SURYA PRAKASH KESARWANI, J. - (1.) Heard learned counsel for the petitioners and learned Standing Counsel for the State respondents.
(2.) On the preliminary objection that Sri Arvind Srivastava, learned counsel has no authority to represent the Gram Sabha since he is neither a panel counsel nor any permission has been granted by the competent authority in his favour to represent the Gram Sabha; Sri Srivastava submits as under: (i) The petitioner No.1 is the Gram Sabha and the petitioner No.2 is the village Pradhan and, therefore, the writ petition is maintainable. (ii) In the case of Mathai Lal Dube v. District Magistrate, Sant Ravidas Nagar, 2000 (4) AWC 2752 (para-24), Hon'ble Single Judge has held that in case of transfer of Gram Sabha land, the order of transfer can be challenged by members of Gram Sabha since the land of Gram Sabha is a public property and if authorities for extraneous reasons transfer it in favour of a private body, they fail to perform their statutory duty in accordance with law and their action can be challenged by any member of the Gram Sabha in public interest. (iii) Since the illegality in allotment of fair price shop in question is manifest and as such even if the writ petition is filed through a non-panel counsel and without any permission of the competent authority, the writ petition is entertain-able and the counsel directly engaged by the Gram Sabha can represent Gram Sabha.
(3.) I have carefully considered the submission of Sri Arvind Srivastava, learned counsel for the petitioner and I do not find any substance in it. A similar controversy has been considered by a Division Bench of this court in the case of Gram Panchayat Pusawali Block Junawai, Tehsil Gunnaur, District Budaun etc. v. State of U.P. and others, 2007 (1) ADJ 263 (DB) and it was held in paras 8 to 15 as under: "8. Sri Vishnu Pratap, learned Standing Counsel drew our attention to section 127-B of the U.P.Z.A. and L.R.Act, which reads as under: "127-B Panel Lawyers :- (1) The State Government may, on such terms and conditions and in such manner as may be prescribed appoint, either generally or in any case or for any specified class of cases, in respect of Gaon Sabhas of such local areas as may be specified, one or more legal practitioners to be called panel lawyers. (2) A panel lawyer may subject to the provisions of subsection (4), appear, plead and act, without any written authority on behalf of any Gaon Sabha of the area for which he is appointed before any Court in any suit or in other case, of which he has charge, by or against the Gaon Sabha. (3) A panel lawyer in any Court shall be the agent of the Gaon Sabha of the area for which he is appointed for the purpose of receiving processes against such Gaon Sabha issued by such Court. (4) No panel lawyer shall, without the prior sanction of the Land Management Committee accorded by its resolution, enter into any agreement or compromise with reference to, or withdraw from any suit or other proceeding on behalf of a Gaon Sabha." 9. The learned Standing Counsel also referred to paras 128 and 131 of the U.P. Gaon Sabha and Bhumi Prabandhak Samiti Manual which read: "128: The conduct of Gaon Sabha Litigation shall not depend upon the individual discretion of the Chairman of the Bhumi Prabandhak Samiti (Land Management Committee), but shall be a matter of a resolution of the Bhumi Prabandhak Samiti (Land Management Committee) as a whole. In urgent cases, however, the Chairman can take action on his own and seek ratification of the Bhumi Prabandhak Samiti (Land Management Committee) afterwards by including in the agenda of the next ensuing meeting. 131: Lawyers have been appointed who shall represent the Bhumi Prabandhak Samiti ( Land Management Committee ) and give it legal advice where necessary. The Committee shall not engage any lawyer other than the panel lawyer appointed. In important cases, however, special lawyers can be engaged with the specific provision of the Collector in writing. There is a Vakil or mukhtar in each tehsil and one civil and one revenue lawyer at the district headquarters. The District Government Counsel is incharge of the whole work. The Bhumi Prabandhak Samiti (Land Management Committee) requiring the advice of a lawyer should request the Tahsildar or the Sub-Divisional Officer to arrange for it. The Chairman of Bhumi Prabandhak Samiti ( Land Management Committee ) shall consult the panel lawyer in all cases in which he is summoned or is impleaded as defendant. n If in any case the Bhumi Prabandhak Samiti ( Land Management Committee ) refuses to sign a plaint or to defend a case, as advised by the panel lawyer or the special lawyer, if engaged, as the case may be, or as instructed by the Tahsildar or the Sub-Divisional Officer, the lekhpal as Secretary of the Bhunmi Prabandhak Samiti (Land Management Committee) shall act for the Bhumi Prabandhak Samiti (Land Management Committee) under orders of the Tahsildar for the above purpose only." 10. Appendix-I of the Legal Remembrancer's Manual -(PP 275) deals with instructions for conduct of Gaon Sabha Litigation., extract of which is as under: Procedure Of Litigation. 1. A Gram Samaj is a corporate body, having perpetual succession, which is vested with the capacity of suing and being sued in its statutory name. On its behalf the Land Management Committee and its Chairman are responsible for the conduct of all litigation affecting the Gaon Samaj, subject to the control, generally of the Government and locally of the Collector or the Sub-Divisional Officer. 2. The conduct of Gaon Samaj litigation shall not depend upon the individual discretion of the Chairman of the Land Management Committee, but shall be a matter of resolution of the Land Management Committee as a whole. In urgent cases, however, the Chairman can take action on his own and seek ratification of the Land Management Committee afterwards, by including it in the agenda of the next ensuing meeting. 3. In all cases where a member, Vice Chairman or Chairman of a Land Management Committee is either a party to a suit or proceeding relating to the Land Management Committee or is otherwise interested in the matter in issue, it shall, by a resolution to that effect, entrust a member, other than the said member, Vice Chairman or Chairman, as the case may be, with the conduct of the litigation." 11. The learned Standing Counsel thereafter placed reliance upon the decision of a Division Bench of this Court (Lucknow Bench ) in the case of Babu Ram Verma v. Sub-Divisional Officer and others' A.W.C. 1996 (2) 1035. In the said decision, their Lordships have held that without resolution of the Gram Sabha or consent of the District Magistrate, a suit/petition on behalf of Gram Sabha cannot be filed in Court through 'Private Counsel' and it is to be represented through Standing Counsel/Panel Lawyer appointed by the State in view of the above provisions. 12. It will be appreciated that procedure prescribing for Gram Sabha to be represented in the manner quoted above is with the object that funds of the Gram Sabha, which is a public body, may not be dissipated in initiating litigation on frivolous matters or personal whims of Gram Pradhan and that State should have control over it. In the said decision it has also been observed that provisions in this respect are mandatory. 13. Sri V.K. Singh, Advocate, has appeared and stated that he has been appointed as Standing Counsel to represent the Gram Sabha/Land Management Committee in the State of Uttar Pradesh and Sri Sushil Kumar, Advocate, has no authority to file the present writ petition on behalf of Gram Pradhan. 14. In view of the above, we have no doubt that in absence of appropriate resolution to file the writ petition and permission of the concerned District Magistrate, as required under the provisions, Sri Sushil Kumar has no authority to represent the Gram Sabha. 15. In the result, above writ petitions are not maintainable and liable to be dismissed. Concerned Gaon Sabhas are, however, at liberty to seek redressal of their grievances, if any, in accordance with the procedure established by law." ;