- (1.) A. N. Varma, J. One Nasrat Ali Khan, was elected as a Pradhan of the concerned Gram Panchayat. He died on 1. 5. 2007. Consequent upon his death, the vacancy to the office of Pradhan occurred. The District Magistrate, vide order dated 25. 5. 2007 exercising the powers conferred under Section 12j (2) of U. P. Panchayat Raj Act, 1947 (hereinafter to be referred as an Act) nominated the petitioner as Pradhan. It appears that thereafter certain complaints were made by as many as 9 members of Gram Panchayat, with regard to functioning of the petitioner as a nominated Pradhan, whereupon the opposite party No. 3, vide his order dated 12. 7. 2007 cancelled the order dated 25. 5. 2007 and nominated Shri Avtar Singh, i. e. , opposite party No. 5, as a Pradhan. It is the order dated 12. 7. 2007 that is being assailed by the petitioner through the instant writ petition.
(2.) I have heard ShriShobhit Mohan Shukla,learned counsel for the petitioner as well as Shri Rakesh Srivastava, learned standing counsel. Shri Shukla vehemently argued that the petitioner being a Pradhan of the Gram Panchayat having been duly nominated in exercise of powers conferred under Section 12j (2) of the Act, by the District Magistrate, he could not have been removed unless the procedure prescribed under Section 95 (1) (g) and Rules framed thereunder are complied with. He further argued that the impugned order is a result of oblique intentions of nine members of the Gram Panchayat to divest the petitioner of the powers of Pradhan. He submitted that before passing of the impugned order, the petitioner ought to have been afforded an opportunity of hearing. As per his submission, in utter violation of the provisions of the Act and Rules framed thereunder, the powers of the petitioner have been withdrawn. Shri Srivastava, in opposition argued that the petitioner was not an elected Pradhan but rather a person nominated under sub-clause (2) of Section 12j of the Act, to discharge the duties and exercise the powers of Pradhan until such time the vacancy to the office of Pradhan is filled in. He argued that merely by virtue of nomination under the aforesaid provision, the petitioner does not acquire the status of an elected Pradhan, and as such, he has no right to continue, as such. According to him, there arises absolutely no question for following the provision of Section 95 (1) (g), of the Act and Rules framed thereunder inasmuch as the same applies to an elected Pradhan and not to a person who is nominated under Section 12j (2) of the Act. He has also drawn the attention of this Court towards Annexure-2 to the writ petition by which the petitioner was nominated as Pradhan, vide order passed by the District Magistrate dated 25. 5. 2007, which clearly stipulates that his nomination was subject to proper functioning of the office of Gram Pradhan. In case, there was any misutilization or misappropriation of the Government Funds, his powers shall be withdrawn.
(3.) SECTION 12j of the U. P. Panchayat Raj Act, 1947 reads as follows : Arrangement in temporary uacancy in office of Pradhan.- "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. 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. " Perusal of the aforesaid provision reveals that where the office of a Pradhan is vacant by reason of a death, removal or resignation or otherwise or where the Pradhan is incapable to act as such by reason of absence, death or otherwise the Up-Pradhan shall exercise the powers and discharge the duties, of Pradhan. Sub-section (2) contemplates that where the office of both, Pradhan and Up-Pradhan are vacant by any of the aforesaid reasons, the prescribed authority shall nominate a member of the Gram Panchayat to discharge the duties and exercise the powers of Pradhan until such time the vacancy is filled in.;