Moti Lal vs State of U.P. and Others

S.P. Srivastava, J.—Heard Shr. G. C. Bhattacharya, the learned Counsel for the Petitioner and Sri Vinod Misra, the learned Chief Standing Counsel representing the Respondents.

Perused the record.

The learned Chief Standing Counsel has produced the original record relating to the proceedings culminating in the impugned notice which has also been perused.

The Petitioner feels aggrieved by the notice/order dated 28.5.1997, whereunder the District Panchayat Raj Officer, Allahabad had fixed 19.6.1997 for holding the meeting for consideration of the motion of no-confidence brought against the Petitioner issuing necessary directions for service of notice and giving information about the proposed meeting etc. As the order indicates it has been passed in exercise of the jurisdiction contemplated u/s 14 of the Panchayat Raj Act read with Rule 33B of the Rules framed thereunder as amended.

The learned Counsel for the Petitioner has urged that the impugned notice/order has been issued by the District Panchayat Raj Officer, Allahabad who had no jurisdiction in the matter as with the creation of the new District of Kaushambi much before the issuance of the impugned order the District Panchayat Raj Officer, Allahabad ceased to have any jurisdiction in the matter as Gram Panchayat Khedua, Vikas Khand Newada is situated in the new District Kaushambi beyond the territorial limits of the District Allahabad within which the District Panchayat Raj Officer, Allahabad could exercise his jurisdiction contemplated under the amended Rule 33 (b).

The contention is that with the creation of the new District Kaushambi, the jurisdiction of the District Panchayat Raj Officer, Allahabad which extended and covered the Gram Panchayat Khedua, Vikas Khand, Newada stood curtailed and remained confined to the Gram Panchayats falling within the territorial limits of the District of Allahabad.

The learned Chief Standing Counsel has produced the notification issued by the Director Panchayati Raj, Uttar Pradesh dated 15.5.1997. notifying that the financial and Administrative functions concerning Panchayat Raj shall be continued to be performed by the District Panchayat Raj Officer, Allahabad in addition to his duties as such. Prior to the issuance of the notification referred to above the Commissioner, Allahabad Division had issued an order on 18.4.1997 that all the District level Officers of Allahabad shall, with the exception of revenue department, in addition to their duties, also look after the work of the newly created district Kaushambi so long as the District level Officers are not posted in that District.

A perusal of the aforesaid notification/order indicated that at the relevant time the District Panchayat Raj Officer, Allahabad continued to have the jurisdiction to take the action in the exercise of the authority contemplated u/s 14 of the Act read with Rule 33 (B) of the Rules framed thereunder which was saved for a limited period, which is yet to expire. It has been urged that administrative function as indicated in the notification dated 15.5.1997 does not embrace within its fold the statutory functions envisaged under Rule 33B of the Rules. In this connection, suffice it to say that Rule 33B of the Rules as amended only cast a duty on the concerned District Panchayat Raj Officer which has to be discharged by him in accordance with law. The expression ''administrative functions'' as contemplated under the notification dated 18.5.1997, it seems to me, is wide enough to include within its ambit the performance of the duty cast upon a District Panchayat Raj Officer and no separate notification was required under the Panchayat Raj Act or the Rules framed thereunder specifically conferring the power to act as District Panchayat Raj Officer of the District of Kaushambi on the District Panchayat Raj Officer, Allahabad. Retention of his jurisdiction in the matter subsequent to the creation of the District Kaushambi carved out of some portion of the District of Allahabad was permissible in the manner as adopted by the Respondent authority. The contention of the learned Counsel for the Petitioner in this regard is therefore not acceptable.

The learned Counsel for the Petitioner has next urged that the requisite conditions contemplated under Rule 33B of the Rules had not been satisfied and infact even the ''satisfaction'' as contemplated under that Rule was not recorded in the impugned order which renders the same manifestly illegal.

I have given my anxious consideration to the above submission.

The record produced by the learned Chief Standing Counsel discloses that the notice of the motion of no-confidence was signed by all the nine members and was accompanied by their affidavits which was duly sworn before a competent Notary Public. The Panchayat Raj Adhikari has made an endorsement on the affidavit that all the nine members who had sworn the affidavit had presented the notice of motion before him noticing their physical presence. It was thereafter that the impugned order had been issued.

The position in law is well-settled that the mere fact that the recital ''satisfied'' is not there does not vitiate the order in the cases where the statutory provision does not require expressly the recording of reason for satisfaction. In cases where the exercise of statutory power is subject to fulfilment of a condition, then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfilment of that condition and the burden is on the person who challenges the validity of the order to show that the said condition was not fulfilled.

In those cases, however, where the order does not contain a recital about the condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the order is challenged on the ground that the said condition is not fulfilled.

The presumption as to the regularity of the public act would apply in such a case but as soon as the order is challenged and it is said that the requisite conditions were not fulfilled before the passing of the order, the burden would be on the authority to satisfy by the other means in the absence of recital in the order itself that the condition precedent had been complied with. In this connection, reference may be made to the observations in the decisions of the Apex Court in the case of State of Haryana Vs. Hari Ram Yadav and others, and in the case of The Swadeshi Cotton Mills Co. Limited Vs. The State of U.P. and Others, .

Taking into consideration the facts and circumstances brought on record and placed by the learned Chief Standing Counsel before the Court for perusal and taking into account the ratio of the decision of this Court in the case of Smt. Ram Beti v. District Panchayat Raj Officer and Ors. Civil Misc. Writ Petition No. 14191 of 1997, decided on 7.5.1997 which stands affirmed in Special Appeal No. 356 of 1997, decided on 27.5.1997 and the ratio of the decision in the cases of Daya Shankar v. Panchayat Raj Officer and Ors. Civil Misc. Writ Petition No. 32238 of 1996, decided on 15.10.1996, as well as the ratio of the decision of this Court in the case of Smt. Premwati v. State of U.P., Civil Misc. Writ Petition No. 34814 of 1996, decided on 5.11.1996, I am of the clear opinion that there was enough material before the District Panchayat Raj Officer to come to a prima facie satisfaction as contemplated under Rule 33B of the Rules and relying upon the said material he decision to initiate the proceedings for the consideration of the motion of no-confidence in question in a meeting lawfully convened for the purpose and the impugned action cannot be held to be vitiated in law so as to warrant any interference in the present proceedings under Article 226 of the Constitution of India.

The learned Counsel for the Petitioner has tried to challenge the validity of the provisions contained in Rule 33B of the Rules as amended. The grounds on which the provision is assailed had been urged and considered in the decisions of this Court referred to hereinabove. I do not find any justifiable ground warranting a departure from the view already taken by this Court upholding the validity of the provisions in question.

In the result this writ petition being devoid of merit deserves to be and is hereby dismissed.