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2008 DIGILAW 1711 (ALL)

RAM MANOHAR SINGH v. STATE OF UTTAR PRADESH

2008-08-21

ABHINAVA UPADHYA, PRADEEP KANT

body2008
JUDGMENT By the Court.—Heard the learned counsel for the petitioner Sri Akhilesh Kalra and Sri Mukund Tiwari learned Chief Standing Counsel. 2. Learned counsel for the petitioner says that he does not want to file rejoinder affidavit to the counter affidavit filed on behalf of opposite parties 1 and 2. 3. With the consent of the parties counsel, the petition is being disposed of finally. 4. The petitioner, after being elected as a member of Kshetra Panchayat Payagpur, District Bahraich, was elected as Pramukh by the elected members of the Kshetra Panchayat in terms of the provisions of Section 7 of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam, 1961). Since before the petitioner was elected, a criminal case was registered at Case Crime No. 395 of 2001 under Section 307, I.P.C. and 7 Criminal Law Amendment Act read with Section 25 of the Arms Act against the petitioner on the allegation that the petitioner fired on police party and ammunition was also recovered from him and one another criminal case was registered against the petitioner at Case Crime No 396 of 2001 arising out of the same First Information Report. 5. The petitioner has been convicted for the offence under Section 307 read with Section 25 of the Arms Act, and awarded a sentence of 5 years, R.I. with a fine of Rs. 5000/-. 6. The petitioner on being convicted, was taken into custody on 1st March, 2008. He filed an appeal before the High Court being Criminal Appeal No. 4 of 2008 and was released on bail vide order of the High Court on 11th March, 2008. 7. After release on bail the petitioner resumed his functioning as Pramukh, as during the period when he was in jail for ten days, no temporary arrangement was made by the District Magistrate. It was after functioning as such for a period of about three months apparently on 22nd July, 2008, on some letter being written by the District Magistrate, the State Government passed the impugned order holding the petitioner to be ineligible having incurred a disqualification for continuing as member of the Kshettra Panchayat and consequently as Pramukh of the Kshettra Panchayat. 8. 8. The impugned office memorandum dated 22nd July, 2008 makes a mention of the criminal cases registered against the petitioner, in which he has been convicted and also observes that since he has fired on police party at a public place and ammunition was also recovered from his possession for which he has been found guilty by the Court and in the appeal though bail has been granted to the petitioner and realization of fine has been stayed but the conviction order has not been suspended nor stayed and, therefore, it will be presumed that the petitioner has become disqualified to hold the post under Section 13(f) of the Adhiniyam 1961. 9. On the aforesaid reasoning the State Government terminated the membership of the petitioner and consequently also his election as Pramukh. 10. The moot question involved is that whether the State Government was competent to pass the impugned order, terminating the membership of the petitioner as a member of the Kshettra Panchayat and consequently removing him from the office of the Pramukh. 11. Section 13(f) deals with the disqualification for membership of Kshettra Panchayat and the relevant portion of which is being reproduced as under : “A person shall be disqualified for being chosen as and for being a member of a Kshettra Panchayat, if he has been convicted of an offence involving moral turpitude”; 12. Section 14 deals with the disputes as to membership or disqualification and the same is being quoted below : “14. Disputes as to membership or disqualification.—(1) If any dispute arises as to whether a person is a member of the Kshettra Panchayat under [clause (a)] of sub-section (1) of Section 6, the dispute shall be referred in manner prescribed to the State Government and the decision of the State Government shall be final and binding. [(2) If any question arises as to whether a person has been lawfully chosen a member of a Kshettra Panchayat or has ceased to remain eligible to be such member the question shall be referred in the manner prescribed to the Judge, whose decision shall be final and binding.] (3) If the Judge decides that the member was not lawfully chosen or has ceased to remain eligible to be a member of the Kshettra Panchayat such member shall cease to be a member of the Kshettra Panchayat from the date of such decision”. 13. 13. Section 15 is the provision for motion of no-confidence in Pramukh or Up-Pramukh and that is the procedure prescribed for removal of Pramukh or Up-Pramukh. Apart from the procedure of motion of no-confidence, the Pramukh or Up-Pramukh, can be removed under Section 16 of the Adhiniyam by the State Government. Section 16 is being quoted below : “16. Removal of Pramukh or Up-Pramukh.—(1) If in the opinion of the State Government the Pramukh or any Up-Pramukh of a Kshettra Panchayat wilfully omits or refuses to perform his duties and functions under this Act, or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties, the State Government may, after giving the Pramukh or such Up-Pramukh as the case may be, a reasonable opportunity for explanation and after consulting the Adhyaksha of the Zila Panchayat concerned in the matter and taking into consideration his opinion, if received within thirty days from the date of the dispatch of the communication for such consultation, by order, remove such Pramukh or Up-Pramukh, as the case may be, from office, and such order shall be final and not open to be questioned in a Court of law : Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pramukh or Up-Pramukh is prima facie found to have committed financial and other irregularities, such Pramukh or Up-Pramukh shall cease to exercise and perform the 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 elected members of the Kshettra Panchayat appointed in this behalf by the State Government. (2) A Pramukh or Up-Pramukh, removed from his office under this section, shall not be eligible for re-election as Pramukh or Up-Pramukh for a period of three years from the date of his removal”. 14. The argument of the learned counsel for the petitioner is that but for the aforesaid provision, in none of the provisions of the Act, the State Government has the power to terminate the membership or to remove the Pramukh and therefore, the impugned order is totally without jurisdiction and authority. 14. The argument of the learned counsel for the petitioner is that but for the aforesaid provision, in none of the provisions of the Act, the State Government has the power to terminate the membership or to remove the Pramukh and therefore, the impugned order is totally without jurisdiction and authority. The submission is that the elected office bearer or the member of the Kshettra Panchayat can be removed, only if, such a provision exists under the Act and in the manner prescribed and not on the mere desire or will of the State Government. 15. Sri Mukund Tewari learned Additional Chief Standing Counsel though has filed counter affidavit but neither in the counter affidavit nor in his argument, he could point out any provision under the Adhiniyam 1961 that such a power of removal or termination of the membership and removal of Pramukh could be exercised by the State Government. He half-heartedly placed reliance on the provision of Section 14(1) of the Adhiniyam 1961 whereas the aforesaid provision deals with respect to any dispute of any person of Kshettra Panchayat under clause (a) of sub-section (1) of Section 6 viz; whether he is a Pradhan of the Gram Panchayat and if such a dispute arises, then the State Government can look into the matter. 16. Admittedly no such dispute in the present case as envisaged under clause (a) of sub-Section(1) of Section 6, therefore, Section 14(1) does not apply. 17. In regard to the applicability of Section 14, sub-clauses (2) and (3) it is the specific case of the State Government that power has not been exercised under the said provision as no proceeding has been taken under Section 14(2). 18. An elected member of the Kshettra Panchayat or an elected office bearer namely; the Pramukh, cannot be removed from the office otherwise; than by adopting the procedure prescribed under the Act and the Rules framed thereunder, if any. The authority and jurisdiction to take an action of termination of membership or removal from the office of Pramukh can also not be taken by the State or any of its authority unless such a power is conferred under the Act and the provision is made for taking such an action. The authority and jurisdiction to take an action of termination of membership or removal from the office of Pramukh can also not be taken by the State or any of its authority unless such a power is conferred under the Act and the provision is made for taking such an action. The scheme of the Act in question reveals that the State Government was having no jurisdiction and authority to either terminate the membership of the petitioner or to declare that consequently he ceases to hold the office of the Pramukh. The State has not been able to indicate any provision under which the impugned order could have been passed. 19. Recourse to Section 13(f) could not have been made because it only lays down and enumerates disqualification for membership. Section 13(f) is one of the disqualification given under Section 13 and Section 14 is the provision which lays down the manner and the authority of the State Government to decide a dispute regarding membership for disqualification. It having been established that no such dispute has ever been raised or decided, the impugned order cannot be made referable to the aforesaid provision of Section 14. 20. It is needless to mention that it is not a case of passing of no confidence motion under Section 15. 21. We are, thus, of the considered opinion that the order impugned cannot be sustained as the State Government has exceeded its authority under the Act in passing the said order, as there is no provision under which such an order can be passed. 22. In view of the aforesaid legal position with respect to the lack of power and authority of the State Government, for terminating the membership and consequent removal or cessation from the office of the Pramukh, there remains no ambiguity that the impugned order of the State Government, has been passed without authority and jurisdiction. 23. The learned counsel for the State, however, at this juncture submitted that the petitioner has incurred a disqualification under sub-section 13(f) of the Adhiniyam 1961, and expressed his concern on the fact that a person who has been found guilty of attacking on a police party, and has been convicted, need not be allowed to continue as Pramukh and for that matter, he says that liberty be given to the State Government for initiating appropriate proceeding as per law. 24. 24. We do not intend to enter into the aforesaid controversy as the same is not in issue but, of course, if any legal remedy is provided, and if the State Government or any person competent to take any action against the petitioner under law, initiates any such action, this order would not come in the way of the opposite parties and appropriate proceeding as may be prescribed under law, may be taken as per discretion of the authority concerned, subject to the right of challenge by the petitioner. 25. For the reasons stated above, the impugned order dated 22nd July, 2008, contained as Annexure 1, to the writ petition, is liable to be set aside, which is hereby quashed. The petitioner shall continue as Pramukh unless removed in accordance with law and also the declaration that he ceases to be a member of the Kshettra Panchayat is also quashed. ———