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2018 DIGILAW 985 (ALL)

HARI SINGH v. STATE OF U. P.

2018-04-20

SANGEETA CHANDRA

body2018
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This petition has been filed by the petitioner who is a member of the Gram Panchayat of village Jagatpur, Tehsil Sadar, District Rampur alleging therein that one Smt. Kailashwati was elected as the Gram Pradhan of the said village, but died on 8.2.2018. After the death of the sitting Gram Pradhan, the District Magistrate neither convened any open meeting of the Gram Panchayat members, nor did he ascertain their desire, as to who should officiate as Gram Pradhan till fresh elections are held. 2. The petitioner alongwith seven other members appeared before the District Magistrate and also filed a representation on 6.3.2018. Now an order has been passed on 27.3.2018 by which the District Magistrate has nominated the respondent No. 4 as village Pradhan in exercise of power under Section 12-J of the U.P. Panchayat Raj Act. 3. A prayer has been made for quashing of the aforesaid order of the District Magistrate dated 27.3.2018. Learned counsel for the respondent No. 4 has opposed this prayer on the ground that after the petitioner appeared alongwith seven other members as alleged before the District Magistrate, a meeting was convened by the District Magistrate in which six members voted in favour of the respondent No. 4 and five members voted in favour of the petitioner. Therefore, the District Magistrate has passed the order impugned dated 27.3.2018. 4. Learned counsel for the petitioner has referred to a judgment rendered by a Division Bench of this Court in Udaivir v. State Election Commission, 2009 (106) RD 151 , wherein the Division Bench has observed that the District Magistrate ought to have ascertained the wishes of the elected members of the Gram Pradhan, as to who should be officiating Pradhan for the period till the regular election of the Gram Pradhan is held. A direction was issued to the District Magistrate to get a meeting convened to be chaired by an Officer not below the rank of Sub Divisional Magistrate to ascertain the wishes of other Gram Panchayat members and pass appropriate orders. 5. Another Division Bench in Shyamu v. State of U.P. and others, 2010(8) ADJ 459 , has further explained the judgment rendered in Udaivir (supra) and has observed in paragraph 16 thus : “16. The question is whether such opinion given by the elected members would be binding on the Prescribed Authority. 5. Another Division Bench in Shyamu v. State of U.P. and others, 2010(8) ADJ 459 , has further explained the judgment rendered in Udaivir (supra) and has observed in paragraph 16 thus : “16. The question is whether such opinion given by the elected members would be binding on the Prescribed Authority. If such an interpretation is given, then the power exercised by the Prescribed Authority under Section 12-J of the Act will have to be read subject to the opinion of other members. This would not be a correct interpretation of the law. There could be a possibility of violation of reservation policy, and/or a person may pressurise other members to propose his name, and/or the like. Directing the Prescribed Authority to accept the view of the members after the process of consultation, as to who should be the Pradhan of the village, to an extent, will be against the language of the Section. To that extent, in our opinion, the observation in the latter part of the paragraph, which we have reproduced separately, which practically holds that the view given by the elected members would be binding on the District Magistrate, would not be a proper interpretation of Section 12-J of the Act and to that extent may have to be further explained. Considering the Division Bench judgment in Udaivir (supra), the Prescribed Authority, at the highest, should note the opinion of the members and thereafter proceed to nominate the Pradhan. Such a step, to some extent, will help the Prescribed Authority to know who enjoys the confidence of the members, and this will help him to make an informal choice. If an overwhelming number of members prefer a candidate, the Prescribed Authority should ordinarily, in the exercise of his powers to nominate, take that opinion into consideration if otherwise the name proposed would not be against any policy. This, in our opinion, would be a proper interpretation of Section 12-J, which would not denude the power of the Prescribed Authority under the Section. The observation in Smt. Usha Singh (supra) should be read in this context.” (emphasis supplied) 6. This, in our opinion, would be a proper interpretation of Section 12-J, which would not denude the power of the Prescribed Authority under the Section. The observation in Smt. Usha Singh (supra) should be read in this context.” (emphasis supplied) 6. Learned counsel for the petitioner submits that the judgment rendered by a Division Bench in Udaivir (supra) has been followed in Pushpendra Kumar v. State of U.P., 2010(4) ADJ 348 and Gulesh v. State of U.P. and others, 2017(3) ADJ 20 , set aside the order of the District Magistrate and directed a meeting to be held of Gram Panchayat members where voting was to be done through secret ballot to ascertain the name of one person amongst them to act as officiating Gram Pradhan. 7. A Coordinate Bench of this Court in the aforesaid writ petition of Gulesh v. State of U.P., 2017(3) ADJ 20 has referred to two Division Benches of Udaivir v. State Election Commission, 2009 (106) RD 151 and Pushpendra Kumar v. State of U.P., 2010(4) ADJ 348 , but has not noticed the judgment rendered by another Division Bench in Shyamu v. State of U.P., 2010(8) ADJ 459 . As quoted herein above. 8. In paragraph 16, the later Division Bench has observed that the District Magistrate may ascertain the wishes of the elected members of the Gram Panchayat for appointing a temporary Gram Pradhan, but he is not bound to nominate the person so chosen, as there could be a possibility of violation of reservation policy or any such other issue involved. Only an informal procedure has to be adopted by the District Magistrate and if an overwhelming number of members prefer a particular candidate, the Prescribed Authority should “ordinarily” take that opinion in consideration if otherwise the name proposed would not be against any policy. 9. From a perusal of the judgment rendered in Shyamu (supra), it is evident that the Division Bench has explained the judgment rendered in Udaivir (supra) and qualified it to a certain extent; saying that it is the District Magistrate alone who shall have power under Section 2-J to make the appointment of temporary Gram Pradhan although, he may consult the elected members of the Gram Pradhan. 10. Therefore, no certiorari can be issued for quashing the order dated 27.3.2018 at this stage. 11. 10. Therefore, no certiorari can be issued for quashing the order dated 27.3.2018 at this stage. 11. This writ petition is disposed of with a direction to the District Magistrate, Rampur to consider the representation made by the petitioner and the respondent No. 4, if he has not done so already, and ascertain the suitability of the respective candidates and pass an appropriate order thereon in accordance with law within a period of four weeks from the date a certified copy of this order is produced before him.