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2022 DIGILAW 481 (ALL)

Anuj Kumar v. State of U. P.

2022-04-01

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : SAUMITRA DAYAL SINGH, J. 1. Counter affidavit filed on behalf of respondent nos. 2, 3 and 4 today, is taken on record. 2. Heard Sri. Ram Pratap Yadav, learned counsel for the petitioner and learned Standing Counsel for the State. 3. Present writ petition has been filed by the petitioner Anuj Kumar, claiming to be the duly elected Gram Pradhan of village Bhauli, Development Block Kurara, Tehsil-Hamirpur, District-Hamirpur. He claims relief in the nature of direction upon the District Magistrate-Hamirpur to assign financial and administrative powers to the petitioner to enable him to discharge all functions of Gram Pradhan. 4. Upon perusal of the pleadings made in the writ petition as confirmed by the counter affidavit filed by the District Panchayat Raj Officer, Hamirpur, it transpires, undisputedly the petitioner was elected as the Gram Pradhan, Gram Panchayat Bhauli, Development Block Kurara, District-Hamirpur on 02.05.2021. His term is five years. Almost one year has passed and the petitioner has yet not been able to function as the Gram Pradhan. Functioning of the petitioner has been obstructed on account of non-constitution of the Gram Panchayat Bhauli. In that regard, it has been clearly disclosed in the counter affidavit filed by the District Panchayat Raj Officer, Hamirpur that Gram Panchayat Bhauli comprises of 15 wards. Election to all 15 wards of the said Gram Panchayat first took place on 02.05.2021. Of the 15 ward members elected, only 2 could be administered oath. The remaining 13 did not present themselves for administration of oath as ward members of the Gram Panchayat Bhauli, despite reminders. 5. Acting in conformance to Section 12-E(2) of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as the ‘Act’) 13 elected members of the Gram Panchayat Bhauli who failed to subscribe to the oath of office, were deemed to have vacated office/seat vide order dated 10.11.2021. 6. The document filed as Annexure CA-3 to the counter affidavit further reveals, pursuant to the order of the State Election Commission dated 06.01.2021, the bye election to the aforesaid 13 vacant wards were held and 13 members were elected. This time only 3 of the members so elected could be administered oath. The remaining 10 have yet not subscribed to the oath. The counter affidavit does not state as to whether the said 10 persons have been deemed to have vacated the office/seat of member of Gram Panchayat, Bhauli. This time only 3 of the members so elected could be administered oath. The remaining 10 have yet not subscribed to the oath. The counter affidavit does not state as to whether the said 10 persons have been deemed to have vacated the office/seat of member of Gram Panchayat, Bhauli. 7. In such facts, it has been stated in the counter affidavit and has been vehemently urged by the learned Standing Counsel that the Gram Panchayat has yet not been constituted in accordance with Section 12(3) of the Act. Unless 2/3 elected members subscribe to the oath, the Gram Panchayat cannot be constituted. Since the strength of the Gram Panchayat, Bhauli is 15, necessarily, 10 members must subscribe to the oath before the petitioner may be allowed to function as a fullfledged Gram Pradhan. 8. Having heard learned counsel for the parties and having perused the record, there can be no denial that the Gram Panchayat may be constituted only upon 2/3 members of the total strength of the Gram Panchayat being elected. In the present case, that number would have to be 10. This position emerges from the plain reading of Section 12(3)(d) read with its proviso. It reads: “12(3)(d) The Constitution of a Gram Panchayat shall be notified in such manner as may be prescribed and thereupon the Gram Panchayat shall be deemed to have been duly constituted, any vacancy therein notwithstanding: Provided that the Constitution of a Gram Panchayat shall not be so notified till the Pradhan and at least two-thirds of the members of the Gram Panchayat have been elected.” 9. Then, Section 12-E of the Act reads as below: “12-E. Oath of office: (1) [Every person] shall, before entering upon any office referred to in Sections 11-A, 12, 43 or 44, make and subscribe before such authority as may be prescribed on oath or affirmation in the form to be prescribed. (2) Any member who declines or otherwise refuses to make and subscribe such oath or affirmation as aforesaid shall be deemed to have vacated the office forthwith.” 10. Thus, in the first place, the legislature has used the word elected. There is no doubt that elections have been held to fill up all posts of the Gram Panchayat, twice. On both occasions, members were elected on all seats. Thus, in the first place, the legislature has used the word elected. There is no doubt that elections have been held to fill up all posts of the Gram Panchayat, twice. On both occasions, members were elected on all seats. However, only two persons subscribed to the oath as a result of the first election and only 3 persons subscribed to the oath as the result of the second/bye-election. The petitioner does not assert that the requirement of Section 12(3)(d) of the Act stood fulfilled upon conclusion of election. At the same time, it is equally true, by virtue of communication dated 10.11.2021 issued under Section 12-E of the Act, 13 posts on which the elected members did not subscribe to the oath, were declared deemed vacant. Consequently, bye-election took place. Still, 10 of the 13 persons thus elected (as a consequence of the bye-election), have not subscribed to the oath till date. Thus, in all only 5 (1/3rd) elected members of the Gram Panchayat Bhauli have made and subscribed to the oath. The quorum is short by 5. 11. In such facts, the respondent-authorities may now seek to enforce on the remaining 12 elected members of the Gram Panchayat to make and subscribe to the oath within a fixed time failing which the declaration of deemed vacancy may be visited in terms of Section 12-E of the Act. 12. While that may be done first, the State Government and/or the Officer authorized is not helpless in this regard. The constitution of the Gram Panchayat and its functioning cannot be held hostage by elected members of that body who may refuse to make and subscribe to the oath and thereby, paralyse the functioning of the grass root level democratic institution. Section 12(3-A) of the Act offers the complete solution in that regard. The constitution of the Gram Panchayat and its functioning cannot be held hostage by elected members of that body who may refuse to make and subscribe to the oath and thereby, paralyse the functioning of the grass root level democratic institution. Section 12(3-A) of the Act offers the complete solution in that regard. It reads: “12(3-A) Notwithstanding anything contained in any other provisions of this Act, where due to unavoidable circumstances or in public interest, it is not practicable to hold an election to constitute a Gram Panchayat before the expiry of its duration, the State Government or an officer authorized by it in this behalf may, by order, appoint an Administrative Committee consisting of such number of persons qualified to be elected as members of the Gram Panchayat, as it may consider proper or an Administrator and the members of the Administrative Committee or the Administrator shall hold office for such period not exceeding six months as may be specified in the said order and all powers, functions and duties of the Gram Panchayat, its Pradhan and Committees shall vest in and be exercised, performed and discharged by such Administrative Committee or the Administrator, as the case may be.” 13. In a given factual situation where either due to unavoidable circumstances or in public interest, it is not practicable to hold election, the State Government or the Officer authorised may appoint an Administrative Committee consisting of such number of qualified members to be elected as members of the Gram Panchayat, as it may consider proper. 14. Requisite number of ward members were also elected on both occasions. However, the majority of elected members refused to make and subscribe to the oath of office. It has prevented the constitution of the Gram Sabha Bhauli for almost a year. Correspondingly, it has, extra-constitutionally, injuncted the functioning of the petitioner as Gram Pradhan for nearly 1/5 of his term. 15. However, the majority of elected members refused to make and subscribe to the oath of office. It has prevented the constitution of the Gram Sabha Bhauli for almost a year. Correspondingly, it has, extra-constitutionally, injuncted the functioning of the petitioner as Gram Pradhan for nearly 1/5 of his term. 15. While, it may not be said that there are unavoidable circumstances due to which elections to constitute the Gram Panchayat may not be held, at the same time in light of the facts noted above, since 10 seats of Gram Panchayat members are lying practically vacant despite two elections held over a period of almost one year and in view of the further fact that such vacancies appear to exist only on account of the conduct of the erring elected members, exercise in public interest, as contemplated by Section 12(3A) of the Act has become imperative. At present, repeated/third successive elections/bye election held at the cost of public exchequer and time may not be in public interest. Rule 60(2) of the UP Panchayat Raj (Election of Member, Pradhan and UP-Pradhan Rules, 1994), also, appears to indicate two attempts to be made to elect a member of a Gram Panchayat. There is no doubt to the fact of two elections held. 16. The Constitution of the Gram Panchayat is the paramount objective to be achieved. Since the minimum quorum required to constitute the Gram Panchayat could not be met, despite two consecutive elections and passage of one year time, the State Government or the Officer authorised by it, must ensure constitution of the Gram Panchayat or its Administrative Committee through other means, permitted by the statute. 17. Accordingly, the writ petition is allowed with a direction upon respondents to take cognizance of the matter and pass appropriate orders with respect to declaration of deemed vacancy on the post of 10 members of Gram Panchayat, Bhauli who may still refuse to subscribe to the oath despite further notice to be issued to them, now. For that purpose, the time limit of three weeks from today is fixed. For that purpose, the time limit of three weeks from today is fixed. Thus, either such oath would be made and subscribed by minimum five elected members so as to complete the quorum of 10 members, on or before 22 April, 2022 or a declaration of deemed vacancy under Section 12-E of the Act would be made with respect to the above, at the end of that time limit. 18. Further, in the event of such vacancy being declared and quorum being still not met, keeping in mind the facts noted above, no fresh election may be called for the next six months. However the respondents may proceed directly, under Section 12(3-A) of the Act and appoint such eligible persons as members of the Administrative Committee of the Gram Panchayat, Bhauli as may be required to complete the minimum quorum, over and above the elected members who may have subscribed oath. Such exercise may be completed, within a period of one week therefrom, so that the Gram Panchayat, Bhauli may be constituted not later than 2nd May, 2022. 19. Upon, such event, the petitioner may be allowed to function as the full fledged Gram Pradhan for his remaining term, in accordance with law. 20. No order as to costs.