# Mohd. Yasin Khan v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 1026
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-07
- **Case number:** Civil Misc. Writ Petition No.42822 of 2007
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-yasin-khan-v-state-of-u-p-and-others-40988
- **Pages:** 3

## Headnote

(A) U.P. Panchayati Raj Act 1947Section-12-J (2)-Removal of nominated
village Pradhan-after death of elected
village
Pradhan-District.
Magistrate
nominated the petitioner with conditionabout cancellation/revocation at any
time without assigning any reasonpower to grant includes revocationworking on the basic of nomination
depends upto the pleasure of authoritycomplaint about irregularity committed
by
such
Nominated
Pradhan-held-
removal proper.

Held: Para 8

From the provisions Of the General
Causes Act. It is clear that when an act
confers a power unless the different
intention is there such power can be
exercised from time to time as occasion
requires, thus, the power of nomination
can
be
exercised
by
the
District
Magistrate from time to time. The
submission of the petitioner that once he
has been nominated his nomination
cannot
be
withdrawn
cannot
be
accepted. Further more this submission
also runs contrary to the very condition
of
the
petitioner's
nomination
as
contained in the letter dated 13.6.2007.
The order clearly contemplates that the
nomination of the petitioner is purely
temporary
and
can
be
withdrawn
without
any
notice,
hence,
the
submission
of
the
petitioner
that
nomination
could
not
have
been
withdrawn cannot be accepted.

(B)
Constitution
of
India-Art.
226Principle of natural justice-Revocation of
Nomination of petitioner-as nominated
village
Pradhan-complaint
of
irregularities-Section
14
of
General
clauses Act-empowers the authority to
exercise such power time to time-heldno personal right affected-opportunity of
hearing before revocation-not required.

Held: Para 8
3 All] Mohd. Yasin Khan V. State of U.P. and others
1027
The
appointment
of
a
nominee
is
generally up to the pleasure of the
authority nominating a person. After
receiving
complaints
regarding
functioning of the petitioner no error
was committed by the District Magistrate
in recalling the nomination without
giving any opportunity. Furthermore, the
termination
of
the
nomination
was
according
to
the
terms
of
the
engagement
of
the
petitioner
as
contained in the order dated 13th June,

## Text

1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
14. In view of the aforesaid
exposition of law and considering the
allegations contained in the suspension
order and charge sheet, I am of the view
that the allegations levelled against the
petitioner do not amount to 'misconduct'
and, therefore, proceeding under 1999
Rules cannot be initiated against him. The
impugned order of suspension, therefore,
cannot sustain.

15. In the result, the writ petition is
allowed.
The
impugned
order
of
suspension dated 06.07.2006 and the
charge sheet dated 06.07.2006 both are
hereby quashed. The respondents are
directed to reinstate the petitioner with all
consequential benefits.

16. However, it is made clear that if
the petitioner is an employee lacking
efficiency etc., it is open to the
respondents to take such action as
permissible under law in respect to such
aspect of the matter.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No.42822 of 2007

Mohd. Yasin Khan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Narendra Singh Chahar

Counsel for the Respondents:
S.C.
(A) U.P. Panchayati Raj Act 1947Section-12-J (2)-Removal of nominated
village Pradhan-after death of elected
village
Pradhan-District.
Magistrate
nominated the petitioner with conditionabout cancellation/revocation at any
time without assigning any reasonpower to grant includes revocationworking on the basic of nomination
depends upto the pleasure of authoritycomplaint about irregularity committed
by
such
Nominated
Pradhan-held-
removal proper.

Held: Para 8

From the provisions Of the General
Causes Act. It is clear that when an act
confers a power unless the different
intention is there such power can be
exercised from time to time as occasion
requires, thus, the power of nomination
can
be
exercised
by
the
District
Magistrate from time to time. The
submission of the petitioner that once he
has been nominated his nomination
cannot
be
withdrawn
cannot
be
accepted. Further more this submission
also runs contrary to the very condition
of
the
petitioner's
nomination
as
contained in the letter dated 13.6.2007.
The order clearly contemplates that the
nomination of the petitioner is purely
temporary
and
can
be
withdrawn
without
any
notice,
hence,
the
submission
of
the
petitioner
that
nomination
could
not
have
been
withdrawn cannot be accepted.

(B)
Constitution
of
India-Art.
226Principle of natural justice-Revocation of
Nomination of petitioner-as nominated
village
Pradhan-complaint
of
irregularities-Section
14
of
General
clauses Act-empowers the authority to
exercise such power time to time-heldno personal right affected-opportunity of
hearing before revocation-not required.

Held: Para 8
3 All] Mohd. Yasin Khan V. State of U.P. and others
1027
The
appointment
of
a
nominee
is
generally up to the pleasure of the
authority nominating a person. After
receiving
complaints
regarding
functioning of the petitioner no error
was committed by the District Magistrate
in recalling the nomination without
giving any opportunity. Furthermore, the
termination
of
the
nomination
was
according
to
the
terms
of
the
engagement
of
the
petitioner
as
contained in the order dated 13th June,
2007.

(Delivered by Hon'ble Ashok Bhushan. J.)

1. Heard counsel for the petitioner
and learned Standing Counsel.

2. By this writ petition the petitioner
has prayed for quashing the order dated
3rd September, 2007 by which the
petitioner's authorization/ nomination to
work as Pradhan has been withdrawn.

3. The Pradhan of the Village died
on 30th April, 2007 causing a vacancy.
Exercising power under Section 12-J (2)
of U.P. Panchayati Raj Act, 1947 an order
was passed by District Magistrate on 13th
June, 2007 nominating the petitioner to
discharge the duties of the Pradhan copy
of the said order has been filed as
Annexure-2 to the writ petition. The order
itself indicates that the nomination of the
petitioner was purely temporary and can
be
withdrawn
without
any
notice.
Subsequently the District Magistrate by
the impugned order dated 3.9.07 has
withdrawn
the
nomination
of
the
petitioner and appointed another person to
function as Pradhan.

4. Learned counsel for the petitioner
contended that the said order has been
passed without any opportunity and,
hence, it is wholly illegal. He further
contended that according to Section 12-J
(2) nominated persons is authorized to
continue till the vacancy in the office of
Pradhan is filled, hence, he could not have
been removed in between.

5.

Learned
Standing
Counsel
appearing for the respondents supported
the
order
and
contended
that
the
petitioner's nomination being temporary
he can be removed without any notice.

Section
12-J
(2)
of
the
U.P.
Panchayat
Raj
Act
provides
for
arrangements of temporary vacancy in the
office of Pradhan, Section 12-J (2) is as
follows:-

"Where the offices of both, Pradhan
and Up-Pradhan are vacant for any reason
whatsoever, or when both, Pradhan and
UpPradhan are incapable to act for any
reason
whatsoever,
the
prescribed
authority shall nominate a member of
(Gram Panchayat) to discharge the duties
and exercise the powers of the Pradhan
until such vacancy in the office of either
the Pradhan or Up-Pradhan is filled in, or
until such incapacity of either of two is
removed"

6. Submission of the petitioner is
that the nomination is till the vacancy is
filled, hence before the vacancy is filled
up the petitioner was not removable.

7. Section 12-J (2) provides
nomination for a member, when a statute
confers a power of a statutory authority to
do a particular thing that power can be
exercised from time to time. To nominate
under Section 12-J (2) was not a one time
power
which
after
nominating
the
petitioner exhausted. The power shall
continue with the prescribed authority to
1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
nominate, re-nominate as the exigency
may arise. In case the interpretation put
by the petitioner is accepted the power of
District Magistrate shall come to an end
after once nominating a person to
discharge the duties of Pradhan. If such
interpretation is accepted that will not
advance the object of provisions of
Section 12-J(2) of the Act 1947. U.P.
General Causes Act provides that power
conferred by a statute is to be exercisable
from time to time Section 14 of the U.P.
General Causes Act is quoted as below:-

"Power conferred on the State
Government to be exercisable from time
to time:-Where, by any (Uttar Pradesh)
Act, any power is conferred (XX) then that
power may be exercised from time to time
as occasion requires."

8. From the provisions Of the
General Causes Act. It is clear that when
an act confers a power unless the different
intention is there such power can be
exercised from time to time as occasion
requires, thus, the power of nomination
can
be
exercised
by
the
District
Magistrate from time to time. The
submission of the petitioner that once he
has been nominated his nomination
cannot be withdrawn cannot be accepted.
Further more this submission also runs
contrary to the very condition of the
petitioner's nomination as contained in the
letter dated 13.6.2007. The order clearly
contemplates that the nomination of the
petitioner is purely temporary and can be
withdrawn without any notice, hence, the
submission
of
the
petitioner
that
nomination
could
not
have
been
withdrawn cannot be accepted. The next
submission of the petitioner is that he was
required to be given an opportunity before
passing an order for removing him. The
petitioner was nominated by the District
Magistrate to discharge the function of the
Pradhan. The petitioner is not an elected
office bearer nor he can claim to have any
right to the office of Pradhan, by virtue of
nomination.
The
appointment
of
a
nominee is generally up to the pleasure of
the authority nominating a person. After
receiving
complaints
regarding
functioning of the petitioner no error was
committed by the District Magistrate in
recalling the nomination without giving
any
opportunity.
Furthermore,
the
termination
of
the
nomination
was
according to the terms of the engagement
of the petitioner as contained in the order
dated 13th June, 2007.

9. None of the submissions raised by
the petitioner has any substance. The writ
petition lacks merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2007

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 2447 of 1984

Pratap Singh Shisodhia
...Petitioner
Versus.
Board of Revenue & others ...Respondents

Counsel for the Petitioner:
Sri. Kunwar R.C. Singh

Counsel for the Respondents:
Sri. O.P. Kulsherstha.
S.C.

UPZA & LR Rules-Rule 115-M Allotment
of land- belonging to Gaon Sabhawithout
following
the
order
of
preference-petitioner
being
totally
outsider to the village-obtained patta by