The District Magistrate must ascertain the wishes of the elected members before appointing an interim Pradhan, as per the democratic principles of Panchayati Raj.

1. Heard Sri G. K. Singh, learned senior counsel assisted by Sri Birendra Kaushik, learned counsel for the petitioner, learned standing counsel for the State - respondents and Sri S. N. Singh, learned counsel for respondent no. 4.

2. By means of this writ petition, prayer has been made to issue writ of certiorari quashing the order dated 18.10.2016 passed by the District Magistrate, Mathura by which he has appointed the respondent no. 4 as Pradhan, till further orders, while exercising the power under S.12 - J of U.P. Panchayat Raj Act, 1947 (In short the Act).

3. The facts of this case, in brief, are that there happens to be a Gram Panchayat Ladpur in District Mathura. In a situation when the elected Pradhan was confined in jail, for performance of the work of the Pradhan, the matter came up in the notice of prescribed authority (District Magistrate), who appointed the respondent no. 4 as Pradhan on temporary basis till further orders.

4. While assailing this order learned senior counsel relying upon the two Division Bench judgements of this Court in Udaivir vs. State Election Commission of U.P. , RD 2009 (106) 151 and Pushpendra Kumar vs. State of U.P. , ADJ 2010 (4) 348, submits that before appointing the Pradhan till election or till further orders against the temporary vacancy, wishes of the elected members of the Gram Panchayat ought to have been obtained as to who should work as Pradhan.

5. Refuting the submission of learned counsel for the petitioner Sri S. N. Singh, learned counsel for respondent no. 4 submits that in view of the language used in S.12 - J of the Act there is no such requirement to obtain wishes of the elected members and it is in the sole domain of the prescribed authority (who happens to be District Magistrate) to appoint any member of the Gram Panchayat as a Pradhan on temporary basis till the regular election is held or the erstwhile incumbent resumes the office. He also submits that the majority of members have filed their affidavits in favour of the respondent no. 4, therefore it cannot be said that the appointment of respondent no. 4 was made against the wishes of the elected members. In his further submissions the District Magistrate after going through the affidavits, has appointed the respondent no. 4 as Pradhan.

6. It has also been contended that the provisions contained in the Act is silent about this and there is no such mention under S.12 - J of the Act that while appointing the Pradhan on temporary basis, wishes of the elected members has to be sought therefore the order passed by the District Magistrate is perfectly in accordance with law. In addition to that he also submits that direction given by the Division Bench amounts to legislation as the provision contained in the Act is silent and there is no mention to obtain wishes of the elected members while appointing the Pradhan on temporary basis.

7. Learned counsel for the respondent further submits that they do not propose to file counter affidavit and the writ petition may be decided on its own merit on the existing facts and law. With the consent of learned counsel for the parties the writ petition is taken up for final decision.

8. I have heard learned counsel for the parties and considered their submissions and perused the impugned order. For appreciating of the controversy involved in this case, it would be appropriate to go through the provisions contained under S.12 - J of the Act, and R.46 - B of the U.P. Panchayat Raj Rules, 1947 (in short the Rules) which are reproduced herein under:
• Temporary arr