1
Court No.3
Writ Petition No.5648 (MB) of 2010
Vishwesh Nath ...Petitioner
Versus
State of U.P. and others ...Opp.parties.
***
Hon'ble Shri Narayan Shukla,J.
Hon’ble Devendra Kumar Arora,J.
Counter affidavit filed by the State is taken on record.
Heard Mr.Raghvendra Kumar Singh, Senior Advocate assisted
by Mr.Anurag Kumar Singh, learned counsel for the petitioner,
Mr.Sanjay Bhasin, learned Additional Chief Standing Counsel for the
State, Mr.Vinod Kumar Singh, Senior Advocate assisted by Mr.Ashok
Kumar Shukla, learned counsel for opposite party No.4.
The petitioner has challenged the order dated 8th of June, 2010,
issued by the State Government, whereby in exercise of power
provided under Section 21-A of U.P.Kshettra Panchayat and Zila
Panchayat Adhiniyam, 1961 (hereinafter referred to as the ‘Act’) the
State Government has appointed a three member committee to
discharge the functions of Adhyaksha of Zila Panchayat.
The learned counsel for the petitioner submits that earlier three
member committee was appointed to discharge the function of
Adhyaksha of Zila Panchayat in exercise of power provided under
Section 29 of the Act during the course of enquiry. Though on the
result of enquiry the Adhyaksha Smt. Malti Singh, has been removed
from the office, but since no election has taken place, the Committee
appointed to discharge the function of Adhyaksha is still entitled to
2
continue till the next election takes place. He further submits that it is
not the new committee, but one member of the earlier committee has
been replaced and in place of one Shri Vishwesh Nath, Smt. Malti
Devi, the opposite party No.4, has been appointed as member of the
committee at the behest of one local M.L.A., who recommended her
name. The letter of M.L.A. has also been brought on record as
Annexure No.5. Thus he submits that the change in the Committee is
absolutely political in nature and that vitiates the appointment of the
Committee itself.
On the other hand Mr.Vinod Kumar Singh, learned counsel for
the opposite party No.4 submits that as soon as the enquiry is over
and the Adhyaksha of the Zila Panchayat is removed, the operation
of the provisions of Section 29 of the Act also becomes over and
immediately thereafter the role of provisions of Section 21-A comes
into play, in exercise of which the State Government can make an
arrangement as it thinks fit for discharge of function of said
Adhyaksha. Section 21-A of the Act provides for temporary
arrangement when the office of Adhyaksha is vacant or he is unable
to discharge his functions owing to absence, illness or any other
cause. Here in the present case it is not in dispute that after removal
of the Adhyaksha, Smt. Malti Singh, the office of Adhyaksha of Zila
Panchayat has become vacant.
In the light of the aforesaid provisions as well as backdrop of
the facts, he submits that there is no error in appointment of another
3
Committee in exercise of power provided under Section 21-A of the
Act and that is entitled to discharge the function of Adhyaksha till
the next election takes place, thus he supports the action of the State
Government in issuing the order impugned.
As per direction of this court the learned Additional Chief
Standing Counsel also produced the relevant record, which reveals
that the conduct of Mr.Vishwesh Nath, one member of the earlier
Committee has been found against the interest of the Government,
therefore, his replacement became necessary resulting to which he has
been replaced by Smt. Malti Devi.
Before making any discussion on the arguments raised by the
parties, we feel it appropriate to reproduce the provisions of Section
29 as well as provisions of Section 21-A of the Act, which are
reproduced hereunder:-
29. Removal of Adhyaksha or (xxx)-(1) If in the opinion
of the State Government the Adhyaksha or the (xxx)
while acting in place of Adhyaksha wilfully omits or
refuses to perform his duties or functions under this Act
or abuses the powers vested in him or is found to be
guilty of misconduct in the discharge of his duties, [or
because physically or mentally incapacitated for
performing his duties] the State Government, after
giving the Adhyaksha or (xxx), as the case may be, a
reasonable opportunity for explanation may by order
remove him from office [and such order shall be final
and not open to be questioned in a Court of law]:
[Provided that where in an enquiry held by such
4person and in such manner as may be prescribed, an
Adhyaksha or (xxx) is prima facie found to have
committed financial and other irregularities such
Adhyaksha or (xxx) shall cease to exercise and perform
the financial and administrative powers and functions,
which shall, until he is exonerated of the charges in the
final enquiry, be exercised and performed by a committee
consisting of three elected members of the Zila
Panchayat appointed in this behalf by the State
Government.]
(2) [xxx]
(3) An Adhyaksha or [xxx], removed from his office
under this section, shall not be eligible for election as
Adhyaksha or [xxx] for a period of three years from the
date of his removal.
Section 21-A of the Act is reproduced hereunder:-
21-A. Temporary arrangement in certain cases.- When
the office of the Adhyaksha is vacant or he is unable to
discharge his functions owing to absence, illness or any
other cause, the State Government may by order, make
such arrangement, as it thinks fit, for the discharge of the
functions of such Adhyaksha until the date on which the
Adhyaksha resumes his duties.]”
Upon perusal of the provisions of Section 29 of the Act we find
that the provisions of Section 29 of the Act, so far as it relates to
appointment of Committee consisting of three elected members of
Zila Panchayat to discharge the function of Adhyaksha is concerned,
that remains operative till final decision is taken in the matter and as
soon as the enquiry is concluded with the result in either way, the role
5
of this provision comes to an end. Therefore, the argument of
Mr.Raghvendra Kumar Singh, Senior Advocate that the role of
Section 29 of the Act comes to an end only on the event of
exoneration of the President from the charges in dispute does not
convince us to interfere in the matter.
In the present case on the result of enquiry i.e. removal of
Adhyaksha of Zila Panchayat from the office of the Adhyaksha, the
post became vacant. Thereafter the role of the State Government
came into play to make an arrangement for discharge the functioning
of Adhyaksha in exercise of power provided under Section 21-A of
the Act in the nature of temporary arrangement, even State
Government also took action accordingly, therefore, we find no error
in appointment of three member committee in exercise of powers
provided under Section 21-A of the Act by the State Government.
Only one fact which appeals to us to interfere in the order is the
letter of the M.L.A. of Ruling Party, who through his letter
recommended the replacement of Mr.Vishwesh Nath as his activity
was against the interest of the Government by another member
namely Smt. Malti Devi. Though the letter is not in the original
record of the file, but noting in the file itself reveals that the said
ground has been taken in notice for his replacement and that is only
the ground for appointment of the opposite party No.4 as a member of
the Committee.
6
The functioning of Zila Panchayat or the Committee in place
there of, is a democratic functions and it should gain the faith of the
public irrespective of interest of any political party either it is ruling
or in opposition. In such a matter in order to maintain the rule of
democracy and to avoid the misuse of power by the Ruling party to
nominate its favourite persons as members of the Committee, it is
advisable to the State Government to frame an appropriate Legislation
in this regard to appoint the Members of Committee only with the
consent/resolution of the majority members of the Zila
Panchayat/local body.
Keeping in view this fact as well as rule of democracy, we think
it proper to hold that let a meeting of the members of the Zila
Panchayat be called upon to hold the meeting and to elect three
members amongst them to appoint as members of the Committee to
discharge the function of the Adhyaksha. We are informed that all the
members of the Zila Panchayat are also elected directly by the public,
therefore, the opinion of the members of the Zila Panchayat shall be
the opinion of the public and in such a manner definitely the
democracy shall prevail. Therefore, we hereby provide, that the
District Magistrate concerned shall proceed for holding of a meeting
of the Zila Pancyayat within one month for the aforesaid exercise and
he shall recommend the names of those three members in vavour of
whom resolution of the majority of members of the Zila Panchayat
are there for appointment as members of the Committee to the State
7
Government. Thereafter very soon the State Government shall
constitute a Committee accordingly to function as Adhyaksha of the
Zila Panchayat.
In the meantime the District Magistrate shall have the control
over the functioning of Zila Panchayat.
With the aforesaid observations and directions the order
impugned dated 8.6.2010, passed by the State Government, is hereby
quashed and the writ petition is disposed of finally.
Dated:22.6.2010
Banswar