Point of Law: Gram Panchayat property - Members and officers not to acquire interest in contract - Section 28-C has been inserted with an object to protect property of Gram Panchayat so that persons who are in a position to influence settlement of interest in Gram Panchayat property do not utilise their position to gain unethical advantage for themselves.

JUDGMENT :

Manoj Misra, J.

1. This intra court appeal arises from a judgment and order dated 02.07.2019 of a Single Judge in Writ-C No.14609 of 2019 dismissing the writ petition of the appellant.

2. As per the report, the limitation for filing the appeal was upto 02.08.2019 but the same has been presented in February 2021 with a delay condonation application.

3. Considering the explanation offered and the fact that in between there had been large scale restriction in movement due to COVID-19 pandemic, we deem it appropriate to condone the delay in filing this appeal. Consequently, the delay condonation application is allowed. The delay in filing the appeal is condoned. Office shall assign a regular number to the appeal.

4. We have heard the learned counsel for the appellant; learned Standing Counsel for the respondents 1 to 4; and Sri Rameshwar Prasad Shukla for the respondent no.5.

5. In brief, the facts giving rise to this appeal are as follows: The husband of the sixth respondent in the year 2013 obtained a fishery lease for a period of 10 years with effect from 14.08.2013. On 18.12.2015, the sixth respondent was declared elected as a member of the Gram Panchayat concerned. On 25.04.2018, the husband of the sixth respondent died. As an interest in a fishery lease is inheritable, the sixth respondent applied for substitution as a lessee in place of her late husband. When no action was taken on her application, she filed Writ-C No.42598 of 2018 which was disposed off with a direction upon the Sub-Divisional Magistrate, Azamgarh to decide the application of the sixth respondent. Pursuant thereto, by order dated 28.02.2019, the Sub Divisional Magistrate, Sigari, Azamgarh, upon finding that the period of lease remains, allowed the application and substituted the sixth respondent in place of her deceased husband. Questioning the order dated 28.02.2019 the appellant filed Writ-C No.14609 of 2019 by claiming that without the permission of the Collector, as is necessary under Section 28-C of the U.P. Panchayat Raj Act, 1947 (for short the Act), the sixth respondent, who is member of Gram Panchayat concerned, could not acquire interest in a village tank by way of lease, etc. Negativing the above claim, the learned Single Judge dismissed the writ petition of the appellant by declaring that Section 28-C of the Act would not apply to a case where the right devolves upon a person by operation of law such as in a case of succession.

6. Aggrieved with the order of the learned Single Judge, this appeal has been filed.

7. As the fate of the appeal would depend on the import of Section 28-C of the Act, the same is extracted below:-

28-C— “Members and officers not to acquire interest in contract etc., with Bhumi Prabandhak Samiti – (1) No member or office bearer of Gram Panchayat or Bhumi Prabandhak Samiti shall, otherwise than with the permission in writing of the Collector, knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence, lease, sale, exchange, contract or employment with, by or on behalf of the Samiti concerned;

Provided that a person shall not be deemed to acquire or attempt to acquire or continue to have or stipulate for or agree to receive any share or interest in any contract or employment by reason only of his –

(a) having acquired any interest before he became a member or office bearer;

(b) having a share in a joint stock company which makes the contract; and

(c) having a share or interest in the occasional sale through the Samiti concerned of an article in which he regularly trades upto a value not exceeding Rs. 50 in any one year.

(2) No court or other authority shall enforce at the instance of any person a claim based upon a transaction in contravention of the provisions of subsection (1).”

8. The contention of the learned counsel for the appellant is that the restriction placed by the provisions of Section 28-C would al