Allahabad High Court
Smt. Sushila vs State Of U.P. And 5 Others on 27 April, 2023
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- WRIT - C No. - 10384 of 2023
Petitioner :- Smt. Sushila
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Arvind Kumar Singh,Ramesh Rai
Counsel for Respondent :- C.S.C.,Sher Bahadur Yadav
Hon'ble Alok Mathur,J.
1. Heard Sri Ramesh Rai, learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 to 5 and Sri Sher Bahadur Yadav, learned counsel appearing on behalf of respondent no. 6.
2. By means of present writ petition has assailed order dated 01.03.2023, passed by the District Panchayat Raj Officer, Azamgarh whereby he has appointed respondent no. 6 as acting Gram Pradhan for Village - Kabutara, Post Office - Maholi, Block - Palhna, Tehsil - Mehnagar, District - Azamgarh.
3. It has been submitted by learned counsel for the petitioner that elections for Gram Pradhan was held in April, 2021 where Smt. Poonam Singh W/o Prakash Singh was elected as Gram Pradhan alognwith 13 members constituting Gram Panchayat. Unfortunately, Smt. Poonam Singh, the elected Gram Pradhan died on 10.02.2023 before expiry of her term and consequently a casual vacancy occurred on the post of Gram Pradhan.
4. It is next submitted by learned counsel for the petitioner that the District Panchayat Raj Officer, Azamgarh by order dated 14.02.2022, asked the Block Development Officer, Palhna, District Azamgarh to submit the list of elected members of Gram Panchayat for nomination of a member for discharging duty and functions of officiating Gram Pradhan on account of death of elected Gram Pradhan Smt. Poonam Singh, under Section 12(J) of the U.P. Panchayat Raj Act, 1947. The Block Development Officer submitted the list of elected members of Gram Panchayat before the District Panchayat Raj Officer on 24.02.2023. The District Panchayat Raj Officer, Azamgarh by means of order dated 28.02.2023, nominated one Smt. Manju W/o Daya Shankar for discharging duties and functions of officiating Gram Pradhan and same was approved by the District Magistrate by means of order dated 01.03.2023.
5. The petitioner has assailed the order dated 01.03.2023 in the present writ petition and has submitted that provisions of Section 12(J) of the U.P. Panchayati Raj Act, 1947, have not been complied with inasmuch as wishes of elected members of Gram Panchayat have not been obtained before making nomination for the post of Gram Pradhan and hence impugned order could not have been passed without taking wishes of elected members of Gram Panchayat. In support of his submissions, learned counsel for the petitioner has placed reliance on the Division Bench judgment of this Court in the case of Udaivir Vs. State Election Commission of U.P., 2009 (106) RD 151, wherein the Court while deciding the said case has held as follows :-
"4. Considering the basic concept of the democracy set up for the Panchayat Raj under the Provisions of Article 243 of the Constitution, we are of the opinion that respondent no.3, i.e., District Magistrate, Aligarh ought to have ascertained the wishes of the elected members of the Gram Panchayat, as to who should be the officiating Pradhan for the period till the regular election of the Gram Pradhan is held. Further every attempt should be made to elect the new Pradhan at the earliest possible.
5. In view thereof, we dispose of this Special appeal with a request upon the District Magistrate, i.e., respondent no.3 to convene a meeting of the elected members of the Gram Panchayat within a period of two weeks from the date a certified copy of this order is filed before him, nominating some responsible officer not below the rank of Sub-Divisional Magistate, to chair the meeting of the elected members so as to ascertain the wishes qua nomination of officiating Pradhan. Person so nominated would be handed over the charge forthwith. We also request the District Magistrate to ensure that the election of the Gram Pradhan of the village concerned be held in accordance with law at the earliest possible.
6. Till the aforesaid is done, status quo as of date with regard to the working of the officiating Pradhan shall be maintained."
6. It is stated that the impugned order is in the teeth of judgment of this Court and consequently, deserves to be set aside.
7. In this regard instructions were sought from by the learned Standing Counsel to inform this Court as to whether wishes of elected members of Gram Panchayat have been taken or not.
8. Learned Standing Counsel has informed this Court on the basis of written instructions received from District Panchayat Raj Officer, Azamgarh where factual details as narrated in the impugned order have been reiterated. Perusal of the said instructions as well as impugned order would clearly indicate that appointment has been made without obtaining wishes of elected members of Gram Panchayat, and consequently, the impugned order is illegal and arbitrary and liable to be set aside.
9. Learned counsel appearing for respondent no. 6 also could not inform this Court as to whether wishes of elected members of Gram Panchayat have been obtained or not.
10. In view of the discussion made above, this Court is of the considered view that the respondents have not followed the procedure as enunciated in Section 12(J) of the U.P. Panchayati Raj Act, 1947, while passing the impugned order. Accordingly, impugned orders dated 28.02.2023 passed by the District Panchayat Raj Officer, order dated 01.03.2023, passed by the District Magistrate, Azamgarh a well as consequential order dated 17.03.2023, pased by the Block Development Officer, Palhna, Azamgarh are hereby set aside.
11. Liberty is granted to the District Panchayat Raj Officer, Azamgarh to pass fresh orders in accordance with law taking into consideration the directions issued by this Court in the case of Udaivir Vs. State Election Commission of U.P. (supra)
12. Let fresh exercise be concluded expeditiously, say within a period of four weeks from the date of production of certified copy of this order before the authority concerned.
13. The writ petition is allowed.
Order Date :- 27.4.2023
A. Verma
(Alok Mathur, J.)
