SUNIL KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition has been filed for quashing the impugned orders dated 28.8.2003 and 30.9.2003 (Annexures-6 and 8) passed by respondent No. 2, Deputy Secretary, Government of Uttar Pradesh, Lucknow, by which the decision has been taken to have a fresh election for Block Pramukh of blocks Vikram Jot and Dubaulia.

(2.) Facts and circumstances giving rise to this case are that the petitioner had been elected as a Block Pramukh, Kshettra Panchayat Vikram Jot, District Basti under the provisions of the U. P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter called the 'Adhiniyam, 1961'), on 8.3.2001, as he had earlier been elected as a member of Kshettra Panchayat on 26.6.2000 and a member of the Block Development Committee from Gram Panchayat, Dubaulia of the said block. Subsequently, the State Government, in exercise of its power under the Adhiniyam, 1961 carved out new block in the name of Dubaulia having certain villages from block Vikram Jot, block Kaptanganj and block Harraiya and Vikram Jot remained a different block. As per the said notification, the newly created block Dubaulia includes Nyay Panchayat circles of Dubaulia as well and its other villages namely ; Khushalganj, Joghata, Chakohi, Bajariya Subi and Simra. The District Magistrate, respondent No. 4 vide letter dated 17th May, 2003 sought clarification from the Principal Secretary, Panchayatraj that how should he proceed after carving out the new blocks which has excluded several villages of block Vikram Jot and even in the new block Dubaulia, several villages from other neighbouring blocks have been included. Vide letter dated 28th August, 2003, he was informed that new election is to be held for both the blocks. In pursuance thereof, the impugned order dated 30th September, 2003 (Annexure-8) has also been passed by respondent No. 2, placing reliance upon the judgment of this Court in Madan Singh v. Madhwanand Joshi, 2000 (2) AWC 1639, indicating that the petitioner ceased to be the Pramukh of block Vikram Jot, as his election as member from a constituency now falls within the territorial limit of the new created block of Dubaulia. Hence the present petition.

(3.) Shri R. N. Singh, learned senior counsel appearing for the petitioner submitted that once the petitioner stood elected as a Block Pramukh of block Vikram Jot, a right has accrued in his favour and mere division of the electoral college would not disqualify him to continue as a Block Pramukh of block Vikram Jot for the reason that the electoral college namely the elected members who had voted in election of the petitioner as a Pramukh will continue to be the members of block Vikram Jot and, therefore, the carving out the new block would not automatically annul his election as it was a case of bifurcation and not of change of electoral college. The election of the Block Pramukh cannot be set aside by an administrative order of the State Government. More so, it has been submitted that the Judgment in Madan Singh (supra), which had so heavily been relied upon by the State Government while passing the impugned order, has not attained the finality as the same has been challenged before the Hon'ble Apex Court by filing Special Leave to Appeal (Civil) No. 8312 of 2000, Madhvanand Joshi v. Madan Singh and Anr., and the Hon'ble Apex Court granted leave vide order dated 1.12.2000 and is pending consideration before the Supreme Court. In view of the provisions of Section 13 of the Adhiniyam. 1961, which provides provisions for incurring disqualification either for contesting or continuing as such. The petitioner did not incur disqualification by mere declaration of new block, for which he had been elected as a Block Pramukh. More so, in view of the proviso of Section 4 and provisions of Section 6B of the Adhiniyam, 1961, the change of electoral roll would not disentitle the petitioner to hold the post till his tenure comes to an end. More so, if there is any dispute as to whether a sitting member or office bearer has incurred disqualification, the matter requires to be referred to the Civil Judge for decision but the State is incompetent to take a decision and as contesting the election or holding the post is not a constitutional right but a statutory right, the authorities are bound to have strict adherence to the procedure prescribed by the Adhiniyam, 1961 and they are not permitted to take a decision in violation thereof. Thus, the orders impugned are liable to be set aside and petition deserves to be allowed.