Jaglal vs State of U.P. and Others

Rakesh Tiwari, J.—Heard Counsel for the petitioner and the standing Counsel.

Election of Gram Panchyayat of Chak Bahuddinpur, Block Pandah, district Ballia was held in August 2005, in which one Sri Gokul Chauhan was elected as Pradhan and 11 other persons including the petitioner as members of Gram Panchayat. Elected Pradhan Sri Gokul Chauhan died on 25.7.2008. Information with regard to his death was given by Block Development Officer to the District Magistrate, Balia, who in exercise of his powers u/s 12-J(2) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) nominated a three members committee comprising of Smt. Durgawati, Sri Inshwar Chand & the petitioner, to discharge the duties and functions of Pradhan vide order dated 12.8.2008. The nomination so made by the District Magistrate was accepted by Gram Panchayat in its meeting held on 14.8.2008.

One Brijendra Ram, Gram Panchayat Adhikari challenged the aforesaid order dated 12.8.2008 passed by the District Magistrate appointing three members'' committee in Writ Petition No. 46043 of 2008, which was disposed of by the High Court on 4.9.2008 directing the District Magistrate to decide application of the petitioner within a week.

Armed with the judgment and order of the High Court, Sri Brijendra Ram moved the District Magistrate, Ballia, who vide his order dated 23.10.2008 nominated respondent No. 6- Sri Hare Ram son of Ramrikha to discharge the duties and functions of Pradhan.

Grievance of the petitioner is that none of the members of aforesaid three members committee were heard by the District Magistrate before nominating respondent No. 6 to discharge the duties and functions of Pradhan.

Section 12-J(2) of the Act, provides as under:

Where the office 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.

Perusal of the aforesaid provision clearly establishes that where Pradhan or Up-Pradhan both are incapable to act, the District Magistrate has been vested with judicious discretion in legislative wisdom to nominate a member of the Gram Panchayat to discharge the duties and exercise the powers of the Pradhan until such vacancy is filled in or incapacity is removed. The power to nominate has been vested by the legislature upon the Prescribed Authority to nominate a member of the Gram Panchayat.

Contention of the Counsel for petitioner is that in the judgment rendered in Smt. Usha Singh v. District Magistrate, Gorakhpur and Ors. 1992 A.W.C 562, it has been opined in paragraph No. 6 thereof that 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 of the Gaon Panchayat 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 u/s 12-J(2) of the Act. In His Lordships opinion in that case, such an interpretation would be in consonance with the democratic principles underlying the Act and would also make the statute constitutional. However, in paragraph No. 7 of the judgment, His Lordship hastened to state that "No doubt such an interpretation is to some extent exercise of legislative functions by the court, but it is now accepted that to some extent the judiciary can exercise such legislative functions vide Ratan Chand Hira Chand v. Askar Nawasjung 1991 (2) SCC 67. In this decision the Hon''ble Supreme Court has held that the Legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, no only necessary but obligatory on the courts to steps in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society or to put it negatively to prevent the frustration of the legislation or perversion of the goals and values of the society."

In the present case, the petitioner has not been able to show any lacuna in the provisions of Section 12-J(2) of the Act nor has he challenged the vires of the aforesaid provision. The said provisions are not unconstitutional or ultra constitutional rather are intra constitutional.

It may be remembered that in Writ Petition No. 46043 of 2008 which was filed by Sri Brijendra Ram challenging appointment of a three members committee, the Court was aware of the fact that vide order dated 12.8.2008 appointment of a three members committee could not have been made to discharge functions of Gram Pradhan temporarily and only one person could be appointed. The Court in the aforesaid writ petition without entering into the controversy disposed of the writ petition with a direction that petitioner may move appropriate application before the District Magistrate concerned and if such an application is made, the District Magistrate will consider and review its order if possible within six weeks from the date of production of a certified copy of that order.

The petitioner, who is one of the members of three members committee appointed vide order dated 12.8.2008, claims a right to be heard before being removed and appointment of respondent No. 6 as Gram Pradhan for the interim period.

Apparently the petitioner was not appointed in consonance with provisions of Section 12-J(2) of the Act as the provision does not conceive a three members committee to be appointed in place of elected Pradhan, hence he has no legal right or locus standi to challenge the decision taken by the District Magistrate nominating respondent No. 6 on the basis of being one of the members of three members committee constituted by the District Magistrate vide his earlier order dated 12.8.08 which itself was per se illegal and against the provisions of law.

The Legislature in its legislative wisdom was well conscious of its intention while vesting the District Magistrate with the judicious discretion to nominate a person to fill up temporary post of Pradhan during his incapability or death or in case both Pradhan & Up Pradhan were not available. Had the legislature intended to provide for holding a meeting of members of the Gaon Panchayat for election of a Pradhan temporarily as provided in Section 12-J(2), it could have made a provision in this regard too and certainly after the judgment in Smt. Usha Singh (supra) rendered about sixteen years earlier.

In the case of Smt. Usha Singh (supra), His Lordship had only observed his personal opinion in paragraph No. 6 that where Pradhan and Up-Pradhan are incapable to act, the Prescribed Authority should ask the members of the Gaon Panchayat 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 u/s 12-J(2) of the Act but had not laid down any ratio of law as appears from paragraph No. 7 of the judgment.

In the aforesaid case, neither vires of Section 12-J(2) were challenged nor any lacuna was pointed out as in the present case, therefore, in my opinion, until and unless any lacuna is established, the discretion vested by the legislature in its wisdom upon the Prescribed Authority to make working arrangement for a limited period or temporary phase, could not be over ridden by the aforesaid judgment given in peculiar facts and circumstances of the said case, for the reason that according to paragraph No. 6 of the judgment if members of the Gram Panchayat are given power by the District Magistrate to hold meeting and elect Gram Pradhan, then discretion of the Prescribed Authority u/s 12-J(2) of the Act would make the provision redundant. It may not be forgotten that Section 12-J(2) of the Act provides discretion upon the Prescribed Authority for making a workable system and implementations of Govt. Schemes etc. for a temporary phase immediately.

If the democratic principles for election of a Gram Prdhan for temporary period to tide over a short period are required to be followed for electing the gram Prdhan from elected members, then as observed in the aforesaid judgment, why not by election of gram Pradhan by the villagers themselves. What is the guarantee that a person elected by the members amongst themselves in the meeting would follow the expectations of the people of the village. The temporary appointment is only for welfare of the village till regular election of Pradhan or Up-Pradhan is made. I am of the firm opinion that personal opinion of His Lordship in the aforesaid judgment cannot be read into provisions of Section 12-J(2) of the Act which has been enacted by the legislature in its wisdom without establishing any lacuna in the aforesaid provision and challenging the vires of the provision by the petitioner.

For all the reasons stated above, this Court is not inclined to interfere with the impugned order in exercise of its discretionary powers under Article 226 of the Constitution.

The writ petition is accordingly dismissed. No order as to costs.