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2019 DIGILAW 27 (UTT)

Chandan Singh Panwar v. State of Uttarakhand

2019-01-07

RAMESH CHANDRA KHULBE, RAMESH RANGANATHAN

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JUDGMENT : RAMESH RANGANATHAN, J. 1. This appeal is preferred against the interlocutory order passed by the learned Single Judge in Writ Petition (M/S) No.3105 of 2018 dated 21.12.2018 vacating the earlier interim order dated 11.10.2018, whereby the operation and effect of the order dated 09.10.2018 was directed to remain stayed till the next date of listing. 2. The appellant-writ petitioner was the Pramukh of Kshetra Panchayat Bhatwari, Uttarakashi district having been elected from the electoral seat, namely, 29 Tiloth-II which is a revenue village. His term of office of five years is due to expire in May, 2019. In January, 2018, the process of reorganization of Nagar Palika Parishads was undertaken, and Tiloth II revenue village was merged in Bhatwari Nagar Palika Parishad, Uttarakashi. The appellant-writ petitioner was elected from Tiloth-II village panchayat as a Member of the Bhatwari Kshetra Panchayat; and, after he was elected as a Member of the Kshetra Panchayat, he was elected by the members of the Kshetra Panchayat as a Pramukh. 3. The second respondent, i.e. the Director, Panchayati Raj, passed an order on 09.10.2018. While referring to Section 53 of the Panchayati Raj Act, he held that the petitioner ceased to be the Block Pramukh of Bhatwari Kshetra Panchayat since Tiloth-II revenue village, from which he was elected as a Member of the Bhatwari Kshetra Panchayat, had ceased to exist on its merger with the Badahat Nagar Palika Parishad, Uttarakhasi district. It is this order of the Director which was subjected to challenge in the writ petition. Initially an interim order was passed which came to be vacated later by the order under appeal. It is this order of the Director which was subjected to challenge in the writ petition. Initially an interim order was passed which came to be vacated later by the order under appeal. In the said order dated 21.12.2018, the learned Single Judge noted that the Chief Development Officer of the district had been notified as the Prescribed Authority by the State Government; the petitioner had not challenged the order/notification by which the area, from which he was a Member of the Kshetra Panchayat, was included in the municipality; he had, therefore, lost his membership of the Kshetra Panchayat; since he was no longer the Member of the Kshetra Panchayat legally, he could not continue in the post of Block Pramukh by operation of law; as an interim measure, the petitioner was permitted to continue in the post of Block Pramukh; and since the petitioner was not a Member of the Kshetra Panchayat, he could not continue in the post of Block Pramukh. The interim order was vacated, and the matter was fixed for hearing on 08.01.2019 (tomorrow). 4. Mr. Abhijay Negi, learned counsel appearing on behalf of Mr. Sandeep Kothari, learned counsel for the appellant-writ petitioner, would place reliance on Section 53(5) of the Uttarakhand Panchayati Raj Act, 2016 to submit that, in terms thereof, if any question arises as to whether a person became subject to any of the disqualifications mentioned in Section 53, the question shall be referred to the prescribed authority for decision; and his decision shall, subject to the result of any appeal as may be prescribed, be final. Learned counsel would also draw our attention to the notification dated 09.06.2017 where under the competent authority, for deciding disputes under Section 53(5), is stipulated to be the Sub-Divisional Magistrate. According to the learned counsel, it is only the Sub-Divisional Magistrate who can decide whether or not the appellant-writ petitioner suffered from any disqualification as a Block Pramukh; and the Director, who passed the impugned order, lacked jurisdiction to do so. Learned counsel would also rely on a Division Bench judgment of the Allahabad High Court, in Sunil Kumar vs. State of U.P. & others, (2004) 1 UPLBEC 258 , to submit that if a statute provides for a thing to be done in a particular manner, it should then be done in that manner, and in no other. 5. Learned counsel would also rely on a Division Bench judgment of the Allahabad High Court, in Sunil Kumar vs. State of U.P. & others, (2004) 1 UPLBEC 258 , to submit that if a statute provides for a thing to be done in a particular manner, it should then be done in that manner, and in no other. 5. While this principle is drawn from the maxim “Expressio unius est exclusio alterius”, and has been followed in several decisions ever since Taylor vs. Taylor, 1876 (1) Ch D 426 and thereafter in Nazir Ahmed vs. King Emperor, AIR 1936 PC 253 , it must be borne in mind that it is only if there is a bonafide dispute regarding the appellant-writ petitioner’s disqualification would this Court exercise its discretion under Article 226 of the Constitution of India, to interfere. In the present case, the facts are not in dispute. It is only from among members of the Kshetra Panchayat is the Block Pramukh elected. Membership of the Kshetra Panchayat is by election from each revenue village. The appellant-writ petitioner was elected as a Member of the Bhatwari Kshetra Panchayat from Tiloth-II revenue village. The said Tiloth-II revenue village, on its merger with Barahat Municipality in Uttarakhashi district on 05.01.2018, ceased to remain in existence thereafter. The appellant-writ petitioner could not, therefore, continue to represent a non-existent revenue village in the Kshetra Panchayat, and could not have thereafter continued as a Member of the Kshetra Panchayat representing the non-existent Tiloth-II revenue village, nor could he have continued as a Block Pramukh of the Bhatwari Sheri Panchayat, which office can only be filled by electing one of the members of the Kshetra Panchayat to the said office. The fact that Tiloth-II revenue village was merged with Barahat Municipality is not disputed before us by Mr. Abhijay Negi, learned counsel appearing on behalf of Mr. Sandeep Kothari, learned counsel for the appellant-writ petitioner. While the maxim, “expressio unius est exclusion alterius”, necessitates adherence, interference by this Court, under Article 226 of the Constitution of India, would be justified only if the action of the respondents is arbitrary and illegal. It does appear that the appellant-writ petitioner ceased to be a Member of the Bhatwari Kshetra Panchayat by operation of law, i.e. merger of Tiloth-II revenue village with Barahat Municipality. It does appear that the appellant-writ petitioner ceased to be a Member of the Bhatwari Kshetra Panchayat by operation of law, i.e. merger of Tiloth-II revenue village with Barahat Municipality. As he ceased to be a Member of the Bhatwari Kshetra Panchayat, he could no longer continue as the Block Pramukh. The order of the learned Single Judge, vacating the interim order, does not, therefore, necessitate interference, more so in an intra-court appeal where interference is justified, with the order of the learned Single Judge, only if such an order suffers from a patent illegality. 6. While we would have refrained from expressing any opinion on merits since the writ petition is listed for final hearing tomorrow (08.01.2019) before the learned Single Judge, and the present appeal is preferred against an interlocutory order vacating the earlier interim order, we are, perforce, required to deal with these contentions since Mr. Abhijay Negi, learned counsel appearing for Mr. Sandeep Kothari, learned counsel for the appellant, would insist on a decision being rendered on his contentions. We see no reason, however, to deprive the appellant-writ petitioner of an opportunity of putting forth his contentions before the learned Single Judge and, therefore, make it clear that the observations, made by us in this order, are confined only to the interlocutory order under appeal; and the learned Single Judge, while hearing the writ petition, shall examine the petitioner’s contention on its merit uninfluenced by the observations made by us in this order. The appeal, however, fails and is, accordingly, dismissed. No costs.