S. C. Mathur, J. - (1.) MOHAMMAD Kasif alias Baboo who claims to be a member of Gaon Sabha Paksarawan, pargana and tahsil Salon, district Rae Bareli ana a voter at the recently concluded election for the office of Pradhan has approached this Court under Article 226 of the Constitution complaining of inaction on the part of the Sub Divisional Officer, Rae Bareli for short, SDO in disposing of his representation against the election of Sri MOHAMMAD Mobin opposite party no. 2 to the office of Pardhan of the said Gaon Sabha. In preferring the representation, the petitioner has invoked the jurisdiction of the SDO under Section 95 (1) (h) of the U. P. Panchayat Raj Act, 1947 (U. P. Act No. 36 of 1947), for short Act. Facts necessary for the disposal of the petition are as follows.
(2.) ELECTION to the office of Pradhan of the aforesaid Gaon Sabha was held on 1-7-1988. Opposite party no. 2 who was a candidate was declared elected. Section 5-B of the Act prescribes the minimum qualifying age for being chosen as a Pradhan and the same is 30 years. Petitioner's plea is that opposite party no. 2 was less than 30 years in age and was, therefore, disqualified to be chosen as Pradhan. He claims that he pointed out this fact to the Assistant Returning Officer who did not pay heed to it. He does not dispute that according to the entry in the Voters' list, opposite party no, 2 was not under age. After the declaration of result, the petitioner alongwith opposite party no. 3 Wasi Ahmad filed election Petition under section 12-C of the Act before SDO Salon which is pending consideration. Apart from filing ELECTION Petition, petitioner also moved an application on 16-7-1988, Annexure-1, before the same SDO requesting him to take action against opposite party no. 2 under section 95 (1) (h) of the Act by removing him from the office of Pradhan. The petitioner claims that apart from filing application he also filed evidence before the SDO to substantiate his plea that opposite party no. 2 was under age. This evidence comprises the transfer certificates issued by the Heads of the Primary School Paksarawan and Junior High School Paksarawan where opposite party no. 2 had allegedly studied which mentioned his date of birth as 30-7-1962. Computing opposite party no. 2's age from this date, he, at the time of election was about 26 years old. The petitioner's grievance is that despite this evidence, the SDO did not issue notice to opposite party no. 2 on his application under section 95 (1) (h) although he issued notice on the ELECTION Petition under section 12-C in which opposite party no. 2 filed his written statement wherein he did not specifically deny the date of birth alleged by the petitioner and only vaguely asserted that he was eligible to seek the election. On these facts, the petitioner has claimed two substantive reliefs. The first relief is a writ of certiorari to quash the election of opposite party no. 2 and the second relief is the issuance of writ of mandamus to command the SDO to decide the proceedings by the end of November, 1988. Certiorari Section 12-C of the Act prescribes statutory remedy to challenge the election of Pradhan. This remedy the petitioner has already availed of. He must await the result of this remedy. Having availed of this remedy, the petitioner cannot approach this Court under Article 226 of the Constitution claiming the same relief through a writ of certiorari. The writ of certiorari prayed for by the petitioner cannot, therefore, be issued. The petitioner has filed school transfer certificates referred to hereinabove as Annexures -2 and 3. These certificates appear to have been filed before the SDO also. Obvioulsly, the SDO will consider them while deciding the petitioner's ELECTION Petition. There is no occasion for this Court to make any comment on the said certificates at this stage. Mandamus So far as the claim for writ of mandamus is concerned, the petitioner will have to show that he has a right to make an application u/Sec. 95 (1) (h). The scheme of the Act shows that section 95 (1) (h) does not confer any right on a member of the Gaon Sabha or a voter at the election for the office of Pradhan. It only reserves power to the State Government to take action in appropriate cases. The power reserved is administrative and not judicial, Section 95 falls under Chapter VII which bears the heading " External Control". It has only 4 sections, 95, 95-A, 96 and 96-A. Section 95 has the marginal heading "Inspection". Sub-section (1) opens with the sentence "The State Government May ". What the State Government may do is provided for in clauses A to H. Under clause A the State Government may cause to be inspected any immovable property owned by a Gaon Sabha and used and occupied by a Gaon Panchayat or a Joint Committee or a Nyaya Panchayat, or any work in progress under the direction of such Gaon Panchayat or Joint Committee. Under clause (b) it may by an order in writing, call for and inspect a book or document in the possession or under the control of a Gaon Panchayat or a Joint Committee or a Nyaya Panchayat. Under clause (c) it may require a Gaon Panchayat or a Joint Committee or a Nyaya Panchayat to furnish such statement, report or copies of documente relating to the proceeding or duties of the Gaon Panchayat or such committee or a Nyaya Panchayat as it thinks fit. The obvious purpose of these provisions is to enable the State Government to acquire information from which it may come to the conclusion whether a particular Gaon Sabha is being managed properly or there is mismanagement therein. Under clause (d), the State Government may record in writing for the consideration of a Gaon Panchayat or Joint Committee any observation which it thinks proper in regard to the proceedings or duties of such Gaon Panchayat or Joint Committee. The purpose of this provision is to enable the State Government to give guidance to the Gaon Sabha concerned. Clause (e) empowers the State Government to institute an enquiry in respect of any matter relating to a Gaon Sabha, Gaon Panchayat or Nyaya Panchayat. The purpose of this clause is the same as that of clauses (a) to (e). Under clause (f), the State Government is competent to suspend, supersede or dissolve any Gaon Sabha or its committee if it is of the opinion that the Gaon Sabha or the committee has abused its position or has continuously failed to perform the duties imposed upon it by or under the Act or its continuance is not considered desirable in public interest. Under clause (g), the State Government may remove a member of a Gaon Sabha or its committee if the conditions mentioned in sub-clauses (i) to (v) are satisfied. Under clause (gg), it may suspend a Pardhan or Up-Pradhan or a member of a Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat against whom proceedings under clause (g) are pending or contemplated or against whom, prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is pending. Then comes clause (h) which reads as follows:- " to remove a person, if, having been elected as a Pradhan, he does not possess the qualifications specified in section 5-B, provided that- (i) no action shall be taken under clause (f), clause (g) or clause (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed ; (ii) no action shall be taken under clause (gg) on the ground that proceedings under clause (g) are pending or contemplated unless the State Government is prima facie satisfied that the grounds on which action is proposed under that clause exist. " Under clauses (g), (gg) and (h), the State Government is competent to take action against individuals and under clause (f), it is competent to take action against institutions, viz., the Gaon Sabha, the Gaon Panchayat and the committees. Let us now analyse the nature of the power conferred under the various clauses of Section 95 (1). The power conferred under clauses (a) to (c) and (e) is a purely administrative power by the exercise of which the State Government monitors the functioning of the Gaon Sabha and its executive bodies, the Gaon Panchayat and the committees. If as a result of the monitoring the State Government comes to the conclusion that a Gaon Sabha or any of its executive bodies or any of its functionaries is not functioning properly, it has been conferred with power of action under clauses (d) and (f) to (h). The power under clause (d) is advisory while the powers under clauses (f) to (h) are drastic. The power is consequential to monitoring. If the power of monitoring is administrative, the consequential power of action will also be administrative in the exercise of administrative power, a member of the Gaon Sabha and a voter at the election of Pradhan, like the petitioner cannot have any say. It follows, therefore, that the petitioner had no right of representation under section 95. Since he had no right of representation, there was no duty cast on the SDO to dispose of the representation made by him. Accordingly, the petitioner cannot claim a writ of mandamus to compel the SDO to dispose of his representation.
(3.) THE learned counsel for the petitioner however submits that the power under clause (h) is not administrative but is quasi-judicial. For making this submission, he relies upon proviso (i) to clause (h) whereunder before taking action under clause (h) opportunity of showing cause against the proposed action is required to be given. This opportunity is to be given under the said proviso in respect of proposed action not only under clause (h) but also under clauses (f) and (g). THE opportunity to show cause has indeed been provided but thereby the nature of power exerciseable under section 95 (1) is not altered. By providing for opportunity to show cause a requirement of natural justice has been given statutory recognition. It is now settled law that even in the exercise of administrative powers, principles of natural justice may be attracted. THErefore, by the mere provision contained in proviso (i), the nature of the power conferred under section 95 (1) does not get converted from an administrative power into a judicial or quasi-judicial power. In view of the above, the petition lacks merit and is liable to be dismissed. However,, before closing we would like to make it clear that the SDO is not powerless to act whenever mismanagement in a Gaon Sabha is brought to his notice by a member or a voter at the election. He has ample powers to take note of the allegations made and take action thereon. Our observations are confined to the right of a member to move an application under section 95. Section 95 confers discretionary power on the State Government to take action thereunder. So far as the right of a member of the Gaon Sabha or voter at the election is concerned, there are other provisions in the Act. Under section 14, a Pradhan can be removed by adoption of a motion of no-confidence in the prescribed manner. Another provision is section 12-C under which election of a Pradhan can be challenged by filing Election Petition. The petitioner has already taken recourse to this provision. Rights under sections 12-C and 12 are available to members of the Gaon Sabha. By taking recourse to these provisions, the members of the Gaon Sabha exercise control over the functioning of the Gaon Sabha and its bodies and functionaries. This may be described as internal control. Section 95 bears the heading " External Control ". The marginal heading is " Inspection ". The right of inspection cannot be exercised by a member of the Gaon Sabha or voter at the election. Then, the opening sentence of section 95 uses the word " may ". These are additional factors in favour of the view that the power under section 95 is discretionary and a member of a Gaon Sabha or a voter at election cannot compel its exercise.;