Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1921 (ALL)

ABDUL SALAM v. STATE OF U. P.

2018-09-05

AJIT KUMAR, SHASHI KANT GUPTA

body2018
JUDGMENT By the Court.—Short counter-affidavit has been filed today by Mr. J.N. Maurya, learned counsel for the respondent No. 4 is taken on record. 2. This writ petition has been filed, inter alia, for the following reliefs: “(I) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 5 to take a final decision on the issue of resignation of members of Zila Panchayat, Rampur and to communicate the same to the respondent No. 2, District Magistrate, Rampur. (II) Issue a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1 and 2 to take appropriate action against the Adhyaksh, Zila Panchayat, Rampur as provided for under the provisions of the U.P. Kshetra and Zila Panchayat Act, 1961.” 3. Learned counsel for the petitioner has submitted as follows: (A) Zila Panchayat, Rampur was constituted in the year 2015 as per the provisions of the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961 (herein after referred to as “Act of 1961”). A total number of 35 members constitute the Panchayat, out of which, the petitioner is also a member from Constituency N o. 11 of District Rampur. The petitioner was issued a certificate dated 2.11.2015 in this regard. Respondent No. 5-Chandra Pal Singh was elected as Adhyaksh of Zila Panchayat, Rampur. (B) Zila Panchayat is a local body, having constitutional status, as per the provisions of Article 243C of the Constitution of India. The underlying purpose of the Constitution is to create democratic decentralZation for ensuring that traditionally marginalZed groups should progressively gain foothold in local self-Government. In this matter, the fundamental rule of democracy, which is the basic structure of the Constitution has been inducted even in case of local self-Government. (C) The present case in an instance of abuse of power by the Adhyaksh of Zila Panchayat, Rampur by taking benefit of lacuna in the procedure and conducting himself in utter violation of democratic principles by not discharging his duties regarding development of the area in a fair manner. After being elected as Adhyaksh of Zila Panchayat, the respondent No. 5 has been adopting tactics which have had adverse effects of the due discharge of functions of the Panchayat. After being elected as Adhyaksh of Zila Panchayat, the respondent No. 5 has been adopting tactics which have had adverse effects of the due discharge of functions of the Panchayat. Respondent No. 5 has not been forwarding the proposal of developments submitted by the petitioner and other members to the competent authorities and is using the said proposals to bargain with the members on every issue. (D) The State Government sanctioned a total 71 development projects for different areas of Zila Panchayat, Rampur. After receiving the said sanction, the Adhyaksh i.e. Respondent No. 5 pressurZed the members to tender their resignation as a precondition for implementation of development projects in their area. The petitioner was also pressurZed to resign but he did not give in to such illegal demands. (E) Later on, the petitioner came to know that 10 members out of total 35 had submitted their resignation before the Chief Development Officer, Rampur/Mukhya Adhikari, Zila Panchayat, Rampur in the month of May, 2018. The said resignations were forwarded for the consideration to respondent No. 5, who has been withholding those resignations, intending to use the same as an instrument to bargain with the members. The petitioner and some other members submitted a joint complaint before the District Magistrate, Rampur. 4. The issue that arises before this Court in the present writ petition is whether in view of the Section 24 of the Act of 1961, Adhyaksh of Zila Panchayat can withhold the decision on resignations of members or whether he has to take a decision with a reasonable time particularly when no time frame is provided for in the provision. 5. Learned counsel for the petitioner has submitted that looking into the scheme of the Constitution of India, where democracy is part of the basic structure, under the scheme of the Act of 1961, any provision provided therein can be interpreted to further the principle of democracy and no such interpretation would be done, which would counter the democratic scheme. He further submitted that in the present case, since no time frame for acting on a resignation has been provided in the Act of 1961, it is being exploited by the respondent No. 5, who is abusing the lacuna to his advantage, knowing fully well that he has lost the confidence of the members and if their resignation goes through, he would have to vacate his Office. 6. 6. Learned counsel for the petitioner further submitted that the respondent No. 2-District Magistrate, Rampur under his powers, as provided under Sections 225 and 228 of the Act of 1961, directed the respondent No. 5 to take a decision. However, respondent No. 5 deliberately flouted the said directions given by the respondent No. 2 by not coming to a decision regarding the resignations. 7. Heard learned counsel for the parties and perused the record. 8. By order dated 23.8.2018, learned counsel for the respondent No. 4 was directed to seek instructions in the matter and was also asked as to why the decision has not been taken by the Adhyaksh, Zila Panchayat, Rampur. No proper explanation has been given by the learned counsel for the respondent No. 4 in this regard. 9. The epicenter of the controversy is the time period that the Pramukh of Zila Panchayat will take in the event of a member submitting his resignation to him. For better appreciation of the controversy raised and to find appropriate answer to the question, we are reproducing Section 24 of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 : “24. Resignation of Adhyaksha or member.—(1) An Adhyaksha or any elected member of the Zila Panchayat may resign his office by writing under his hand addressed in the case of Adhyaksha, to the State Government, and in other cases to the Adhyaksha, and delivered to the Mukhya Adhikari of the Zila Panchayat. (2) The resignation of the Adhyaksha shall take effect on and from the date on which the sanction thereto of the State Government is received in the office of the Zila Panchayat and the resignation of an or member shall take effect on and from the date on which the resignation is accepted by the Adhyaksha and such Adhyaksha or member shall be deemed to have vacated his office.” 10. From perusal of the aforesaid Section, it is clear that it is voluntarily act either on the part of the Adhyaksha of Zila Panchayat or any elected member of Zila Panchayat to tender resignation from his office by writing so under his hand and addressing the same to the appropriate authority prescribed under the Section. From perusal of the aforesaid Section, it is clear that it is voluntarily act either on the part of the Adhyaksha of Zila Panchayat or any elected member of Zila Panchayat to tender resignation from his office by writing so under his hand and addressing the same to the appropriate authority prescribed under the Section. Sub-section (2) provides that resignation of the Adhyaksha shall take effect on and from the date on which the sanction thereto granted by the State Government is received in the office of Zila Panchayat whereas the resignation of the member shall take effect on and from the date on which resignation is accepted by the Adhyaksha. What is very peculiar about the provision as quoted hereinabove is that both the State Government in the case of Adhyaksha of the Zila Panchayat and in case of members, Adhyaksh Zila Panchayat have to pass an order in writing sanctioning the voluntary resignation before it and it is after sanction only that the resignation shall take effect but no time frame is provided for State Government or the Adhyaksha to take an action in terms of sanction over voluntary resignation. For proper interpretation of provision as contained under Section 24 of the Adhiniyam, 1961, we find it also necessary to refer to Section 11 of the Act, 1961 which is reproduced hereunder : “11. Resignation of Pramukh or member.—(1) A Pramukh or any elected member of the Kshettra Panchayat may resign his office by writing under his hand addressed, in the case of the Pramukh, to the Adhyaksha of the Zila Panchayat concerned, and in other cases to the Pramukh of the Kshettra Panchayat; (2). The resignation of the Pramukh shall take effect on and from the date on which the sanction thereto of the Adhyaksha is received in the office of the Kshettra Panchayat and such Pramukh or the member shall be deemed to have vacated his office from the date on which the notice is received in the office of the Kshettra Panchayat.” 11. From the aforesaid provisions, we find that 1st part of sub-section (2) of Section 11 and sub-section (2) of Section 24 are parameteria. From the aforesaid provisions, we find that 1st part of sub-section (2) of Section 11 and sub-section (2) of Section 24 are parameteria. But the 2nd part of sub-section (2) of Section 11 in respect of the resignation by members of the Kshettra Panchayat, it is provided that it takes effect from the date on which the notice is received in the office of Kshettra Panchayat. So, in respect of the Kshettra Panchayat, no sanction is required to the voluntary resignation and the office of the member of the Kshettra Panchayat stands vacated, the moment voluntary resignation tendered by the member of the Kshettra Panchayat received in the office of the Kshettra Panchayat. Thus, 2nd part of sub-section (2) of Section 24 takes a departure from the 2nd part of sub-section (2) of Section 11 and makes it obligatory for resignation of a member to be effective sanction or acceptance by the Adhyaksha of the Zila Panchayat. The provisions as quoted hereinabove clearly demonstrate that in a democratic institution at Panchayat level, the Chairman and the members have been conferred with the right to tender voluntary resignation and there is nothing to demonstrate in respect of the Pramukh of the Kshettra Panchayat, Adhyaksha and the members of the Zila Panchayat, sanction of the authority prescribed therein has any scope of discretion to exercise. Since the resignation is voluntary and unless the person tendering the voluntary resignation, complains of such exercise of the discretion at his end either under duress or that he did not mean to tender resignation and that his hand did not accompany his mind in tendering such resignation, the sanctioning authority does not enjoy any discretion to withhold the same. In the absence of any such complaint as discussed hereinabove, in our considered opinion, the sanctioning authority has to pass a positive order within a reasonable period of time, which he may take to verify the facts, if at all necessary. In a democratic set-up where such institutions have been conceived of at village and district level with a view to achieving high objectives of self governance, we cannot permit institutions to be run and work and business to be carried out in a whimsical manner. In a democratic set-up where such institutions have been conceived of at village and district level with a view to achieving high objectives of self governance, we cannot permit institutions to be run and work and business to be carried out in a whimsical manner. If we hold that the sanctioning authority can continue to withhold its decision on such voluntary resignation, it will create not only a situation of utter confusion for the people who have faith in such democratic institution but will also render encouragement to such unwarranted practice at the end of the sanctioning authority by keeping the resignations in their pocket with a view to committing arm twisting. Those who have tendered resignation, means have shown their act of no more indulgence in the proceedings of the Zila Panchayat which is aimed at carrying out development activities in rural areas of the district and, therefore, it becomes situation a sine qua non to afford opportunity to the villagers to elect their new representative to the Zila Panchayat. 12. It has been argued by the learned counsel for the Zila Panchayat while filing short counter-affidavit that the members who claimed to have tendered voluntary resignation, have virtually shown faith in the Chairman of the Zila Panchayat and, therefore, they have virtually withdrawn their complaint lodged against it and there is nothing to be considered by the Adhyaksha. 13. It is noticeable that admittedly neither the members, who had tendered their resignations have disputed the genuineness of their resignation letters nor have withdrawn their resignation letters. In their own letter addressed to the Chairman appended as Annexure 2 to the supplementary-affidavit, members themselves admitted to have tendered resignation voluntarily. From the perusal of the provisions as provided under the Act, the Chairman of the Zila Panchayat does not enjoy any absolute discretion and unbridled power to keep the matter hanging. Needless to say that proper exercise of discretion as discussed hereinabove shall be undertaken by the Chairman of Zila Panchayat, Rampur within a week from the date of production of certified copy of this order. 14. With the above observation and direction, this writ petition stands disposed of.