Rakesh Tiwari - (1.) -Heard learned counsel for the parties.
(2.) GRAM Pradhan of village Bayara, Tehsil Domariyaganj, district Siddharthnagar resigned from the post of GRAM Pradhan on 13.5.2008 which was accepted on 27.7.2008. Thereafter the members of the GRAM Panchayat submitted a representation before respondent No. 3, the Block Development Officer, Domariaganj, district Siddharthnagar, to call a meeting of GRAM Panchayat for nomination of temporary GRAM Pradhan. Another representation was also moved on 1.9.2008 to the District Magistrate, Siddharthnagar for nomination of temporary GRAM Pradhan. It appears that an agenda was issued on 4.9.2008 in which it has been stated that a meeting of gram Panchayat will be held on 9.9.2008 with regard to nomination of Pradhan, but that meeting could not take place and hence the member of the Gram Panchayat submitted a representation on 15.9.2008 before the District Magistrate, Siddharthnagar bringing these facts to his knowledge, who nominated respondent No. 4, Rustam, son of Mohali Khan, resident of village and post Bayara, Tehsil Domariyaganj, district Siddharthnagar, as temporary Gram Pradhan in exercise of his powers under Section 12J (2) of the U. P. Panchayat Raj Act. Aggrieved, the members of Gram Panchayat represented alongwith an affidavit to the District Magistrate, Siddharthnagar praying for cancellation of nomination of respondent No. 4 and nomination of a new member of Village Panchayat as temporary Pradhan, only after a meeting of the village panchayat. The submission of the counsel for the petitioner is that as the representation was not considered, the petitioner claiming herself to be a member of Gram Panchayat, has filed this writ petition. His contention is that in judgment rendered in Usha Singh (Smt.) v. District Magistrate, Gorakhpur, 1992 HC 337 : 1992 (1) AWC 562, the Court has opined that nomination of a person as Gram Pradhan by the District Magistrate/Prescribed Authority is arbitrary if it is not made by consent of the members of the Gram Panchayat. Reliance has been made in this regard upon paragraph 6 of the judgment as under : "A perusal of Section 12J 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 12J of the Act, states that if the offices 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 principle has been laid down as to how the discretion of the prescribed authority is to be exercised and in favour of which member 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 12J 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 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 12J (2). Such an interpretation would be in consonance with the democratic principle underlying the U. P. Panchayat Raj Act, and would also make the statute constitutional.
(3.) SINCE the counsel for the petitioner has placed reliance upon Section 12J (2) which has been considered in the aforesaid judgment, it is quoted for ready reference as under : "12J. Arrangement in temporary vacancy in 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 power 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." In the aforesaid backdrop, the Court in the case of Smt. Usha Singh (supra) also observed that "Literally construed the said provisions gives absolute discretion to the prescribed authority to nominate any member of the Gaon Panchayat for this purpose." However, after opining that the aforesaid Gaon Sabha and Gram Panchayat may be taken into evidence, the Court in para 7 has held that "no doubt such an interpretation is to some extent exercise of legislative functions by the Court, and has relied upon the observations made by the Apex Court in Ratan Chand Hira Chand v. Askar Nawasjung, which is as under : "The Legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore not only necessary but obligatory on the Courts to step in to fill the lacuna. When Courts performs this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicity delegated to them to further the object of the legislation and to promote the goals of the society, or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society." ;