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2017 DIGILAW 222 (ALL)

URMILA DEVI v. STATE OF U. P.

2017-01-17

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Raghuvansh Misra, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 5 and learned counsel for respondent No. 6. 2. With the consent of learned counsel for the parties, this writ petition is being finally heard without calling for counter-affidavit. Facts: 3. Briefly stated facts of the present case are that a resolution in the open meeting was unanimously adopted on 27.7.2016 by Village Panchayat Bilsari, Block Navanagar, Tehsil Sikandarpur, District Ballia whereby name of the petitioner was proposed for fair price shop agent. The aforesaid resolution was placed before the Tehsil Level Committee on 9.12.2016 which disapproved the resolution on the basis of complaints of Sri Murali and Virendra Kumar, both resident of Village Bilsari. It appears that the complaint was made on three points namely that the proposal has been made without due publicity of the meeting in the village, no one was present in the meeting and the village Pradhan has got proposed name of her brother’s wife. It appears that an inquiry was conducted by the Block Development Officer, Nava Nagar who submitted his report by letter dated 6.9.2016. In the inquiry report it was mentioned that due publicity was made. Photographs of the meeting were also annexed with the inquiry report to form an opinion that the meeting was attended by villagers. Videography was also done. It was also mentioned in the inquiry report that the brother of the Village Pradhan resides separately. 4. Despite the inquiry report well on record and without there being any material adverse to it, the Tehsil Level Committee formed opinion that the village Pradhan could not prove that his brother resides separately and there is a separate mess and thus it disapproved the resolution by order dated 9.12.2016 and directed the Block Development Officer to convene an open meeting of Gram Sabha. A consequential order dated 14.12.2016 was passed by the respondent No. 3 directing the Block Development Officer to convene meeting. Aggrieved with the decision of the Tehsil Level Committee dated 9.12.2016 and the consequential order dated 14.12.2016 the petitioner has filed the present writ petition. Submissions 5. A consequential order dated 14.12.2016 was passed by the respondent No. 3 directing the Block Development Officer to convene meeting. Aggrieved with the decision of the Tehsil Level Committee dated 9.12.2016 and the consequential order dated 14.12.2016 the petitioner has filed the present writ petition. Submissions 5. Learned counsel for the petitioner submits that the impugned orders are wholly arbitrary, illegal and have been passed without any evidence on record in support of the allegation that the petitioner resides with the village Pradhan and have a common mess. He submits that no opportunity was afforded while passing the aforesaid two orders. 6. Learned Standing Counsel supports the impugned orders and submits that the petitioner could not prove that she is living separately. However, he admits that no evidence was brought on record either by the complainant or in the inquiry report or by the authority passing the impugned order to indicate that the petitioner is residing with the Village Pradhan and have a common Mess. Discussion and Findings: 7. I have carefully considered the submissions of learned counsel for the parties. 8. The facts as aforenoted clearly indicate that the allegations made by the complainant were not found correct as per inquiry report. There was no material before the Tehsil Level Committee adverse to the petitioner which may constitute a valid ground for disapproving the resolution of the Gram Sabha. Respondent No. 3 has not even made any attempt to verify the fact of separate residence and mess of the petitioner, with the help of the family register of the Village Panchayat in question. A copy of the family register filed as Annexure 5 clearly indicates that the family of the petitioner consist of five members which do not include the Village Pradhan namely Smt. Akali Devi. There was absolutely no relevant material before the Tehsil Level Committee or the respondent No. 3 to come to the conclusion that the petitioner resides with the Village Pradhan and has a common mess and thus fall within the word ‘family’ as defined in the relevant Government Order. The conclusion reached in the inquiry report in this regard has not been even disbelieved by the authorities on any valid ground. No opportunity was afforded to the petitioner while passing the impugned orders. 9. The conclusion reached in the inquiry report in this regard has not been even disbelieved by the authorities on any valid ground. No opportunity was afforded to the petitioner while passing the impugned orders. 9. In the case of Smt. Gainda Devi v. State of U.P. and others (Writ-C No. 56016 of 2012, decided on 30.10.2012) reported in 2012(11) ADJ 717 a Division Bench of this Court considered the question of affording opportunity to the affected persons while rejecting proposal of Gram Sabha and held as under: “It is true that the Committee had the authority to entertain the complaint and take cognizance, but the same would not mean that the Committee can proceed to act solely on the basis of the complaint without testing its veracity. The committee cannot be permitted to proceed in such arbitrary manner and if the same is permitted, in every case at the last moment complaint can be filed and treating the same as correct without enquiring into the complaint and without giving the affected party any opportunity of hearing, each and every resolution of the Gram Sabha can be set aside. In such view of the matter, we are of the opinion that the decision of the Tehsil level Committee insofar as it relates to the case of the petitioner deserves to be quashed. Accordingly, this writ petition stands allowed. The decision of the Tehsil Level Committee dated 17.7.2012 insofar as it relates to the petitioner is quashed. The Tehsil Level Committee shall have to take a fresh decision in accordance with law, after getting the contents of the complaint made on 17.7.2012 verified and if necessary, after giving opportunity of hearing to the petitioner. Such decision would be taken as expeditiously as possible, preferably within six weeks from the date of filing of certified copy of this order before respondent No. 2-Sub-Divisional Magistrate, Lalganj, district Mirzapur.” (Emphasis supplied by me) 10. In the case of Rajendra Pal v. State of U.P. and others, 2016(11) ADJ 14 , this Court considered the cancellation of resolution of Gaon Sabha by the Sub-Divisional Magistrate and after referring to paras 4.4, 4.12 and 5 of the Government Order dated 3.7.1990 and para 5 of Government Order dated 17.8.2012, held as under: “I have gone through the impugned order. I do not find that after receipt of the complaint of the respondent No. 5, the Sub-Divisional Officer/Committee headed by him has applied its mind with regard to genuineness of the complaint and after testing the merit of the complaint has directed for holding the inquiry. For the sake of arguments even if it is assumed that this was done as the case is being decided in absence of the counter-affidavit in that case too, once the Block Development officer has been entrusted by the Sub-Divisional Officer to get a resolution passed and the Block Development Officer has appointed a supervisor for getting the resolution passed and the resolution was passed in the presence of supervisor as well as of the Pradhan of the concerned village and the same has been forwarded/recommended by the Block Development Officer for approval, meaning thereby, the Block Development Officer too has applied his mind and tested the genuineness of the resolution as the Block Development Officer is not meant to act like a post office and transmit the resolution whichever is sent by the Gaon Sabha for appointment of fair price shop agent and once the Block Development Officer has also applied his mind and sent the proposal for approval, in that eventuality, the Sub-Divisional Officer/the Committee headed by him if decided to hold an inquiry then the version of the Village Pradhan, Supervisor and the Block Development Officer ought to have been called for and considered by the authority concerned before cancelling the resolution. Here in this case, from the perusal of the impugned order, it transpires that nothing has been done and only ex parte inquiry was conducted by the Naib Tehsildar on which basis the impugned order has been passed. This Court, dealing with such matter in Virendra v. State of U.P. and others, 2013(7) ADJ 262 , has held that if after receipt of the resolution, the Sub-Divisional Officer decided to disapprove the resolution, in that eventuality, opportunity has to be offered to the person in whose favour resolution has been passed and the village pradhan too. The view taken by me find support from the Division bench judgement of this Court in the case of Gainda Devi v. State of U.P. and others, 2012(11) ADJ 717 . The view taken by me find support from the Division bench judgement of this Court in the case of Gainda Devi v. State of U.P. and others, 2012(11) ADJ 717 . This is the specific case of the petitioner where the petitioner was never associated either in the course of the inquiry by the Naib Tehsildar or before passing the impugned order, therefore the order impugned is vitiated and in my considered opinion it cannot be sustained in the eyes of law. In the result, the writ petition succeeds and is allowed. The impugned order dated 3.9.2016 passed by the Sub-Divisional Officer, Baheri, District Bareilly is hereby quashed. The Sub-Divisional officer/Committee constituted under Para 5 of the Government order dated 17.8.2002 is directed to pass a fresh order, considering the complaint of the respondent No. 5 and keeping in mind the observation made by this Court, herein, above, expeditiously but not later than six weeks from the date of receipt of certified copy of the order of this Court.” (Emphasis supplied by me) 11. The facts and the legal position as briefly extracted above leaves no manner of doubt that if after receipt of resolution of Gram Sabha, the Sub-Divisional Magistrate or the Tehsil Level Committee decides to disapprove the resolution, then in that eventuality, opportunity has to be afforded to the affected persons in whose favour resolution has been passed by the Village Panchayat and the village Pradhan. If an inquiry is held, then the version of village Pradhan, Supervisor and Block Development Officer has to be called for and considered by the authority before disapproving the resolution of the Village Panchayat. 12. In the present set of facts, inquiry was held by the Block Development Officer, who opined that the open meeting of the Village Panchayat was held after due publicity which was attended by the villagers and the petitioner resides separately from the Village Pradhan. Alongwith the report, the Block Development Officer also annexed the proof of making publicity of the meeting as well as photographs of the meeting. He also mentioned in the report that videography was done and C.D. is also available which may be produced, if required. Alongwith the report, the Block Development Officer also annexed the proof of making publicity of the meeting as well as photographs of the meeting. He also mentioned in the report that videography was done and C.D. is also available which may be produced, if required. The question as to whether the petitioner resides with the Village Pradhan and has a common mess and thus constitute ‘family’ as defined in the relevant Government Order, could have also been easily verified by the Tehsil Level Committee or the Sub-Divisional Magistrate from the family register, before forming any adverse opinion. However, the Tehsil Level Committee acted arbitrarily and proceeded to disapprove the resolution without there being any adverse material on record to indicate that the Village Pradhan and the petitioner resides together and have a common mess. 13. In view of the aforesaid, the impugned order of Tehsil Level Committee dated 9.12.2016 and consequential order dated 14.12.2016 passed by respondent No. 3 cannot be sustained and are hereby quashed. The Tehsil Level Committee is directed to reconsider the matter and take an appropriate decision in accordance with law and in the light of the observations made above, expeditiously, preferably within six weeks from the date of production of a certified copy of this order. 14. Writ petition is allowed to the extent indicated above.