# Zila Panchayat Abhiyantran Sangh and Anr v. The State of U.P. & Ors. Opp. Parties

- **Citation:** (2013) 3 ILRA 1326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-04
- **Case number:** Writ Petition No.1237 (SB) of 2005
- **Bench:** Rajiv Sharma, Dr. SATISH CHANDRA
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zila-panchayat-abhiyantran-sangh-and-anr-v-the-state-of-u-p-ors-opp-parties-42698
- **Pages:** 8

## Headnote

C.S.C , Sri Aarohi Bhalla , Sri Abhishek
YadavSri Akhilesh Kalra, Sri G K Singh
Sri Gopal Kumar Srivastava, Sri M.A.
Siddiqui,Sri Prashant Chandra, Sri R.C.
Pandey, Sri Ramesh Chandra Pandey, Sri
Ramesh Pandey

Constitution of India, Art. 226-Writ petitionpublic interest litigation-in service matter
P.I.L. not maintainable-writ petition even
by Registered or unregistered Associationwithout resolution of members-can not be
filed-so in case of dismissal of petition could
have binding effect upon those membersnor the members unable to approach
Individually by reason of poverty, disability
on economically, disadvantageous positionnor a case where fundamental right of
members
of
association
effected-heldpetition not maintainable.

Held: Para-22
In view of the aforesaid facts and the
proposition of law laid down in Umesh
Chandra Vinod Kumar's case [supra] it can
safely be held that the writ petition at the
instance
of
an
association
is
not
maintianable where the association itself is
not affected by any order. In other words,
the members of such association may be
affected by an order and may have common
grievance, but for the purpose of enforcing
the rights of the members, writ petition at
the instance of such association is not
maintainable. Therefore, the petitionerAssociation has no locus standi to file this
writ petition.

Case Law discussed:
Umesh Chand Vinod Kumar Vs. Krishi Utpadan
Mandi Samiti and Ors.; (2011)5 SCC 464; 1968
AWR 844; (2007)5 SCC 580; (2006) 10 SCC 214.

## Text

1326 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation by a High Court or the
Supreme Court

(c) The judgment would impact the
working of the administration in terms of
morale of the service. The Government is
committed to file a petition or

(d) If the judgment will have
remaining implications upon order caries
or if the judgment involves huge financial
claims being made."

8. Thus, in view of all the aforesaid
discussions, we are not able to persuade
ourselves to accept the explanation for
delay in filing the appeal particularly in
the teeth of opposition on behalf of the
respondent who is said to be on road and
has not found any favourable response,
despite two rounds of litigation, said to
have ended in his favour.

9. The special appeal is thus
dismissed on the ground of delay.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.09.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Writ Petition No.1237 (SB) of 2005

Zila Panchayat Abhiyantran Sangh and
Anr. . .Petitioners
Versus
The State of U.P. & Ors. ... Opp. Parties

Counsel for the Petitioner:
Sri U.K. Srivastava , Dr. L.P. Mishra
Sri N.A. Siddiqui

Counsel for the Respondents:
C.S.C , Sri Aarohi Bhalla , Sri Abhishek
YadavSri Akhilesh Kalra, Sri G K Singh
Sri Gopal Kumar Srivastava, Sri M.A.
Siddiqui,Sri Prashant Chandra, Sri R.C.
Pandey, Sri Ramesh Chandra Pandey, Sri
Ramesh Pandey

Constitution of India, Art. 226-Writ petitionpublic interest litigation-in service matter
P.I.L. not maintainable-writ petition even
by Registered or unregistered Associationwithout resolution of members-can not be
filed-so in case of dismissal of petition could
have binding effect upon those membersnor the members unable to approach
Individually by reason of poverty, disability
on economically, disadvantageous positionnor a case where fundamental right of
members
of
association
effected-heldpetition not maintainable.

Held: Para-22
In view of the aforesaid facts and the
proposition of law laid down in Umesh
Chandra Vinod Kumar's case [supra] it can
safely be held that the writ petition at the
instance
of
an
association
is
not
maintianable where the association itself is
not affected by any order. In other words,
the members of such association may be
affected by an order and may have common
grievance, but for the purpose of enforcing
the rights of the members, writ petition at
the instance of such association is not
maintainable. Therefore, the petitionerAssociation has no locus standi to file this
writ petition.

Case Law discussed:
Umesh Chand Vinod Kumar Vs. Krishi Utpadan
Mandi Samiti and Ors.; (2011)5 SCC 464; 1968
AWR 844; (2007)5 SCC 580; (2006) 10 SCC 214.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard Mr.Umesh Kumar
Srivastava, learned Counsel for the Zila
Panchayat Abhiyantran Sangh, Mr.N.A.
Siddiqui,
learned
Counsel
for
Zila
Panchayat and Mr.Aarohi Bhalla, learned
3 All] Zila Panchayat Abhiyantran Sangh and Anr. Vs. The State of U.P. & Ors.
1327
Counsel for private respondent in writ
petition no. 1237(SB) of 2005 and
petitioner in the second writ petition.

2. The Zila Panchayat Abhiyantran
Sangh [in short referred to as 'Association']
and a private individual has filed a writ
petition No.1237 (SB) of 2005 challenging
the merger order dated 28.4.2005 passed by
the State Government, whereby services of
opposite party No.4/Pradeep Kumar, a Junior
Engineer of Rural Engineering Services,
were merged on the post of Abhiyanta in Zila
Panchayat Services, whereas Pradeep Kumar
has filed a writ petition No.115 (SB) of 2008
aggrieved by the order of repatriation dated
16.1.2008 to his parent department on the
ground that his lien in the parent department
has already come to an end, vide order dated
30.6.2005, contained in Annexure No.5 to
the writ petition and it will amount to ouster
from service.

3. It has been submitted by the
Counsel for the petitioners appearing in
writ petition no. 1237 of 2005 (SB) that
the Association comprises of Junior
Engineers and Engineers working in
various Zila Panchayats of the State of
U.P. alongwith one Ameer Chand Dubey,
the petitioner no.2, who is a senior-most
Junior Engineer aspiring for promotion on
the post of Engineer in Zila Panchayat.
The
Association
is
a
recognized
Association and it is claimed that the
association has statutory status to espouse
the cause of its members, who are Junior
Engineers and Engineers working in the
Zila Panchayat of the State.

4. The main thrust of the learned
Counsel for the petitioner is that Pradeep
Kumar, who was working on the post of
Junior Engineer (Non-Gazetted) in Rural
Engineering Services, U.P., was initially
brought on deputation in Zila Panchayat,
Gautam Budh Nagar, vide Government
Order dated 2.1.2002 for a period of two
years, which was to expire on 2.1.2004
but just after one year on 7.2.2003, the
private respondent moved an application
for merger of his services in Zila
Panchayat, on which the impugned order
has been passed. The impugned order is
purported to have been passed under
Section 43(4)(b) of the Act, which has no
application to the facts of the present case.
According to petitioners, there is no
provision in the Statutory Service Rules
or in the Act for appointment of a
Government Servant on any post of
Centralized Cadre in the Zila Panchayat
on deputation beyond a period of five
years as well as for absorption of such
Government Servant on such post.

5. Elaborating the arguments, it has
been submitted that the service conditions
of Engineer in Zila Panchayat are
governed by the provisions of U.P. Zila
Panchayat (Central Transferable Cadre)
Rules, 1966 [for short it has been referred
to as Rules]. Various posts covered by the
aforesaid Rules have been included in the
Centralized
Cadre
of
which
the
Appointing
Authority
is
the
State
Government. Recruitment to the post of
Engineer in a Zila Panchayat is made
from (i) 50% by means of direct
recruitment and (ii) 50% by means of
promotion from lower cadre of Junior
Engineers. Rule 14 of the Rules provides
about the procedure for direct recruitment
on the post of Engineer through Public
Service Commission, while Rule 27 of the
Rules provides about the procedure for
making promotion.

6. The State Government in exercise
of the powers conferred upon him under
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 40, 44 and 46 (2) read with
Section 237 of the Act framed U.P. Zila
Panchayat (Central Transferable Cadre)
(Seventh
Amendment)
Rules,
2001
[hereinafter referred to as '2001 Rules'],
which were enforced through notification
of the State Government dated 15.9.2001,
whereby
Rule
14-A
was
added.
According to petitioners, perusal of the
Rules, makes it abundantly clear that till
the amendment of Rules, there was no
provision either in the Act or in the Rules
for appointment of a Government Servant
in the Zila Panchayat on deputation and
therefore, Rule 14-A was added in the
Rules to enable the State Government to
exercise the aforesaid power for the first
time. The impugned order is not tenable
for the reason that the Government Orders
cannot supersede the provisions of
statutory Rules.

7. Lastly, it has been submitted that
merger of private respondent has marred
the promotion of petitioner no.2, who is a
senior most Junior Engineer in the
department. Thus, the action of the
official respondents is not only arbitrary
and unjust by is violative of Article 14 of
the Constitution.

8. On behalf of Zila Panchayat, it
has been submitted that in the year 1999,
the Chairman of Zila Panchayat required
an Engineer to execute the projects which
were
given
by
the
District
Rural
Development Agency to Zila Panchayat,
Gautambudh Nagar, which were earlier
being carried out by Rural Engineering
Services Department and in this regard
the
Chief
Development
Officer,
Gautambudh Nagar was requested in view
of the provisions of Section 41(1)(b) of
the Act. The Chief Development Officer,
Gautambudh Nagar recommended the
name of Pradeep Kumar [opposite party
no.4], who was a degree holder attached
as Engineer in Zila Panchayat from 1999
under the provisions of the Act with the
project, which was previously being
carried out by the Rural Engineering
Services
Department.
The
private
respondent was sent on deputation as an
Engineer to Zila Panchayat Department to
carry out the project, which were
entrusted with the Zila Panchayat under
the same provisions of the Act under
which the private respondent was attached
in the year 1999. At the time of
deputation, the private respondent was
Junior Engineer(Gazetted) in the pay
scale of Rs. 8000-13500, which was equal
to the pay scale of Engineer working in
Zila Panchayat Department. In these
circumstances, the private respondent was
allowed to work on deputation as an
Engineer to the Zila Panchayat taking into
consideration
the
equivalence
of
eligibility.

9. Learned Counsel for the Zila
Panchayat next submitted that vide letter
dated 4.9.2004 addressed to the State
Government, the Chief Development
Officer recommended the merger of
opposite party no.4 and the State
Government vide order dated 28.4.2005,
merged the services of private respondent
in the department of Zila Panchayat. The
said merger of private respondent was
under clause 4(b) of Section 43 of
U.P.Kshertra
Panchayat
and
Zila
Panchayat Adhiniyam. It has also been
pointed out that after the merger, the
parent department has terminated his lien
w.e.f. 28.4.2005 and will be deemed
superannuated in his parent department.

10.
It
has
vehemently
been
contended that while filing the writ
3 All] Zila Panchayat Abhiyantran Sangh and Anr. Vs. The State of U.P. & Ors.
1329
petition, the petitioners have deliberately
suppressed the aforesaid material fact of
termination of lien which resulted in
passing of the interim order dated
21.7.2005 and now, if the order of merger
is quashed, it would amount ousting of
Pradeep Kumar [opposite party no.4]
from services as his lien in the parent
department had already come to an end.

11. In the last, it has been submitted
by the learned Counsel that the order
dated 16.1.2008 passed by the State
Government has been assailed in Writ
Petition No. 115(SB) of 2008 filed by the
private respondent in which an ad interim
order dated 25.1.2008 was passed and in
compliance
thereof,
the
private
respondent is continuing in service in the
Panchayat Department and is being paid
regular salary and other benefits as
admissible to the employees of Panchayat
Department.

12. Mr.Aarohi Bhalla, learned
Counsel for Pradeep Kumar has raised a
preliminary
objection
that
the
writ
petition is not maintainable on behalf of
the Association in view of the law laid
down by the Apex Court as well as Full
Bench of this Court. The Full Bench of
this Court in Civil Misc. Writ Petition
No.13367 of 1981, Umesh Chand Vinod
Kumar versus Krishi Utpadan Mandi
Samiti and others has clearly held that the
writ petition filed by an Association of
persons registered or unregistered will be
maintainable only if (i) its members are
individually unable to approach Court by
reason of paucity or disability, etc. (ii) the
writ petition involves question of public
injury leading to Public Interest Litigation
and the Association has a special interest
in the subject matter. (iii) where the Rules
or
Regulations
of
the
Association
especially authorize it to take legal
proceedings on behalf of its Members; so
that any order passed by the Court in such
proceedings will be binding on the
members. It has been further observed
that
a
registered
or
unregistered
Association cannot maintain a writ
petition
under
Article
226
of
the
Constitution of India for the enforcement
or protection of the rights of its members,
as distinguished from the enforcement of
its own rights.

13. Of late, the Apex Court, in the
case of Bhola Nath Mukherjee and others
versus R. K. Mission Centenary College
and others [(2011) 5 SCC 464], held that
when a particular person is the object and
target of the petition styled as Public
Interest Litigation, the Court has to be
careful to see whether the attack in guise
of public interest is really intended to
achieve a private vendetta, personal
grouse or some other mala fide object
since in service matters, the Public
Interest Litigations cannot be filed.

14. It has been further observed that
the Hon'ble Supreme Court has repeatedly
disapproved the tendency of disgruntled
employees disguising pure and simple
service
dispute
as
Public
Interest
Litigation. Here, in the present case also,
Pradeep Kumar has been targeted on
account of malice of opposite party No.2,
who was Secretary of the Association at
the time of filing of the petition. Apart
from this, from the perusal of the writ
petition, it will be clear that the grievance
of the petitioners in that writ petition, as
mentioned in paras 19 and 25, the same is
only
for
promotion
of
the
Junior
Engineers on the post of Engineers under
50% quota and it will be found that
throughout the grievance has been non-
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion of Junior Engineers to the post
of Engineers under 50% quota, whereas
the post on which the private respondent
has been absorbed is under 'direct quota'
against which the petitioners cannot be
considered for promotion and therefore,
the writ petition is not maintainable and
the petitioners cannot be said to be
aggrieved persons as has been held by the
Apex Court in Ram Singh versus Director
of Consolidation [1968 AWR 844] and,
therefore, the petitioners have no locus to
prefer the writ petition.

15. Since a preliminary objection
has been raised that the writ petition filed
by the Association is not tenable at law,
because the Association has no locus
standi and no fundamental right or any
other right of the petitioner-Association is
violated by the respondents, we have to
deal this question first.

16. Having heard learned counsel
for both the sides on this preliminary
issue and looking to the facts and
circumstances of the case and also
looking to the main relief, made in writ
petition no. 1237(SB) of 2005, it appear
that the petitioner-Union is seeking
repatriation of private respondent.

17. It appears that the petitionerUnion, who has filed the instant writ
petition, has not annexed any resolution
of its Members to file the instant writ
petition and in absence of such authority,
this type of writ petition cannot be
preferred
by
the
petitioner-Union,
irrespective of the fact, whether it is
registered or not, because if the authority
is given to the petitioner-Association by
its Members, then it will create estoppel
on their part to file another writ petition
for the very same relief, if this writ
petition,
preferred
by
the
present
petitioner-Association, is dismissed. No
such authority has been given by the
members of the Association and there is
no document to this effect having been
annexed alongwith memo of the writ
petition.

18. Likewise, learned Counsel for
the petitioners is unable to point out
before this court that there are Rules or
regulations of the Association/Union
specifically authorizing it to initiate the
legal proceedings on behalf of its
Members, so that any order passed by the
Court in such proceedings, will be
binding on its Members, and therefore,
also the petitioner-Association has no
locus standi to file this writ petition.

19. Placing reliance on Bhola Nath
Mukherjee's case [supra], Counsel for the
private respondent has contended that in
service matters PIL is not maintainable
and the court should be cautious where a
particular person is the object and traget
of the petition styled as PIL. Looking to
the nature of the writ petition, it appears
that no Public Interest Litigation at large
is involved in this writ petition. The
petition is confined for the Members of
the petitioner-Association only and that
too,
for
only
ousting
the
private
respondent. Thus, the public at large is
not interested in the outcome of this writ
petition. On the contrary, it is a private
interest litigation for some of the
members of the petitioner-Association.

20. It further apepars that the
Members of the petitioner-Association are
working as Junior Engineers or Engineers
working in various Zila Panchayats of the
State of U.P. and it is not a case of the
petitioner-Association that its members
3 All] Zila Panchayat Abhiyantran Sangh and Anr. Vs. The State of U.P. & Ors.
1331
are unable to approach the Court by
reason of (a) poverty; (b) Disability; and
(c)
Socially
or
Economically
disadvantaged position.

21. On the contrary, looking to the
facts of the present case, it appears that
the
Members
of
the
petitionerAssociation, who are employees of Zila
Panchayats are fully capable to approach
the Court to ventilate their grievances.

22. In view of the aforesaid facts
and the proposition of law laid down in
Umesh Chandra Vinod Kumar's case
[supra] it can safely be held that the writ
petition at the instance of an association is
not maintianable where the association
itself is not affected by any order. In other
words, the members of such association
may be affected by an order and may have
common grievance, but for the purpose of
enforcing the rights of the members, writ
petition at the instance of such association
is
not
maintainable.
Therefore,
the
petitioner-Association has no locus standi
to file this writ petition.

23. Even otherwise, we have
examined the record minutely and it
comes out that the Project of the District
Rural Development Agency was being
carried out by the Rural Engineering
Services Department, was handed over to
the Zila Panchayat, Gautam Budh Nagar,
in the year 1999 and the private
respondent, who was performing the
same, was attached as Engineer in the Zila
Panchayat Department to perform the
duties in the year 1999. As per provisions
of Section 41(1)(b) of the U.P.Kshetra
Panchayat & Zila Panchayat Adhiniyam,
1961,
whenever
the
work
of
any
Government Office is transferred to a Zila
Panchayat by order in writing, require the
Zila Panchayat to employ on such posts
and on such terms as may be specified in
the order either the entire staff of the
office of Government connected with that
work or such of the servants in that office
as may be designated or nominated by the
State Government and the services of
such staff or servants shall thereupon be
deemed to have been placed at the
disposal of the Zila Panchayat for the time
being.

24. In the backdrop of the aforesaid
facts, the private respondent, who fulfills
all the conditions and fully eligible as
provided in the U.P. Kshetra Panchayat &
Zila Panchayat Adhiniyam, 1961 was sent
to Zila Panchayat Department, to perform
the duties. It may be noted that private
respondent was having Bachelor of
Engineering Degree (Civil) and was
holding the post of Junior Engineer
(Gazetted) carrying the pay-scale of Rs.
8000-13500, which is the pay-scale of
Engineer in Zila Panchayat Department.
Moreover, the pay scale of Rs. 800013500 was not available on the post of
Junior Engineer at the relevant time.
Since the private respondent was sent
under the provisions of Section 41(1)(b)
of the U.P. Kshetra Panchayat & Zila
Panchayat Adhiniyam, 1961 he was
absorbed under the provisions of Section
43(4)(b) of the U.P.Kshetra Panchayat &
Zila Panchayat Adhiniyam, 1961, which
is also the stand of official respondents. It
may be noted that Section 43(4)(b)
provides that the State Government at any
time require a Zila Panchayat to take its
own service any such government servant,
whose services have been placed at the
disposal of the Zila Panchayat under
clause(b) of sub-section(1) of Section 41
and who has given his consent in that
behalf and upon being so taken in the
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
services of the Zila Panchayat, such
servant shall cease to be government
servant and shall become a servant of the
Zila Panchayat. It is also to be noted that
the deputation order in favour of private
respondent was issued on 2.1.2003 but no
one raised any voice but only when the
order of absorption in Zila Panchayat was
issued, the Association has come forward
questioning the validity of the same.

25. It is significant to point out that
after absorption, the parent department of
the
private
respondent
i.e.
Rural
Engineering Services terminated his lien
vide order dated 30.6.2005. In the writ
petition filed by the Association, later on,
it was not disclosed, which resulted in
passing of an ad-interim order in favour
of the petitioners and in compliance
thereof the State Government passed the
order dated 16th January, 2008, which is
impugned in writ petition no. 115(SB) of
2008. Counsel for Zila Panchayat has
informed us that consequent to the interim
order dated 25.1.2008 passed in the writ
petition filed by the private respondent, he
is continuing in service in the Panchayat
Department and is being paid regular
salary.
Since
the
appointment
and
absorption of private respondent in the
Zila
Panchayat
Department
is
an
exceptional
appointment
in
the
exceptional circumstances as provided in
the Act and as such the same is protected.
Our view is strengthened by a decision of
the Apex Court rendered in Arun Kumar
and others vs. Union of India and others;
(2007)5 SCC 580.

26. Even assuming that the assertion
of the petitioners has little force and we
proceed to quash the order of repatriation,
then it will have an effect of ousting the
private respondent from service as neither
he will be the employee of the Zila
Panchayat Department nor he would be
accepted by his parent department in view
of termination of his lien. Thus equity is
in favour of private respondent. We also
find force in the submission of Counsel
appearing for private respondent that the
decision rendered in Gajendra Pal Singh
is not applicable in the instant case as in
that case the employee was being
repatriated to his parent department,
against which he filed a writ petition and
the writ petition was dismissed holding
that he had no case, but in the present
case, the 'absorption order' has been
passed and his lien in parent department
also
stood
terminated.
In
these
circumstances the ratio of the case is not
applicable. It may be noted in the case of
Surendra Singh Gaur Verus State of
Madhya Pradesh and others; (2006) 10
SCC 214, on which reliance has been
placed by the Counsel for the private
respondent, the Apex Court has held that
once a person has been absorbed in
another department and he has lost his
'lien' in the parent department, the parent
department cannot be given a direction to
take back the employee, whose 'lien' has
been terminated.

27. We would also like to observe that
in the writ petition, the petitioners have taken
a ground that the post of Abhiyanta, is a
promotional post for the Junior Engineers
working in Zila Panchayat and merger of
private respondent on the post of Engineer
amounts to defeating the claim of the
petitioner no.2 and other Junior Engineers,
who are eligible and entitled for promotion
on the basis of seniority-cum-merit. There is
no dispute to the fact that the post of
Engineer in Zila Panchayat is filled in by
direct recruitment and through promotion in
the ratio of 50:50. The Zila Panchayat in its
3 All] Satya Deo Shakya Vs. Ajay Kumar Gupta & Ors.
1333
counter affidavit has stated in paragraph 5
that the deputation/merger of the private
respondent has been made under the quota of
direct recruitment for which 50% of the total
seats have been reserved and the remaining
50% are to be filled in by way of promotion
from amongst the existing employees of Zila
Panchayat. Therefore, it is absolutely
incorrect to say that merger of private
respondent has defeated the claim of
petitioner no.2 and other Junior Engineers.
Non-considering the claim of petitioner no.2
of similarly situated other Junior Engineers
for promotion in their quota by the
department is altogether a different cause of
action, which is not the subject matter of
dispute in the instant writ petition. However,
we would like to add that for filing up the
vacant post of 'Engineers' in Zila Panchayat,
Junior Engineers as well as petitioner no.2 of
writ petition no. 1237(SB) of 2005 initiated
legal proceedings and matter went upto
Hon'ble Supreme Court. Special Leave
Petition (Civil) No. 24206 of 2003 filed by
Amir Chandra Dubey (petitioner no.2) was
disposed of as having become infructuous
vide order dated 2.3.2009 as he was given
appointment
as
Officiating
Incharge
Engineer.

28. For the reasons aforesaid, writ
petition no. 1237 (SB) of 2005 is dismissed
and writ petition no. 115(SB) of 2008 is
allowed. The order dated 16.8.2005 passed
by the State Government is hereby quashed
and private respondent/petitioner shall be
entitled for all consequential benefits
attached to the post in question.

29. Parties shall bear their own
costs.
--------
APPELLATEJURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2013

BEFORE
THE HON'BLE LAXMI KANT MOHAPATRA,
A.C.J.
THE HON'BLE B. AMIT STHALEKAR, J.

Special Appeal No.1270 of 2013

Satya Deo Shakya
 ...Appellant
Versus
Ajay Kumar Gupta & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.D. Kautilya

Counsel for the Respondents:
C.S.C., Sri Nand Kishore
Sri H.R. Mishra, Sri B.R. J. Pandey

High Court Rules Chapter 8 Rule 5Section95(1)(g)(III-A)- Removal of village
pradan-on
allegation
of
false
cost
certificate-by
exercising
quasi
judicial
power by Distt. Magistrate-interference by
Single
Judge-whether
special
Appeal
Maintainable? held-'Yes'.

Held: Para-27
Since we are of the view that judgment in
Hoti Lal (supra) lays down the correct law
and that sub clause (iii-a) of Section
95(1)(g) of the U.P. Panchayat Raj Act,
1947 is ultra vires Article 243-O (b) of the
Constitution of India, therefore, in our view
the order dated 27.8.2011 of the District
Magistrate Bijnor impugned in the writ
petition no. 56084 of 2011 was wholly
without jurisdiction and is a non-est order
and, therefore, such an order cannot be said
to be a quasi judicial order as the very
foundation for exercise of such power by
the District Magistrate stood struck down in
the judgment of Hoti Lal (supra) which we
also approve. Therefore, in our view this
special appeal would be maintainable.

U.P. Panchayat Raj Act 1947-Section
95(1)(g)(III-a)Power exercised by Distt.
Magistrate-without
jurisdictionprovisions of Section 95(1)(g)(iii-a)in
contravention
of
Art.
243-d
of
constitution-already held ultra virus in