LAWS(ALL)-1981-3-25

KRISHNA KISHORE SINGHAL Vs. STATE OF U P

Decided On March 05, 1981
KRISHNA KISHORE SINGHAL Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) In the year 1972. petitioner was elected as Up-Pradban of the Gaon Sabha concerned. One Kanchhi Lal Sharma was elected as Pradhan of the Gaon Sabha at the same time. Both the petitioner as well as Kanchhi Lal Sharma took oath of Office as required by Section 12-A of the U. P. Panchayat Raj Act, 1947, hereinafter referred to as 'the Act. ' It may be noticed here that the oath which Up-Pradhan has to take before entering upon his office is not in any fashion different from the oath which a Pradhan is required to take. Some time in the year 1978, the Pradhan died and thus a casual vacancy came into existence. The petitioner started functioning as Pradhan in accordance with the provisions of Section 12 -. T of the Act. A motion has been brought for removal of the petitioner from the office of Up-Pradhan by the Gaon Panchayat. By means of this petition, the petitioner prays for an appropriate writ or order quashing the proceedings initiated against him under Section 11-C (3) of the Act. In support of the petition, learned counsel appearing for the petitioner has contended that when a casual vacancy accrued as a result of the demise of the Pradhan and the petitioner entered upon the office in his place, he acquired the status of Pradhan for the remainder period of the term of deceased Sri Kanchhi Lal Sharma and consequently he was liable to be removed from his office only in accordance with the requirement of Section 14 of the Act. It was urged that no proceedings could be taken for his removal from the office of Pradhan under Section 11 -C of the Act. Having heard the learned counsel appearing for the petitioner, we find no substance in the contention. According to Section 11-A of the Act, there shall be a Pradhan and a Up-Pradhan of the Gaon Sabha. Section 11-D deals with the election and term of the Pralhan while Section 11-C of the Act deals with the term and election of Up-Pradhan. As already stated, both these office-bearers of the Gaon Sabha take oath of office in identical terms. Section 12-M of the Act deals with situations when a casual vacancy arises either in the office of the Pradhan or Up-pradhan or of a member of a Gaon Panchayat and is in the following terms:- "if a vacancy in the office of the Pradhan, Up-Pradhan or a member of a Gaon Panchayat arises by reason of his death, removal, resignation, avoidance of his election or refusal to take oath of office, it shall be filled for the remainder of his term in the manner, as far as may be, provided in Sections 11-B, 11-C or 12 as the case may be. " The petitioner indisputably was not elected to the office of the Pradhan in the casual vacancy in accordance with the requirement of sub-section (1) of Section 11-B. He was also not nominated as Pradhan by the Prescribed Authority as contemplated by the proviso to sub-section (1) of Section 11-B of the Act. He consequently never acquired the status of a Pradhan either elected in accordance with law in the casual vacancy or nominated in accord ance with the relevant provisions of the Act. Section 12-J (1) of the Act is in the following terms:- "12-J (1) Whether the office of Pradhan vacant by reason of death, removal, resignation or otherwise, or whether the Pradhan is incapable to act by reason of absence, illness or otherwise, the Uo-Pradhan shall exercise all powers and discharge all duties of the Pradhan " This section is headed as "arrangement in temporary vacancy in office of Pradhan", unlike Section 12-H which contains the heading "casual vacancy". The distinction between Section 12-H and Section 12 J is, in our opinion, self evident Section 12-H of the Act deals with the manner in which a casual vacancy shall be filled in a permanent fashion by the regular method of an election to that office or in the event of the failure of the concerned autho rity to hold an election for the office, by nomination by the Prescribed Autho rity. On the other hand, Section 12-J merely is concerned with a situation where no election or nomination has taken place, in accordance with Section 11-B of the Act but only a working arrangement is made as a temporary measure. It may be noticed here that while Section 12-H is attracted when the casual vacancy has arisen by reason of Pradhan's death, removal, resignation, avoidance of election or refusal to take oath of office, Section 12-J is concerned even with situations where the Pradhan continues to hold that office but has become incapable of acting for the time being by reason of absence, illness or otherwise. Section 12-J clearly provides that it is the Up-Pradhan who shall, in the event of situations contemplated by Section 12-J, exercise all powers and discharge all' duties of the Pradhan. The manner in which Section 12-J, is worded clearly discloses that the person who discharges all duties of a Pradhan on the exigencies provided for therein does not become the Pradhan. Under the circumstances, it is clear that for removal of the petitioner from the office of Up-Pradhan since he is merely acting as Pradhan it is Section 11-A that applies and not Section 14 of the Act which would have applied if he had been either elected in the casual vacancy or nominated in such a vacancy. In support of his contention, learned counsel appearing for the petitioner invited our attention to a Division Bench decision of this Court in Haji Abdul Qayum v. Keshav Saran and others (A. I. R. 1964 Alld. 386) decided by V. Bhaigava an B. D. Gupta JJ. This decision has no relevance to the instant case. That was a case where in the casual vacancy that had been caused Haji Abdul Qayum had been elected in the manner prescribed under the U. P. Municipalities Act to the office of the President of the Municipal Board. The contention that since Haji Abdul Qayum had not been elected at a General Election but in a casual vacancy to him was repelled and, in our opinion, rightly so. For the reasons given above, we find no merits in this petition which is hereby rejected. .