# Smt. Kamala Devi v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1002
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Writ - C No. 7195 of 2022
- **Bench:** Rajan Roy, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamala-devi-v-state-of-u-p-ors-51401
- **Pages:** 14

## Headnote

Civil Law - U.P. Panchayat Raj Act, 1947 -
Section 95(1)(g) - U.P. Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997 - Rule 3,
Rule 5, Rule 6 - Locus Standi of Complainant
- Necessary and Proper Party - Writ Petition
Challenging Seizure of Gram Pradhan's Powers -
Article 226 of the Constitution of India,1950 -
The petitioner, a Gram Pradhan, challenged an
order under the proviso to Section 95(1)(g) of
the U.P. Panchayat Raj Act, 1947, seizing her
administrative and financial powers during a
preliminary enquiry into alleged irregularities,
initiated based on a complaint by a Gram Sabha
member. The complainant sought impleadment
in the writ petition, prompting a reference by a
Single Judge to a Division Bench to determine:
(1) whether the complainant has locus standi to
be impleaded in such a writ petition, and (2)
whether the Division Bench judgment in Amin
Khan Vs St. of U.P. (2008 SCC OnLine All 269)
requires reconsideration. Held: A complainant under
Rule 3 of the 1997 Rules is not a necessary party in a
writ petition challenging the interim seizure of a Gram
Pradhan's powers, as no relief is typically sought
against the complainant, and their absence does not
preclude an effective order, per the principles of
Order 1 Rule 10(2) CPC, applied analogously to writ
proceedings. However, the complainant may be a
proper party in specific cases where their presence
aids the court in fully adjudicating the dispute, such
as when facts or documents are withheld by St.
authorities, subject to the court's discretion under
Article 226 and Rule 5A of the Allahabad High Court
Rules, 1952. The discretion must be exercised with
reasoned fairness, not arbitrarily, as per Uday Narain
Singh Malpaharia Vs Addl. Member, Board of
Revenue, Bihar (AIR 1963 SC 786). The judgment in
Amin Khan was distinguished, as it addressed the
complainant's locus standi to file an appeal, not
impleadment in a writ petition, and involved a
complainant who was also a member of the
committee exercising the Pradhan's powers, unlike
the present case. The court found no conflict with
Amin Khan and declined to refer it for reconsideration
by a larger bench. The questions were answered,
and the writ petition was directed to be listed
before the Single Judge for further proceedings.

Case Law Cited:

## Text

_Characters 0–39,684 of 47,925. This is a partial read: ask again with offset=39684 for what follows._

1002 INDIAN LAW REPORTS ALLAHABAD SERIES
the claimant/respondent has failed to point
out any illegality or irregularity in
conducting the departmental inquiry against
him. Thus, the impugned judgment/order
passed by the learned Tribunal is liable to be
set-aside.

(19) Accordingly, the instant writ petition
is allowed. The impugned judgment/order
dated 11.11.2010 passed by the learned
Tribunal
is
hereby
set-aside
with
the
consequential
effect
that
the
order
of
punishment/recovery passed by the disciplinary
authority is restored.

(20) There will be no order as to
costs.
----------
(2024) 2 ILRA 1002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.02.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MANISH MATHUR, J.

Writ - C No. 7195 of 2022

Smt. Kamala Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajnish Ojha, Amrendra Nath Tripathi

Counsel for the Respondents:
C.S.C., Manish Vaish, Pankaj Gupta, Pravin
Kumar Singh

Civil Law - U.P. Panchayat Raj Act, 1947 -
Section 95(1)(g) - U.P. Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997 - Rule 3,
Rule 5, Rule 6 - Locus Standi of Complainant
- Necessary and Proper Party - Writ Petition
Challenging Seizure of Gram Pradhan's Powers -
Article 226 of the Constitution of India,1950 -
The petitioner, a Gram Pradhan, challenged an
order under the proviso to Section 95(1)(g) of
the U.P. Panchayat Raj Act, 1947, seizing her
administrative and financial powers during a
preliminary enquiry into alleged irregularities,
initiated based on a complaint by a Gram Sabha
member. The complainant sought impleadment
in the writ petition, prompting a reference by a
Single Judge to a Division Bench to determine:
(1) whether the complainant has locus standi to
be impleaded in such a writ petition, and (2)
whether the Division Bench judgment in Amin
Khan Vs St. of U.P. (2008 SCC OnLine All 269)
requires reconsideration. Held: A complainant under
Rule 3 of the 1997 Rules is not a necessary party in a
writ petition challenging the interim seizure of a Gram
Pradhan's powers, as no relief is typically sought
against the complainant, and their absence does not
preclude an effective order, per the principles of
Order 1 Rule 10(2) CPC, applied analogously to writ
proceedings. However, the complainant may be a
proper party in specific cases where their presence
aids the court in fully adjudicating the dispute, such
as when facts or documents are withheld by St.
authorities, subject to the court's discretion under
Article 226 and Rule 5A of the Allahabad High Court
Rules, 1952. The discretion must be exercised with
reasoned fairness, not arbitrarily, as per Uday Narain
Singh Malpaharia Vs Addl. Member, Board of
Revenue, Bihar (AIR 1963 SC 786). The judgment in
Amin Khan was distinguished, as it addressed the
complainant's locus standi to file an appeal, not
impleadment in a writ petition, and involved a
complainant who was also a member of the
committee exercising the Pradhan's powers, unlike
the present case. The court found no conflict with
Amin Khan and declined to refer it for reconsideration
by a larger bench. The questions were answered,
and the writ petition was directed to be listed
before the Single Judge for further proceedings.

Case Law Cited:

1. Amin Khan Vs St. of U.P. & ors., 2008 SCC
OnLine All 269

2. Dharam Raj Vs St. of U.P. & ors., (2009) 108
RD 689

3. Vivekanand Yadav Vs St. of U.P. & Anr.,
(2010) 111 RD 699
2 All. Smt. Kamala Devi Vs. State of U.P. & Ors.
1003
4. Uday Narain Singh Malpaharia Vs Addl.
Member, Board of Revenue, Bihar, AIR 1963 SC
786

5. St. of U.P. & ors. Vs Committee of
Management, Anjuman Madarsa Noorul Islam
Dehra Kalan, Ghazipur, (2009) 76 ALR 750

(Delivered by Hon'ble Rajan Roy, J.)

1) Heard Shri Amrendra Nath
Tripathi and Shri Rajnish Ojha learned
counsel for the petitioner, Shri Manish
Vaish,
learned
counsel
for
the
respondent/applicant seeking impleadment
and Shri Indrajeet Shukla along with Shri
Pratyush
Chaubey,
learned
Standing
Counsel.

2) This Bench was nominated to hear
a reference made by a learned Single Judge
of this Court vide order dated 03.03.2023
passed in this petition.

Questions for consideration

3) On a consideration of the said
reference, we rephrased the questions
referred to us vide our order dated
22.09.2023. The questions are as under:-

(i) Whether the complainant who
is allegedly an elected member of Gram
Sabha and has submitted a complaint
under Rule 3 of the Uttar Pradesh
Panchayat Raj (Removal of Pradhans, UpPradhans and Members) Enquiry Rules,
1997 has locus standi to get himself
impleaded in a writ petition filed by the
Gram Pradhan challenging an order
passed under the proviso to Section
95(1)(g) of U.P. Panchayat Raj Act, 1947
by the District Magistrate seizing his
administrative and financial powers, as an
interim measure, during pendency of the
proceedings under Section 95(1)(g) of U.P.
Panchayat Raj Act, 1947 read with Uttar
Pradesh Panchayat Raj (Removal of
Pradhans, Up-Pradhans and Members)
Enquiry Rules, 1997 or not?

(ii) Whether the Division Bench
judgment in the case of Amin Khan Vs.
State of U.P and Ors; 2008 SCC OnLine
All 269 requires reconsideration by a
Larger Bench as regards question no. (i)?

4) We, accordingly, proceed to
consider
and
answer
the
aforesaid
questions.

5) Sri Amrendra Nath Tripathi,
learned counsel for the petitioner submitted
that a complainant is neither a necessary
nor a proper party in writ proceedings filed
by Gram Pradhan challenging the order of
seizure of his financial and administrative
powers. Such an order creates a dispute
between the District Magistrate who has
passed the order and the Gram Pradhan.
Merely because, the proceedings have
started on the complaint of the complainant
does not entitle him to become party to the
lis. In this regard, he relied upon Division
Bench judgments in the case of 'Amin
Khan vs. State of U.P. & Ors.' ;(2008)
SCC Online All 269. In this context, he
also
relied upon a Division
Bench
judgment in 'Dharam Raj vs. State of
U.P. & Ors.' reported in 2009 (108) RD
689.

6) Sri Manish Vaish, learned counsel
for the applicant seeking impleadment took
us through the provisions of Section95(1)(g) of the U.P. Panchayat Raj Act,
1947 and U.P. Panchayat Raj (Removal of
Pradhans, Up-Pradhans and Members)
Enquiry Rules, 1997. He invited our
attention to Rule-3 of the Rules, 1997,
according to which, a complainant has a
right to submit a complaint which is
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
supported by an affidavit. He then took us
through provision/ rule -6 of the Rules
1997 to submit that even during the final
enquiry the complainant has been given a
right of adducing evidence and proving
charges framed by the inquiry officer as
also a right of hearing which included a
right of examination and cross-examination
of the witnesses and the Gram Pradhan.
The intent of the Rule is very clear. He also
submitted that in the event, there is
connivance between the State authorities
and
the
Gram
Pradhan,
it
is
the
complainant alone who would bring to light
the
said
connivance
and
facts
and
documents which may not be produced by
the
State
authorities.
Therefore,
the
presence of the complainant in such
proceedings is necessary. The seizure of
administrative and financial powers is a
consequence of the complaint made by the
complainant which has to be proved by the
complainant
apart
from
departmental
authorities, therefore, he is a necessary
party in such proceedings. In this context,
he referred to averments made by the
petitioner in para no.20 and reply in the
counter affidavit wherein no comments had
been made in response to the said averment
of the writ petition which according to him
may persuade the Court to grant relief to
the petitioner in such a scenario. He
submitted that judgment of the Coordinate Bench in Amin Khan's case
(supra) did not apply as the applicant
seeking
impleadment
is
not
a
beneficiary. Moreover, the applicant is
not a part of the three membered
committee constituted as a consequence
of seizure of powers of Gram Pradhan,
therefore, the said decision does not
come in his way. He referred to Section
26 of the Act, 1947 and Rule 31 of the
Rules, 1997.

Functions of Gram Pradhan under
the U.P. Panchayat Raj Act, 1947

7) The U.P. Panchayat Raj Act, 1947
(hereinafter referred to as 'the Act, 1947')
was promulgated to establish and develop
local self government in rural areas of Uttar
Pradesh. As per its preamble, the object of
the Act is to establish and develop local
self government in rural areas and to make
better provisions for village administration
and development.

8) The Office of Gram Pradhan is an
office of election under the Act, 1947 and
the Rules made thereunder. He is head of
Gram Panchayat/ Gram Sabha as the case
may be. The Gram Panchayats/ Gram
Sabhas have been assigned functions and
duties under the Act, 1947 and Rules made
thereunder. In this context, Sections-15, 15A, 16, 16-A, 17, 18, 19, 20, 21, 24 are
relevant. There is a Bhumi Prabandhak
Samiti with the Pradhan as its Chairperson
which also has important functions to
perform as is mentioned in Section 28-A
and 28-B of the Act, 1947. Chapter V of
the Act, 1947 deals with acquisition of
land, Gaon fund and property. Thus, the
Gram Panchayat/ Gram Sabha is vested
with funds and its use. It also has property
vested in it as is mentioned in Section-34 of
the Act, 1947. It can even acquire land in
terms of Section-33 of the said Act. It can
borrow money (Section-36). It can impose
taxes and fees (Section-37). The Gram
Panchayat has a budget of its own (Section41). Without dwelling at length on the
contents of the said provisions, suffice it to
say that the Gram Panchayat perform
public functions and Gram Pradhan as its
head as also the head of Bhumi Prabandhak
Samiti also perform important public
functions
including
financial
and
2 All. Smt. Kamala Devi Vs. State of U.P. & Ors.
1005
administrative functions. Chapter VII of the
Act, 1947 deals with External Control.

Removal of Gram Pradhan and
seizure of his power in the interregnum
during pendency of proceedings for his
removal under the Act, 1947 and Rules,
1997 made thereunder.

9) Section-95(1)(g) of the Act, 1947,
inter alia, deals with removal of Pradhan but
on specified grounds which are as under:-

"95
Inspection-(1)
The
State
Government may-

..

(g) remove a Pradhan or member of
a Gram Panchayat or a Joint Committee or
Bhumi Prabandhak Samiti, or a Panch,
Sahayak Sarpanch [Nyaya Panchayat] if he -

(i)- absents himself without sufficient
cause for more than three consecutive meetings
or sittings.

(ii)-refuses to act or becomes
incapable of acting for any reason whatsoever
or if he is accused of or charged for an offence
involving moral turpitude.

(iii)- has abused his position as such
or has persistently failed to perform the duties
imposed by this Act or rules made thereunder
or his continuance as such is not desirable in
public interest, or

[(iii)-a has taken the benefit of
reservation under sub-section (2) of Section 11A or sub-section (5) or Section 12, as the case
may be, on the basis of a false declaration
subscribed by him stating that he is a member
of Scheduled Castes, the Scheduled Tribes or
the backward classes, as the case may be.]

(iv)- being a Sahayak Sarpanch or a
Sarpanch [of the Nyaya Panchayat] takes
active part in politics, or

(v)-suffers
from
any
of
the
disqualifications mentioned in Clauses (a) to
(m) of Section 5-A;

[Provided that where, in an enquiry
held by such person and in such manner as
may be prescribed, a Pradhan [or UpPradhan] is prima facie found to have
committed financial and other irregularities
such Pradhan [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.]"

10) The first proviso to 95(1)(g) of
the Act, 1947 is relevant for our purposes
as it contains the provision for seizing
financial and administrative powers and
functions of Gram Pradhan where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pradhan is
prima facie found to have committed
financial and other irregularities. In the
event of such seizure of powers of Gram
Pradhan, it is to continue until he is
exonerated of the charges in the final
inquiry. In the interregnum, such powers
and functions are to be exercised by a
Committee consisting of three member of
Gram Panchayat appointed by the State
Government.

11) The powers of the State
Government under Section-95(1)(g) of the
Act, 1947 have been delegated to the
District Magistrate concerned and there is
no dispute in this regard.

12) The words 'in such manner as
may be prescribed' used in the proviso to
Section 95(1)(g) lead us to the rules known
as U.P. Panchayat Raj (Removal of
Pradhans, Up-Pradhans and Members)
Enquiry Rules, 1997 (hereinafter referred
to as 'the Rules, 1997') which have been
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
made by the Governor in exercise of
powers under Section 110 read with clause
(g) of sub-Section-(1) of Section 95 of the
Act, 1947.

13) Rule-3 of the Rules, 1997 refers
to procedure relating to complaints against
Pradhan. The complaint has to confirm to
the requirements of Rule-3 of the Rules,
1997. If it does not confirm to such
requirements, it cannot be acted upon but
this does not prevent the District Magistrate
from taking suo-motu cognizance based on
material
before
him
including
the
complaint and proceeding accordingly, as
per Rules.

14) The provision for initiation of
proceedings against a Gram Pradhan on the
basis of a complaint emphasizes the
underlying idea that in a given case,
government functionaries may not be aware
of the illegalities but the public, which is
directly affected by the functioning of the
Gram Panchayat, may be aware and
accordingly, they can complain against the
Gram Pradhan, especially as, he holds an
office of election and has been elected by
the people of that area.

15) Ordinarily, a complainant would
be a member of the gram panchayat/ gram
sabha and a resident of the same who has a
stake in the village administration and
development unless of course he is not so
but is in possession of some incriminating
material which has a bearing on the
functions of the Gram Pradhan.

16) Rule 4 of the Rules, 1997
envisages a preliminary enquiry to be
ordered on a complaint or report referred in
Rule 3 or otherwise. The report herein
would mean a complaint or report by a
public servant as is referred in Rule 3(6) of
the said Rules. The preliminary enquiry is
required to be completed within thirty days.
This preliminary inquiry is also referrable
to the first proviso to Section 95(1)(g) of
the Act.

17) Rule 5 of the Rules, 1997 is
relevant which reads as under:-

"5. Where the State Government
is of the opinion, on the basis of the report
referred to in sub-rule (2) of Rule 4 or
otherwise that an enquiry should be held
against a Pradhan or Up-Pradhan or
Member under the proviso to clause (g) of
sub-section(1) of Section 95 it shall
forthwith constitute a committee envisaged
by proviso to clause (g) of sub-section(1) of
Section 95, of the Act and by an order ask
an Enquiry Officer, other than the Enquiry
Officer nominated under sub-rule (2) of
Rule 4, to hold the enquiry. "

18) As per Rule 5, based on the report
referred to in sub-rule (2) of Rule 4 i.e. the
preliminary enquiry report or otherwise the
State Government is of the opinion that an
enquiry should be held against a Pradhan
under the proviso to clause (g) of subsection(1) of Section 95 it shall forthwith
constitute a committee envisaged by the
first proviso to clause (g) of sub-section(1)
of Section 95, of the Act and by an order
ask an Enquiry Officer, other than the
Enquiry Officer nominated under sub-rule
(2) of Rule 4, to hold the enquiry. Now, the
enquiry referred in Rule 5 is a final inquiry.
We have been told that the State
Government has delegated its powers in
this regard to the District Magistrate
concerned.

19) Once such an opinion is formed
as is referred in Rule (5) then seizure of
administrative and financial powers follow
2 All. Smt. Kamala Devi Vs. State of U.P. & Ors.
1007
in terms of proviso to Section 95(1)(g) of
the Act.

20) Rule 6 of the Rules, 1997 deals
with procedure for the final/ regular
enquiry. We need not enter into details of
the procedure prescribed but suffice it to
say that the complainant has an important
role to play in final proceeding for removal
of the Gram Pradhan, in a case where the
proceedings are based on a complaint. It is
not, as if, he, after submission of complaint,
has no role to play or that he is to be a
passive player. He is entitled to active
participation in not only making of
allegations
against
a
Gram
Pradhan
supported by requisite proof but also in
proving the articles of charges framed by
the Enquiry Officer. According to subRule-16 of Rule 6, the Enquiry Officer may
after completion of production of evidence,
hear the complainant, if any, apart from the
person against whom the enquiry is being
held, or permit them, or him, as the case
may be, to file written briefs of their
respective cases. Based on the final inquiry,
a decision is taken whether Pradhan is to be
removed or not but in this case we are not
concerned with final inquiry or removal of
Pradhan based thereon. We are concerned
with the interim stage referable to proviso
to Section 95(1)(g) regarding seizure of his
powers
during
pendency
of
such
proceedings.

21) The seizure of administrative and
financial powers of Gram Pradhan is not to
be resorted to mechanically, in a routine
manner, without due application of mind to
the facts and material which may have been
collected. Instead, it is required to be done
on the basis of a preliminary enquiry
followed by a show-cause notice to the
Gram Pradhan confronting him with the
material
adverse
to
him
and
after
considering his reply to the same. The legal
position in this regard is very well settled.
Therefore, once a complaint supported by
proof is made and it is found to be in
accordance with rules, it is to be acted upon
and the competent authority may order a
preliminary enquiry under Rule 4 of the
Rules 1997 read with the first proviso to
Section 95(1)(g). At this stage, the powers
of the Gram Pradhan cannot be seized. The
preliminary enquiry is ordered only to find
out if there is a prima facie case for regular
inquiry in the matter. Only after report of
preliminary enquiry is received that the
Competent Authority forms an opinion
based on such report as to whether a final
enquiry as envisaged in Rule 5 and 6 etc is
required or not. If it opines that it is not
required, the matter ends. However, if it
finds that it is required which could, in a
given case, be, if, prima facie, the Gram
Pradhan is found to have committed
financial and other irregularities, then, the
Competent Authority would pass an order
seizing the exercise of and performance of
financial and administrative powers and
functions by such Pradhan. Of course, this
would be after following the procedure as
mentioned hereinabove and as has been
explained in detail in a full Bench decision
of this Court in the case of 'Vivekanand
Yadav vs. State of U.P. & Anr.' reported
in 2010 (111) RD 699.

22) In this scenario, the Gram
Pradhan, if aggrieved, can challenge such
order by filing a writ petition under Article
226 of the Constitution of India and it is in
this context the questions as framed by us
have arisen as to locus-standi of the
complainant to get himself impleaded in
such writ proceedings.

CONCEPT OF NECESSARY AND
PROPER PARTY
1008 INDIAN LAW REPORTS ALLAHABAD SERIES

23) In order to answer the question
no.1 framed by us, we need to consider the
concept of 'necessary party' and 'proper
party'. In this context, the principles
contained in Order 1 Rule 10 (2) C.P.C. are
relevant.
Even
though
the
provision
contained in C.P.C. do not apply to writ
proceedings stricto sensu in view of
explanation to Section 141 C.P.C. but, the
principles enshrined therein can be applied
and are applied very often to writ
proceedings. Order I Rule 10(2) C.P.C.
reads as under:-

"10(2) Court may strike out or
add parties.-The Court may at any stage
of the proceedings, either upon or without
the application of either party, and on such
terms as may appear to the Court to be
just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the name
of any person who ought to have been
joined, whether as plaintiff or defendant, or
whose presence before the Court may be
necessary in order to enable the Court
effectually and completely to adjudicate
upon and settle all the questions involved in
the suit, be added."

24) A necessary party is a person who
ought to have been joined as a party and in
whose absence, no effective decree or order
could be passed at all by the court. If a
necessary party is not impleaded, the suit or
petition itself is liable to be dismissed
whereas a proper party is a party who,
though not a necessary party, is a person
whose presence would enable the court to
completely, effectively and adequately
adjudicate upon all matters in dispute in the
suit/ petition though he need not be a
person in favour or against whom the
decree is to be made. Legal position in this
regard is well settled1.

TWIN TEST OF A NECESSARY
PARTY

25) For being a necessary party, there
is a twin test. The first is that there must be
a right to some relief against such party in
respect of the dispute involved in the
proceedings. The second is that in the
absence of such a party, no effective order/
judgment can be passed. In cases where
these two tests are not satisfied, a person
cannot be said to be necessary party2.

Question No.1-

Whether complainant is a necessary
party in a writ petition filed by Gram
Pradhan challenging seizure of his power
under Section-95(1)(g) of the Act, 1947
read with Rules, 1997.

26) The first and foremost question is
whether a complainant under the Rules,
1997 is a necessary party in a writ petition
filed by the Gram Pradhan challenging the
order of the District Magistrate seizing the
exercise and performance of administrative
and financial powers by him, or not.

27) In such a writ petition, if no relief
has been sought against the complainant
then it cannot be said that he is a necessary
party. A complainant having made a
complaint in terms of Rule 3 which has
been acted upon by the Competent
Authority who has ordered a preliminary
enquiry resulting in a preliminary enquiry
report, based on which, the Competent
Authority after due and proper application
of mind and following the procedure
prescribed in law has passed an order
seizing the administrative and financial
powers of the Gram Pradhan may give rise
to a lis between the Gram Pradhan and the
Authority passing the order but the
2 All. Smt. Kamala Devi Vs. State of U.P. & Ors.
1009
complainant who may be the catalyst for
the entire exercise cannot be said to be a
necessary party in the lis. This is especially
as, final/ regular enquiry is yet to be held
wherein he will have an opportunity to
adduce evidence, examine and crossexamine the witnesses and would be also
entitled
to
personal
hearing
after
completion of enquiry as is envisaged in
Rule-6 of the Rules, 1997. But prior to that,
that is at the stage of passing of an order of
seizure of powers against the Gram
Pradhan, in a writ petition filed by the
Gram Pradhan, he cannot be said to be a
necessary party. It cannot be said that his
non-impleadment
would
render
the
proceedings bad resulting in its dismissal.
An application for impleadment as a
necessary party filed by him in such writ
proceedings will not lie.

28) An argument was advanced by Sri
Manish Vaish, learned counsel for the applicant
seeking impleadment that in a case of
connivance between the authorities and the
Gram Pradhan, it is the complainant alone who
could inform the court about such connivance
as also the interest of the Gram Panchayat and
Gram Sabha which was being compromised as
a result thereof, therefore, he would be a
necessary party. This argument cannot be
accepted in the context of question no.1 framed
by us for the reasons at the interim stage
referable to proviso to Section 95(1)(g) of the
Act, when the District Magistrate has already
passed an order seizing the powers of Gram
Pradhan, there can hardly be a situation where it
could be said that the State authorities would be
conniving with Gram Pradhan. In fact, in such a
scenario, there would already be an order
against the Gram Pradhan.

29) As regards his submission if such
connivance takes place after filing of the writ
petition before the writ court, then, the
complainant would be a necessary party, we
cannot answer this question on an hypothesis/
assumption that in every writ proceeding there
would be connivance between the State
authorities and the Gram Pradhan nor can we
assume that the writ court which has
extraordinary powers under Article 226 of the
Constitution of India would be a mute spectator
to such connivance and it cannot see through it
and exercise its extraordinary powers to ensure
substantial justice by summoning the records or
for that matter even summoning the officials for
its assistance, if required. It can put such queries
as it may deem proper to the State to secure the
ends of substantial justice. We cannot declare a
complainant to be necessary party in such
proceedings merely on such a hypothesis. We
have no doubt that after filing of the writ
petition if
the
State authorities are
conniving with the petitioner and are not
contesting the matter properly, the writ
court can always see through this design
and do the needful in exercise of its
extraordinary powers, but merely because
of this 'assumed possibility', we cannot
hold that a complainant is a necessary party
in such proceedings. However, this aspect
can be taken into consideration by the writ
court in the context of the concept of
'proper party' which shall be discussed
hereinafter.

30) It is also pertinent to mention that
there is nothing in the Act, 1947 or the
Rules, 1997 requiring participation of the
complainant in the preliminary enquiry
ordered on his complaint which does not
mean that he can't be allowed to participate
if the Enquiry Officer so desires, but only
to say that there is no such statutory
requirement nor a corresponding right in
favour of the complainant.

31) We are, therefore, of the
considered opinion that a complainant is
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
not a necessary party in such writ
proceedings.

Whether such complainant is a
proper party

32) However, there is another aspect
to be considered as to whether complainant
can be a proper party in such proceedings.
Now a proper party, as already stated,
means a party who, though not a necessary
party, is a person whose presence would
enable the court to completely, effectively
and adequately adjudicate upon all matters
in dispute in the suit, though he need not be
a person in favor or against whom the
decree/ order is to be passed.

33) Whether or not a complainant is a
proper party in writ proceedings as referred
above would depend on the facts and
circumstances of each case and it is not
possible for us to lay down any general
proposition in this regard which may be
universally applicable in all the cases.
Meaning thereby, in a given case, where
the writ court finds that presence of a
person would enable it to completely,
adequately and effectively adjudicate upon
all matters in dispute in writ proceedings, it
can allow impleadment of such a person as
a proper party unconditionally or with
terms and conditions.3 This may include a
case where the court finds that certain facts
or documents are being withheld by the
State or its authorities even after exchange
of affidavits and if it is so demonstrated by
the complainant seeking impleadment to the
satisfaction of the writ court.

34) After all, the writ court has vide
discretionary powers and we do not wish to
fetter its exercise of discretion under Article 226
of the Constitution of India unnecessarily nor to
impose a blanket prohibition upon it from
hearing the complainant even as a proper party
as it may in a given case result in grave
miscarriage of justice. It may also in a given
situation jeopardize/ compromise valuable
rights of members of Gaon Sabha and public
interest therein.

35) In this context, we may refer to a
Constitution Bench decision of Hon'ble the
Supreme Court in the case of 'Uday Narain
Singh Malpaharia v Addl. Member, Board
of Revenue, Bihar' AIR 1963 SC 786 wherein
the concept of 'proper party' was considered in
the context of writ proceedings and in para
no.10, it was held as under:-

"The question of making such a
person as a party to a writ proceeding depends
upon the judicial discretion of the High Court
in the circumstances of each case. Either one of
the parties to the proceeding may apply for the
impleading of such a party or such a party may
suo motu approach the court for being
impleaded therein."

36) We, however, hasten to add that such
discretion has to be exercised by the writ court
according to reasons and fair play and not as per
the 'wish of the court', meaning thereby, even
while deciding as to whether a complainant is a
proper party in a given case or not, the decision
has to be a considered one based on reasons and
consideration of fair play, not otherwise4.

37) In this very context, we may refer to
Allahabad High Court Rules, 1952 framed
under Article 225 of the Constitution of India.
Chapter XXII thereof deals with writ
petitions. Rule 5A is relevant, it reads as
under:-

"5-A. Hearing of persons not
served with notice.- At the hearing of the
application, any person who desires to be
heard in opposition to the application and
2 All. Smt. Kamala Devi Vs. State of U.P. & Ors.
1011
appears to the Court to be a proper person
to be heard, may be heard notwithstanding
that he has not been served with notice
under rule 2."

On a reading of the above quoted rules
itself it is evident that the writ court can at
the hearing of the application (writ petition)
hear any person who desires to be heard in
opposition to the application (writ petition)
and appears to the court to be a proper
person to be heard notwithstanding that he
has not been served with notice under Rule
2. Therefore, this provision also empowers
the writ court specifically to hear a person
who in its opinion is a proper party. We
cannot take away the discretion of the writ
court in this regard.

38) Above quoted Rule has been
considered by a Division Bench of this
Court in a case reported in (2009) 76 ALR
750 'State of U.P. & Ors. vs. Committee
of Management, Anjuman Madarsa
Noorul Islam Dehra Kalan, Ghazipur
through its Manager and Anr.'. Relevant
extract
of
the
judgment
is
quoted
hereinbelow:-

"9. A bare perusal of Rue 5-A
shows that where a person in the Writ
Court appears and requests to be heard in
opposite on the petition and and it appears
to the Court that he is a proper person only
then he may be heard even though no
notice has been served upon him since he
was not a party impleaded in the writ
petition To attract Rule 5-A of the High
Court Rules, two things are necessary:

(1) a person desired to be heard
in opposition to the application and (2) he
appears to be a proper person to the Court
that he should be permitted to be heard.
Here the present application is not one
seeking intervention for opposing the writ
petition. Secondly, in the dispute involved
in the writ petition, the learned Counsel
for the applicant could not show as to how
he is a proper person to be heard.
Therefore, in our view, the reference
made and reliance placed on Rule 5-A is
misconceived and does not apply to the
present application. We have no manner
of doubt that wherever and whenever the
Court finds that a person is a proper party
to be heard in a matter he should be
allowed opportunity to be heard but simply
because someone has come and requested
to be heard, he cannot be allowed as a
matter of course and that too, which all
the parties in the writ petition are
opposing."

39) The Division Bench in the
aforesaid judgment also had the occasion to
consider provisions of Order I, Rule 8-A
C.P.C. in this very context and in this
regard, it observed as under:-

10. Then we come to Order I,
Rule 8-A, C.P.C which reads as under:

"8-A. Power of Court to permit a
person or body of persons to present
opinion or to take part in the proceedings. -
While trying a suit, the Court may, if
satisfied that a person or body of persons is
interested in any question of law which is
directly and substantially in issue in the
suit and that it is necessary in the public
interest to allow that person or body of
persons to present his or its opinion on that
question of law, permit that person or body
of persons to present such opinion and to
take such part in the proceedings of the suit
as the Court may specify."

11. To attract Rule 8-A three
things are required: (1) While trying the
suit the Court should be satisfied that a
person or body of persons has interest in
any question of law, (2) such question of
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
law must have directly and substantially in
issue in the suit and (3) it is necessary in
the public interest to allow such person or
body of persons to present his or its
opinion on the question of law.

12. Besides, the power of the
Court to permit such person or body of
persons to present his or its opinion is
discretionary, inasmuch as, the Rule says
that the Court may permit such person or
body of persons. Sri Chaudhary vehemently
submitted that the word "may" has to be
read as 'shall. In "Principles of Statutory
Interpretation" by Sri G.P. Singh, at page
447
while
commenting
upon
the
proposition as to when a provision would
be read as mandatory or directory, the
following observations of Lord Cairns have
been quoted:

"There may be something in the
nature of the thing empowered to be done,
something in the object for which it is to be
done, something in the conditions under
which it is to be done, something in the title
of the person or persons for whose benefit
the power is to be exercised, which may
couple the power with a duty, and make it
the duty of the person in whom the power is
reposed to exercise that power when called
upon to do so."

"Where a power is deposited with
a public officer for the purpose of being
used for the benefit of person specifically
pointed out with regard to whom a
definition is supplied by the legislature of
the condition upon which they are entitled
to call for its exercise, that power ought to
be exercised and the Court will require it to
be exercised."

40) The Court did not go into the
question of may or shall which was raised
before it in the context of Rule -8-A C.P.C.
as it only considered the first pre-requisite
that there should be question of law
involved. The word 'may' in our opinion
confers a discretion on the writ court and
does not create a right in favour of the
person seeking impleadment as proper
party in a writ proceedings.

41) Now, in this very context, the
Division Bench considered as to who is an
intervener
and
when
intervention
application can be allowed and in this
context it observed that in all the three
cases cited before it, the intervention was
allowed either when the person was
supporting one of the party or he was found
to be necessary or proper party to this
dispute before the court and did not
accepted the contention on facts but the
legal position in this regard was considered
by it. Relevant extract i.e. Para no.15 & 16
of the said judgment is quoted hereinbelow.

"15. Then comes the basic
questions as to who intervener is and when
intervention application can be allowed.

16.
In
Saraswati
Industrial
Syndicate
(supra)
the
Apex
Court
categorically held that purpose of granting
an intervention application is to entitle the
intervener to address argument in support
of one or the other side.."

42) Merely because a person claims
himself to be a proper party in the facts of a
case, the said complainant cannot insist on
being impleaded as, that is a discretion to
be exercised by the writ court and not a
right to be claimed by the complainant. The
sine qua non in this regard, is the
satisfaction of the Court and discretion to
be exercised by it as aforesaid, that is, if the
court finds presence of such complainant
necessary to enable it to completely,
effectively and adequately adjudicate upon
all matters in dispute then it can order his
impleadment as a proper party but this does
2 All. Smt. Kamala Devi Vs. State of U.P. & Ors.
1013
not give an indefeasable right to the
complainant to seek such impleadment. As
already stated, this is a discretion to be
exercised by the writ court keeping in mind
the facts and circumstances of a case and
for reasons to be recorded keeping in mind
fair play. The writ court cannot allow
impleadment of proper party merely
because it wishes to do so. It has to give
reasons. It has to act according to reason
and fair play. In a given case, the writ court
can instead of ordering impleadment of a
complainant as a proper party give him a
right of hearing as an intervener.

43) In a case where a complainant is
neither a necessary party nor a proper party
neither
such
complainant
can
seek
impleadment nor can the court order his
impleadment.

44) We thus opine that in a writ
petition filed by a Gram Pradhan, the
complainant as referred in Rule-3 of the
Rules, 1997 read with the first proviso to
Section-95(1)(g) of the Act is not a
necessary party unless some relief has been
sought against him, but, in a given case he
may be impleaded as a proper party or he
may be heard as an intervener, as the case
may be, as per discretion exercised by the
writ court in the light of what we have
stated hereinabove.

45) We answer question no.1
accordingly.

46) We make it clear that we have not
considered the question as to whether a
complainant under Rule-3 of Rule 1997 is a
necessary or a proper party in any writ
petition in which a lis relating to or based
on a final enquiry referred in Rule-4 and 6
etc of the Rules, 1997 is involved. We have
confined ourselves only to action at the
interim stage i.e. seizure of financial and
administrative powers of the Gram Pradhan
referrable to first proviso to Section95(1)(g) of the Act, 1947. We have also not
considered
the
locus
standi
of
a
complainant to file a writ petition and
challenge an order of withdrawal/ recall of
order of seizure of functions passed against
the Gram Pradhan in the teeth of proviso to
Section 95(1)(g) and leave these issues for
consideration in some other case.

Question No.2

47) We may in this context refer to a
Division Bench judgment in the case of
Dharam Raj vs. State of U.P. & Ors.'
reported in 2009 (108) RD 689.