# Riyaz Ahmad v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 907
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-03
- **Case number:** Writ-C No. 9521 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/riyaz-ahmad-v-state-of-u-p-ors-49438
- **Pages:** 6

## Headnote

908 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - U.P. Panchayat Raj Act, 1947 -
Sections 11-B, 11-C, 12, 12-H & 12-J -
Casual Vacancy -Temporary Arrangement
- Death of Gram Pradhan - Sections 12-H
and 12-J are to be read harmoniously.
Section 12-H deals with a permanent
vacancy which may occur by resignation,
death, or otherwise, in the office of the
Pradhan. It provides for filling the vacancy
by way of election as prescribed under
Sections 11-B and 12 of the Act where the
residual term exceeds six months. Interim
arrangement: Until such elections are
held, a temporary arrangement must be
made under Section 12-J of the Act. The
Prescribed Authority is empowered to
nominate
a
member
of
the
Gram
Panchayat to discharge the duties of the
Pradhan. While exercising powers under
Section 12-J, the Prescribed Authority
must act in accordance with the majority
opinion of the Members of the concerned
Gram Panchayat. The District Magistrate is
required to ascertain the wishes of the
Members before nominating any person
on an officiating basis to perform the
duties and functions of the Gram Pradhan.
(Para 12)

 Dismissed. (E-5)

## Text

11 All. Riyaz Ahmad Vs. State of U.P. & Ors.
907
achieve or the evil which the statute sought
to remedy.

25. Considering the aforesaid, the
Court now has to consider the statement of
objects and reasons in order to find out the
object the legislation by way of introducing
the provision of appeal, sought to achieve
or the evil which the statute sought to
remedy.

26. Perusal of statement of objects
would
indicate
that
the
object
the
legislation sought to achieve was that as
there was no provision of appeal in the Act,
1860 against the decision of the Registrar
given under Sections 3 & 4 and the
decision of the prescribed authority given
under Section 25 of the said Act due to
which the only remedy available was to file
a writ petition which was a time-consuming
and expenditure provable for the common
man therefore, it was decided to bring in
the provision of an appeal.

27. Thus from the statement of
objects also it clearly emerges that a
provision of appeal has been made against
the orders passed under Section 4 of the
Act, 1860.

28. The Court concludes that Subsection (1-A) of Section 4 of the Act, 1860
provides for an appeal against an order
made under Section 4 of the Act, 1860 to
the Commissioner and not only against
Section 4(1) of the Act, 1860.

29. Accordingly, as by means of the
order impugned dated 26.08.2023, the
Deputy
Registrar
has
approved
the
amendment in the bye-laws and has
registered the same, consequently against
the order passed under Section 4 of the Act,
1860 a statutory remedy of appeal is
available to the petitioners before the
Commissioner of the Division.

30. Keeping in view of the aforesaid
discussion, the preliminary objection as
raised by the private respondents is upheld.

31. However, as the petitioners have
directly approached this Court against the
order impugned despite having the remedy
of appeal and this Court has been seized of
the matter as such it is provided that in case
an appeal is filed by the petitioners
before the appropriate authority within
a period of two weeks from today along
with a certified copy of this order then
the appellate authority shall proceed to
decide the appeal in accordance with
law on merits after hearing all the
parties concerned within a period of
two months from the date of filing of
the appeal.

32. Accordingly, the writ petition is
dismissed on the ground of alternate
remedy, subject to aforesaid observations.
----------
(2023) 11 ILRA 907
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.11.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ-C No. 9521 of 2023

Riyaz Ahmad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Satish Kumar Sharma, Anurag Shukla

Counsel for the Respondents:
C.S.C.
908 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - U.P. Panchayat Raj Act, 1947 -
Sections 11-B, 11-C, 12, 12-H & 12-J -
Casual Vacancy -Temporary Arrangement
- Death of Gram Pradhan - Sections 12-H
and 12-J are to be read harmoniously.
Section 12-H deals with a permanent
vacancy which may occur by resignation,
death, or otherwise, in the office of the
Pradhan. It provides for filling the vacancy
by way of election as prescribed under
Sections 11-B and 12 of the Act where the
residual term exceeds six months. Interim
arrangement: Until such elections are
held, a temporary arrangement must be
made under Section 12-J of the Act. The
Prescribed Authority is empowered to
nominate
a
member
of
the
Gram
Panchayat to discharge the duties of the
Pradhan. While exercising powers under
Section 12-J, the Prescribed Authority
must act in accordance with the majority
opinion of the Members of the concerned
Gram Panchayat. The District Magistrate is
required to ascertain the wishes of the
Members before nominating any person
on an officiating basis to perform the
duties and functions of the Gram Pradhan.
(Para 12)

 Dismissed. (E-5)

(Delivered by Hon'ble Rajnosh Kumar, J.)

1. Heard Shri Anurag Shukla, learned
counsel for the petitioner and Shri
Abhishek

2. Learned counsel for the petitioner
submits that the impugned order has
wrongly, illegally and without jurisdiction
has been passed by the opposite party no.2/
District Magistrate, Sitapur under Section
12-J of the U.P. Panchayat Raj Act, 1947
(here-in-after referred as the Act), whereas
the order could have only been passed
under Section 12-H of the Act and
accordingly the provisions of Section 11-B,
Section 11-C and 12 are to be complied on
account of death of Gram Pradhan.

3. He further submits that in case the
order would have been passed under
Section 12-H, the provisions of Section 11B would come to operate and in such
situation an Administrative Committee or
Administrator is be appointed under
Section 11-B(2). He further submits that
since the term of Gram Sabha in question is
more than six months, therefore as per
proviso appended to Section 12-H, the said
provision would be applicable and not
Section 12-J. He further submits that
Section 12-J would be applicable only in
case, the term of Gram Panchayat is less
than six months and there is no requirement
of election under Section 12-H, therefore
the petitioner is constrained to approach
this Court. Learned counsel for the
petitioner relies on Pushpendra Kumar
Vs. State of U.P. through the Secretary,
Panchayat Raj, U.P. Lucknow and
Others; [2010 (110) RD 46].

4.

Learned
Standing
Counsel
vehemently opposed the submissions of
learned counsel for the petitioner and
submits that the order has rightly been
passed under Section 12-J for making
temporary arrangement on account of death
of Gram Pradhan, therefore this petition is
misconceived and liable to be dismissed.

5. I have considered the submissions
of learned counsel for the parties and I have
gone through the records.

6. At the outset, this Court is
constrained to record that learned counsel
for the petitioner has argued against the
pleadings made in the petition and the case
which has not been set out in the petition at
all, despite being warned by the Court. He
also has not argued even a single word on
the pleadings made in the petition,
therefore it is apparent that the petitioner
11 All. Riyaz Ahmad Vs. State of U.P. & Ors.
909
has no case on the basis of pleadings,
which is liable to be dismissed.

7. However in regard to the legal
arguments advanced by the learned counsel
for the

"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."

8. Section 12-H provides that 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 term in
the manner, as far as may be, provided in
Sections 11-B, 11-C, or 12, as the case may
be. Proviso appended to the section
provides 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. Therefore,
in case of vacancy under Section 12-H, the
provisions of Section 11-B, 11-C or 12, as
the case may be, would be applicable.
Section 11-B provides the election of
Pradhan, which is extracted here-in-below:-

"11-B. Election of Pradhan ? (1)
The Pradhan of the Gram Panchayat shall
be elected by the persons registered in the
electoral
rolls
for
the
territorial
constituencies of the Panchayat area from
amongst themselves.

(2) If at any general election to a
Gram Panchyat, the Pradhan is not
elected, and less than two-thirds of the total
number of members of Gram Panchayat
are elected, the State Government or an
officer authorized by it in this behalf may,
by order, either appoint ?

(i) an Administrative Committee
consisting of such number of persons
qualified to be elected as members of the
Gram Panchayat, as it may consider
propert; or

(ii) an Administrator.

(3)
The
members
of
the
Administrative
Committee
or
the
Administrator shall hold office for such
period not exceeding six months as the
910 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government may specify in the order
referred to in sub-section (2).

(4) On the appointment of an
Administrative
Committee
or
and
Administrator under sub-section (2), the
person, if any, chosen as Pradhan or
member of the Gram Panchayat before
such appointment shall cease to eb such
Pradhan or member, as the case may be,
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.

(5) The Administrative Committee
or the Administrator shall be deemed to be
duly constituted Gram Panchayat for the
purposes of this Act :

Provided that if at any time after
the appointment of the Administrative
Committee or the Administrator under subsection (2) the State Government is
satisfied that there is no difficulty in duly
constituting the Gram Panchayat, the State
Government may, notwithstanding that the
period
for
which
the
Administrative
Committee or the Administrator had been
appointed has not expired, direct the State
Election Commission for holding the
elections
for
constituting
the
Gram
Panchayat.

(6) Except as otherwise provide."

9. Section 11-B(2) provides that if at
any general election to a Gram Panchyat,
the Pradhan is not elected, and less than
two-thirds of the total number of members
of Gram Panchayat are elected, the State
Government or an officer authorized by it
in this behalf may, by order, either 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. Therefore, Administrative
Committee or Administrator in the said
section can be appointed after general
election in the Gram Panchayat, if the
Pradhan is not elected and less than 2/3rd
of the total number of members of Gram
Panchayat are elected and not in any other
exigency.

10. So far as the submission of
learned counsel for the petitioner in regard
to the proviso to Section 12-H is
concerned, it only provides that if on the
date of occurrence of the permanent
vacancy, residue of the term of the Gram
Panchayat is less than six months, the
vacancy shall not be filled, therefore, if the
term of the office of the Gram Panchayat is
less than six months on the date of vacancy
on account of the exigencies given in 12-H,
the vacancy shall not be filled in on regular
basis for the remaining period of six
months, which has no concern with the
provision made in Section 12-J for
temporary arrangement, which has to be
made in both the cases, therefore the
contention of learned counsel for the
petitioner is misconceived and not tenable
and is hereby rejected.

11. Section 12-J provides about the
temporary arrangement in certain cases,
where the office of the 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
11 All. Riyaz Ahmad Vs. State of U.P. & Ors.
911
the office of Pradhan is filled in, or until
such incapacity of Pradhan is removed.
Therefore, in case of death of Gram
Pradhan, the temporary arrangement is to
be made under Section 12-J, whereas,
Section 12-H is for permanent vacancy and
not for making any temporary arrangement
and it provides only filling of the post of
the Pradhan, UpPradhan or a member of a
Gram Panchayat arisen on account of
exigencies provided under the said section.

12. A Division Bench considered this
issue in the case of Pushpendra Kumar
Vs. State of U.P. through the Secretary,
Panchayat Raj, U.P. Lucknow and
Others (supra), relied by learned counsel
for the petitioner, and held that Section 12H and 12-J have to be read harmoniously.
Section
12-H
deals
with
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 six 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 and relying on a
Division Bench judgment of this Court in
the case of Udaivir Vs. State Election
Commission of U.P. through its Chairman
and Others [2009 (106) RD 151], this Court
has held that the Prescribed Authority has
to act in accordance with the majority
opinion of the member of the concerned
Gram Panchayat while nominating the
officiating Pradhan and observed that the
law laid down in the aforesaid case is in
consonance with the spirit of provisions of
Chapter-IX inserted in our Constitution by
the Constitution (73rd) Amendment Act
1992. The relevant paragraph-8 is extracted
here-in-below:-

"8. From a perusal of the
provisions mentioned herein above, we are
of the considered opinion that section 12-H
and 12-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 Co-ordinate 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
912 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. In view of above and considering
over all facts and circumstances of the case,
this court is of the view that submissions
advanced by learned counsel for the
petitioner are totally misconceived and
liable to be repelled and repelled.

14. This petition is, accordingly,
dismissed. No order as to costs.
----------
(2023) 11 ILRA 912
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No.15519 of 2023

M/S Jai Hanuman Construction Jagdish
Saran ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhinav Gaur,Sri Sanjay Dwivedi (Sr.
Adv.)

Counsel for the Respondents:
C.S.C, Sri J.P. Singh, Sri Pushkar Mehrotra,
Sri V.K. Singh

Civil Law - Constitution of India - Article 14,
Article 226 - Tender Process - Judicial Review -
Arbitrariness - Mala Fide - Wednesbury Principle - Uttar
Pradesh Essential Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Prahari Software -
Technical Bid Evaluation
The petitioner, M/S Jai Hanuman Construction Jagdish
Saran, challenged the orders dated 24.04.2023 and
25.04.2023 passed by respondent no. 6, declaring the
petitioner's technical bid as "non-responsive" and
awarding the tender for the expansion and beautification
of Ahraura Madihan Lalganj Road (St. Highway No. 150,
Mirzapur) to respondent no. 10. The tender, invited on
15.12.2022, required bids to be submitted via the
Prahari Software and e-tender portal. The petitioner's
technical bid was initially deemed "responsive" but was
later declared "non-responsive" on twelve counts by the
Tender Evaluating Committee due to discrepancies in
invoices and documents, while respondent no. 10's bid
was found "responsive" and most suitable. The
petitioner alleged mala fide actions by respondent no. 9
(Superintending Engineer) for continuing tender
evaluation despite being transferred, deletion of
documents from the Prahari portal, and favoritism
towards respondent no. 10. The respondents countered
that the evaluation was transparent, the petitioner's bid
failed to meet mandatory technical conditions, and
allegations of mala fide and document tampering were
baseless. Held: (1) The writ petition was dismissed. (2)
The petitioner's bid was rightly declared "nonresponsive" on eleven counts after re-evaluation by the
District Level Committee, as it failed to meet mandatory
technical conditions, including discrepancies in invoices,
ownership
documents,
and
equipment
specifications. (3) Allegations of document
deletion from the Prahari portal were baseless,
as the E-1 Sheet remained intact, and the portal
was tamper-proof after the submission window
closed. (4) Allegations of mala fide against
respondent no. 9 were unfounded, as the
tender evaluation was finalized by Yogendra
Singh, who replaced respondent no. 9, and no
evidence supported claims of favoritism. (5)
Judicial review of tender processes is limited to
examining arbitrariness, mala fide, or violations
of natural justice, as per Tata Cellular Vs U.O.I.,
National High Speed Rail Corporation Ltd. Vs
Montecarlo Limited, and Afcons Infrastructure
Ltd. Vs Nagpur Metro Rail Corporation Limited.
The court cannot substitute its decision for that
of technical experts or interfere unless the
decision is perverse, arbitrary, or biased. (6)
The tender process was transparent, complied
with
the
Wednesbury
principle
of
reasonableness, and showed no procedural
errors, jurisdictional overreach, or violations of
natural justice. (7) The petitioner failed to
establish arbitrariness, mala fide, or perversity,
and the award of the contract to respondent no.