JUDGMENT D. K. Seth, J.
1. On account of suspension of the Pradhan with regard to financial and administrative powers, the District Magistrate by an order dated 13.7.1998 has constituted a committee for running financial and administrative powers. The petitioner who claims to be the Up-Pradhan, alleges that he has not been included in the said committee though under Section 12J, of the U. P. Panchayat Raj Act, 1947. in such circumstances, he is entitled to function in the absence of Pradhan.
2. Mr. R. K. Srivastava, learned counsel for the petitioner contends that, therefore, the order dated 13.7.1998 should be quashed and the petitioner should be directed to carry on administrative and financial powers.
3. Mr. V. K. Rai, learned counsel for the respondent, on the other hand, contends that provision of Section 12J could not be applicable when Pradhan is suspended in exercise of the powers conferred under Section 95 (g) of the Act by reason of the proviso appended thereto.
4. I have heard both the learned counsel.
5. It appears that Section 12J deals with the provision relating to temporary vacancy in the office of Pradhan, which provides as follows :
"12J. Arrangement in temporary vacancy in the office of Pradhan :.
(i) 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 otherwise., the Up-Pradhan shall exercise all powers and discharge all duties of the Pradhan.
6. A plain reading of the said section indicates that on account of vacancy in the office of Pradhan by reason of death, removal, resignation or that where the Pradhan is incapable to act by reason of absence, illness or otherwise, the Up-Pradhan shall exercise all powers and duties of the Pradhan. It has not specifically dealt with with regard to any situation which may arise during pendency of enquiry against the Pradhan, during which time he is so suspended. The power of suspension is provided in Section 95 (g) of U. P. Panchayat Raj Act. 1947 which empowers the State Government to exercise external control. Section 95 (1) (g) provides as follows :
"95. (1). The State Government may-
(g). Remove a Pradhan. Up-Pradhan or member of a Gram Panchayat or a joint committee or Bhumi Prabhandhak Samiti or a Panch. Sahayak Sarpanch or Sarpanch of a 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 the Act or rules made thereunder or his continuance as such is not desirable in public interest, or
(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 5A :
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."
7. Clause (g) of Section 95 provides for power to remove the Pradhan or Up-Pradhan. While such power is being exercised and during the period when the enquiry is pending for being held, in that event it empowers the State Government to appoint a committee till the enquiry is concluded for the purpose of performing functions of the Gram Panchayat.
8. Mr. Srivastava, learned counsel for the petitioner submits that there is contradiction between Section 12J and proviso to Section 95. He further contends that the proviso would be applicable only when both Pradhan and Up-Pradhan are suspended. In a case where Up-Pradhan is not suspended, according to him, Section 12J would come into play.
9. A reading of both the sections does not indicate that there is any conflict between the two provisions. While Section 12J deals with a situation where after removal there is vacancy in the office of Pradhan or Pradhan is unable to function due to reason of his death, resignation or otherwise. The expression "otherwise" qualifies contingencies mentioned therein. Similarly, if the Pradhan is incapable to act by reason of his absence, illness or otherwise, then only the Up-Pradhan may function. Here also the word 'otherwise' qualifies absence or illness. Thus, Section 12J deals with a situation where without intervention of external control, administrative functions of a Gram Panchayat is carried on. The scheme of the Act has conceived of two situations, one is smooth functioning of the Panchayat without intervention of external control and the other is the contingencies where it requires intervention of external control. The situation where intervention of external control is necessary is completely different from the normal situation as contemplated in Section 12J. Therefore, fields of operation of Section 12J and that of the proviso to Section 95 (1) (g) are altogether different. Proviso to Section 95 (1) (g) deals with the situation where administration is being intervened by external control. In the absence of any intervention of external control. Section 12J would be applicable. Thus, there cannot be any question of conflict between the two provisions.
10. The Legislature in its wisdom has intended two different mechanisms for two different situations. The scheme of the whole Act is to be reconciled and has to be interpreted in a manner which furthers the object of the Act and makes it workable. The intention of the Legislature was clear when it exercises external control, it takes over reins in its own hands till it withdraws its control. During exercise of such external control, it may administer the affairs of the Panchayat according to its wisdom within the ambit and scope of Section 95. Until the enquiry is over, the external control continues, till then the application of Section 12J stands excluded and the provisions of Section 95 (1) (g) remains operative. In such circumstances whether Up-Pradhan is suspended or not, the proviso to Section 95 (1) (g) comes into operation.
11. Then again, the committee may be constituted of three members of the Gram Panchayat. Up-Pradhan is also a member of the Gram Panchayat. Therefore, it was open to the State Government to Include Up-Pradhan in the said committee if he is not proceeded against in the enquiry. Similarly, it was also open to the State Government to exclude Up-Pradhan in its own discretion. When the State Government exercise external control under Section 95, it exercise its discretion, which cannot be interfered with in writ Jurisdiction, which is purely administrative in nature depending on the exigencies of situation; Unless there is mala fide on the part of the State in excluding Up-Pradhan from the committee, it is not possible for this Court to intervene. In the present case, no mala fide having been alleged. I am not inclined to interfere with the matter. In its wisdom the State Government has constituted a committee of three members till the enquiry is over. The provision that has been provided for in the impugned order is temporary one. Therefore, it would not prejudice the right of Up-Pradhan in any manner.
12. It is contended by Mr. Rai that the petitioner has already made a representation. However, this Court is not concerned with the' consideration of the representation. But still it would be open to the respondents to consider the petitioner's representation in accordance with law. However, it is expected that the enquiry against the Pradhan should be concluded at the earliest.
13. In the result, the writ petition falls and is accordingly dismissed.
There will, however, be no order as to costs.