Shakila Khatoon vs State of U.P.

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Amreshwar Pratap Sahi and Vivek Kumar Birla, JJ.—Heard learned Counsel for the petitioner and the learned Standing Counsel for the respondent. The petitioner was nominated as one of the Members of the Three Member Committee which was an arrangement made by the District Magistrate, Kushinagar in terms of section 9(2) of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 for discharge of the functions of the Pramukh till fresh elections are held.

Section 9(2) is extracted hereinunder:--

"Where the office of the Pramukh is vacant, the District Magistrate may, by order, make such arrangement as he thinks fit for the discharge of the functions of the Pramukh, till the Pramukh is elected."

The three members who were initially appointed were the petitioner, Sri Sugreev Prasad and Smt. Neeta Yadav.

This order dated 31.7.2014 has been substituted by a fresh order on the very next day i.e. on 1.8.2014 whereby one of the members Smt. Neeta Yadav has been retained but the petitioner and Sugreev Prasad have been substituted by Sri Rang Lal and Sri Jalaluddin.

The petitioner aggrieved by this alteration made within 24 hours has approached for quashing of the order dated 1.8.2014, and the contention is that the action appears to be at the behest of a local M.L.A. Learned Counsel submits there was absolutely no reason for altering the nomination of the petitioner inasmuch as she did not suffer from any disqualification or even otherwise she is entitled to be part of the committee that had been formed by due application of mind by the District Magistrate on 31.7.2014.

Learned Counsel submits that this change of heart overnight therefore is not a judicious or conscious exercise of discretion and rather it is an act which amounts to surrender of jurisdiction by the District Magistrate at the behest of the local M.L.A.

Having considered the submissions raised, this satisfaction as per the legislative intent clearly appears to be "as he thinks fit". The aforesaid phrase is akin to the doctrine of pleasure and the same does not in any way confer a right on any member to continue as a member of the three member committee, nominated under the provision aforesaid. Thus, in the absence of any conformant of a right to continue, the subjectivity on the part of the District Magistrate while passing an order cannot be made subject to a judicial scrutiny on the ground of an allegation of arbitrariness.

However, there is one exception to this namely if the act is mala fide, then in that event, the action of the authority can be termed either malice in fact or malice in law, as per the evidence available.

In our considered opinion, if it is a colourable exercise of power, then the District Magistrate should himself consciously determine as to whether the order passed by him on 31.7.2014 did suffer from any infirmity or otherwise its alteration was an outcome of any pressure exercised by the local M.L.A. The writ petition is disposed of with liberty to the petitioner to approach the District Magistrate himself alongwith a certified copy of this order as we cannot exercise powers under Article 226 of the Constitution of India at this stage to form any opinion about the same. It shall be open to the District Magistrate to examine any guidelines or Government orders that may provide any indicator for nominating members as per the wish of the existing house.