Allahabad High Court
Anoop Kumar And 3 Others vs State Of U.P. Thru. Its Secy. ... on 10 February, 2023
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - C No. - 731 of 2023
Petitioner :- Anoop Kumar And 3 Others
Respondent :- State Of U.P. Thru. Its Secy. Panchayati Raj Lko. And 2 Others
Counsel for Petitioner :- Anurag Kumar Singh,Akhilendra Singh,Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C.,Nitin Rastogi
Hon'ble Alok Mathur,J.
Written instructions dated 08.02.2023 produced by the learned Standing Counsel, before this Court are taken on record.
Heard Shri Anurag Kumar Singh, learned counsel for the petitioners as well as learned Standing Counsel on behalf of respondents no.1 and 2 and Shri R.C. Tiwari, learned counsel for respondent no.3.
This Court has passed following order on 03.02.2023 :-
?1. Heard Shri Akhilendra Singh, learned counsel appearing on behalf of the petitioners, learned Standing Counsel for respondents no.1 and 2 and Shri R.C. Tiwari, Advocate who has put in appearance on behalf of respondent no.3. The vakalatnama filed by Shri R.C. Tiwari is taken on record.
2. The petitioners, who are the elected members of Gram Panchayat Dilawarpur, Nyay Panchayat ? Abhay Kachnar Block and Tehsil Mohammadi, District ? Kheri while assailing the order dated 05th January, 2023 passed by District Magistrate, Lakhimpur Kheri have submitted that the election of the elected Gram Pradhan of this village was set-aside in the election petition by the Sub Divisional Magistrate vide its order dated 03rd January, 2023 and also the post of the Gram Panchayat was declared to be vacant. The District Magistrate in exercise of the powers under Section 12 (J) of the U.P. Panchayat Raj Rules, 1947 has appointed respondent no.3 to discharge the powers of the Gram Pradhan till such time as regular Gram Pradhan is elected in accordance with law.
3. Learned counsel for the petitioner has submitted that the impugned order dated 05th January, 2023 passed by the District Magistrate is clearly in defiance of the judgments of this Court passed in the case of Udaivir vs. State Election Commission of U.P. through its Chairman and Others, 2008 SCC OnLine All. 2132 as well as in the case of Junaid vs. State of U.P. and Others passed on 14.11.2022 in Writ C No.33907 of 2022 where clear law has been laid down that the District Magistrate will obtain wishes of the elected members of the Gram Panchayat before appointing any person to discharge the duties of Gram Pradhan under Section 12 (J) of U.P. Panchayat Raj Act.
4. Learned Standing Counsel prays for and is granted two days? time to seek instructions and to ascertain as to whether the wishes of the elected members were obtained or not.
5. List this case on 07.02.2023 in top ten cases showing the name of Shri R.C. Tewari as counsel for the respondent.?
Vide order dated 03.02.2023, the learned Standing Counsel was directed two days? time to seek instruction as to whether the wishes of the elected members of Gram Panchayat was obtained or not and the case was listed for 07.02.2023 but no instruction could be obtained by the said date.
It is in the aforesaid circumstances, this Court vide order dated 07.02.2023 had directed the District Magistrate, Lakhimpur-Kheri to appear in person before this Court on 10.02.2023 who in compliance of the said order is present in person before the Court today and has informed this Court that the wishes of the elected members were not obtained prior to passing of the order dated 05.01.2023.
Learned Standing Counsel has also informed this Court on the basis of the written instructions dated 08.02.2023 that the wishes of the elected members were not obtained and has submitted that appropriate time may be granted by this Court, so that fresh decision may be taken by the prescribed authority in accordance with law.
Shri R.C. Tiwari, learned counsel for respondent no.3 could not dispute the fact that the judgment of this Court passed in the case of Udaivir vs. State Election Commission of U.P. through its Chairman and Others [2008 SCC OnLine All 2132] need to have been complied by the prescribed authority before passing an order providing interim arrangement for the post of Pradhan.
I have heard learned counsel for the parties and perused the record.
In the present case the casual vacancy on the post of ?Pradhan? has arisen on account of the fact that the election of Gram Pradhan of Gram Panchayat Dilawarpur was set-aside by the SDM/ Prescribed Authority where election petition filed against his election was allowed. On the election petition being allowed, the post was declared to be vacant which caused the Prescribed Authority to pass appropriate order under Section 12 (j) of the ?U.P. Panchayat Raj Act? for appointment of ?Pradhan? on the casual vacancy. The procedure for appointment was duly discussed by this Court in the case of ?Udai Veer vs. State Election Commission of U.P. Through its Chairman and Others [2008 SCC OnLine All 2132] and the following was observed :-
?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.?
The decision of the Division Bench has been consistently followed by this Court in the case of Kamta Pal vs. State of U.P. through Principal Secretary, (Panchayat Raj) U.P. at Lucknow and Others reported in [2010 SCC OnLine All 702] and in Junaid vs. State of U.P. and Others passed in Writ C No.33907 of 2022 in its order dated 14.11.2022.
In light of the above, it is noticed that it is mandatory for the District Magistrate to obtain the wishes of the elected members of the Gram Panchayat before passing any order under Section ? 12 J of U.P. Panchayat Raj Act, 1947 and the same having not been done, has rendered the impugned order dated 05.01.2023 illegal, arbitrary and open for interference of this Court in exercise of power under Article 226 of the Constitution of India.
In light of the above, the ground raised by the petitioners is made out and accordingly, writ petition is allowed. Order dated 05.01.2023 is set aside.
Matter is remitted to the District Magistrate, Lakhimpur Kheri to pass a fresh order in accordance with law expeditiously, say within a period of three weeks from the date a certified copy of this order is produced before him. Needless to say the Prescribed Authority shall duly take into account the law laid down by this Court in the case of Udai Veer vs. State Election Commission of U.P. through its Chairman and Others [2008 SCC OnLine All 2132].
It is further made clear that respondent no.3 who has been appointed as ?Gram Pradhan? to fill up the casual vacancy shall continue to officiate on the said post till passing of the fresh order by the District Magistrate concerned.
Order Date :- 10.2.2023
mks
