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2018 DIGILAW 1434 (ALL)

SHAUKAT HUSSAIN v. STATE OF U. P.

2018-06-20

MAHESH CHANDRA TRIPATHI, NEERAJ TIWARI

body2018
JUDGMENT By the Court.—We have heard Shri Siddharth Nandan, learned counsel appearing for the petitioner-appellant and learned Additional Chief Standing Counsel for the State respondents. 2. The appellant is aggrieved with the last paragraph of the judgement and order dated 30.5.2018 passed by learned Single Judge of this Court in Writ C No. 17011 of 2018 (Shaukat Hussain v. State of U.P. and 8 others). 3. Record in question reflects that the petitioner was elected as Pradhan of Village Panchayat Sonakpur Dehat, Block & District Moradabad in December, 2015 for a period of five years. Some persons of the village wanted to grab the Gaon Sabha land and in his absence, certain proceedings were fraudulently prepared by the Tehsil authorities. When the appellant came to know about the aforesaid proceedings, he made a complaint before the District Magistrate, Moradabad. After concurrence of the members of the Gaon Sabha in the general meeting held on 4.1.2018, the resolution was passed on 4.10.2017 to cancel the earlier resolution dated 4.10.2017. Thereafter, due to village rivalry certain persons of the village made a complaintbefore the respondents against the petitioner and on receipt of the the aforesaid complaint, a Three-Member Committee was appointed. The Committee submitted its report before the District Development Officer, Moradabad on 30.1.2018. A show-cause notice was issued to the petitioner on 26.2.2018 to which he had submitted a detailed reply on 19.3.2018, denying all the allegations. Finally, the District Magistrate, Moradabad has passed the order dated 19.4.2018 removing the petitioner from the post of Village Pradhan. 4. Aggrieved with the order dated 19.4.2018, the petitioner has approached this Court by preferring the aforesaid writ petition and learned Single Judge has allowed the writ petition on 30.5.2018, with following observations : “The contention of the learned counsel for the petitioner is that after a preliminary enquiry was undergone and a report was submitted on 30.1.2018 with regard to the complaints which were filed against the petitioner, no enquiry thereafter was undertaken and only on the basis of the preliminary enquiry dated 30.1.2018 a show-cause notice was issued. Learned counsel for the petitioner has submitted that as per the judgement in Smt. Malti Devi v. State of U.P. and others, 2008(104) RD 587 , preliminary enquiry had to be conducted either by the District Panchayat Raj Officer or by a District Level Officer nominated by the District Magistrate. Learned counsel for the petitioner has submitted that as per the judgement in Smt. Malti Devi v. State of U.P. and others, 2008(104) RD 587 , preliminary enquiry had to be conducted either by the District Panchayat Raj Officer or by a District Level Officer nominated by the District Magistrate. Further contention of the learned counsel for the petitioner is that the final order which has been passed on 19.4.2018 had to be passed on the basis of a fresh enquiry conducted under Rules 5 and 6 of the Uttar Pradesh Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, (hereinafter referred to as ‘the 1997 Rules’). He relies upon a Full Bench decision reported in Vivekanand Yadav v. State of U.P. and another, 2010(10) ADJ 1 (FB). Learned Standing Counsel was required to take instructions. However, he could not deny the fact that after the preliminary enquiry was conducted and a report thereafter was submitted on 30.1.2018, no enquiry as is contemplated under Rules 5 and 6 of the 1997 Rules was undergone. He only pointed out that by an order dated 21.5.2018 under Section 12 J of the Panchayat Raj Act on a temporary basis, one Naseem had been given the charge of the Pradhan. Having heard the learned counsel for the parties, I am of the view that after the preliminary enquiry report was looked into by the District Magistrate, a fresh enquiry had to be undergone under Rules 5 and 6 of the 1997 Rules. As in this case, this enquiry was not undergone at all, the order dated 19.4.2018 becomes unsustainable in the eyes of law and is thus set aside. The writ petition is allowed. The District Magistrate will now embark upon a fresh enquiry under Rules 5 and 6 of the 1997 Rules and shall complete the same within a period of one month from the date of presentation of a certified copy of this order. However, since it has been brought to the notice of the Court that one Naseem has now been given the charge of Pradhan, it shall be in the interest of justice that the charge be not taken from him for the next one month as it would destabilize the working of Gram Panchayat.” 5. However, since it has been brought to the notice of the Court that one Naseem has now been given the charge of Pradhan, it shall be in the interest of justice that the charge be not taken from him for the next one month as it would destabilize the working of Gram Panchayat.” 5. Learned counsel for the appellant submits that the scope of Section 12-H and Section 12-J of U.P. Panchayat Raj Act, 1947 (in short, the Act) are to be read harmoniously. Section 12-H of the Act deals with the permanent vacancy, whereas Section 12-J deals with temporary vacancy with power to the prescribed authorities to nominate an officiating Pradhan only after the opinion/view of the elected members by way of a majority resolution of the Gram Panchayat is obtained. The Scheme of the Act contemplates that where the office of the Pradhan is vacant by reasons of death, removal, resignation or otherwise or where the Pradhan is incapable to act by a reason of absence, illness or otherwise, the Up-Pradhan shall exercise all powers and discharge all duties of Pradhan. Where the office of both Pradhan and Up-Pradhan are vacant for any reason whatsoever, the Prescribed Authority shall nominate a member of the Gram Panchayat until such vacancy is filled up or until such incapacity is removed. The aforesaid provision as prescribed under Section 12-J of the Act can only be invoked in case of temporary vacancy in the office of Pradhan. A perusal of the order dated 21.5.2018 clearly shows that on account of removal of the petitioner as Gram Pradhan vide order dated 19.4.2018 the provision is being invoked for filling up the temporary vacancy. The said power under Section 12-J of the Act can only be exercised when there is a vacancy. He has placed reliance on the Full Bench judgement of this Court in Vivekanand Yadav v. State of U.P. and another, 2010(10) ADJ 1 (FB), in which it was specifically observed that before ceasing the financial and administrative powers of the Gram Pradhan, the explanation or point of view or version of the Gram Pradhan to the charges has necessarily to be obtained and also considered by the District Magistrate before being prima facie satisfied about the financial or other irregularities of the Gram Pradhan. 6. 6. Learned counsel for the appellant further makes submission that once learned Single Judge has allowed the writ petition in question on 30.5.2018 and set aside the order of removal of the petitioner dated 19.4.2018, then there was no reason or occasion for him to permit the officiating Pradhan namely Naseem as appointed in exercise of powers under Section 12-J of the Act to continue to work as Gram Pradhan. The continuation of the officiating Pradhan is against the provisions of the Act and also against the spirit of Article 243 of Constitution of India. Learned Single Judge has erred in law in not permitting the appellant to function as Gram Pradhan and discharge his administrative and financial duties. He has also placed reliance on the judgment of this Court in Usha Singh (Smt.) v. District Magistrate, Gorakhpur, 1992 RD 337, in which, while interpreting Section 12-J of the Act, it was held that the Prescribed Authority shall nominate a member of the Gaon Sabha to discharge the function of the Pradhan, until the office of Pradhan or Up-Pradhan ceases to be vacant. 7. Countering the said submission, learned Standing Counsel, on the other hand, contended that rightful arrangement has been made, as such no interference be made. 8. 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” 9. Said provision in question has been subject-matter of interpretation before this Court and this Court in the case of Usha Singh (supra) 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. 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.” 10. 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. 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 opinion 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”. 11. In the aforesaid circumstances, we are of the considered opinion that once learned Single Judge has allowed the writ petition in question on 30.5.2018 and after setting aside the order dated 19.4.2018, by which the appellant has been removed from the post of Gram Pradhan, the matter was remitted back to the District Magistrate to hold a fresh enquiry under Rules 5 and 6 of Uttar Pradesh Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 within one month from the date of receipt of certified copy of the order, then the observation “However, since it has been bought to the notice of the Court that one Naseem has now been given the charge of Pradhan, it shall be in the interest of justice that the charge be not taken from him for the next one month as it would destabilize the working of Gram Panchayat” is contrary to the view taken by this Court in aforesaid judgements and the same was unwarranted. There was no requirement to make such an observation and the same is liable to be set aside. 12. In view of this, the observation of learned Single Judge made in the last paragraph of the order dated 30.5.2018 cannot sustain and the same is accordingly set aside. 13. Consequently, the Special Appeal is allowed.