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2010 Supreme(All) 2876
[2010(10) ADJ 180 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND VIRENDRA SINGH, JJ.
SHAMSHER ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 40262 and 44538 of 2010,
decided on 26th August, 2010)
Counsel :
Kamal Kumar Singh and U.N. Sharma for the Petitioner; C.S.C., A.K.S. Yadav and Devendra Kumar for the Respondents.
Headnote:U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961—Sections 7, 9, 9-A, 82, 83 and 88—Up-Pramukh—Authorization to function as Pramukh—Entitlement to—Effect of amendment Act 44 of 2007—Submission of petitioner that he being senior Up-Pramukh was entitled to discharge duties and functions of Adhyaksha in accordance with Act as amended by Act 44 of 2007 and District Magistrate erred in giving charge to respondent No. 6, who was only an elected Member—Whether after amendment made by 2007 Act, right and entitlement of Senior Up-Pramukh to discharge duties of Pramukh has come to an end or survives ?—Legislature intended that Up-Pramukh who were elected prior to Amendment Act shall continue to hold the office as if Amendment Act, 2007 has not been enacted—Non-obstante Clause 7(3) clearly contemplates to disregard of provision of 2007 Amendment Act which affects the functioning of Up-Pramukh as such—Words "hold the office as such" clearly contemplates the continuance of Up-Pramukh in the same manner and in the same capacity as he was continuing prior to Amendment Act, 2007—Functions and duties of Up-Pramukh as provided in Section 9(2) unamended and Section 83 as it existed prior to 2007 Amendment have to be conceded to a Up-Pramukh who is continuing by virtue of Section 7(3)—Up-Pramukh, who is continuing till the expiry of the term of Kshetra Panchayat cannot be said to be excluded from the motion of no confidence or removal—Up-Pramukh entitled to function as Pramukh when office of Pramukh is vacant due to temporary vacancy—District Magistrate by taking an erroneous interpretation of provisions of Sections 9(2) and 9-A has passed an order authorising respondent No. 6 to discharge functions of Pramukh in presence of Up-Pramukh having right as such—Impugned order of District Magistrate authorizing respondent No. 6 to function as Pramukh set aside—Petitioner, who is continuing as Up-Pramukh held entitled to discharge the function of Pramukh. [Paras 27 to 40]
Result; Order Accordingly.
Hon’ble Ashok Bhushan, J.—These two writ petitions raising common question of law, have been heard together and are being decided by this common judgment.
2. Brief facts of the case giving rise to these writ petitions need to be noted. The petitioner in writ petition No. 40262 of 2010 was elected as Senior Up-Pramukh, Kshetra Panchayat, Jahanaganj, District Azamgarh. A no confidence motion against Adhyaksha of the Kshetra Panchayat was passed on 29.11.2007. The amendments were made in the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as Act) on 10.12.2007. Smt. Shanti Devi, the Pramukh challenged the no confidence motion as well as amendments made in the Act by U.P. Act No. 44 of 2007 (hereinafter referred to as ‘Act of 2007’) before the Lucknow Bench of this Court which was decided alongwith writ petition No. 451 (MB) of 2008 Mamta Kanaujia v. State of U.P. and others, on 1.3.2009, dismissing all the writ petitions. An order was passed on 25.6.2010 by the prescribed authority declaring the office of the Adhyaksh vacant. By subsequent order dated 2.7.2010, the District Magistrate passed an order referring to Section 9A of the Act as well as the judgment of the Division Bench in Smt. Mamta Kanaujia’s case authorising the respondent No. 6 an elected member of the Kshetra Panchayat, who was defeated candidate for the office of the Adhyaksha to perform the duties and functions of the Adhyaksha. The said order 2.7.2010 passed by the District Magistrate has been challenged by the petitioner on the ground that the petitioner being senior Up-Pramukh was entitled to discharge the duties and functions of Adhyaksha in accordance with the Act as amended by Act of 2007 and the District Magistrate erred in giving charge to respondent No. 6, who was only an elected member.
3. In writ petition No. 44538 of 2010, the petitioner was elected member of Kshetra Panchayat, Manjhava, Mirzapur. On 22.10.2005, one Smt Shiv Kumari was elected as Pramukh against whom the no confidence motion was passed. A writ petition No. 2869 (MB) of 2008 was filed by Smt. Shiv Kumari before the Lucknow Bench of this Court, wherein an interim order was passed on 7.4.2008. The writ petition of Shiv Kumari was also dismissed on 6.2.2009 alongwith the case of Mamta Kanaujia against which Special Leave Petition was filed in the Supreme Court, which too was dismissed by the Apex Court. Subsequently, the District Magistrate passed an order on 24.7.2010, declaring the post of Adhyaksha vacant and authorising the respondent No. 7, who was senior Up-Pramukh of Kshetra Panchayat to perform the duties of the Adhyaksha. The petitioner, who was elected as member has challenged the said order claiming that in accordance with the U.P. Amendment Act 44 of 2007, Senior Up-Pramukh is not entitled to function as Pramukh and the order of District Magistrate authorising the Up-Pramukh to function as Pramukh, is contrary to the provisions of the Amendment Act 2007. Writ petition No. 40262 of 2010 is being treated as leading writ petition.
4. Sri U.N. Sharma, learned Senior Advocate, assisted by Sri K.K. Singh has appeared for the petitioner in writ petition No. 40262 of 2010, Sri C.B. Yadav, learned Senior Advocate has appeared on behalf of the respondent No. 6 and Sri Chandra Shekhar Singh, learned Additional Chief Standing Counsel has appeared for the State. Sri R.K. Mathur has appeared on behalf of the petitioner in writ petition No. 44538 of 2010.
5. Sri U.N. Sharma, learned Senior Advocate appearing for the petitioner contends that the petitioner, who was Senior Up-Pramukh elected before amendments made in the Act by U.P. Act No. 44 of 2007, is entitled to discharge the duties of Adhyaksh, the office of Adhyaksha being vacant. Sri Sharma contends that the District Magistrate has wrongly relied on the judgment of the Division Bench in Smt. Mamta Kanaujia’ case, which has no application in the facts of the present case. He submits that the or
