IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 213 of 2011 Indramani Semwal S/o Sri Parmanand Semwal, R/o Kutketh, Patti-Naugun, District-Tehri Garhwal At present Gram Pradhan of Gram Panchayat Adhiyari May Chapra, Vikash Khand Thauldhar, District-Tehri Garhwal. ………….. Appellant Versus 1. State of Uttarakhand through Secretary (Home), Government of Uttarakhand, Dehradun. 2. District Magistrate, Tehri Garhwal. 3. District Program Coordinator, District Tehri Garhwal. 4. Assistant Development Officer, Tehri Garhwal. 5. Vinod Prakash Thapliyal S/o Sri Pitamber Dutt Thapliyal, R/o Village Chapra, P.O. Kutkhet, District Tehri Garhwal. .…...……. Respondents Present: Mr. T.S. Phartiyal, Advocate for the appellant. Mr. K.P. Upadhyay, Addl.Chief Standing Counsel for the State/respondent Nos. 1 to 4. Coram : Hon’ble Barin Ghosh, Chief Justice Hon’ble U.C. Dhyani, Judge Date: 13th September, 2011 JUDGMENT Barin Ghosh, C. J. (Oral) In exercise of the power contained in first proviso to Clause (g) of Sub-Section (1) of Section 95 of the Uttar Pradesh Panchayat Raj Act, 1947, the financial and administrative powers and functions of the appellant, a Gram Pradhan, has been withdrawn and the same has been vested in three members of Gram Panchayat appointed by and under the order impugned in the writ petition. The principal contention in the writ petition is that, before doing so, mandatory obligation contained in the second proviso to Clause (g) of Sub-Section (1) of Section 95 of the said Act, as regards giving the appellant a reasonable opportunity of show cause, had not been complied with. After presentation of the writ petition, a prayer was made for an interim order staying the order 2 impugned in the writ petition. That having not been granted and instead affidavits having been called for, the present appeal has been preferred. We feel that the contention that the appellant was not given an opportunity of hearing, is a question of fact and since negative can not be called upon to be proved, by calling for affidavits and thereby directing establishment of facts contrary to the negative pleaded in the petition and until then not passing an interim order was not such an exercise of discretion that the appellate court can interfere. We, accordingly, dismiss the appeal but at the same time request the learned Judge to expedite hearing of the writ petition. (U.C. Dhyani, J.) ( Barin Ghosh, C.J.) 13.09.2011 13.09.2011 P. Singh