Kaushal vs State Of U.P. And 2 Others
2021 Latest Caselaw 7775 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 3
 

 
Case :- WRIT - C No. - 13684 of 2021
 

 
Petitioner :- Kaushal
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shivam Yadav,Manoj Kumar Yadav,Rohit Singh
 
Counsel for Respondent :- C.S.C.,Ashish Kumar Singh,Suraj Kumar Singh,Ten Singh
 

 
Hon'ble Naheed Ara Moonis,J.

Hon'ble Saumitra Dayal Singh,J.

Heard Mr. Shivam Yadav, learned counsel for the petitioner, Mr. B.P. Singh Kachhawah, learned Standing Counsel for the respondent no.1 & 3, Mr. Ten Singh, learned counsel representing the respondent no.2 and Mr. Ashish Kumar, learned counsel upon intervention.

The instant petition has been filed with the following relief:

" (i) Issue a writ, order or direction in the nature of Mandamus commanding and directing the respondent authorities to accepted the resignation tendered by the petitioner and the seat of Member of Kshetra Panchayat, Chiraec Gaon (Ward No.66 (Sevon No.2 to 7), District Varanasi may be declared vacant."

(ii) Issue a writ, order or direction in the nature of Mandamus commanding and directing the respondents to made further elections of Member of Kshetra Panchayat, Chiraee Gaon (Ward No.66 (Sevon No.2 to 7), District Varanasi under the provisions of Section 12 of U.P. Kshetra Panchayat & Zila Panchayat Adhiniyam, 1961 so that justice may be done.

The undisputed facts of the case are that the petitioner was declared elected as Member of Kshetra Panchayat, Chiraee Gaon Ward No.66, Varanasi. In this regard, a certificate of being the returned candidate at that election was also issued to the petitioner on 2.5.2021. Almost a month thereafter, but before being sworn in as a Member of the Kshetra Panchayat, Chiraee Gaon Ward No. 66, Varanasi, the petitioner tendered his written resignation to the District Magistrate, Varanasi on 1.6.2021.

In such facts, the grievance of the petitioner is that the resignation of the petitioner has not been accepted contrary to the mandatory provision of Section 11(2) of the U.P. Kshetra Panchayat and Zila Panchayat, Adhiniyam, 1961 (hereinafter referred to as the "Act").

Learned counsel for the petitioner has relied upon a decision of the Hon'ble Apex Court in Ram Pal Singh vs. State of U.P. and others reported in AIR 2018 SC 2773 and a Government Order dated 2.6.2021 issued by the State Government. The said Government Order is claimed to clarify that a resignation of a non-sworn Member of a Kshetra Panchayat may be accepted.

Pursuant to the earlier order, learned Standing Counsel has obtained instructions. He submits that the resignation letter submitted by the petitioner is premature inasmuch as till date, the petitioner has not been sworn in as a Member of Kshetra Panchayat, Chiraee Gaon Ward No.66, Varanasi. Unless the petitioner is first sworn as a Member of the Kshetra Panchayat concerned, he acquires no status to resign therefrom. Reliance has been placed on an earlier GO dated 11.11.2010 issued by the State Election Commission whereby it was observed that no resignation may be tendered by a Member of Kshetra Panchayat unless such member has been sworn in.

Objection of the same lines have been made by Mr. Ashish Kumar Singh, learned counsel upon intervention. He further submits that the decision relied upon by the learned counsel for the petitioner in the case of Ram Pal Singh (Supra) is clearly not applicable to the facts of the present case.

Having heard the learned counsel for the parties and having perused the record, the provisions of Section 11 of the Act read as under:

"11. Resignation of Pramukh or Member:-

(1) A Pramukh or any elected member of the Kshettra Panchayat may resign his office by writing under his hand addressed, in the case of Pramukh, to the Adhyaksha of the Zila Panchayat concerned, and in other cases to the Pramukh of the Kshettra Panchayat.

(2) The resignation of the Pramukh shall take effect on and from the date on which the sanction thereto of the Adhyaksha is received in the office of the Kshettra Panchayat and such Pramukh or the member shall be deemed to have vacated his office from the date on which the notice is received in the office of the Kshettra Panchayat."

Composition of a Kshetra Panchayat is prescribed under Section 6 of the Act being all Pradhans of the Gram Panchayats in the Khand and 'elected member', chosen by direct election from the territorial constituencies in the Panchayat area. The phrase 'elected member' has not been defined. In the facts of this case the Uttar Pradesh Kshettra Panchayats and Zila Panchayat (Oath of Office of Adhyaksha or Pramukh Etc.) Rules, 1994 apply. They lay down the procedure of election. Under Rule 1994 (hereinafter referred as the 'Rules'), the Nirvachan Adhikari (Election Commissioner) declares 'duly elected' such candidate who secures the half number of the votes in a constituency.

Though the term/phrase 'elected member' used in Section 11(1) of the Act has not been defined at the same time, no stipulation has been shown to exist either in the Act or in the Rules as may necessarily involve administration of oath to the duly 'elected candidate' before he may be described as a member of a Kshetra Panchayat and before he may opt to resign.

The act of resignation of a 'duly elected' candidate is an individual act arising from his own circumstance and choice. It does not involve any act of such 'duly elected' member as a member of the body to which such person is duly elected. It is only in respect of the acts are that the 'duly elected member' may perform as part of the collective body that is the Kshetra Panchayat that administration of oath is relevant.

Even in that regard, the position in law is not clear at present. The Division Bench dictum of this Court in Smt. Kamla Devi vs State of U.P. and others reported in 2014 (8) ADJ 525 (DB) has not been approved by the Hon'ble Apex Court in Ram Pal Singh (Supra). That decision is of a Bench of two judges of the Supreme Court. On the issue of correctness of law laid down by the division bench of this Court in Smt. Kamla Devi (supra), a difference of opinion arose. In the dissenting decision, it has been observed in para 48 & 49 as under:

48. As far as the present case is concerned, as pointed out earlier, Rule 3(3) prescribes that before taking their seat for the first time, the members must subscribe oath or affirmation. What is the consequence of a member not taking oath? He does not cease to be a member but, at the same time, he cannot take part in the business of the House. In my view, a motion of no S.L.P. (C) No.31990 of page 27 confidence is part of the proceedings of the Panchayat, as such a motion is governed by the provisions of the Adhiniyam and, therefore, this is part of the business of the Panchayat. An elected member who has not taken oath, cannot move and be a signatory to such a no confidence motion. Such motion has to be moved in terms of Section 15 of the Adhiniyam. In my view, those members who have not taken oath and are, therefore, not entitled to vote at such no confidence motion, cannot be held to be entitled or eligible to sign such motion. Otherwise, it would lead to a very odd situation where such members can sign a motion but cannot vote when the said motion is put to vote. This could not have been the intention of the Legislature.Section 15 (12) and (13) of the Adhiniyam provide that a no-confidence motion cannot be moved within one year of the election having taken place or within a year of the rejection of the motion. Thus, the Legislature intended that a no-confidence motion should not be moved at drop of a hat. Therefore, according to me, members who have not taken oath and, therefore, do not have a right to vote for the no-confidence motion cannot be permitted to sign such a motion.

49 As far as the judgment of the Allahabad High Court in Kamla Devi (supra) is concerned, that only purports to follow the judgment of this Court. Considering the fact that my view is different, neither the Calcutta High Court judgment nor the judgment of this Court is applicable to the facts of the instant case. The judgment of the Allahabad High Court, according to me, does not lay down the correct position of law.

In view of the above, no reliance can be placed by the learned counsel for the petitioner on the ratio of Smt. Kamla Devi (Supra).

Coming to the ratio of the decision of the Ram Pal Singh (Supra), suffice it to note that the position was completely different arising in different facts. In that case, some of the signatories to the no-confidence motion had not been sworn in as the members of the Kshetra Panchayat. However, the motion of no-confidence was found carried through as sufficient members of Zila Panchayat had signed the motion of no-confidence. Yet, as noted above the decision to remove the Pradhan was a collective act of the assembly comprising of all 'duly elected' members of the Kshetra Panchayat. To act as part of the assembly, they were required (dissenting view) to be first administered the oath. No part of the cause of action in that case involved individual act of any member of the Kshetra Panchayat. Therefore, that decision of the Hon'ble Apex Court is wholly distinguishable.

Coming back to the present case, under Section 11(2) of the Act, an 'elected member' of the Kshetra Panchayat may resign from his office by writing under his hand addressed to the Pramukh of the Kshetra Panchayat. By virtue of the Government Order dated 2.6.2021 that power of the Pramukh of the Kshetra Panchayat is being presently exercised by the SDM.

In the present case, the resignation has been submitted by a duly 'elected member' of a Kshetra Panchayat. Undisputedly, it was an individual act. The resignation was correctly submitted to the proper authority. We see no reason to hold that the petitioner was first required to be sworn as a member of the Kshetra Panchayat, for the purpose of tendering his resignation. It would be a futile exercise.

Since there is no defect in the resignation so submitted by the petitioner, under sub section (2) of Section 11 of the Act, the resignation become final from the date of its receipt as no further action was required to be performed by any statutory authority to give effect to such resignation.

Accordingly, the writ petition succeeds. It is declared that the petitioner's resignation from the post of Member of Kshetra Panchayat, Chiraee Gaon Ward No.66, Varanasi became operative from 2.6.2021.

In so far as, prayer no.2 is concerned, no such relief may be granted at the behest of the petitioner who has tendered his resignation. That relief is clearly denied.

The writ petition is allowed in part. No order as to costs.

Order Date :- 12.7.2021

M. Tariq