# Anuj Kumar v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-07
- **Case number:** Writ -C No. 12696 of 2009
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-kumar-v-state-of-u-p-ors-48341
- **Pages:** 5

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226 - U.P. Panchayat Raj Act,
1947- Sections 12-E(2), 12-(3)(A) & 12-
(3)(D) - U.P. Panchayat Raj (Election of
Member, Pradhan and UP-Pradhan) Rules,
1994 - Rule 60(2): - Election of Gram
Panchayat members were held twice
comprises of 15 wards - only 2 elected
members were subscribes oath as result
of first election and 3 towards second byeelection - functioning of the petitioner as
duly elected Gram Pradhan has obstructed
due
to
non-constituted
of
Gram
Panchayat, unless & until 2/3 elected
members Panchayat subscribes to the
oath - hence, writ petition allowed with
direction to the authority concern - to take
an appropriate steps so that rest of 10
members of Gram Panchayat would take
oath within three months or issue a fresh
order of bye-election by declaring deemed
vacancy. (Para - 16, 17, 18)

Writ Petition Allowed. (E-11)

## Text

472 INDIAN LAW REPORTS ALLAHABAD SERIES
exception to the fundamental right of
carrying business and thus has to be
interpreted strictly. A plain reading of
Clause 12 read with section 2(l) makes it
clear that the Minority Welfare Officer is
neither a person specified in Clause 12 nor
a designated officer and thus the inspection
carried out by him was without any
authority of law.

12. It has been argued by the State
that the inspection was carried out under
the oral direction of the District Magistrate,
however, no provision exists either under
the Act or the Control Order empowering
the District Magistrate to delegate his
powers. The law with regard to delegation
of power is very well settled, a power can
be delegated only if permissible and up to
that extent and without there being such
power, the powers conferred upon the
authority cannot be delegated (Delegatees
non protest delegare) as laid down in the
cases of State of Bombay vs. Shiva
Balak; AIR 1965 SC 661, NGEF vs.
Chandra (2005) 8 SCC 219 and the
judgement dated 07.05.2019 of this court
in
Writ
-C
No.
12696
of
2009
(Mohammad Suaif and another vs. State
of U.P. and others).Thus, on the first
ground itself, I am inclined to hold that the
proceedings initiated by an inspection of
'Minority
Welfare
Officer'
which
culminated in the impugned order are
clearly unsustainable.

13.

Considering
the
second
submission that the prescribed authority has
erred in disbelieving the affidavits, the
counsel for the petitioner places reliance on
the judgment of this Court in the case of
Balram Das vs. State of U.P. decided on
11.04.2022 in Writ-C No.20446 of 2017,
wherein this court has held that in the event
the prescribed authority disbelieves any
evidence given in support of the defense,
he
should
call
for
a
better
evidence/explanation in that regard from
the person concerned. In the present case,
the reasons prescribed for disbelieving the
affidavits
that
photographs
were
not
affixed, clearly cannot be termed as a
proper exercise of the power by the
prescribed authority. In any event, if the
prescribed
authority
had
reasons
to
disbelieve the said affidavits, he ought to
have called for better affidavits which has
not been done, as is clear from the records.
Thus, on that ground also, the orders are
unsustainable and are liable to be set aside.

14. I am not going into the third
question in view of the first two questions
being decided in favour of the petitioner.
For the reasons recorded above, the writ
petition deserves to be allowed. The orders
dated 14.11.2018 and 14.02.2020 are set
aside.

15. The writ petition stands allowed.
----------
(2022)04ILR A472
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ C No. 33469 of 2021

Anuj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Pratap Yadav, Sri Devbratt Yadav

Counsel for the Respondents:
C.S.C.
4 All. Anuj Kumar Vs. State of U.P. & Ors.
473
Civil Law - Constitution of India, 1950 -
Article 226 - U.P. Panchayat Raj Act,
1947- Sections 12-E(2), 12-(3)(A) & 12-
(3)(D) - U.P. Panchayat Raj (Election of
Member, Pradhan and UP-Pradhan) Rules,
1994 - Rule 60(2): - Election of Gram
Panchayat members were held twice
comprises of 15 wards - only 2 elected
members were subscribes oath as result
of first election and 3 towards second byeelection - functioning of the petitioner as
duly elected Gram Pradhan has obstructed
due
to
non-constituted
of
Gram
Panchayat, unless & until 2/3 elected
members Panchayat subscribes to the
oath - hence, writ petition allowed with
direction to the authority concern - to take
an appropriate steps so that rest of 10
members of Gram Panchayat would take
oath within three months or issue a fresh
order of bye-election by declaring deemed
vacancy. (Para - 16, 17, 18)

Writ Petition Allowed. (E-11)

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Counter affidavit filed on behalf of
respondent nos.2, 3 and 4 today, is taken on
record.

2. Heard Sri Ram Pratap Yadav,
learned counsel for the petitioner and
learned Standing Counsel for the State.

3. Present writ petition has been filed
by the petitioner Anuj Kumar, claiming to
be the duly elected Gram Pradhan of
village Bhauli, Development Block Kurara,
Tehsil-Hamirpur,
District-Hamirpur.
He
claims relief in the nature of direction upon
the District Magistrate-Hamirpur to assign
financial and administrative powers to the
petitioner to enable him to discharge all
functions of Gram Pradhan.

4. Upon perusal of the pleadings
made in the writ petition as confirmed by
the counter affidavit filed by the District
Panchayat
Raj
Officer,
Hamirpur,
it
transpires, undisputedly the petitioner was
elected as the Gram Pradhan, Gram
Panchayat Bhauli, Development Block
Kurara, District-Hamirpur on 02.05.2021.
His term is five years. Almost one year has
passed and the petitioner has yet not been
able to function as the Gram Pradhan.
Functioning of the petitioner has been
obstructed on account of non-constitution
of the Gram Panchayat Bhauli. In that
regard, it has been clearly disclosed in the
counter affidavit filed by the District
Panchayat Raj Officer, Hamirpur that Gram
Panchayat Bhauli comprises of 15 wards.
Election to all 15 wards of the said Gram
Panchayat first took place on 02.05.2021.
Of the 15 ward members elected, only 2
could be administered oath. The remaining
13
did
not
present
themselves
for
administration of oath as ward members of
the
Gram
Panchayat
Bhauli,
despite
reminders.

5. Acting in conformance to Section
12-E(2) of the Uttar Pradesh Panchayat Raj
Act, 1947 (hereinafter referred to as the
'Act'), 13 elected members of the Gram
Panchayat Bhauli who failed to subscribe
to the oath of office, were deemed to have
vacated
office/seat
vide
order
dated
10.11.2021.

6. The document filed as Annexure
CA-3 to the counter affidavit further
reveals, pursuant to the order of the State
Election Commission dated 06.01.2021, the
bye election to the aforesaid 13 vacant
wards were held and 13 members were
elected. This time only 3 of the members so
elected could be administered oath. The
remaining 10 have yet not subscribed to the
474 INDIAN LAW REPORTS ALLAHABAD SERIES
oath. The counter affidavit does not state as
to whether the said 10 persons have been
deemed to have vacated the office/seat of
member of Gram Panchayat, Bhauli.

7. In such facts, it has been stated in
the
counter
affidavit
and
has
been
vehemently urged by the learned Standing
Counsel that the Gram Panchayat has yet
not been constituted in accordance with
Section 12(3) of the Act. Unless 2/3 elected
members subscribe to the oath, the Gram
Panchayat cannot be constituted. Since the
strength of the Gram Panchayat, Bhauli is
15, necessarily, 10 members must subscribe
to the oath before the petitioner may be
allowed to function as a fullfledged Gram
Pradhan.

8. Having heard learned counsel for
the parties and having perused the record,
there can be no denial that the Gram
Panchayat may be constituted only upon
2/3 members of the total strength of the
Gram Panchayat being elected. In the
present case, that number would have to be
10. This position emerges from the plain
reading of Section 12(3)(d) read with its
proviso. It reads :

"12(3)(d) The Constitution of a
Gram Panchayat shall be notified in such
manner
as
may
be
prescribed
and
thereupon the Gram Panchayat shall be
deemed to have been duly constituted, any
vacancy therein notwithstanding :

Provided that the Constitution of
a Gram Panchayat shall not be so notified
till the Pradhan and at least two-thirds of
the members of the Gram Panchayat have
been elected."

9. Then, Section 12-E of the Act reads
as below :

"12-E. Oath of office -(1) [Every
person] shall, before entering upon any
office referred to in Sections 11-A, 12, 43 or
44, make and subscribe before such
authority as may be prescribed on oath or
affirmation in the form to be prescribed.

(2) Any member who declines or
otherwise refuses to make and subscribe
such oath or affirmation as aforesaid shall
be deemed to have vacated the office
forthwith."

10. Thus, in the first place, the
legislature has used the word 'elected'.
There is no doubt that elections have been
held to fill up all posts of the Gram
Panchayat, twice. On both occasions,
members were elected on all seats.
However, only two persons subscribed to
the oath as a result of the first election and
only 3 persons subscribed to the oath as the
result
of
the
second/bye-election.The
petitioner
does
not
assert
that
the
requirement of Section 12(3)(d) of the Act
stood fulfilled upon conclusion of election.
At the same time, it is equally true, by
virtue of communication dated 10.11.2021
issued under Section 12-E of the Act, 13
posts on which the elected members did not
subscribe to the oath, were declared
deemed vacant. Consequently, bye-election
took place. Still, 10 of the 13 persons thus
elected (as a consequence of the byeelection), have not subscribed to the oath
till date. Thus, in all only 5 (1/3rd) elected
members of the Gram Panchayat Bhauli
have made and subscribed to the oath. The
quorum is short by 5.

11. In such facts, the respondentauthorities may now seek to enforce on the
remaining 12 elected members of the Gram
Panchayat to make and subscribe to the
oath within a fixed time failing which the
4 All. Anuj Kumar Vs. State of U.P. & Ors.
475
declaration of deemed vacancy may be
visited in terms of Section 12-E of the Act.

12. While that may be done first, the
State Government and/or the Officer
authorized is not helpless in this regard.
The constitution of the Gram Panchayat
and its functioning cannot be held hostage
by elected members of that body who may
refuse to make and subscribe to the oath
and thereby, paralyse the functioning of the
grass root level democratic institution.
Section 12(3-A) of the Act offers the
complete solution in that regard. It reads :

"[12(3-A)
Notwithstanding
anything contained in any other provisions
of this Act, where due to unavoidable
circumstances or in public interest, it is not
practicable to hold an election to constitute
a Gram Panchayat before the expiry of its
duration, the State Government or an
officer authorized by it in this behalf may,
by
order,
appoint
an
Administrative
Committee consisting of such number of
persons qualified to be elected as members
of the Gram Panchayat, as it may consider
proper or an Administrator and the
members of the Administrative Committee
or the Administrator shall hold office for
such period not exceeding six months as
may be specified in the said order and all
powers, functions and duties of the Gram
Panchayat, its Pradhan and Committees
shall vest in and be exercised, performed
and discharged by such Administrative
Committee or the Administrator, as the case
may be.]"

13. In a given factual situation where
either due to unavoidable circumstances or
in public interest, it is not practicable to
hold election, the State Government or the
Officer
authorised
may
appoint
an
Administrative Committee consisting of
such number of qualified members to be
elected as members of the Gram Panchayat,
as it may consider proper.

14. Requisite number of ward
members were also elected on both
occasions. However, the majority of elected
members refused to make and subscribe to
the oath of office. It has prevented the
constitution of the Gram Sabha Bhauli for
almost a year. Correspondingly, it has,
extra-constitutionally,
injuncted
the
functioning of the petitioner as Gram
Pradhan for nearly 1/5 of his term.

15. While, it may not be said that
there are unavoidable circumstances due to
which elections to constitute the Gram
Panchayat may not be held, at the same
time in light of the facts noted above, since
10 seats of Gram Panchayat members are
lying
practically
vacant
despite
two
elections held over a period of almost one
year and in view of the further fact that
such vacancies appear to exist only on
account of the conduct of the erring elected
members, exercise in public interest, as
contemplated by Section 12(3A) of the Act
has
become
imperative.
At
present,
repeated/third
successive
elections/bye
election held at the cost of public
exchequer and time may not be in public
interest. Rule 60(2) of the UP Panchayat
Raj (Election of Member, Pradhan and UPPradhan Rules, 1994, also, appears to
indicate two attempts to be made to elect a
member of a Gram Panchayat. There is no
doubt to the fact of two elections held.

16. The Constitution of the Gram
Panchayat is the paramount objective to be
achieved. Since the minimum quorum
required to constitute the Gram Panchayat
could not be met, despite two consecutive
elections and passage of one year time, the
476 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government or the Officer authorised
by it, must ensure constitution of the Gram
Panchayat or its Administrative Committee
through other means, permitted by the
statute.

17. Accordingly, the writ petition is
allowed with a direction upon respondents
to take cognizance of the matter and pass
appropriate
orders
with
respect
to
declaration of deemed vacancy on the post
of 10 members of Gram Panchayat, Bhauli
who may still refuse to subscribe to the
oath despite further notice to be issued to
them, now. For that purpose, the time limit
of three weeks from today is fixed. Thus,
either such oath would be made and
subscribed by minimum five elected
members so as to complete the quorum of
10 members, on or before 22 April, 2022 or
a declaration of deemed vacancy under
Section 12-E of the Act would be made
with respect to the above, at the end of that
time limit.

18. Further, in the event of such
vacancy being declared, and quorum being
still not met, keeping in mind the facts
noted above, no fresh election may be
called for the next six months. However the
respondents may proceed directly, under
Section 12(3-A) of the Act and appoint
such eligible persons as members of the
Administrative Committee of the Gram
Panchayat, Bhauli as may be required to
complete the minimum quorum, over and
above the elected members who may have
subscribed oath. Such exercise may be
completed, within a period of one week
therefrom, so that the Gram Panchayat,
Bhauli may be constituted not later than
2nd May, 2022.

19. Upon, such event, the petitioner
may be allowed to function as the full
fledged Gram Pradhan for his remaining
term, in accordance with law.

20. No order as to costs.
----------
(2022)04ILR A476
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2021

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 37914 of 2013

State of U.P. & Ors. ...Petitioners
Versus
M/s Modern Medicos, Jhansi & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri R.B. Pradhan, A.C.S.C.

Counsel for the Respondents:
Sri
Pushkar
Srivastava,
Sri
Arvind
Srivastava

(A) Civil Law - Constitution of India, 1950
- Article 227 - Civil Procedure Code, 1908 -
Section 102 - High Court Act, 1861 -
Section 15 - Government of India Act,
1935 - Sections 107 & 224 (2) -
Development of Law in respect of Judicial
discharge of function of the High Court
having inherent powers qua the Courts
and Tribunals are subordinate to it -
Powers under article 227 of Constitution
are inherent and independent of the
provisions contained in other central or St.
Acts.(Para - 7, 8, 10, 11, 20)

(B) Civil Law - Constitution of India, 1950
- Article 227 - Civil Procedure Code, 1908 -
Section 102- High Court Act, 1861 -
Section 15 - Government of India Act,
1935 - Sections 107 & 224 (2) -
Preliminary objection - merely power of
revision or appeal barred or taken away
under any Act - would not amount to an
automatic abrogation of the powers of