# Pramod Kumar Chauhan v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-08
- **Case number:** Writ C No. 5448 of 2020
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-chauhan-v-state-of-u-p-ors-45879
- **Pages:** 5

## Headnote

A. Civil Law - U.P. Panchayat Raj Act,
1947-Section 95 (1)(g), 12-H & 12-J - The
Constitution of India,1950-Article 226 -
challenge to-suspension of Village Pradhan and
constitution of three member committee to
perform administrative and financial powers of
Pradhan-no express provision in the Act or the
Rules which imposes any obligation upon the
District Magistrate to take into consideration the
opinion of other elected members of Village
Panchayat before constituting the three elected
members of the committee-once the electorate
of the village has already exercised its franchise
and elected members of the Gram Panchayat
and it is from those elected members that the
three member committee is to be constituted no
further ascertainment of views of all elected
members of Gram Panchayat for the purpose of
appointing the three member committee would
be required-in the absence of any credible
evidence it would not be open to contend that
the exercise of discretion by the District
Magistrate would be arbitrary-the Act itself
safeguards
the
democratic
principles
in
appointing three member committee.(Para 5 to
8)

B. If a Pradhan or Up-Pradhan is prima facie
found to have committed financial and other
270 INDIAN LAW REPORTS ALLAHABAD SERIES
irregularities such Pradhan or Up-Pradhan shall
cease to exercise and perform the financial and
administrative powers and functions,which shall,
until he is exonerated of the charges in the final
enquiry, be exercised and performed by a
Committee
of
three
members
of
Gram
Panchayat appointed by the State Government.
The power vested in the State to appoint three
member committee has now been delegated to
the District Magistrate.(Para 3, 4 , 5)

The writ petition is dismissed.
(E-6)

## Text

7 All. Pramod Kumar Chauhan Vs. State of U.P. & Ors.
269

"... it is necessary to bear in mind
that compassionate appointment is an
exception
to
the
general
Rule
that
appointment to any public post in the
service of the State has to be made on the
basis of principles which accord with
Articles 14 and 16 of the Constitution.
Dependants of a deceased employee of the
State are made eligible by virtue of the
Policy on compassionate appointment. The
basis of the policy is that it recognizes that
a family of a deceased employee may be
placed in a position of financial hardship
upon the untimely death of the employee
while in service. It is the immediacy of the
need which furnishes the basis for the State
to allow the benefit of compassionate
appointment. Where the authority finds that
the financial and other circumstances of the
family are such that in the absence of
immediate assistance, it would be reduced
to being indigent, an application from a
dependant member of the family could be
considered. The terms on which such
applications would be considered are
subject to the policy which is framed by the
State and must fulfill the terms of the
Policy. In that sense, it is a well-settled
principle of law that there is no right to
compassionate appointment."

61. Hence, looking to the above ocean
of binding authorities, I am of the opinion
that here is a case where a direction for
compassionate appointment after almost
two decades would neither be legal nor just
nor constitutional and consistence with
scheme of such appointment.

62. In view of above exposition of
law and in the facts and circumstances of
the case, I do not find any merit in the writ
petition.

63. Dismissed.
----------
(2020)07ILR A269
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ C No. 5448 of 2020

Pramod Kumar Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Tandon

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Panchayat Raj Act,
1947-Section 95 (1)(g), 12-H & 12-J - The
Constitution of India,1950-Article 226 -
challenge to-suspension of Village Pradhan and
constitution of three member committee to
perform administrative and financial powers of
Pradhan-no express provision in the Act or the
Rules which imposes any obligation upon the
District Magistrate to take into consideration the
opinion of other elected members of Village
Panchayat before constituting the three elected
members of the committee-once the electorate
of the village has already exercised its franchise
and elected members of the Gram Panchayat
and it is from those elected members that the
three member committee is to be constituted no
further ascertainment of views of all elected
members of Gram Panchayat for the purpose of
appointing the three member committee would
be required-in the absence of any credible
evidence it would not be open to contend that
the exercise of discretion by the District
Magistrate would be arbitrary-the Act itself
safeguards
the
democratic
principles
in
appointing three member committee.(Para 5 to
8)

B. If a Pradhan or Up-Pradhan is prima facie
found to have committed financial and other
270 INDIAN LAW REPORTS ALLAHABAD SERIES
irregularities such Pradhan or Up-Pradhan shall
cease to exercise and perform the financial and
administrative powers and functions,which shall,
until he is exonerated of the charges in the final
enquiry, be exercised and performed by a
Committee
of
three
members
of
Gram
Panchayat appointed by the State Government.
The power vested in the State to appoint three
member committee has now been delegated to
the District Magistrate.(Para 3, 4 , 5)

The writ petition is dismissed.
(E-6)

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner in the present writ
petition is elected member of Gram
Panchayat Jungle Nagar Chhapra, Post
Nahar Chhapra, Tehsil Padrauna, District
Kushinagar. He is aggrieved by an order
passed
by
the
District
Magistrate
Kushinagar, dated 6.1.2020, whereby the
District Magistrate has invoked his powers
under Section 95(1)(g) of the U.P.
Panchayat Raj Act, 1947 to suspend the
administrative and financial powers of the
Village Pradhan and has constituted a three
member
committee
to
perform
the
administrative and financial powers of
Pradhan. The challenge to this order is
essentially laid on the premise that being an
elected office the functions of Pradhan can
be performed only by a committee which
has the support of all elected members of
Panchayat. Contention is that unless views
of all elected members are obtained it
would not be open for the District
Magistrate to nominate elected members of
gram panchayat to the three members
committee.

2. Sri Vishal Tandon, learned counsel
for the petitioner in support of such
submission has placed reliance upon a
division bench judgment of this Court in
Pushpendra Kumar Vs. State of U.P.
reported in 2010 (4) ADJ 348, which in
turn relies upon a previous Division Bench
Judgment of this Court in Udaivir Vs. State
Election Commission of U.P. through its
Chairman and others reported in 2009
(106) RD 151. The submission in that
regard is opposed by the learned State
Counsel.

3. In order to consider the respective
submissions advanced at the bar it would
be appropriate to notice the relevant
statutory scheme which operates in the
field.
Proviso
to
Section
95(1)(g)
empowers
the
District
Magistrate
to
constitute a three member committee of
elected members of village panchayat for
exercising administrative and financial
powers of the Village Pradhan during the
period of his suspension. The proviso to
Section 95(1)(g), which is relevant for the
present purposes, is extracted hereinafter:-

"[Provided that where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pradhan or
Up-Pradhan is prima facie found to have
committed financial and other irregularities
such Pradhan or Up-Pradhan shall cease to
exercise and perform the financial and
administrative powers and functions, which
shall, until he is exonerated of the charges
in the final enquiry, be exercised and
performed by a Committee consisting of
three
members
of
Gram
Panchayat
appointed by the State Government.]"

4. Section 95(1)(g) read with its
proviso clearly conveys legislative intent of
conducting expeditious enquiry against the
Village
Pradhan
into
allegations
of
administrative and financial lapses on his
part and to entrust such functions to a
committee consisting of three members of
the Gram Panchayat. The power vested in
7 All. Pramod Kumar Chauhan Vs. State of U.P. & Ors.
271
the
State
to
appoint
three
member
committee has now been delegated to the
District Magistrate under an appropriate
notification which is not in issue.

5. There is no express provision in the
Act or the Rules which imposes any
obligation upon the District Magistrate to
take into consideration the opinion of other
elected members of village panchayat
before
constituting
the
three
elected
members to the committee for performing
administrative and financial powers of
suspended pradhan. The submission on
behalf of petitioner to ascertain views of
other elected members before appointing
the three member committee is based upon
the Division Bench Judgments rendered by
this Court while interpreting the provisions
of Section 12-H and 12-J of the U.P.
Panchayat Raj Act, 1947, which are
reproduced hereinafter:-

"12-H. Casual Vacancy ? If a
vacancy in the office of the Pradhan, UpPradhan or a member of a Gram Panchayat
arises by reason of his death, removal,
resignation, voidance of his election or
refusal to take oath of office, it shall be
filled before the expiration of a period of
six months from the date of such vacancy,
for the remainder of his tern in the manner,
as far as may be, provided in Sections
11?B, 11-C, or 12, as the case may be :

Provided that if on the date of
occurrence of such vacancy the residue of
the term of the Gram Panchayat is less than
six months, the vacancy shall not be filled.

12-J. Temporary arrangement in
certain cases ? Where the office of Pradhan
is vacant by reason of death, removal,
resignation or otherwise or where the
Pradhan is incapable to act by reason of
absence,
illness
or
for
any
reason
whatsoever, the prescribed authority shall
nominate
a
member
of
the
Gram
Panchayat, to discharge the duties and
exercise the powers of Pradhan until such
vacancy in the office of Pradhan is filled in,
or until such incapacity of Pradhan is
removed."

6. Sections 12-H and 12-J of the Act of
1947 regulates filling up casual/temporary
vacancy in the office of Pradhan etc. The
office of Pradhan is an elected office and the
procedure for election is specified under
Section 11-B of the Act of 1947. The
Pradhan of the Gram Panchayat happens to
be the Chairperson of the Gram Panchayat by
virtue of Section 11-A(1) of the Act of 1947.
Members of the Gram Panchayat are also
elected by the electorate consisting of the
villagers whose name finds place in the
electoral roll prepared for the territorial
constituency i.e the Gram Panchayat. The
provisions contained in Sections 12-H and
12-J stipulates the manner in which the
casual/temporary vacancy in the office of
Pradhan is to be filled. For the purpose of
filling up such vacancy the provisions as are
contemplated under Section 11-B, 11-C or
12, as the case may be, shall be complied
with. The office of Pradhan since is an
elected office based on democratic principles
it is quite obvious that the opinion/wishes of
the electorate are taken into consideration
even for filling up casual/temporary vacancy
in the office of Pradhan. It is for this reason
that the subsequent division bench of this
Court in the case of Pushpendra Kumar
(supra), relying upon the earlier division
bench judgment in the case of Udaivir (supra)
observed as under in paragraph 9:-

"From a perusal of the provisions
mentioned herein above, we are of the
considered opinion that Section 12-H and 12-
272 INDIAN LAW REPORTS ALLAHABAD SERIES
J have to be read harmoniously. Section 12-H
deals with the permanent vacancy which may
occur by resignation or otherwise on the post
of Pradhan. It provides for filling up the
vacancy by way of election as provided under
Section 11-B and Section 12 of the Act where
the residual term is more than 6 months.
However, till the elections are held, a
temporary arrangement has to be made taking
recourse to the provisions of Section 12-J of
the Act and the Prescribed Authority has been
given power to nominate a Gram Pradhan to
discharge the duty of the Pradhan. The
provisions of Section 12-J came up for
consideration before a Division Bench in the
case of Udaivir (supra) and this Court has
held that the Prescribed Authority has to act
in accordance with the majority opinion of
the Members of the concerned Gram
Panchayat while nominating the officiating
Pradhan. The law laid down in the aforesaid
case is in consonance with the spirit of the
provisions of Chapter IX inserted in our
Constitution by the Constitution (Seventy
third) Amendment Act 1992 which provides
for constitution of Panchayats at the village,
empowering the villagers to manage their
affairs at the local level themselves. The
learned counsel for the appellant has not been
able to persuade us to take a different view.
We are in respectful agreement with the view
taken by the coordinate Bench in the case of
Udai Veer (supra). In this view of the matter,
we are of the considered view that the learned
single Judge was right in directing the District
Magistrate to ascertain the wishes of the
Members of the Gram Panchayat before
nominating any person on officiating basis to
discharge the duties and functions of the
Gram Pradhan."

7. Unlike Section 12-H and 12-J of
the Act of 1947 which regulates the manner
of filling up of casual/temporary vacancy to
the office of elected Pradhan, Section
95(1)(g) merely provides for exercise of
administrative and financial powers of
Pradhan by a three member committee
during the conduct of enquiry against him.
The office of Pradhan itself has not fallen
vacant. The question of appointing Pradhan
against
casual/temporary
vacancy
or
ascertaining views of electorate for such
purposes does not arise. The exigency
which arose before the Division Bench in
the case of Pushpendra Kumar (supra) and
Udaivir (supra) are entirely distinct and
would not arise in the facts of the present
case. The Pradhan continues to remain in
office in the present case and the object of
appointing three member committee is only
to secure an expeditious and fair enquiry
against the Pradhan. The three members
committee consists of elected members of
Gram Panchayat. Ordinarily the number of
elected members of Panchayat vary from
12 and above. All members of Panchayat
are elected persons and in the absence of
any express provision in the statute this
Court would not be justified in insisting
upon the requirement of ascertaining view
of all members for the purposes of
appointing three member committee. Such
a requirement otherwise need not be read in
the proviso to Section 95(1)(g) particularly
as the object of democratic functioning is
amply safeguarded by the appointment of
elected members only to the three member
committee.

8. The issue needs to be examined
from another aspect also. In the event
opinion of such elected persons are insisted
upon, it would not serve any purpose or
objective, inasmuch as, it is quite possible
that the elected members may not be
unanimous in their views about the elected
persons to be appointed to the three
member committee. Ultimately, it would be
left to the discretion of the District
7 All. Krishna Kumar Vs. State of U.P. & Ors.
273
Magistrate to appoint the elected members
to the three member committee. In the
absence of any credible material it would
not be open to contend that the exercise of
discretion by the District Magistrate would
be arbitrary. Once the electorate of the
village has already exercised its franchise
and
elected
members
to
the
Gram
Panchayat and it is from those elected
members that the three member committee
is to be constituted no further ascertainment
of views of all elected members of Gram
Panchayat for the purpose of appointing the
three
member
committee
would
be
required. The exigency which was being
dealt with by the Division Bench, therefore,
is not found to be attracted in the facts of
the present case.

9. Though Mr. Tandon has laid much
emphasis upon following of democratic
principles in appointing the three member
committee but the Court finds that the
scheme contained in the Act duly safeguards
the democratic principles by requiring only
elected members of Gram Panchayat to be
appointed to the three member committee. I
am therefore not inclined to accept the
argument advanced on behalf of the
petitioners.

10. The writ petition lacks merit and is
accordingly dismissed.
----------
(2020)07ILR A273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.06 2020

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ C No. 6146 of 2020

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

Counsel for the Petitioner:
Sri Madhup Narain Shukla

Counsel for the Respondents:
C.S.C., Sri Azad Rai, Sri Siddharth Saran

A. Civil Law - Uttar Pradesh Revenue
Code, 2006-Section 128 -The Constitution
of India,1950-Article 226 - applicationcancellation of allotment of Plot -the said
allotment was not in accordance with law as per
procedure prescribed by UPZA Act, 1950petitioner did not claim any legal possession
over
the
disputed
plots-petitioner
is
not
aggrieved as he is not suffering a legal
grievance nor he has wrongly deprived him of
something-as the land was recorded as Banzar
in the revenue records which had vested in the
State Government-eviction of the unauthorized
occupant from the land u/s 122-B of the Act
,1950 is not a condition precedent for allotment
of any land u/s 195, 197, and 198 of the Act,
1950-therefore proceedings for eviction of the
unauthorized occupant would have to be taken
after the allotments had been made u/s 198-A
of the Act.(Para 3 to 20)

The petitioner alleged that the allotment
made in favour of the respondents was made
without
any
resolution
by
the
Land
Management Committee and without any
public
proclamation.
The
petitioner
and
certain other villagers had planted their trees
on the said plot; thus the plot was not vacant
and could not have been allotted u/s 195 of
the Act,1950. (Para 3)

The writ petition is dismissed. (E-6)

List of Cases Cited: -

1.Munshi Vs St. Of U.P. & ors. (2012) 117 RD
615

2.Kalika Prasad & ors. Vs Board of Revenue &
ors. (2009) 106 RD 39

(Delivered by Hon'ble Salil Kumar Rai, J.)