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2020 DIGILAW 933 (ALL)

Pramod Kumar Chauhan v. State of U. P.

2020-06-08

ASHWANI KUMAR MISHRA

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JUDGMENT : 1. Petitioner in the present writ petition is elected member of Gram Panchayat Jungle Nagar Chhapra, Post Nahar Chhapra, Tehsil Padrauna, District Kushinagar. He is aggrieved by an order passed by the District Magistrate Kushinagar, dated 6.1.2020, whereby the District Magistrate has invoked his powers under Section 95(1)(g)of the U.P. Panchayat Raj Act, 1947 to suspend the administrative and financial powers of the Village Pradhan and has constituted a three member committee to perform the administrative and financial powers of Pradhan. The challenge to this order is essentially laid on the premise that being an elected office the functions of Pradhan can be performed only by a committee which has the support of all elected members of Panchayat. Contention is that unless views of all elected members are obtained it would not be open for the District Magistrate to nominate elected members of gram panchayat to the three members committee. 2. Sri Vishal Tandon, learned counsel for the petitioner in support of such submission has placed reliance upon a division bench judgment of this Court in Pushpendra Kumar Vs. State of U.P. reported in 2010 (4) ADJ 348 , which in turn relies upon a previous Division Bench Judgment of this Court in Udaivir Vs. State Election Commission of U.P. through its Chairman and others reported in 2009 (106) RD 151 . The submission in that regard is opposed by the learned State Counsel. 3. In order to consider the respective submissions advanced at the bar it would be appropriate to notice the relevant statutory scheme which operates in the field. Proviso to Section 95(1)(g) empowers the District Magistrate to constitute a three member committee of elected members of village panchayat for exercising administrative and financial powers of the Village Pradhan during the period of his suspension. The proviso to Section 95(1)(g), which is relevant for the present purposes, is extracted hereinafter:- "[Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government.]" 4. Section 95(1)(g) read with its proviso clearly conveys legislative intent of conducting expeditious enquiry against the Village Pradhan into allegations of administrative and financial lapses on his part and to entrust such functions to a committee consisting of three members of the Gram Panchayat. The power vested in the State to appoint three member committee has now been delegated to the District Magistrate under an appropriate notification which is not in issue. 5. There is no express provision in the Act or the Rules which imposes any obligation upon the District Magistrate to take into consideration the opinion of other elected members of village panchayat before constituting the three elected members to the committee for performing administrative and financial powers of suspended pradhan. The submission on behalf of petitioner to ascertain views of other elected members before appointing the three member committee is based upon the Division Bench Judgments rendered by this Court while interpreting the provisions of Section 12-H and 12-J of the U.P. Panchayat Raj Act, 1947, which are reproduced hereinafter:- "12-H. Casual Vacancy – If a vacancy in the office of the Pradhan, Up-Pradhan or a member of a Gram Panchayat arises by reason of his death, removal, resignation, voidance of his election or refusal to take oath of office, it shall be filled before the expiration of a period of six months from the date of such vacancy, for the remainder of his tern in the manner, as far as may be, provided in Sections 11—B, 11-C, or 12, as the case may be : Provided that if on the date of occurrence of such vacancy the residue of the term of the Gram Panchayat is less than six months, the vacancy shall not be filled. 12-J. Temporary arrangement in certain cases – 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 for any reason whatsoever, the prescribed authority shall nominate a member of the Gram Panchayat, to discharge the duties and exercise the powers of Pradhan until such vacancy in the office of Pradhan is filled in, or until such incapacity of Pradhan is removed." 6. Sections 12-H and 12-J of the Act of 1947 regulates filling up casual/temporary vacancy in the office of Pradhan etc. Sections 12-H and 12-J of the Act of 1947 regulates filling up casual/temporary vacancy in the office of Pradhan etc. The office of Pradhan is an elected office and the procedure for election is specified under Section 11-B of the Act of 1947. The Pradhan of the Gram Panchayat happens to be the Chairperson of the Gram Panchayat by virtue of Section 11-A(1) of the Act of 1947. Members of the Gram Panchayat are also elected by the electorate consisting of the villagers whose name finds place in the electoral roll prepared for the territorial constituency i.e the Gram Panchayat. The provisions contained in Sections 12-H and 12-J stipulates the manner in which the casual/temporary vacancy in the office of Pradhan is to be filled. For the purpose of filling up such vacancy the provisions as are contemplated under Section 11-B, 11-C or 12, as the case may be, shall be complied with. The office of Pradhan since is an elected office based on democratic principles it is quite obvious that the opinion/wishes of the electorate are taken into consideration even for filling up casual/temporary vacancy in the office of Pradhan. It is for this reason that the subsequent division bench of this Court in the case of Pushpendra Kumar (supra), relying upon the earlier division bench judgment in the case of Udaivir (supra) observed as under in paragraph 9:- "From a perusal of the provisions mentioned herein above, we are of the considered opinion that Section 12-H and 12-J have to be read harmoniously. Section 12-H deals with the permanent vacancy which may occur by resignation or otherwise on the post of Pradhan. It provides for filling up the vacancy by way of election as provided under Section 11-B and Section 12 of the Act where the residual term is more than 6 months. However, till the elections are held, a temporary arrangement has to be made taking recourse to the provisions of Section 12-J of the Act and the Prescribed Authority has been given power to nominate a Gram Pradhan to discharge the duty of the Pradhan. The provisions of Section 12-J came up for consideration before a Division Bench in the case of Udaivir (supra) and this Court has held that the Prescribed Authority has to act in accordance with the majority opinion of the Members of the concerned Gram Panchayat while nominating the officiating Pradhan. The provisions of Section 12-J came up for consideration before a Division Bench in the case of Udaivir (supra) and this Court has held that the Prescribed Authority has to act in accordance with the majority opinion of the Members of the concerned Gram Panchayat while nominating the officiating Pradhan. The law laid down in the aforesaid case is in consonance with the spirit of the provisions of Chapter IX inserted in our Constitution by the Constitution (Seventy third) Amendment Act 1992 which provides for constitution of Panchayats at the village, empowering the villagers to manage their affairs at the local level themselves. The learned counsel for the appellant has not been able to persuade us to take a different view. We are in respectful agreement with the view taken by the coordinate Bench in the case of Udai Veer (supra). In this view of the matter, we are of the considered view that the learned single Judge was right in directing the District Magistrate to ascertain the wishes of the Members of the Gram Panchayat before nominating any person on officiating basis to discharge the duties and functions of the Gram Pradhan." 7. Unlike Section 12-H and 12-J of the Act of 1947 which regulates the manner of filling up of casual/temporary vacancy to the office of elected Pradhan, Section 95(1)(g) merely provides for exercise of administrative and financial powers of Pradhan by a three member committee duringthe conduct of enquiry against him. The office of Pradhan itself has not fallen vacant. The question of appointing Pradhan against casual/temporary vacancy or ascertaining views of electorate for such purposes does not arise. The exigency which arose before the Division Bench in the case of Pushpendra Kumar (supra) and Udaivir (supra) are entirely distinct and would not arise in the facts of the present case. The Pradhan continues to remain in office in the present case and the object of appointing three member committee is only to secure an expeditious and fair enquiry against the Pradhan. The three members committee consists of elected members of Gram Panchayat. Ordinarily the number of elected members of Panchayat vary from 12 and above. The Pradhan continues to remain in office in the present case and the object of appointing three member committee is only to secure an expeditious and fair enquiry against the Pradhan. The three members committee consists of elected members of Gram Panchayat. Ordinarily the number of elected members of Panchayat vary from 12 and above. All members of Panchayat are elected persons and in the absence of any express provision in the statute this Court would not be justified in insisting upon the requirement of ascertaining view of all members for the purposes of appointing three member committee. Such a requirement otherwise need not be read in the proviso to Section 95(1)(g) particularly as the object of democratic functioning is amply safeguarded by the appointment of elected members only to the three member committee. 8. The issue needs to be examined from another aspect also. In the event opinion of such elected persons are insisted upon, it would not serve any purpose or objective, inasmuch as, it is quite possible that the elected members may not be unanimous in their views about the elected persons to be appointed to the three member committee. Ultimately, it would be left to the discretion of the District Magistrate to appoint the elected members to the three member committee. In the absence of any credible material it would not be open to contend that the exercise of discretion by the District Magistrate would be arbitrary. Once the electorate of the village has already exercised its franchise and elected members to the Gram Panchayat and it is from those elected members that the three member committee is to be constituted no further ascertainment of views of all elected members of Gram Panchayat for the purpose of appointing the three member committee would be required. The exigency which was being dealt with by the Division Bench, therefore, is not found to be attracted in the facts of the present case. 9. Though Mr. Tandon has laid much emphasis upon following of democratic principles in appointing the three member committee but the Court finds that the scheme contained in the Act duly safeguards the democratic principles by requiring only elected members of Gram Panchayat to be appointed to the three member committee. I am therefore not inclined to accept the argument advanced on behalf of the petitioners. The writ petition lacks merit and is accordingly dismissed.