Gram Sabha Village Melkade P O Mehra Gaon District Almora vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

(Through Hybrid Mode)

The petitioner before this Court is a Gram Sabha Melkande Post Mehra Gaon, District Almora. The Gram Sabha has preferred this writ petition

through its Pradhan, praying for quashing of the order dated 17.04.2021, by virtue of which, the respondent No. 2, had rejected his representation

dated 15.03.2021, in compliance of the earlier direction, which was passed by the learned Single Judge of this Court, in an earlier set of litigation,

which was agitated by the Gram Sabha in Writ Petition (M/S) No. 591 of 2021.

The Constitution of India, under Article 243(b) describes Gram Sabha. The Gram Sabha, as described under Article 243(b) of the Constitution of

India, means a body consisting of persons, who are registered in the electoral rolls relating to a village comprised within the area of Panchayat at the

village level. Its constitution, as given under Article 243(b), it deals with the exercise of powers and functions of the gram sabha under Article 243A of

the Constitution of India.

The provisions of U.P.Z.A. Act, as contained under Section 127B provides, that to represent the cause of the Gram Sabha before a Court of law,

there has had to be a panel advocate to be appointed by the State in order to effectively represent the cause of the Gram Sabha. The Gram Sabha

itself cannot be represented in a Court of law by engagement of private counsel merely on the basis of resolution of the Land Management Committee

or at the behest of the Pradhan. For the purposes of convenience, Section 127B of the U.P.Z.A. & L.R. Act, 1950 is extracted here under:-

“127B. Panel Lawyers. - [(1) The State Government may, on such terms and conditions and in such manner as may be prescribed appoint, either

generally or in any case or for any specified class of cases, in respect of Gaon Sabhas of such local areas as may be specified, one or more legal

practitioners to be called Panel Lawyers.

(2) A Panel Lawyer may, subject to the provisions of sub-section (4), appear, plead and act, without any written authority on behalf of any Gaon

Sabha of the area for which he is appointed, before any Court in any suit or other case, of which he has charge, by or against the Gaon Sabha.

(3) A Panel lawyer in any Court shall be the agent of the Gaon Sabha of the area for which he is appointed for the purpose of receiving processes

against such Gaon Sabha issued by such Court.

(4) No Panel Lawyer shall, without the prior sanction of the Land Management Committee accorded by its resolution, enter into any agreement or

compromise with reference to or withdraw from, any suit or other proceeding on behalf of a Gaon Sabha.]â€​.

The said principles had been laid down by the various precedents as that reported in 2013 (120) RD 319, Kishore Vs. Gram Panchayat. Relevant

paragraph 24 is extracted hereunder:-

“24. In view of the above it cannot be disputed that bald submission that Gaon Sabha cannot be represented by a private counsel is not correct and

the issue is already covered by the Division Bench decision of this Court. A private lawyer can be engaged for which procedure has been prescribed

and that procedure has to be followed. It has not been argued before this Court that in the present case private lawyer has been engaged without

following the procedure prescribed in law. What has been argued is that in no case private lawyer can be engaged, which is not correct in view of the

decision in Babu Ram Verma (supra).â€​

In the case of Pyare Lal and others Vs. Deputy Director of Consolidation, Mainpuri Camp at Etah and others, reported in 2005 (98) RD 106,

the Hon’ble Allahabad High Court has held as under:-

“12. The present writ petition has been filed by the Gaon Sabha through its Up-Pradhan. There is no material on record to indicate that the Land

Management Committee passed any resolution authorizing Up-Pradhan to file the present writ petition. Paragraph Nos. 128 and 131 of Gaon Sabha

Manual have been framed under the rule making power conferred on the State and have the force of law and are mandatory in nature as held by this

Court in the case of Gram Panchayat v. Deputy Director of Consolidation, 1969 AWC 500; Brindavan v. Gram Samaj, 1980 AWC 243 and Gram

Panchayat v. Collector, Unnao, 1997 (3) AWC 165.

Paragraph 131 of Gaon Sabha Manual places a restriction on the Land Management Committee from engaging any lawyer other than the panel

lawyer appointed for the purpose with an exception that in important cases special lawyer can be engaged with the permission of the Collector in

writing. This writ petition has not been filed by a panel lawyer appointed to represent Gaon Sabha in this Court but through a private counsel. There is

nothing on record to indicate that any permission was granted by the Collector to engage a private counsel to file the writ petition on behalf of Gaon

Sabha as such the same is not maintainable. I am fortified in my view by a Division Bench decision of this Court in the case of Baburam Varma v.

Sub-Divisional Officer, Akbarpur District Faizabad, 1996 (Suppl) RD 10.

In view of foregoing discussions, the writ petition filed by the petitioners is not maintainable and is accordingly dismissed. However, in the facts

and circumstances of the case, there shall be no order as to costs.â€​

In the case of Gram Sabha Vs. Jagannath Singh reported in 1984 RD 193, the Court has held as under:-

“21. The next contention was about the presentation of the memo of appeal on 5-9-1974 by Sri A.N. Rai who was neither the panel lawyer

appointed by any resolution of the Land Management Committee of the Gaon Sabha nor by Collector as provided by paragraph-128 and paragraph-

131 of Gaon Sabha and Bhumi Prabandhak Samiti Manual as amended upto date. Paragraph-128 reads:

“The conduct of Gaon Sabha litigation shall not depend upon the individual discretion of the Chairman of the Bhumi Prabandhak Samiti (Land

Management Committee), but shall be a matter of resolution of the Bhumi Prabandhak Samiti (Land Management Committee) as a whole. In urgent

cases, however, the Chairman can take action on his own and seek ratification of the Bhumi Prabandhak Samiti (Land Management Committee)

afterwards by including in the agenda of the next ensuing meeting.â€​

Paragraph-131 runs as below:

“131. Lawyers have been appointed who shall represent the Bhumi Prabandhak Samiti (Land Management Committee) and give it legal advice

where necessary. The Committee shall not engage any lawyer other than the panel lawyer appointed. In important cases, however, special lawyers

can be engaged with the specific provision of the Collector in writing.

There is a Vakil or mukhtar in each tahsil and one civil and one revenue lawyer at the district headquarters. The District Government Counsel is

incharge of the whole work.

The Bhumi Prabandhak Samiti (Land Management Committee) requiring the advice of a lawyer should request the Tahsildar or the Sub-Divisional

Officer t o arrange for it.

The Chairman of Bhumi Prabandhak Samiti (Land Management Committee) shall consult the panel lawyer in all cases in which he is summoned or is

impleaded as Defendant.

If in any case the Bhumi Prabandhak Samiti (Land Management Committee) refuse to sign a plaint or to defend a case, as advised by the panel

lawyer or the special lawyer, if engaged, as the case may be, or as instructed by the Tahsildar or the Sub-Divisional Officer the Lekhpal as Secretary

of the Bhumi Prabandhak Samiti (Land Management Committee) shall act for the Bhumi Prabandhak Samiti (Land Management Committee) under

orders of the Tahsildar for the above purpose only.â€​

In the case of Gram Panchayat Pusawali, Block Junawai, Gunnaur District Budaun through its Gram Pradhan Vs. State of U.P. through its

Secretary Food and Civil Supply, Lucknow and others reported in 2007 (102) RD 201, the Court has held as under:-

“12. The learned Standing Counsel thereafter placed reliance upon the decision of a Division Bench of this Court (Lucknow Bench) in the case of

Babu Ram Verma v. Sub-Divisional Officer and Ors.: 1996 (2) A.W.C. 1035. In the said decision, their Lordships have held that without resolution of

the Gram Sabha or consent of the District Magistrate, a suit/petition on behalf of Gram Sabha cannot be filed in Court through 'Private Counsel' and it

is to be represented through Standing Counsel/Panel Lawyer appointed by the State in view of the above provisions.

It will be appreciated that procedure prescribing for Gram Sabha to be represented in the manner quoted above is with the object that funds of the

Gram Sabha, which is a public body, may not be dissipated in initiating litigation on frivolous matters or personal whims of Gram Pradhan and that

State should have control over it. In the said decision it has also been observed that provisions in this respect are mandatory.

Sri V.K. Singh, Advocate, has appeared and stated that he has been appointed as Standing Counsel to represent the Gram Sabha/Land

Management Committee in the State of Uttar Pradesh and Sri Sushil Kumar, Advocate, has no authority to file the present writ petition on behalf of

Gram Pradhan.

In view of the above, we have no doubt that in absence of appropriate resolution to file the writ petition and permission of the concerned District

Magistrate, as required under the provisions, Sri Sushil Kumar has no authority to represent the Gram Sabha.

In the result, above writ petitions are not maintainable and liable to be dismissed. Concerned Gaon Sabhas are, however, at liberty to seek

redressal of their grievances, if any, in accordance with the procedure established by law.â€​

The aforesaid judgments, wherein it has been a consistent view of the Division Bench of the different Courts including the High Court of judicature

at Allahabad, where the Division Bench has held that in view o the principles laid down in the provisions contained under Section 127B of the

U.P.Z.A. & L.R. Act, the private counsels cannot be engaged to represent the cause of an elected body i.e. Gram Sabha, as provided under the

Constitution unless the procedure is followed. In that view of the matter, on this very reason, the writ petition at the behest of Gram Sabha, being

represented by Mr. Tarun Prakash Singh Takuli, Advocate, would not be maintainable.

The learned counsel for the petitioner has argued that since in the earlier set of litigation, by way of Writ Petition (M/S) No.591 of 2021, Gram

Sabha Village-Melkande Vs. State of Uttarakhand and others, which was decided by the coordinate Bench of this Court; with a direction issued to

the respondent to decide the representation, this issue may not be of much relevance in order to create a restriction and for the Gram Sabha being

represented through a private counsel.

This Court is not in agreement with the argument extended by the learned counsel for the petitioner for the reason being that if the judgment

rendered on 12.03.2021, by the coordinate Bench of this Court is taken into consideration, the learned Single Judge, had not dealt with an aspect with

regard to the implications of Section 127B of the U.P.Z.A. & L.R. Act, as well as the ratios as referred to above.

In that view of the matter, since the Gram Sabha cannot be represented by private counsel, except after resorting to the procedure, this writ

petition would not be maintainable and the same is accordingly dismissed. However, this judgment will not prejudice the rights in case if the Gram

Sabha wants to institute the writ petition afresh through the nominated panel advocates.