JUDGMENT A.K. Yog and R.K. Rastogi, JJ.
1. Heard Sri Sushil Kumar, Advocate, learned Counsel for the petitioner and Sri Vishnu Pratap, learned Standing Counsel appearing on behalf of the respondents No. 1, 2 and 3.
2. According to the pleadings contained in writ petition No. 64500 of 2006 the petitioner filed complaint dated 9.10.2006 before Sub Divisional Magistrate, Gunnaur (respondent No. 3) against Raghunath Singh (respondent No. 4) about non-distribution of kerosene oil in the month of September, 2006. Copy of the complaint is Annexure No. 1 to the writ petition. It is contended vide para 5 of the writ petition that the petition is being filed through Smt. Siya Pyari Pradhan of Gram Panchayat Pusawali, Block Junawai. It is further pleaded (vide para 10 of the writ petition) that another complaint was made on 17.11.2006 and several other complaints were also made before the Senior Supply Inspector, Gunnaur (respondent No. 2) and the Sub Divisional Magistrate, Gunnaur. (Respondent No. 3). Copies of such complaints have been filed as Annexures 1, 2, 3 and 4 to the writ petition.
3. By means of this writ petition, the petitioner has prayed for a writ of mandamus to be issued directing the Sub Divisional Magistrate, Gunnaur district Budaun to pass appropriate order on the complaint of the petitioner.
4. From perusal of Memorandum of Writ Petition and the complaints referred to above, it is clear that Smt. Siya Pyari has filed this writ petition in her capacity as Pradhan of Gram Panchayat Pusawali.
5. The court raised preliminary objection regarding the writ petition being filed by a private counsel and not through Standing Counsel as prescribed under law as there is no resolution of Gram Sabha for this purpose nor permission has been obtained from the Collector to engage private counsel.
6. Case was taken up on 29.11.2006 but was directed to be taken up on the next day as fresh in order to enable the learned Counsel for the parties to study the issue and address the Court regarding maintainability of the writ petition through 'private counsel'.
7. When the case was taken up on 30.11.2006, the learned Counsel at the out set informed that another writ petition (Civil Misc. Writ Petition No. 13920 of 2004) through him (as Private Counsel) has been entertained by this Court and an interim order has been passed. The learned Counsel further submitted that no objection was raised by the respondents or the Court in that case on this score. The Record of said writ petition No. 13920 of 2004 was also requisitioned. Sri Sushil Kumar, Advocate, appears for the petitioner in both the Writ Petitions.
8. Record of the writ petition No. 13920 of 2004 shows that it is not admitted as yet. With the consent of the learned Counsel for the parties, both the writ petitions are taken up and decided together.
9. Sri Vishnu Pratap, learned Standing Counsel drew our attention to Section 127-B of the U.P.Z.A. & L.R.Act, which reads as under:
127-B Panel Lawyers:--(1) The State Government may, on such terms and conditions and in such manner as may be prescribed appoint, either generally or in any case or for any specified class of cases, in respect of Gaon Sabhas of such local areas as may be specified, one or more legal practitioners to be called panel lawyers.
(2) A panel lawyer may subject to the provisions of Sub-section (4), appear, plead and act, without any written authority on behalf of any Gaon Sabha of the area for which he is appointed before any Court in any suit or in other case, of which he has charge, by or against the Gaon Sabha.
(3) A panel lawyer in any Court shall be the agent of the Gaon Sabha of the area for which he is appointed for the purpose of receiving processes against such Gaon Sabha issued by such Court.
(4) No panel lawyer shall, without the prior sanction of the Land Management Committee accorded by its resolution, enter into any agreement or compromise with reference to, or withdraw from any suit or other proceeding on behalf of a Gaon Sabha.
10. The learned Standing Counsel also referred to paras 128 and 131 of the U.P. Gaon Sabha and Bhumi Prabandhak Samiti Manual which read:
128: The conduct of Gaon Sabha Litigation shall not depend upon the individual discretion of the Chairman of the Bhumi Prabandhak Samiti (Land Management Committee), but shall be a matter of a resolution of the Bhumi Prabandhak Samiti (Land Management Committee) as a whole. In urgent cases, however, the Chairman can take action on his own and seek ratification of the Bhumi Prabandhak Samiti (Land Management Committee) afterwards by including in the agenda of the next ensuing meeting.
131: Lawyers have been appointed who shall represent the Bhumi Prabandhak Samiti (Land Management Committee) and give it legal advice where necessary. The Committee shall not engage any lawyer other than the panel lawyer appointed. In important cases, however, special lawyers can be engaged with the specific provision of the Collector in writing.
There is a Vakil or mukhtar in each tehsil and one civil and one revenue lawyer at the district headquarters. The District Government Counsel is incharge of the whole work.
The Bhumi Prabandhak Samiti (Land Management Committee) requiring the advice of a lawyer should request the Tahsildar or the Sub-Divisional Officer to arrange for it.
The Chairman of Bhumi Prabandhak Samiti (Land Management Committee) shall consult the panel lawyer in all cases in which he is summoned or is impleaded as defendant.
If in any case the Bhumi Prabandhak Samiti (Land Management Committee) refusesto sign a plaint or to defend a case, as advised by the panel lawyer or the special lawyer, if engaged, as the case may be, or as instructed by the Tahsildar or the Sub-Divisional Officer, the lekhpal as Secretary of the Bhunmi Prabandhak Samiti (Land Management Committee) shall act for the Bhumi Prabandhak Samiti (Land Management Committee) under orders of the Tahsildar for the above purpose only.
11. Appendix-I of the Legal Remembrancer's Manual -(PP 275) deals with instructions for conduct of Gaon Sabha Litigation., extract of which is as under:
PROCEDURE OF LITIGATION.
A Gram Samaj is a corporate body, having perpetual succession, which is vested with the capacity of suing and being sued in its statutory name. On its behalf the Land Management Committee and its Chairman are responsible for the conduct of all litigation affecting the Gaon Samaj, subject to the control, generally of the Government and locally of the Collector or the Sub- Divisional Officer.
2. The conduct of Gaon Samaj litigation shall not depend upon the individual discretion of the Chairman of the Land Management Committee, but shall be a matter of resolution of the Land Management Committee as a whole. In urgent cases, however, the Chairman can take action on his own and seek ratification of the Land Management Committee afterwards, by including it in the agenda of the next ensuing meeting.
3. In all cases where a member, Vice Chairman or Chairman of a Land Management Committee is either a party to a suit or proceeding relating to the Land Management Committee or is otherwise interested in the matter in issue, it shall, by a resolution to that effect, entrust a member, other than the said member, Vice Chairman or Chairman, as the case may be, with the conduct of the litigation.
12. The learned Standing Counsel thereafter placed reliance upon the decision of a Division Bench of this Court (Lucknow Bench) in the case of Babu Ram Verma v. Sub-Divisional Officer and Ors. A.W.C. 1996 (2) 1035. In the said decision, their Lordships have held that without resolution of the Gram Sabha or consent of the District Magistrate, a suit/petition on behalf of Gram Sabha cannot be filed in Court through 'Private Counsel' and it is to be represented through Standing Counsel/Panel Lawyer appointed by the State in view of the above provisions.
13. It will be appreciated that procedure prescribing for Gram Sabha to be represented in the manner quoted above is with the object that funds of the Gram Sabha, which is a public body, may not be dissipated in initiating litigation on frivolous matters or personal whims of Gram Pradhan and that State should have control over it. In the said decision it has also been observed that provisions in this respect are mandatory.
14. Sri V.K. Singh, Advocate, has appeared and stated that he has been appointed as Standing Counsel to represent the Gram Sabha/Land Management Committee in the State of Uttar Pradesh and Sri Sushil Kumar, Advocate, has no authority to file the present writ petition on behalf of Gram Pradhan.
15. In view of the above, we have no doubt that in absence of appropriate resolution to file the writ petition and permission of the concerned District Magistrate, as required under the provisions, Sri Sushil Kumar has no authority to represent the Gram Sabha.
16. In the result, above writ petitions are not maintainable and liable to be dismissed. Concerned Gaon Sabhas are, however, at liberty to seek redressal of their grievances, if any, in accordance with the procedure established by law.
17. Both the writ petitions are dismissed subject to above observations.
18. No order as to costs.
19. Let a copy of this order be placed on the file of Civil Misc. Writ Petition No. 13920 of 2004.