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Allahabad High Court · body

2008 DIGILAW 2223 (ALL)

LALTI DEVI v. STATE OF U. P.

2008-11-05

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—The petitioner is an elected Pradhan of the village Panchayat Saidani, Block Sujanganj in District Jaunpur. It transpires that on the basis of some complaint made by the respondent No. 6 and others, an enquiry was instituted by the District Magistrate and on the basis of the said enquiry report, a show cause notice dated 12.12.2007 was issued to the petitioner to show cause why the petitioner should not be removed under Section 95(1)(g) of the U.P. Panchayat Raj Act for being absent. The allegation in the show cause notice was that the petitioner resides with her parents and is not residing in the village on most occasions. The petitioner submitted a reply dated 23.1.2008 denying the charges and submitted that on the date when the enquiry was made by the Additional District Panchayat Raj Officer, she had gone to Allahabad to look after her daughter who was admitted in the hospital at Allahabad. In spite of this reply, the District Magistrate, by the impugned order dated 7.7.2008 held that since the petitioner was absent and the development work of the village was suffering, consequently one Nanku Ram s/o Muneshwar, respondent No. 5 was appointed as the Pradhan under the provision of Section 12-J of the U.P. Panchayat Raj Act. Based on the aforesaid order, a consequential order dated 15.7.2008 was passed by the Block Development Officer to the same effect. The petitioner, being aggrieved by the aforesaid orders, has filed the present writ petition. 2. Heard Sri R.C. Yadav, the learned counsel for the petitioner, the learned Standing Counsel for respondent Nos. 1 to 4, Sri Ved Mani Sharma, the learned counsel for the respondent No. 5 and Sri A.K. Shukla, the learned counsel for the complainant, respondent No. 6. 3. The respondents in the counter affidavit filed on behalf of the State authorities has enclosed the report of the Additional District Panchayat Raj Officer dated 23.11.2007, in which the authority has submitted that the petitioner was not present at the time of the inspection and, that he was informed that the petitioner had gone to Allahabad to admit her child in the hospital. The report further indicates that the petitioner stays in the village on rare occasions. 4. The report further indicates that the petitioner stays in the village on rare occasions. 4. The learned Standing Counsel also placed a report of the District Panchayat Raj Officer dated 14.8.2008 which is a report subsequent to the date of the impugned order, wherein the District Magistrate after considering the report, again issued an order dated 14.8.2008 affirming its earlier order dated 7.7.2008. 5. From the report of the Additional District Panchayat Raj Officer, and the reply given by the petitioner to the show cause notice, it is clear that no investigation was made by the authorities to the effect, as to whether, the petitioner had in fact gone to Allahabad to admit her child during the date when the inspection was made. It is also clear that the report indicates that the petitioner resides in the village on rare occasions. 6. Upon consideration of the aforesaid factual position, the question is, whether the District Magistrate could exercise its power under Section 12-J of the Act or not? The show cause notice was issued under the provision of Section 95(1)(g) of the Act, whereas the impugned order was passed under Section 12-J of the Act. Both the provisions operate in different fields. Upon consideration of the aforesaid factual position, the question is, whether the District Magistrate could exercise its power under Section 12-J of the Act or not? The show cause notice was issued under the provision of Section 95(1)(g) of the Act, whereas the impugned order was passed under Section 12-J of the Act. Both the provisions operate in different fields. For facility, the provision of Section 95(1)(g) and the provision of Section 12-J of the U.P. Panchayat Raj Act are quoted hereunder : “95(1) (g) [remove a Pradhan, Up-Pradhan or member of Gram Panchayat] or a Joint Committee or [Bhumi Prabandhak Samiti] [***] or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he— (i) absents himself without sufficient cause from more than three consecutive meetings or sittings; (ii) refuses to act or 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 this Act or rules made thereunder or his continuance as such is not desirable in public interest; (iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him, stating that he is a member of the Scheduled castes, the Scheduled Tribes or the backward classes, as the case may be;] (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics; or (v) suffers from any of the disqualifications mentioned in clauses (a) to (m) of Section 5-A : 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 facie 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 the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government.” "12-J. Arrangement in temporary vacancy in office of Pradhan.—(1) Where the office of Pradhan is vacant by reason of death, removal, resignation or otherwise, or where the Pradhan is incapable to act by reason of absence, illness or otherwise, the Up-Pradhan shall exercise all powers and discharge all duties of the Pradhan. (2) Where the office 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 the (Gram Panchayat) to discharge the duties and exercise the powers of the Pradhan until such vacancy in the office of either the Pradhan or the Up-Pradhan is filled in, or until such incapacity of either of the two is removed.)” 7. From the provision of Section 95(1)(g), it is clear that a Pradhan can be removed after holding an enquiry as prescribed under the rules on certain grounds and one such ground is, that the Pradhan absents himself without sufficient cause from more than three consecutive meetings or sittings or that he refuses to act or becomes incapable of acting for any reason whatsoever or abuses his position or has persistently failed to perform the duties imposed by the Act and the Rules. 8. The charge levelled against the petitioner is, that she is not residing in the village and that she remains absent, on account of which, the development work of the village is suffering. These are charges which can be enquired under Section 95(1)(g) of the Act and steps could be taken under the said provision for her removal but the authorities while issuing a notice under Section 95(1)(g) of the Act chose not to proceed any further after receiving the reply from the petitioner and instead took a short cut and exercised the power under Section 12-J of the Act. 9. Section 12-J of the Act provides that where the office of the Pradhan becomes vacant by reason of death, removal, resignation, or otherwise, in that circumstances the Up-Pradhan takes charge of the office of the Pradhan under sub-clause (1) of Section 12-J and in the event, the office of the Pradhan and Up-Pradhan becomes vacant for any reason whatsoever, in that event, the authority is required to nominate a member of the Panchayat to discharge the duty and exercise the power of the Pradhan until such vacancy is filled or occupied. 10. In the present case, the District Magistrate has exercised the power under sub-clause (2) of Section 12-J of the Act. 11. 10. In the present case, the District Magistrate has exercised the power under sub-clause (2) of Section 12-J of the Act. 11. In my opinion, the power under Section 12-J of the Act could only be exercised by the authority where the office of the Pradhan becomes vacant. The vacancy has to be substantive in nature. The word “vacant” means not filled up or occupied. 12. In the present case, the mere fact that the petitioner was not present in the village on certain dates, does not create a vacancy in the office of Pradhan nor does the post becomes vacant. Further, I find from the record that the petitioner had given an explanation of her absence on the date when the inspection was made by the District Panchayat Raj Officer which has not been considered nor any enquiry relating to the veracity of that statement was conducted by the authority. 13. In view of the aforesaid, I find that the District Magistrate has misused the power under Section 12-J of the Act in restraining the Pradhan from working when the post was not vacant. The impugned order, therefore, cannot be sustained and is quashed. The writ petition is allowed. ————