JUDGMENT Hon’ble V.K. Shukla, J.—Present writ petition has been filed by the petitioner questioning the validity of the order dated 16.11.2009 passed by the District Magistrate, Moradabad in exercise of its authority vested under Section 12-J of U. P. Panchayat Raj Act, 1947 and consequential action dated 17.11.2009 undertaken by the District Panchayat Raj Officer, Moradabad. 2. Brief background of the case is that there is Gram Panchayat namely Shahbajpur Kalan Vijai Rampur, Post Sharif Nagar, Tehsil Thakur Dwara, District Moradabad. Election for the post of Pradhan was held alongwith members, wherein Smt. Parul Chaudhari was elected as Pradhan and affairs of the said Gram Panchayat is to be carried strictly in consonance with the provision as contained in U.P. Panchayt Raj Act, 1947 and rules framed there under. Smt. Parul Chaudhari, the elected Pradhan proceeded to tender her resignation. Said resignation was duly forwarded by the Block Development Officer, Thakurdwara, District Moradabad, then it was accepted by the competent authority on 12.10.2009, thus giving rise to substantive vacancy of office of Pradhan of Gram Panchayt, Shahbajpur Kalan Vijai Rampur, Post Sharif Nagar, Tehsil Thakur Dwara, District Moradabad. For the said Gram Panchayt, there is no elected Up-Pradhan and said Gram Panchayat consists of 11 elected members and two nominated members. It has been contended by the petitioner that after the acceptance of the resignation of Smt. Parul Chaudhari, as vacancy had occurred, and interim arrangement was to be made in respect of ensuring functioning of the post of Pradhan. Petitioner submits that meeting of the member of Gram Panchayt was called on 20.11.2009, which was attended by the Assistant District Panchayt Raj Officer. Petitioner submits that on the said date as seat in question was reserved for female category candidate, as such was unanimously resolved that petitioner be asked to function as officiating Pradhan of aforesaid Gaon Sabha. Petitioner submits that said resolution had been passed, papers were transmitted through District Panchayt Raj Officer to District Magistrate, Moradabad. Petitioner submits that with utmost surprise of the members of the Gram Panchayt, ignoring the wishes of the of majority member of the Gram Panchayat, District Magistrate over ruled the said resolution and on 16.11.2009 order has been passed ‘Anumodit’ Pushpendra,respondent no.5 as Pradhan of aforesaid Gaon Sabha. At this juncture present writ petition has been filed. 3. Petitioner submits that with utmost surprise of the members of the Gram Panchayt, ignoring the wishes of the of majority member of the Gram Panchayat, District Magistrate over ruled the said resolution and on 16.11.2009 order has been passed ‘Anumodit’ Pushpendra,respondent no.5 as Pradhan of aforesaid Gaon Sabha. At this juncture present writ petition has been filed. 3. Supplementary counter affidavit has been filed and therein it has been sought to be contended that nomination of the contesting respondents Pushpendra has been made by District Magistrate after considering each and every relevant fact and circumstances of the case. It has been contended that resolution, which have been relied by the petitioner is forged documents and fact of the matter is that no resolution had ever been passed, in this background it has been contended that District Masticate has taken into account qualification of the contesting respondent, who is post graduate and then such nomination has been made. 4. Rejoinder affidavit has been filed disputing the averments mentioned therein and given fact that on 23.10.2009 letter was written to Zila Panchayat Raj Adhikari for constituting three members committee and further it has been stated that Zila Panchayat Adhikari on 24.10.2009 himself stated that three members committee would not work and all the members, should appoint of Gram Padhan. Thereafter meeting had been convened and name of petitioner bas been finalised. 5. Amendment application has been made to which counter and rejoinder affidavits have been filed and thereafter with the consent of the parties, present writ petition has been taken up for final hearing/disposal. 6. Sri Udit Chandra, Advocate, learned counsel for the petitioner contended with vehemence that in the present case District Magistrate, as well as District Panchayat Raj Officer have totally misused the authority vested with them under Section 12-J of U.P. Panchayat Raj Act, 1947, inasmuch as wishes of the elected members of Gram Panchayat have been ignored and on mere whims, ignoring their wishes, nomination has been made on the basis of the qualification, which is not at all a relevant criteria in democratic set up. Coupled with this it has been contended that seat was reserved for female category candidate, then all attempt and endeavour ought to have been made to fill up the said post from amongst female category candidate instead of proceeding to make arrangement in the way and manner, as it has been sought to be done in the present case, as such writ petition deserves to be allowed. 7. Countering the said submission, learned Standing Counsel as well as Sri A.M. Zaidi, Advocate on the other hand contended that rightful action has been taken by the District Magistrate and here exercise of power has not at all been arbitrary, as making of temporary arrangement is sole prerogative of the District Magistrate concern and here on objective consideration of fact said discretion has been exercised, as such writ petition deserves to be dismissed. 8. After respective argument have been advanced, factual position, which is emerging in the present case is that office of Gram Pradhan had fallen vacant on account of tendering resignation by Smt. Parul Chaudhari. This is undisputed position that there is no elected Up-Pradhan available and in this background, District Magistrate is enjoined upon to make arrangement for ensuring functioning of the office of Pradhan by nominating some one. Petitioner submits that District Panchayat Raj Officer on 24.10.2009 had issued direction to call for meeting of Gram Panchayt to elect the officiating Pradhan and accordingly meeting was called for and petitioner claims that her name was approved and papers were transmitted to District Magistrate. The District Magistrate on 16.11.2009 has proceeded to nominate Puspendra to function as officiating Prahdan of the village and consequential letter has been issued in this regard, by District Panchayat Raj Officer. 9. At this juncture Section 12-J of the Act, which deals with making of arrangement in temporary vacancy in the office of Pradhan is being extracted below : 12-J Arrangement in temporary vacancy in the 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 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 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” 10. Said provision in question has been subject matter of interpretation before this court and this court in the case of Usha Singh (Smt.) v. District Magistrate, Gorakhpur, 1992 RD 337 has opined that nomination of a person as Gram Pradhan by the District Magistrate/Prescribed Authority is arbitrary if it is not made by the consent of the member of the Gram Panchayat. Paragraph 6 of the judgement is as under : 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 office 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 provisions 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 principles has been laid down as to how the discretion of the prescribed authority is to be exercised and in various of which members 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 . 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, or when both Pradhan and Up-Pradhan are incapable to act, the Prescribed Authority should ask the members to act, the Prescribed Authority should ask the members of Gaon Prnahayct 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 under section 12(2). Such an interpretation would be inconsonance with the democratic principle underlying the U.P. Panchayat Raj Act, and would also make the statute. 11. Said view has again been reiterated by this court in the case of Udaivir v. The State Election Commission of U.P. through its Chairman and others, decided on 11.4.2008 in Writ Petition No. 53468 of 2007. The judgment of learned single judge in the aforementioned case has been approved of by Division Bench of this court in the case of Udaivir v. State Election Commission, 2009 (106) RD 151 . View has been taken as follows : “This Special Appeal has been preferred against the impugned judgment and order of the Hon’ble Single judge dated 11th April, 2008 passed in Civil Misc. Writ Petition No. 53468 of 2007; Udaivir v. The State Election Commission of U.P. through its Chairman and others, filed by the appellant against appointment of respondent No. 7 as officiating Pradhan has been dismissed. The Hon’ble Single Judge after considering the facts and law applicable came to the conclusion that the wishes of the elected members of the Gram Panchayat could have been ascertained before nominating any member to officiate as Pradhan till the regular election qua the office is held, in exercise of powers under section 12-J of the U.P. Panchayat Raj Act. The Hon’ble Single Judge after considering the facts and law applicable came to the conclusion that the wishes of the elected members of the Gram Panchayat could have been ascertained before nominating any member to officiate as Pradhan till the regular election qua the office is held, in exercise of powers under section 12-J of the U.P. Panchayat Raj Act. We have hared Sri B.N. Singh learned counsel for the appellant-petitioner, Sri S.C. Pandey, learned Counsel for respondent No. 7, Sri K.P., Singh, learned counsel for the respondent no1. and learned Standing Counsel for other respondents, and perused the records of the present special appeal. Considering the basic concept of the democracy set up for the Panchayat Raj under the provisions of Article 243 of the Constitution, we are of the o9pinion that respondent No,3, i.e. District Magistrate, Aligarh ought to have ascertained the wishes of the elected members of the Gram Panchayat, as to who should be the officiating Pradhan for the period till the regular election of the Gram Pradhan is held. Further every attempt should be made to elect the new Pradhan at the earliest possible In view thereof, we dispose of this Special appeal with a request upon the District Magistrate i.e. respondent No. 3 to convene a meeting of the elected members of the Gram Panchayat within a period of two weeks from the date of certified copy of this order is filed before him, nominating some responsible officer not below the rank of Sub Divisional Magistrate, to chair the meeting of the elected members so as to ascertain the wishes qua nomination of officiating Pradhan. Person so nominated would be handed over the charge forthwith. We also request the District Magistrate to ensure that the election of the Gram Pradhan of the village concerned be held in accordance with law at the earliest possible”. 12. In the case of Smt. Kusma Devi v. State of U.P. and others, 2009 (106) RD 5 and Jaglal v. State of U.P. and others, 2009 (106) RD 47 decided on 06.11.2008 and 10.11.2008, learned Single Judge has taken view that provision of sub-section (2) of Section 12-J of the Act is clear that temporary Gram Pradhan is to be nominated by the Prescribed Authority. Nothing can be added by reading in between the lines or to give strength one’s own opinion. Nothing can be added by reading in between the lines or to give strength one’s own opinion. The Prescribed Authority has power to nominate any person under the Act which cannot be said to be arbitrary and the Registrar has acted in its wisdom as conferred under the Act. 13. These two judgments of learned Single judge has been passed in ignorance of the judgment Division Bench judgment of this court decided on 23.4.2008 reported in 2009 (106) RD 151 Udaivir v. State Election Commission of U.P. through its Chairman and others. It appears that Division Bench judgment has not been placed before the learned Single Judge. Once on the same subject matter, the view of Division Bench of this court is there and view mentioned therein has been holding the field since more than15 years, then in this background judicial discipline impells this court to follow the view which has been laid down by the Division Bench of this court in the case of 2009 (106) RD 151 Udaivir v. State Election Commission of U.P. through its Chairman, which clearly provides that considering the basic concept of the democracy set up for the Panchayat Raj under the provisions of Article 243 of the Constitution, District Magistrate ought to have ascertained the wishes of elected member of the Gram Panchayat, as to who should be the officiating Pradhan for the period till the regular election of the Gram Pradhan is held. 14. It is true that language of Section 12-J of U.P. Panchayat Raj Act, 1947 does not talk of convening any meeting but by judicial pronouncement. Looking into the fact that, it is democratly elected office in view of Article 243, qua which interim arrangement is to be made, the lacuna has been sought to be filled up by directing that meeting shall be convened and then as per the majority wish interim arrangement should be made amongst elected Gram Panchayat members. 15. On the parameters set out, fact of present case are being adverted to. In the present case, as far as petitioner is concerned, specific case has been that on 24.10.2009 Zila Panchayt Officer informed all the members of the Gram Panchayat in this regard for holding of meeting. 15. On the parameters set out, fact of present case are being adverted to. In the present case, as far as petitioner is concerned, specific case has been that on 24.10.2009 Zila Panchayt Officer informed all the members of the Gram Panchayat in this regard for holding of meeting. It has been stated that meeting of the Gram Panchayt was held which was assisted by the Assistant Development Officer on 28.10.2009 wherein name of petitioner was finalised and thereafter, each and every authority also made recommendation in favour of petitioner, except the District Magistrate, who on 16.11.2009 approved name of Pushpendra and thereafter consequential order has been issued. From the side of Puspendra it has been contended that no such meeting had ever been convened and said documents in question is fake and ingenuine document and further it has been contended that on 16.l1.2009 District Magistrate had ascertained the wishes of the members and thereafter, name of Puspendra was approved. Such disputed question of fact cannot be decided by this court, as it requires evidence. At the first instance, all these questions being raised qua ascertainment of wishes, then this question ought to have been adjudicated by the District Magistrate himself instead of proceeding to pass order “Anumodit Pushpendra” qua which justification has been sought to be furnished as he was best qualified incumbent, as such nomination was made in his favour. Requsite exercise, in the absence of reasoned order is completely lacking and missing. 16. Consequently, in view of the fact and circumstances of the case, order dated 16.11.2009 and consequential order dated 17.1.2009 are hereby quashed and set aside. District Magistrate, Moradabad is directed to take fresh decision in accordance with law, preferably within period of six weeks from the date of production of certified copy of this order. 17. With these observations, writ petition is allowed. 18. No order as to cost. ————