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2016 DIGILAW 2295 (ALL)

Sunil Charora v. State of U. P.

2016-07-04

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT Sunil Charora and 2 others are before this Court with a request to issue writ, order or direction in the nature of certiorari quashing the illegal committees of Zila Panchayat, Bulandshahr directly constituted by President and Additional Chief Officer, Zila Panchayat, Bulandshahr, without holding the elections as contemplated under Section 68 of Uttar Pradesh (Kshetra Panchayats and Zila Panchayats) Adhiniyam, 1961 and Uttar Pradesh (Samitiyon Ka Nirman) Niymawali, 1997. They have further prayed to issue a mandamus directing the respondent no. 1 to hold the elections of Zila Panchayat Committees as per the procedure laid down in Uttar Pradesh (Samitiyon Ka Nirman) Niyamawali, 1997 and to restrain the respondent Nos. 4 to 6 from finalising any contract in pursuance of the illegal tender notice dated 20.5.2016 or in alternative quash the tender notice dated 20.5.2016. 2. At the very outset, Shri Nisheeth Yadav, learned counsel appearing for respondent no.4 has raised a preliminary objection regarding maintainability of the present writ petition on the ground that the petitioners have got alternative efficacious remedy of raising objections against the impugned constitution of committees of Zila Panchayat under Rule 18 of U.P. Zila Panchayat (Samitiyon Ka Nirman) Rules, 1997 (The rule). 3. The petitioners claim to be elected Zila Panchayat Members of District Bulandshahr. It is alleged that the President and Additional Chief Officer of Zila Panchayat, Bulandshahr have illegally, arbitrarily and mechanically constituted/nominated the Zila Panchayat Committees, as prescribed under Section 64 of Uttar Pradesh (Kshetra Panchayats and Zila Panchayats) Adhiniyam, 1961 (The act) without holding the elections as prescribed under Section 68 of the Act and the Rules. 4. The State Government has proceeded to enact the Act for the establishment of Kshetra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh in order to undertake certain governmental functions at Kshetra and District levels respectively in furtherance of the principle of democratic decentralization of governmental functions and for ensuring proper municipal Government in rural areas. Section 17 of the Act envisages that there shall be a Zila Panchayat for each District bearing the name of the district. 5. Section 63 provides for preparation of district plan, wherein a Zila Panchayat shall prepare every year a development plan for the district after including the development plans of the Kshetra Panchayats of the district. Section 64 contemplates the committees of the Zila Panchayat. 5. Section 63 provides for preparation of district plan, wherein a Zila Panchayat shall prepare every year a development plan for the district after including the development plans of the Kshetra Panchayats of the district. Section 64 contemplates the committees of the Zila Panchayat. Section 65 provides the constitution of committees of Zila Panchayat notified by the State Government. The constitution of Karya Samitis also dealt with in Section 66. Sections 67 and 68 provide for constitution of other Committees and method and manner of election of member and term of Committees specified in sub-section (1) of Section 64. For resolving the present controversy, Sections 63 to 68 are extracted hereinafter: - "63. Preparation of district plan. - (1) A Zila Panchayat shall prepare every year a development plan for the district after including the development plans of the Kshettra Panchayats of the district. (2) The plan referred to in sub-section (1) shall be prepared by the Karya Samiti of the Zila Panchayat in the manner prescribed and the Mukhya Adhikari shall lay such plan before the Niyojan Samiti, which may make such recommendations relating thereto, as it thinks fit. (3) The plan along with the recommendations, if any, of the Niyojan Samiti shall be laid by the Adhyaksha before the Zila Panchayat which may approve it in such form as it may think fit, and shall submit it to the District Planning Committee referred to in Article 243-ZD of the Constitution by such date as may be prescribed. 64. Committees of Zila Panchayat. - (1) As soon as may be, after the Zila Panchayat has been constituted or re-constituted under Section 22, it shall appoint the following committees in the manner and for performance of duties hereinafter provided: (a) Karya Samiti; (b) Vitta Samiti; (c) Shiksha Evam Jan Swasthya Samiti; (d) Krishi, Udyog Evam Nirman Samiti; and (e) Samata Samiti. (2) The Zila Panchayat shall also have a Niyojan Samiti for the performance of functions specified in this Act and composed of- (a) The Adhyaksha, who will be the Chairman; (b) [x x x] (c) The Mukhya Adhikari who shall be the Secretary of the Committee, and (d) All district level officers. 65. Constitution of committees of Zila Panchayat notified by the State Government. 65. Constitution of committees of Zila Panchayat notified by the State Government. - (1) Notwithstanding anything to the contrary contained in any other provisions of this Act or the rules made thereunder, every Zila Panchayat shall, in place of all or any of the Committee referred to in Section 64, hereinafter in this section referred to as erstwhile committee, constitute such other committee or committees, as may be notified by the State Government for the exercise and performance of all or any of the powers, functions or duties assigned to erstwhile committee under this Act and may also delegate to such committee or committees such of its other powers, functions or duty as it may deem fit and upon constitution of a committee under this section in place of an erstwhile committee with respect to its any specified power, function or duty, the erstwhile committee with respect to that power, function or duty shall stand abolished and any reference to the erstwhile committee in any provisions of this Act or the rules made thereunder shall be construed as a reference to the Committee constituted under this section. (2) Every Committee constituted under sub-section (1) shall consist of a Chairman and six other members, who shall be elected by the members of the Zila Panchayat from amongst themselves in such manner as may be notified by the State Government. Provided that in each such Committee there shall be at least one woman member, one member belonging to Scheduled Castes or Scheduled Tribes and one member belonging to Backward classes: Provided further that the State Government may, by notification direct that the Adhyaksha or [x x x] or any other member of Zila Panchayat shall be the Chairman of any such committee. 66. Constitution of Karya Samiti. - (1) The Karya Samiti shall consist of- (a) the Adhyaksha; (b) (x x x) (c) Chairman of the Committees specified in Clauses (b) to (e) of sub-section (1) of Section 64; (d) three or six persons to be elected by the members of the Zila Panchayat out of themselves, according as the number of such members is up to forty or above forty. (2) The Adhyaksha shall be the Chairman of the Karya Samiti. (3) The Mukhya Adhikari of the Zila Panchayat shall be the Secretary of the Karya Samiti. 67. Constitution of other Committees specified in sub-section (1) of Section 64. (2) The Adhyaksha shall be the Chairman of the Karya Samiti. (3) The Mukhya Adhikari of the Zila Panchayat shall be the Secretary of the Karya Samiti. 67. Constitution of other Committees specified in sub-section (1) of Section 64. - Each of the Committees specified in clauses (b) to (e) of sub-section (1) of Section 64 shall consist of six or nine members to be elected by the members of the Zila Panchayat out of themselves according as the total number of members of the Zila Panchayat is up to 40 or over 40. (2) The Adhyaksha shall be the ex-officio member and Chairman of the Vitta Samiti (and Shiksha Evam Jan Swasthya Samiti). 68. Method and manner of election of member and term of Committees specified in sub-section (1) of Section 64. - (1) The election of member of the Committees specified in sub-section (1) of Section 64 shall be made by the method of single transferable vote and in the manner to be prescribed. (2) The term of each Committee specified in sub-section (1) of Section 64 shall last till the term of the Zila Panchayat but one-third of the elected members of each Committee shall retire in rotation each year and the vacancies caused by rotation shall be filled in the manner provided in sub-section (1). (3) The determination of the members who shall retire in the first year after their election and of the members who shall retire two years after election shall be made by the drawing of lots in the manner to be specified by the State Government. (4) In the event of a vacancy occurring in the office of an elected member of a Committee by reason of death, resignation or otherwise, the vacancy shall be filled for the remainder of the term of such member by electing another member in the manner provided in sub-section (1)." 6. Hon'ble Governor, State of Uttar Pradesh, while exercising the powers as contemplated under Section 237 read with Sections 65 (1), 68 (1), (3), 72 and 74 of the Act, framed the Rules in the year 1997. The Rules clearly prescribe the procedures to be followed in constituting the committees vis-a - vis holding the elections for committees. Hon'ble Governor, State of Uttar Pradesh, while exercising the powers as contemplated under Section 237 read with Sections 65 (1), 68 (1), (3), 72 and 74 of the Act, framed the Rules in the year 1997. The Rules clearly prescribe the procedures to be followed in constituting the committees vis-a - vis holding the elections for committees. Rule 18 of the Rules provides that in case a petition with regard to election dispute is filed within six weeks, the matter is to be referred by the Chairman to the Divisional Commissioner. For ready reference, Rule 18 of the Rules is reproduced as under: - %hnd1%"18- fuokZpu ls lacaf/kr fookn%& dksbZ ,slh ;kfpdk ftlesa fuokZpu ifj.kke ls lacaf/kr fookn mBk;k x;k gks] ;fn og fuokZpu ds fnukad ls N% lIrkg dh vof/k ds Hkhrj izkIr gks tk, rks v/;{k }kjk lEc) e.My vk;qDr dks vfHkfn"V dj fn;k tk,xk] ftldk fu.kZ; vfUre vkSj cU/kudkjh gksxkA"%hnd2% 7. Shri K.R. Sirohi, Senior Advocate assisted by Shri Nipun Singh, appearing for the petitioners submits that all the petitioners are elected members of Zila Panchayat, Bulandshahr. They are aggrieved against the illegal and mechanical action of President and Additional Chief Officer of Zila Panchayat, Bulandshahr whereby whey have proceeded to constitute illegal Committees and are trying to usurp the crores of Rupees of Zila Panchayat, Bulandshahar. He has also relied upon Government order dated 11.1.2016 circulated to all the District Magistrates to undertake the oath ceremonies of newly elected office bearers on 14.1.2016 and on the same date the first meeting of the Zila Panchayat may also take place so that the decision for constituting the Zila Panchayat Committees be taken. 8. Shri K.R. Sirohi, Senior Advocate has further submitted that in pursuance of the said directives issued by the State Government on 11.1.2016, the respondent no. 4 had proceeded to hold the first meeting of the Zila Panchayat on 14.1.2016, in which the decision for constituting the Zila Panchayat Committees as per Section 68 of the Act and the Rules was to be taken. 4 had proceeded to hold the first meeting of the Zila Panchayat on 14.1.2016, in which the decision for constituting the Zila Panchayat Committees as per Section 68 of the Act and the Rules was to be taken. In this regard, the agenda notice dated 11.1.2016 was issued by the Additional Chief Officer but the President and Additional Chief Officer of the Zila Panchayat, Bulandshahr in collusion with each other, without holding any elections as prescribed under Act, have proceeded in illegal and arbitrary manner to constitute nominate the committees without even informing to any of the members of the Zila Panchayat including the petitioners, who were present in the meeting held on 14.1.2016 and the procedure has not been adhered and as such, this Court should come to rescue and reprieve the petitioners. 9. We have proceeded to examine the record in question and find that in the present matter, the bone of contention raised by learned counsel appearing for the petitioners is to the extent that the respondents had not adhered the procedures as indicated above in constitution of committees of Zila Panchayat, Bulandshahr. 10. Once such is the factual situation that the petitioners are raising question of fact regarding the validity of convening of meeting for constitution of the aforesaid committees and the respondents are submitting that action has been validly taken and the resolution has been unanimous. Such disputed fact cannot be raised in the writ jurisdiction under Article 226 of Constitution of India. If there was any flaw in constitution of the aforesaid committees, then full fledged mechanism has been provided in Rule 18 of the Rules wherein the incumbent, who is aggrieved with the constitution of the committees, would have liberty to approach to the Chairman and thereafter the Chairman may send the matter to the appropriate authority i.e. Commissioner of the Division for redressal of the grievance and as such, we are of the considered opinion that the petitioners have got efficacious alternative remedy. 11. The writ petition is dismissed on the ground of alternative remedy. Petition dismissed.