- (1.) The appellant is aggrieved by the order of the learned Single Judge dated 06.05.2010, whereby the petition filed by respondent No. 5 against the order dated 16.12.2009 passed by the District Magistrate, Sant Kabir Nagar in exercise of the powers conferred under Section 12-J of the U.P. Panchayat Raj Act, 1947, authorising the appellant herein to exercise the powers of the Pradhan of Village Shiv Bakhari, Vikas Khand Pauli, Tehsil Dhanghata, District Sant Kabir Nagar, has been disposed of with a direction to the District Magistrate, Sant Kabir Nagar to convene a meeting of the elected members of the said village and to take appropriate decision in respect of the interim arrangement. The Single Judge has, however, permitted the appellant to continue on the post of Pradhan till fresh arrangement is made, as directed by the learned Judge.
(2.) It is submitted on behalf of the appellant that the order passed by the learned Single Judge is ex parte, without giving an opportunity to the appellant and, therefore, on this ground itself, the order impugned is liable to be set aside. It is further submitted that a perusal of Section 12-J of the U.P. Panchayt Raj Act, 1947 (hereinafter referred to as the 'Act') makes it clear that there is no requirement of consulting members, and the learned Judge, while so directing against the express language of the Act, has committed an error of law. The judgment in the case of Smt. Usha Singh v. District Magistrate, Gorakhpur and Ors.,1992 RD 337 on which reliance has been placed, it is submitted, did not interpret the law correctly and the learned Single Judge failed to correctly appreciate the ratio of law laid down in the case of Smt. Kusma Devi v. State of U.P. and Ors.,2009 106 RD 5 which has clearly taken the view that there is no requirement of consultation of elected members. The learned Single Judge has also placed reliance on a Division Bench judgment of this Court in the case of Udaivir v. State Election Commission of U.P. through its Chairman and Ors.,2009 106 RD 151 . In the said judgment, it is submitted, that the learned Bench did not address itself to the issue in question and has mainly made observations, which cannot be said to lay down any law. It is, therefore, submitted that the impugned order should be set aside.
(3.) On the other hand, on behalf of the respondents, it is submitted that the view taken in Udaivir (supra) has affirmed the view of the learned Single Judge in Smt. Usha Singh (supra), though there is no direct reference to Smt. Usha Singh (supra). It is further submitted that the attention of the learned Judge, who decided the case of Smt. Kusma Devi (supra), was not invited to the judgment of Udaivir (supra). Considering the above, as the Division Bench of this Court has upheld the view taken in Smt. Usha Singh (supra), the judgment of the learned Judge cannot be faulted.;