R. A. Sharma, J. - (1.) - Petitioner is Up Pradhan of Gaon Sabha, Jawra, district Etah. Pradhan of this village having died, petitioner is performing the functions of Pradhan. Similarly, Pradhan ot Gaon Sabha Margayan has died and Up Pradhan of that village is acting as Pradhan.
(2.) IN this writ petition, Collector, Etah by his order dated 7-7-1990 has fixed meeting of Khetriya Samiti on 23-7-1990 for considering the motion of no confidence against its Pramukh, Sri Om Prakash. Petitioner by means of this writ petition has challenged the atoresaid order of the Collector on the ground that no notice has been issued either to the petitioner or to Up Pradhan of village Margayan on the wrong pretext that Up Pradhan is not a member of Kshetra Samiti. Learned counsel for the petitioner has argued that after the death of Pradhan, Up Pradhan substitutes Pradhan and as such has become a member of Kshetra Samiti and is entitled to a notice of the meeting fixed for consideration of no confidence motion against the Pramuth of Kshetra Samiti. Such a notice, learned counsel contends, not having been given to the petitioner and another Up Pradhan, motion of no confidence cannot be considered in the meeting fixed by the Collector. Section 15 of the U. P. Kshetlra Samiti and Zila Parishads Adhiniyam, 1961 (here-in-atter referred to as the Adhiniyam), which deals with the motion of no confidence against Pramukh or Up-Peamuch, requires delivery of a written notice of motion of no confidence signed by atleast half of the total number of members of Kshettra Samiti to the Collector and after receipt of such a notice Collector is to give notice to the members of Kshettra Samiti of not less than 15 days of such meeting. If the motion is carried in the meeting so fixed by the collector with the support of more than half of the total number of members of Kshettra Samiti for the time being, the motion shall be deemed to have been passed and after its requisite publication Pramukh is to cease to hold office. It Is, thus, olear that only the members of Kshetira Samiti can sign a notice of motion of no confidence and are entitled to a notice and to participate In the meeting when such a motion is considered. A person, who is not a member of Kshettra Samiti is not entitled to a notice or participation in the meeting in which the motion is considered. Section 6 of the Adhiniyam deals with composition of Kshettra Samiti and according to this section amongst others all Pradbans of constituent Goan Sabhas are the members of Kshettra Samiti. Second proviso of sub-section (2) of section 6 deals with the contingency where vacancy arises in the office of Pradhan. This proviso is quoted below : Section 6 (21 second proviso : "Secondly, that during the period of vacancy in the office of Pradhan, chairman of town area committee or President of notified area committee, the person (if any), holding the office of Up-Pradhan, Vice-Chairman or Vice- President as the case may be, shall be entitled (with a right to vote) to attend the meetings of the Kshettra Samiti or committee thereof in place of Pradhan, Chairman or President." Section 12-H of the U. P. Panchayat Raj Act (hereinafter referred to as Act), dealing with casual vacancies, and section 12-J of the Act which deals with the arrangement in temporary vacancies in the office of Pradan, are being quoted below : "12-H. Casual Vacancies-If a vacancy in the office of the Pradhan. Up-Pradhan or of a member of a Gaon Panchayat arises by reason of his death, removal, resignation, avoidance of his election or refusal to take oath of office, it shall be filled for the remainder of his term in the manner, as far as may be, provided in section 11-B, 11-C or 12 as the case may be." "12-J. Arrangement in temporary vacancy to 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." Section 12-H of the Act provides for the manner in which the casual vacancy, which arises by reason of death, removal, resignation, avoidance of his election or refusal to take oath of office, is to be filled for the remainder period of term. Section 12-J of the Act on the other hand deals with making of working arrangement in the temporary vacancy in the office of Pradhan whereby Up- Pradhan has been authorised to exercise all powers and discharge all duties of Pradhan. By virtue of provisions of section 12-J of the Act, Up-Pradhan can exercise all powers and discharge all duties of Pradhan but by exercising powers or discharging duties of Pradhan, Up-Pradhan does not become Pradhan. A Division Bench of this court in the case of Krishna Kishore Singhal v. State of U. P., 1981 AWC 531, after analysing the relevant provisions of Panchayat Raj Act, has laid down that by exercising the powers and discharging the duties of Pradhan under section 12-J of the Act, Up- Pradhan does not become Pradhan. Relevant passage from this judgment is extracted below : "This section is headed as "arrangement in temporary vacancy in office of Pradhan", unlike section 12-H which contains the heading "casual vacancy". The distinction "between section 12-H and section 12-J is in our opinion, self evident. Section 12-H of the Act deals with the manner in which a casual vacancy shall be filled in a permanent fashion by regular method of an election to that office or, in an event of failure of the concerned authority to hold an election for the office, by nomination by the Prescribed Authority. On the other hand. Section 12-J merely is concerned with a situation where no election or nomination has taken place, in accordance with section 11-B of the Act but only a working arrangement is made as a temporary measure. The manner in which section 12-J, is worded clearly discloses that the person who exercises the powers and discharges all duties of a Pradhan in the exigencies provided for therein does not become the Pradhan." A learned Single Judge of this court in Ram Singh v- The Collector, Faizabad, 1970 AWR 568, has also declared that after the death of a Pradhan, Up- Pradban does not become Pradhan even though he exercises the powers and discharges the duties of Pradhan and as such, Up-Pradhan is not a member of Kshettra Samiti and is neither entitled to sign the notice of motion of no confidence nor is he entitled to a notice or to participate in the meeting for consideration of motion of no confidence. Relevant passage from this judgement of the learned Single Judge is quoted below : "It has now to be considered whether during the period of vacancy in the office of Pradhan the Up-Pradhan becomes a member of the Kshettra Samiti. The second proviso to sub-section (2) of section 6 does not call the Up-Pradhan as a member of the Kshettra Samiti. It enables him only to attend and vote in the meetings of the Kshettra Samiti. It does not elevate him to the statuts of a member. He is a sort of a substitute with the right of vote. But he is not a full fledged member. Accordingly, it appears to me that he cannot sign the notice of the intention to move a motion of no confidence. Nor can he be given notice of the meeting by the Collector."
(3.) IT is true that second proviso of sub-secfion (2) of section 6 of Adhiniyam authorises the Up-Pradhan to attend the meeting of Kshettra Samiti with a right to vote, but by virtue of section 15 of the Adhiniyam only a member can sign the notice of motion of no confidence and can participate in the meeting fixed for consideration of motion of no confidence. Up-Pradhan not being Pradhan is not a member of Kshettra Samiti and as such can neither sign notice of no confidence nor is he entitled to a notice for participating in the meeting of Kshetra Samiti in which the motion of no confidence is to be considered. Second proviso to sub-section (2) to section 6 of the Adhiniyam deals with the "meetings" of Kshetra Samiti other than the meetings in which the motion of no confidence is to be considered against a Pramukh. Learned counsel for the petitioner has further argued that at the time when this court decided Ram Singh's case (supra), section 12-J of the Act provided that Up-Pradhan shall exercise such powers and discharge such duties as may be prescribed. But now by virtue of section 12-J of the Act as it stands as present, Up-Pradhan is entitled to exercise all powers and discharge all duties of Pradhan, and in view of this change in language Up- Pradhan becomes the successor and substitute of Pradhan and is entitled to be the member of Kshettra Samiti. We cannot agree with the learned counsel for the reasons that sec 12-J, as mentioned herein-before, deals with the working arrangement in cases where office of Pradhan becomes vacant by reasons of death, removal etc Only a person, who fills the office of Pradhan for the remainder of the term in accordance with sections 11-B, 11-C or 12, as laid down by section 12-H of the Act, can become a Pradhan and is entitled to be a member of Kshettra Samiti Petitioner's case does not fall under section 12-H of the Act and as such, he cannot claim a status of a Pradhan and cannot be member of the Kshettra Samiti. He can only exercise powers and discharge duties of a Pradhan under secrion 12-J of the Act. That apart, this court in the case of Krishna Kishore Singhal (supra) considered the effects of section 12-H and section 12-J after the amendment introduced in 1978 with which we respectfully agree.;