Pradeep Kant, J. - (1.) HEARD the learned counsel Shri S.K. Kalia, Senior Advocate, Dr. L.P. Misra, Sri Upendra Nath Misra, and Sri Akhilesh Kalra for the petitioners and Sri Jai Deep Narain Mathur, Sri D.K. Uppadhyaya and Sri Anuj Kuddesia for the respondents.
(2.) THIS is a bunch of writ petitions which initially challenged the vires of U.P. Panchayat Laws (Amendment) Ordinance 2007 (U.P. Ordinance No. 26 of 2007), but later on, since the aforesaid Ordinance was converted into an Act namely; U.P. Panchayat Laws (Amendment) Act 2007 (hereinafter referred to as the Act, 2007) (U.P. Act No. 44 of 2007), the petitions were accordingly amended and challenge has been made to the aforesaid Act, 2007. It may be stated at the outset that while challenging the Ordinance various pleas including the plea of malafide in introducing the amendment in question, in the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961(hereinafter referred to as the Act, 1961) were taken, saying that the entire amendment has been made with a malafide design, immediately after the general elections of the Assembly, when the new ruling party (Bahujan Samaj Party) came into power on 13th May 2007, only with a view to oust all the duly elected Pradhans, Pramukh and Adhyaksha of the Panchayat, most of whom did not belong to the present ruling party. But on conversion of the Ordinance into the Act, the petitioners being conscious that no malafide can be attributed to the legislation though did not make a straight challenge on the plea of malafide to the amendment made, but emphatically made an effort to prove the plea that the amendments are in essence, for introducing such a scheme in the relevant Act so as to defeat the constitutional mandate, as introduced by Seventy Third Amendment, which amendment also destroyed the democratic character of the Panchayats, and permits gross intrusion of State executive. By the impugned amendment, the offices of Senior Up-Pramukh and Junior Up-Pramukh, in the case of Kshettra Panchayat and that of Upadhyaksha, in the case of Zila Panchayat have been abolished and by virtue of Section 21-A and 9-A, the State Government or the District Magistrate have been given power to make temporary arrangement on the post of Adhyakasha or Pramukh, as the case may be, during the period of their temporary absence to their office in their office, as he thinks fit. The discretionary power conferred upon the District Magistrate or the State Government, as the case may be, for making alternative arrangement during this casual absence of the Pramukh or the Adhyaksha being bereft of any guidelines, is wholly un-canalised authorising the District Magistrate or the State Government to make such arrangement purely on whims and caprices of an executive authority.
(3.) FURTHER challenge to the amendment made by virtue of sub sections 11,12 and 13 of Section 15 of the Adhiniyam has been made whereby a no confidence motion could be brought against the Pramukh or the Adhyaksha after one year of his assuming the office and this no confidence motion shall stand passed with a majority of only more than half of the members elected for the time being as against the pre-existing block period of two years, for bringing the motion and the requisite majority of not less than 2/3rd of the members for passing the motion. The plea is that this amendment has spelled a death knell to the entire intent of the Constitution (73rd Amendment) Act, 1992 because a Pramukh who is elected by preference vote in majority cases with less than Fifty Percent (50%) votes stands defeated the very day he is elected as he is constantly under the threat of no-confidence motion.;