Jagdish vs State Of U.P. Thru Prin.Secy. ...
2019 Latest Caselaw 2921 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- MISC. SINGLE No. - 1880 of 2019
 

 
Petitioner :- Jagdish
 
Respondent :- State Of U.P. Thru Prin.Secy. Panchayat Raj Lko. & Ors.
 
Counsel for Petitioner :- Shamshad Ahmad Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard.

Service is sufficient upon opposite party no.5 as per service report dated 05.02.2019 but nobody has filed his Vakalatnama.

The petitioner herein has challenged the order dated 26.11.2019 passed by the District Magistrate Hardoi nominating opposite party no.5 as Pradhan in exercise of his power under Section 12-J of the U.P. Panchayat Raj Act,1947 (hereinafter referred to as 'the Act, 1947') as the regular incumbent of the office died on 06.11.2018.

The contention of the petitioner is that before seeking such nomination the District Magistrate should ascertain the request of the members of the Gaon Sabha as was incumbent in view of the judgment of this Court reported in the case of Udaivir vs. State Election Commission reported in (2009) 106 RD 151 as upheld by the Division Bench in Special Appeal No.572 decided on 23.04.2008. On a perusal of the judgment in the case Udaivir this Court finds that in keeping the mind the democratic set-up and Local Self Government under the Provisions of Article 223 of the Constitution the Division Bench was of the opinion that the District Magistrate ought to have ascertained the wishes of the members of the Gaon Sabha and elected members of Gram Panchayat as to who should be the Gram Pradhan for the period the regular election of Gram Pradhan is held and that the election of the new Pradhan shall be held at the earliest. Accordingly, the District Magistrate is directed to convene a meeting of elected members of the Gram Panchayat nominating some responsible officer not below the rank of Sub Divisional Magistrate to share the meeting of the elected Gram Sabha members so ascertain the wishes for nominating an officiating Pradhan.

Having considered the facts and circumstances of the case this Court is of the view that the process should have been adopted before initiating the opposite party no.5 as officiating Pradhan. It is, however, made clear that though, the wishes of the remaining members of the Gaon Sabha has to be ascertained and shall be taken into note of by the District Magistrate but ultimate decision under Section 12-J of the Act, 1947 has to be taken by the District Magistrate which should be in the larger interest of the smooth functioning of the Gram Panchayat which is entrusted with the important functions relating to Gaon Sabha.

In view of the District Magistrate Hardoi is directed to undertake a fresh exercise in the light of the aforesaid. The impugned order shall abide by the said decision to be taken as per the aforesaid exercise but till then, it shall continue to be enforced so that there may not be a vacuum in the interregnum as far as the office of Gram Pradhan is concerned as it is would not appropriate that the office of the Gram Pradhan shall remain vacant. The aforesaid exercise shall be completed by the District Magistrate within one month from the date a certified copy of this order is produced before the District Magistrate, Hardoi.

The writ petition is disposed of.

(To be Added)

(1) The Court also took note that the opposite party no.5 is a most literate person amongst the Gaon Sabha. He could also be nominated by the District Magistrate after ascertaining the wishes of other members of the Gaon Sabha, keeping in mind with the democratic set up.

(2) The meaning, purport and scope of Section 12-J of the Act, 1947 was firstly, considered by a Division Bench of this Court in the case of Udai Veer vs. State Election Commission reported in (2009) 106 RD 151 as already noticed hereinabove. However, the said issue again came up for consideration before another Division Bench of this Court in the case of Shyamu vs. State of U.P. and others reported in (2010) 5 All LJ 456. The relevant extracts of the said judgment are quoted hereinbelow:-

"13.The question for our consideration is whether the later part of the observations made in Smt. Usha Singh (supra), which proceeds to hold that the Prescribed Authority ought to ask the elected members to hold a meeting and such members should decide, amongst themselves, as to who should be nominated as Pradhan and based on this, the Prescribed Authority should nominate the Pradhan, is in conformity with the language of Section 12-J of the Act?

14.We have earlier quoted Section 12-J of the Act. The Section, literally read, confers power on the Prescribed Authority alone to nominate a member of the Gram Panchayat. There is no provision for the Prescribed Authority to mandatorily consult the members of the Gram Panchayat. The settled legal principle of the interpretation is, in the first instance, to read the language of the Section in its literal sense. It is only in the event, when the reading of the literal language would result into the absurdity or detract from the intent of the legislature, the Court steps into read the provision in consonance of the intent of the legislature. The intention of the legislation is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also what has not been said. As a consequence, a construction, which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. [(See Shyam Kishori Devi Vs. The Patna Municipal Corporation & Anr., AIR 1966 SC 1678, and A.R. Antulay Vs. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500].

The learned Single Judge, who decided Smt. Usha Singh (supra), was of the opinion that the provision gives absolute discretion to the Prescribed Authority and such an interpretation would make the provision arbitrary and also unconstitutional since no guiding principle has been laid down as to how the discretion of the Prescribed Authority is to be exercised and in favour of which member of the Gram Panchayat. It cannot be said that this was not a possible interpretation considering that the object of the Section is to nominate a member to act as a Pradhan. The member nominated should normally enjoy the confidence of other members and/or atleast the majority of the members so that the functions of the Gram Panchayat can proceed smoothly. Secondly, this view has been holding the field atleast since the year 1992. In these circumstances, in our opinion, the requirement of consultation with the members cannot be said to be contrary to the intent of the legislature or adding words which have not been provided by the Statute. We, therefore, overrule the view taken in Smt. Kusma Devi.

15. The office of Pradhan of a village is filled in by elections. The legislature, aware of this position, has made a specific provision under the Act, conferring powers on the Prescribed Authority to nominate a member to discharge the duties and exercise the powers of Pradhan until the vacancy of the office of Pradhan is filled in. This exercise is for the purpose of seeing that the functions of the Panchayat proceed smoothly and that there is no vacancy in the post till the vacancy is filled, as the Panchayat constitutes the basic unit of our democratic structure.

To that extent, the observations made by the learned Division Bench in Udaivir (supra), in our opinion, can be said to reflect this basic concept of our democratic body that those in majority, shall have their nominee elected as an elected Pradhan should have the confidence of the members.

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. "

On a reading of the judgment in Shyamu's case it is evident that while subsequent Division Bench accepted the ratio of the earlier judgment in Udaivir's case to the extent that ascertainment of wishes of the other members of the Gram Panchayat was in keeping with the democratic principle. He went on to elucidate the legal position further by holding that the wishes of the Gaon Panchayat would not be binding upon the Prescribed Authority i.e. the District Magistrate, as, if such an interpretation is given then the power exercised by the Prescribed Authority under Section 12-J of the Act, 1947 will have to be read subject to the opinion of other members which would not be the correct interpretation of law. There could be a possibility of violation of the reservation policy, and/or a person may pressurized the other members to propose his name, and/or like. The Division Bench observed that 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 the Division Bench in the case of Shyamu opined that the observations made by the Single Judge in Smt. Usha Singh vs. District Magistrate, Gorakhpur & others reported in 1992 RD 337 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 been further explained. It accordingly explained the legal position by observing that considering the Division Bench 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. It further observed that if an overwhelming number of members prefer a candidate, the Prescribed Authority should ordinarily, in the exercise of its power to nominate take other opinion into consideration, if, otherwise the name proposed would not be against any policy. This would not denude the power of the Prescribed Authority under this Section.

Order Date :- 15.4.2019

Vijay (Rajan Roy, J)