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2016 DIGILAW 3575 (ALL)

GULESH v. STATE OF U. P.

2016-10-26

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri G.K. Singh, learned senior counsel assisted by Sri Birendra Kaushik, learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri S.N. Singh, learned counsel for respondent No. 4. 2. By means of this writ petition, prayer has been made to issue writ of certiorari quashing the order dated 18.10.2016 passed by the District Magistrate, Mathura by which he has appointed the respondent No. 4 as Pradhan, till further orders, while exercising the power under Section 12-J of U.P. Panchayat Raj Act, 1947 (In short the Act). 3. The facts of this case, in brief, are that there happens to be a Gram Pachayat Ladpur in District Mathura. In a situation when the elected Pradhan was confined in jail, for performance of the work of the Pradhan, the matter came up in the notice of prescribed authority (District Magistrate), who appointed the respondent No. 4 as Pradhan on temporary basis till further orders. 4. While assailing this order learned senior counsel relying upon the two Division Bench judgements of this Court in Udaivir v. State Election Commission of U.P., 2009(106) RD 151 and Pushpendra Kumar v. State of U.P., 2010(4) ADJ 348 , submits that before appointing the Pradhan till election or till further orders against the temporary vacancy, wishes of the elected members of the Gram Panchayat ought to have been obtained as to who should work as Pradhan. 5. Refuting the submission of learned counsel for the petitioner Sri S.N. Singh, learned counsel for respondent No. 4 submits that in view of the language used in Section 12-J of the Act there is no such requirement to obtain wishes of the elected members and it is in the sole domain of the prescribed authority (who happens to be District Magistrate) to appoint any member of the Gram Panchayat as a Pradhan on temporary basis till the regular election is held or the erstwhile incumbent resumes the office. He also submits that the majority of members have filed their affidavits in favour of the respondent No. 4, therefore it cannot be said that the appointment of respondent No. 4 was made against the wishes of the elected members. In his further submissions the District Magistrate after going through the affidavits, has appointed the respondent No. 4 as Pradhan. 6. In his further submissions the District Magistrate after going through the affidavits, has appointed the respondent No. 4 as Pradhan. 6. It has also been contended that the provisions contained in the Act is silent about this and there is no such mention under Section 12-J of the Act that while appointing the Pradhan on temporary basis, wishes of the elected members has to be sought therefore the order passed by the District Magistrate is perfectly in accordance with law. In addition to that he also submits that direction given by the Division Bench amounts to legislation as the provision contained in the Act is silent and there is no mention to obtain wishes of the elected members while appointing the Pradhan on temporary basis. 7. Learned counsel for the respondent further submits that they do not propose to file counter-affidavit and the writ petition may be decided on its own merit on the existing facts and law. With the consent of learned counsel for the parties the writ petition is taken up for final decision. 8. I have heard learned counsel for the parties and considered their submissions and perused the impugned order. For appreciating of the controversy involved in this case, it would be appropriate to go through the provisions contained under Section 12-J of the Act, and Rule 46-B of the U.P. Panchayat Raj Rules, 1947 (in short the Rules) which are reproduced herein under : Temporary arrangement in certain cases : 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 for any reason whatsoever, the prescribed authority shall nominate a member of the Gram Panchayat, to discharge the duties and exercise the powers of Pradhan until such vacancy in the office of the Pradhan is filled in, or until such incapacity of Pradhan is removed. 46-B—Where both the Pradhan and the Up-Pradhan of the Gaon Sabha are suspended, Prescribed Authority may nominate in writing a suitable member of the Gaon Panchayat as temporary Pradhan of the Gaon Sabha to exercise all the powers and perform all the duties of the Pradhan and until such date as either of them is reinstated, or if both of them are removed from office, until such date as a new Pradhan or Up-Pradhan is elected. From the bare reading of Section 12-J of the Act and Rule 46-B of the Rules, it transpires that it is the prescribed authority, who can nominate a member of the Gram Panchayat to discharge the duty and exercise the power of Pradhan until such vacancy in the office of Pradhan is filled up. 9. Here both provisions are silent regarding the procedure of nomination of elected members to function as Pradhan. The controversy regarding the procedure of appointment of Pradhan on temporary basis came up before this Court in the case of Udaivir (supra) wherein this Court has held as under : “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 opinion that respondent No. 3, i.e. District magistrate, Aligarh ought to have ascertained the wishes of the elected members of the Gram Pachayat, as to who should be 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.” 10. This judgement was subsequently followed by another Division Bench in the case of Pushpendra Kumar (supra) wherein following observation has been made. “From a perusal of the provisions mentioned herein above, we are of the considered opinion that Section 12-H and 12-J have to be read harmoniously. Section 12-H deals with the permanent vacancy which may occur by resignation or otherwise on the post of Pradhan. It provides for filling up the vacancy by way of election as provided under Section 11-B and Section 12 of the Act where the residual term is more than 6 months. However, till the elections are held, a temporary arrangement has to be made taking recourse to the provisions of Section 12-J of the Act and the Prescribed Authority has been given power to nominate a Gram Pradhan to discharge the duty of the Pradhan. The provisions of Section 12-J came up for consideration before a Division Bench in the case of Udaivir (supra) and this Court has held that the Prescribed Authority has to act in accordance with the majority opinion of the Members of the concerned Gram Panchayat while nominating the officiating Pradhan. The provisions of Section 12-J came up for consideration before a Division Bench in the case of Udaivir (supra) and this Court has held that the Prescribed Authority has to act in accordance with the majority opinion of the Members of the concerned Gram Panchayat while nominating the officiating Pradhan. The law laid down in the aforesaid case is in consonance with the spirit of the provisions of Chapter IX inserted in our Constitution by the Constitution (Seventy third) Amendment Act 1992 which provides for constitution of Panchayats at the village, empowering the villagers to manage their affairs at the local level themselves. The learned counsel for the appellant has not been able to persuade us to take a different view. We are in respectful agreement with the view taken by the coordinate Bench in the case of Udai Veer (supra). In this view of the matter, we are of the considered view that the learned single Judge was right in directing the District Magistrate to ascertain the wishes of the Members of the Gram Panchayat before nominating any person on officiating basis to discharge the duties and functions of the Gram Pradhan.” 11. I have gone through the impugned order passed by the District Magistrate. There is no such mention that he has taken into account the affidavits filed by either of the party while nominating the respondent No. 4 to work as pradhan. Otherwise also if the wishes of the elected members are to be tested, in my opinion it cannot be tested through affidavits and it can only be tested in consonance with Section 12-A of the Act, which requires that the election to the office of Pradhan, or Members of Gram Panchayat, shall be held through secret ballot. Here vacant post of Pradhan has been filled up on temporary basis, therefore, the opinion/wishes of the elected members of the Gram Panchayat ought to have been obtained by secret ballot from amongst the elected members of the said Gram Panchayat. 12. So far as the submission of learned counsel for the respondents that there is no such requirement either under Section 12-J or Rule 46B to obtain wishes of the elected members for filling up the vacancy of Pradhan on temporary basis is concerned, I am bound by the Division Bench judgement of this Court in the case of Udaivir and Pushpendra Kumar (supra). 13. 13. In view of the foregoing discussions I am of the considered opinion that the impugned order dated 18.10.2016 passed by the District Magistrate cannot be sustained in the eyes of law. 14. In the result the writ petition succeeds and is allowed. The order dated 18.10.2016 passed by the District Magistrate is hereby quashed. The District Magistrate is directed to follow the procedure as has been laid down by this Court in the aforementioned two Division Bench Judgements in the case of Udaivir and Pushpendra Kumar (supra).