Court No. 21
Civil Misc. Writ Petition No. 38630 of 2010
Vijay Bahadur Singh
Vs.
State of U.P. and others
Hon'ble V.K. Shukla, J.
Petitioner claims that he is elected member of Gram Panchayat Pahari
Bujurg and has further stated that Smt. Juju was elected as a Gram Pradhan, has
died on 6.5.2010. Petitioner has stated that thereafter, District Magistrate on
10.6.2010 in exercise of authority vested under Section 12-J of U.P. Panchayat Raj
Act, 1947 without calling any meeting of member of Gram Panchayt, nominated
Smt. Chunni to function as Gram Pradhan for the interregnum period. Petitioner
submitted that thereafter, Smt. Chunni has also died on 19.6.2010 and thereafter,
no meeting whatsoever has been convened by the prescribed authority for
nominating the officiating Pradhan as per majority wish to be expressed by the
member of Gram Panchayat. In pith and substance petitioner is complaining that
officiating arrangement should be made at the earliest.
Sri Rishi Kant Rai, Advocate, learned counsel for petitioner contended with
vehemence that in the present case, at no point of time, wishes of member of
Gram Panchayat has been ascertained, as such arrangement, which has been
made is unjustifiable arrangement.
Countering the said submission, learned Standing Counsel on the other
hand contended that rightful arrangement has been made, as such no interference
be made.
At this juncture Section 12-J of the Act, which deals with making of
arrangement in temporary vacancy in the office of Pradhan is being extracted
below:-
12-J Arrangement in temporary vacancy in the office of Pradhan:-(1) Where the office
of Pradhan is vacant by reason of death, removal, resignation or otherwise, or where
the Pradhan is incapable to act by reason of absence, illness or otherwise, the Up-
Pradhan shall exercise all powers and discharge all duties of the Pradhan.
(2) Where the offices of both, Pradhan and Up-Pradhan are vacant for any reason
whatsoever, or when both Pradhan and Up-Pradhan are incapable to act for any
reason whatsoever, the prescribed authority shall nominate a member of the Gram
Panchayat to discharge the duties and exercise the powers of the Pradhan until such
vacancy in the office of either the Pradhan or the Up-Pradhan is filled in, or until such
incapacity of either of the two is removed”
Said provision in question has been subject matter of interpretation
before this court and this court in the case of Usha Singh (Smt.) V. District
Magistrate, Gorakhpur, 1992 RD 337 has opined that nomination of a
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person as Gram Pradhan by the District Magistrate/Prescribed Authority is
arbitrary if it is not made by the consent of the member of the Gram
Panchayat. Paragraph 6 of the judgement is as under:-
A perusal of Section 12-J of U.P. Panchayat Raj Act shows that if the
office of Pradhan becomes vacant then the Up-Pradhan would exercise
the function of Pradhan. Sub-section (2) of Section 12-J of the Act states
that if the office of both Pradhan and Up-Pradhan are vacant, or if for
any reason both Pradhan and Up-Pradhan are incapable to act, the
prescribed Authority shall nominate a member of the Gaon Panchayat to
discharge the functions of the Pradhan until the office of Pradhan or Up-
Pradhan is filled up. Sub-section (2) does not state which member of the
Gaon Panchayat should be nominated by the Prescribed Authority to
discharge the functions of the Pradhan. Literally construed the said
provisions gives absolute discretion to the Prescribed Authority to
nominate any member of the Gaon Panchayat for this purpose. Such an
interpretation, however, would make the provision arbitrary and also
unconstitutional since no guiding principles has been laid down as to
how the discretion of the prescribed authority is to be exercised and in
various of which members of the Gaon Panchayat. However, it is a
settled principle of interpretation that the Courts should as far as
possible try to avoid holding a statute to be unconstitutional, and if an
interpretation can be found which makes the statute constitutional, such
an interpretation should be accepted . In my opinion, since the Gaon
Sabha and Gaon Panchayat are democratic bodies elected by the
people, the proper interpretation of sub-section (2) of section 12-J would
be that in case where the offices of both Pradhan and Up Pradhan are
vacant, or when both Pradhan and Up-Pradhan are incapable to act, the
Prescribed Authority should ask the members to act, the Prescribed
Authority should ask the members of Gaon Prnahayct to hold a meeting
, and such members should decide among themselves which member
should be nominated as Pradhan for the interim period until regular
election, and such member should be nominated as officiating Pradhan
under section 12(2). Such an interpretation would be inconsonance with
the democratic principle underlying the U.P. Panchayat Raj Act, and
would also make the statute.
Said view has again been reiterated by this court in the case of Udaivir
Vs. The State Election Commission of U.P. through its Chairman and others,
decided on 11.4.2008 in Writ Petition No. 53468 of 2007. The judgment of
learned single judge in the aforementioned case has been approved of by
Division Bench of this court in the case of Udaivir Versus State Election
Commission 2009 (106) RD 151. View has been taken as follows:
“This Special Appeal has been preferred against the impugned judgment
and order of the Hon’ble Single judge dated 11th April, 2008 passed in Civil
Misc. Writ Petition No. 53468 of 2007; Udaivir V. The State Election
Commission of U.P. through its Chairman and others, filed by the appellant
against appointment of respondent No. 7 as officiating Pradhan has been
dismissed.
The Hon’ble Single Judge after considering the facts and law applicable
came to the conclusion that the wishes of the elected members of the
Gram Panchayat could have been ascertained before nominating any
member to officiate as Pradhan till the regular election qua the office is
3held, in exercise of powers under section 12-J of the U.P. Panchayat Raj
Act.
We have hared Sri B.N. Singh learned counsel for the appellant -petitioner,
Sri S.C. Pandey, learned Counsel for respondent No. 7, Sri K.P., Singh,
learned counsel for the respondent no1. and learned Standing Counsel for
other respondents, and perused the records of the present special appeal.
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
o9pinion 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
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 of certified copy of this order is filed before him, nominating some
responsible officer not below the rank of Sub Divisional Magistrate, 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”.
In the case of Smt. Kusma Devi Versus State of U.P. and others
2009 (106) RD 5 and Jaglal Versus State of U.P. and others 2009 (106)
RD 47 decided on 06.11.2008 and 10.11.2008, learned Single Judge has
taken view that provision of sub-section (2) of Section 12-J of the Act is clear
that temporary Gram Pradhan is to be nominated by the Prescribed Authority.
Nothing can be added by reading in between the lines or to give strength
one’s own opinion. The Prescribed Authority has power to nominate any
person under the Act which cannot be said to be arbitrary and the Registrar
has acted in its wisdom as conferred under the Act.
These two judgements of learned Single judge has been passed in
ignorance of the judgment Division Bench judgment of this court decided on
23.4.2008 reported in 2009 (106) RD 151 Udaivir V. State Election
Commission of U.P. through its Chairman and others. It appears that Division
Bench judgment has not been placed before the learned Single Judge. Once
on the same subject matter, the view of Division Bench of this court is there
and view mentioned therein has been holding the field since more than15
years, then in this background judicial discipline impells this court to follow the
view which has been laid down by the Division Bench of this court in the case
of 2009 (106) RD 151 Udaivir V. State Election Commission of U.P. through
its Chairman, which clearly provides that considering the basic concept of the
democracy set up for the Panchayat Raj under the provisions of Article 243 of
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the Constitution, District Magistrate ought to have ascertained the wishes of
elected member 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.
It is true that language of Section 12-J of U.P. Panchayat Raj Act, 1947 does
not talk of convening any meeting but by judicial pronouncement. Looking into
the fact that, it is democratic elected office in view of Article 243, qua which
interim arrangement is to be made, the lacuna has been sought to be filled up
by directing that meeting shall be convened and then as per the majority wish
interim arrangement should be made amongst elected Gram Panchayat
members.
In such a situation liberty is given to petitioner to represent the matter
within three weeks from today before the District Magistrate, Chitrakoot and
District Magistrate, Chitrakoot is directed to decide the matter in regard to
officiating arrangement of pradhan after convening the meeting within six
weeks from the date of receipt of certified copy of this order.
With these observations, writ petition is disposed of.
Dt. 06.07.2010
T.S.