# Jayveer v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-21
- **Case number:** Writ C No. 29335 of 2019
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jayveer-v-state-of-u-p-ors-44986
- **Pages:** 3

## Headnote

A. U.P. Panchayat Raj Act, 1947 - Section
12-J - Temporary arrangement in certain
cases - ground of challenge - Post of
Pradhan, in question, reserved for a
member of the Scheduled Caste - A
member
of
the
Gram
Panchayat
belonging to the general category has
been
nominated
by
the
District
Magistrate to function as Pradhan -
Order passed by District Magistrate set
aside. (Para 10 & 13)

Held: - Once it is admitted that the post of
Pradhan, was of a seat reserved for a member
of
the
Scheduled
Caste
and
members
belonging to the Schedule Caste were available
for being nominated to discharge the powers
and functions of Pradhan under Section 12-J of
the Act. They should have been preferred over
a member belonging to the general category as
the seat in question was one reserved for a
Scheduled Caste. (Para 11)

Writ Petition allowed. (E-7)

List of cases cited: -

## Text

1110 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The writ petition is allowed.
However, there will be no order as to
costs.
----------
(2020)1ILR 1109

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2019
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ C No. 29335 of 2019

Jayveer ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shiv Nath Singh, Sri Surya Bhan Singh,
Sri Akhilesh Kumar

Counsel for the Respondents:
C.S.C., Sri Anuj Bajpai

A. U.P. Panchayat Raj Act, 1947 - Section
12-J - Temporary arrangement in certain
cases - ground of challenge - Post of
Pradhan, in question, reserved for a
member of the Scheduled Caste - A
member
of
the
Gram
Panchayat
belonging to the general category has
been
nominated
by
the
District
Magistrate to function as Pradhan -
Order passed by District Magistrate set
aside. (Para 10 & 13)

Held: - Once it is admitted that the post of
Pradhan, was of a seat reserved for a member
of
the
Scheduled
Caste
and
members
belonging to the Schedule Caste were available
for being nominated to discharge the powers
and functions of Pradhan under Section 12-J of
the Act. They should have been preferred over
a member belonging to the general category as
the seat in question was one reserved for a
Scheduled Caste. (Para 11)

Writ Petition allowed. (E-7)

List of cases cited: -

1. Brij Rani Singh Vs State of U.P. 2000 volume
2 AWC 1775

2. Udaiveer Vs State Election Commission of
UP, 2009 (106) RD 151

3. Shyamu Vs State of U.P. and others, 2010
(8) ADJ 459
(Delivered by Hon'ble Anjani Kumar
Mishra, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the State-respondents.

2. On the previous occasion, time
had been granted to the learned Standing
Counsel to obtain instructions. Today, on
the matter being called out, Learned
Standing Counsel has stated that despite a
communication having been sent, no
instructions have been received from the
respondents.

3. Although no notice has been
issued to respondent no:3 in the writ
petition, the same is being decided finally,
in view of the order proposed to be passed.
In
case
the
said
respondent
feels
aggrieved, it shall be open for her to apply
for recall of this order.

4. The writ petition seeks a writ of
certiorari,
quashing
the
order
dated
24.07.2018, passed by the respondent no.
2, the District Magistrate, Shahjahanpur,
under Section 12-J of the U.P. Panchayat
Raj Act.

5. It appears that the elected Pradhan of
Gram
Panchayat
Munni
Khera,
District
Shahjahanpur, was incapable of discharging his
functions, as such, on account of his
incarceration. Therefore, the respondent no. 3 has
1 All. Jayveer Vs. State of U.P. & Ors.
1111
been nominated to function as Pradhan, by the
order impugned.

6. The order is challenged on the
ground that the post of Pradhan, in
question, was reserved for a member of the
Scheduled Caste. The respondent no. 3
who has been nominated to discharge the
powers and functions of Pradhan, belongs
to the General Category. At least three
mmembers of Gram Panchayat Munni
Khera belong to the Scheduled Caste. It is,
therefore, contended that one of these
three
Gram
Panchayat
members,
belonging to the Scheduled Caste should
have been nominated by the District
Magistrate under Section 12-J of the Act,
to exercice the powers and duties of
Pradhan.

7. It is also submitted that the
impugned order is contrary to the
principles laid down by the Division
Bench in Shyamu Vs State of U.P. and
others, 2010 (8) ADJ 459. The District
Magistrate failed to confer with the elected
members of the Gram Panchayat and has
passed the impugned order on the basis of
his opinion alone.

8. To defend the impugned order reliance
has been placed by Learned Standing Counsel
upon
Udaiveer
Vs
State
Election
Commission of UP, 2009 (106) RD 151,
which holds that the District Magistrate while
exercising the powers conferred by Section 12-J
of Act should necessarily ascertain the opinion
of the elected members of the Gram Panchayat
before passing order under Section 12-J of the
said Act.

9. Learned Standing Counsel has also
placed reliance on Brij Rani Singh versus
State of U.P. 2000 volume 2 AWC 1775
specially paragraph 21, relevant portion
whereof, reads as follows:-

" The Legislature was fully
conscious of the fact that there may be
occasions and reasons for the Pradhan
which
may
incapacitate
him
from
discharging his duties and functions as
Pradhan and in such a situation the Up-Pradhan
has been permitted to exercise such powers and
the exercise of such powers by Up-Pradhan is
only an arrangement in temporary vacancy in
the office of Pradhan which would not mean that
Up-Pradhan has been elected as Pradhan."

10. In my considered opinion, the judgment
in Brij Rani Singh is not applicable in the facts and
circumstances of the case at hand. On a pointed
query by the court, counsel for the parties concede
that it is not the Up-Pradhan who has been
nominated to function as Pradhan as a temporary
arrangement, permissible under Section 12-J of the
Panchayat Raj Act. A member of the Gram
Panchayat belonging to the general category has
been nominated by the District Magistrate to
function as Pradhan.

11. In my considered opinion, once it is
admitted that the post of Pradhan, was of a seat
reserved for a member of the Scheduled Caste
the contention of counsel for the petitioner has
substance
especially
because
members
belonging to the Schedule Caste were available
for being nominated to discharge the powers
and functions of Pradhan under Section 12-J of
the Act. They should have been preferred over a
member belonging to the general category as
the seat in question was one reserved for a
Scheduled Caste. This view is supported by the
observation made by the Division Bench in
Shyamu (supra) in paragraph 16 of the
judgment which is being extracted below with
the relevant portion thereof underlined by me,
for emphasis :
1112 INDIAN LAW REPORTS ALLAHABAD SERIES

"16. The question is whether such
opinion given by the elected members would
be binding on the Presecribed authority. If
such as interepretation is given, then the power
exercised by the Prascriubed Authority under
section 12-J of the Act will have to be read
subjectect to the opinion of other members.
would not be a correct interpretation of the
law. There could be a possibility of violation of
reservation policy, and/or a person may
pressurise other members to propose his
name, and or the like. ........."

12. Since the judgment in Udaiveer
(supra), cited by learned Standing Counsel
provides that while exercising the power under
Section 12-J of the said Act, the District
Magistrate should obtain the opinion of the
elected members of the Gram Panchayat, which
view has been affirmed in the case of Shyamu
supra with the stipulation that the said opinion is
not absolutely binding, and such an exercise has
not been undertaken by the District Magistrate,
prior to passing the impugned order, in my
considered opinion, the impugned order is not
liable to be sustained. At least, there is no
mention of any such exercise having been
resorted to, in the order impugned.

13. Accordingly and in view of the
above, the writ petition is allowed. The
impugned order dated 24.07.2019 is hereby set
aside and the matter is remitted back to the
District Magistrate respondent no. 2 to pass a
fresh order under Section 12-J of the Panchayat
Raj Act, keeping in mind what has been stated
in the body of this judgment, above.

14. No order as to cost.
----------
(2020)1ILR 1111

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 32482 of 2019

Niyazuddin & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan, Sri Mahendra Singh

Counsel for the Respondents:
C.S.C., Sri Purshottam Mani Tripathi, Sri
Sanjeev Singh

A. District Magistrate-Statutory dutylimited power to ensure that the notice
for "No confidence motion" has been
presented
by
the
members
signed/supported -by at least 50 %
members of the total strength of the
House-30 days limited time to the District
Magistrate to convene the meeting.

Held, it is quite reflective from the order of the
District Magistrate now impugned in the
present
writ
petition,
that
the
District
Magistrate virtually paraded the members of
the House and gave opportunity to the
respondent Pramukh to bring men in his
support by submitting their notary affidavits.
Such an exercise of power was totally uncalled
for. Something what was done in the House
through discussion and voting, got done in the
office of the District Magistrate. Neither the
provisions as contained under Section 15 of
Adhiniyam, 1961 contemplated
any such
powers nor, any such intendment of the
Legislature
is
presumable
behind
the
incorporation of such a provision. Hence, the
order passed by the District Magistrate dated
20th September, 2019 deserves to be held bad
for undertaking an exercise beyond the
authority vested with the District Magistrate.
(Para13)

Writ Petition disposed of. (E-9)

List of cases cited: -