time as occasion requires, thus, the power of nomination can be exercised by the District Magistrate from time to time. The submission of the petitioner that once he has been nominated his nomination cannot be withdrawn cannot be accepted. Further more this submission also runs contrary to the very condition of the petitioner’s nomination as contained in the letter dated 13-6-2007. The order clearly contemplates that the nomination of the petitioner is purely temporary and can be withdrawn without any notice, hence, the submission of the petitioner that nomination could not have been withdrawn cannot be accepted. The next submission of the petitioner is that he was required to be given an opportunity before passing an order for removing him. The petitioner was nominated by the District Magistrate to discharge the function of the Pradhan. The next submission of the petitioner is that he was required to be given an opportunity before passing an order for removing him. The petitioner was nominated by the District Magistrate to discharge the function of the Pradhan. The petitioner is not an elected office bearer nor he can claim to have any right to the office of Pradhan by virtue of nomination. The appointment of a nominee is generally up to the pleasure of the authority nominating a person. After receiving complaints regarding functioning of the petitioner no error was committed by the District Magistrate in recalling the nomination without giving any opportunity. Furthermore, the termination of the nomination was according to the terms of the engagement of the petitioner as contained in the order dated 13th June, 2007. 10. None of the submissions raised by the petitioner has any substance. The writ petition lacks merit and is dismissed. ————