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2018 DIGILAW 1483 (ALL)

Rakesh Singh v. State of U. P.

2018-07-05

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Sri Brij Raj Singh, counsel for the petitioner and the Standing Counsel representing respondent nos. 1, 2 and 3. 2. Respondent no. 4 is the elected Gram Pradhan of Gram Lona, District Jalaun at Orai. The respondent no. 4 was convicted under Section 364A IPC and sentenced to life imprisonment through judgment and order dated 13.10.2017 passed by the Special Judge (D.A.A.), District Jalaun at Orai. Respondent no. 4 challenged his conviction through Criminal Appeal No. 6440 of 2017 filed in this Court and vide order dated 30.3.2018 passed in the aforesaid appeal, respondent no. 4 was released on bail. While respondent no. 4 was in jail, an order dated 9.3.2018 was passed by the District Magistrate, Jalaun at Orai whereby the petitioner, who is an elected member of the Gram Panchayat, was asked to discharge the functions of the Gram Pradhan. Further, while respondent no. 4 was still in jail, an application dated 2.2.2018 was also filed by one Veer Singh before the District Magistrate stating that under Section 5-A(g) of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as, 'Act, 1947'), respondent no. 4 was disqualified to hold the post of a Gram Pradhan and therefore he may be removed from the same. A notice dated 27.2.2018 was issued by the District Magistrate, Jalaun to respondent no. 4 asking him to show cause as to why he should not be removed from the post of Gram Pradhan under Section 95(1)(g) and to the aforesaid show cause notice, a reply was submitted by the wife of respondent no. 4 on 6.4.2018 which has been annexed as Annexure No. 6 to the writ petition. However, no orders have yet been passed by the District Magistrate in the enquiry instituted through the show cause notice dated 27.2.2018. Meanwhile, respondent no. 4 was released on bail and therefore the District Magistrate vide his order dated 19.5.2018 permitted the respondent no. 4 to function as Gram Pradhan and exercise the powers vested in a Gram Pradhan. The order dated 19.5.2018 has been challenged in the present writ petition and a further prayer has been made that the petitioner may be permitted to continue to function as the Gram Pradhan of the village.? 3. 4 to function as Gram Pradhan and exercise the powers vested in a Gram Pradhan. The order dated 19.5.2018 has been challenged in the present writ petition and a further prayer has been made that the petitioner may be permitted to continue to function as the Gram Pradhan of the village.? 3. It has been argued by counsel for the petitioner that by virtue of Section 5-A(g) of the Act, 1947, the respondent no. 4 is disqualified to hold the office of Gram Pradhan and the District Magistrate has acted illegally by permitting respondent no. 4 to function as Gram Pradhan and exercise the powers vested in a Gram Pradhan, vide his order dated 19.5.2018. It has been further argued by the counsel for the petitioner that as before the order dated 19.5.2018, the petitioner was functioning as Gram Pradhan, he is entitled to continue to function as such and the order dated 19.5.2018 is liable to be set-aside. 4. I have considered the submissions of counsel for the petitioner and perused the records. 5. By order dated 9.3.2018, the petitioner was merely permitted to function as a Gram Pradhan and exercise the powers vested in a Gram Pradhan due to the reason that respondent no. 4, who was the elected Gram Pradhan of the village, was in jail and therefore could not have functioned as the Gram Pradhan. The aforesaid was merely a temporary arrangement and does not create any right in favour of the petitioner. In the circumstances, the petitioner has no locus-standi to challenge the order dated 19.5.2018 and the writ petition is not maintainable. Apart from the above, in case, the concerned District Magistrate or the State Government is of the opinion that an elected Gram Pradhan has incurred a disqualification as prescribed by Section 5-A of the Act 1947, the concerned District Magistrate can remove such a Gram Pradhan by exercising his powers under Section 95(1)(g)(v) of the Act, 1947. However, the said power can be exercised only after following the procedure prescribed in Section 95(1)(g)-II proviso of the Act, 1947 and in Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 i.e. after holding a formal enquiry and after giving a reasonable opportunity of hearing to the concerned Gram Pradhan. However, the said power can be exercised only after following the procedure prescribed in Section 95(1)(g)-II proviso of the Act, 1947 and in Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 i.e. after holding a formal enquiry and after giving a reasonable opportunity of hearing to the concerned Gram Pradhan. A perusal of the records annexed with the writ petition shows that a show cause notice dated 27.2.2018 has been issued by the District Magistrate to respondent no. 4. However, it is admitted that no orders have yet been passed by the District Magistrate under Section 95(1)(g) of the Act, 1947 removing the respondent no. 4 from the post of Gram Pradhan. Respondent no. 4 is entitled to function as and exercise the powers of Gram Pradhan till an order under Section 95(1)(g) of the Act, 1947 is passed by the competent authority removing him from the post of Gram Pradhan. For the aforesaid reason, this Court finds no illegality in the order dated 19.5.2018 passed by the District Magistrate. 6. Counsel for the petitioner has referred to the judgment of this Court reported in Radhey Shyam vs. State of U.P. & Ors. 2008 (2) AWC 1921 . In the aforesaid case, the order of the District Magistrate passed under Section 95(1)(g) of the Act, 1947 was challenged and therefore the said judgment is not applicable in the present case as in the present case no orders have yet been passed under Section 95(1)(g) of the Act, 1947. Counsel for the petitioner has further referred to judgment of the Supreme Court reported in Lalsai Khunte vs. Nirmal Sinha & Ors. 2007 (3) AWC 3078 (SC). In the aforesaid judgment, the Supreme Court has held that a conviction order passed by the trial court would be operative even after bail has been granted to the convict by the appellate court and even though the judgment and order of the trial court has been suspended by the appellate court. In the present case, as stated earlier, no orders have yet been passed under Section 95(1)(g) of the Act, 1947 and therefore the aforesaid case is also not applicable in present writ petition. 7. For the aforesaid reason, I find no merit in the present writ petition and the same is hereby dismissed.