SHAMSHER Vs. STATE OF U P

JUDGEMENT

(1.) 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 along with writ petition No. 451 (MB) of 2008 Mamta Kanaujia v. State of U.P. and Ors. 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 along with 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.