V.K. Shukla, J. - (1.) IN the present case petitioner is questioning the validity of the action taken in respect of nomination of Smt. Phoola Devi as Officiating Pradhan of Gram Panchayat, Paliya Tekdhar, Block Nawgarh Tehsil Shoratgarh District Siddharthnagar.
(2.) BRIEF background of the case is that one Anil Kumar Pandey was Pradhan of the aforesaid Gram Panchayat and he tendered his resignation in November, 2009. Petitioner's contention is that once office of Pradhan had fallen vacant then officiating arrangement is to be made after taking into account the majority wish of the members of Gram Panchayat concerned. Petitioner has contended that he and one Arvind Kumar were interested in filing nomination and thereafter without calling for any meeting of the Members of the Gram Panchayat on 30.01.2010 arrangement has been 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
(3.) 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 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 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 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.;