Sajid Khan vs The State Of Madhya Pradesh on 16 February, 2017

[Cites 3, Cited by 31]

Madhya Pradesh High Court

Sajid Khan vs The State Of Madhya Pradesh on 16 February, 2017

1. Quashment of proceedings initiated against the petitioner under Section 36(3) of the M.P.Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and a direction to respondent No.2-Collector is being sought vide present writ petition.

2. Petitioner is a Sarpanch, Gram Panchayat Dorli, Chhatarpur, District Seoni, elected on 17.01.2015 from the constituency reserved for other backward class. Petitioner contested the election on the basis of Caste Certificate said to be issued by the Sub-Divisional Officer (Revenue), Seoni on 25.08.2014 declaring him as Momin Julaha, a caste which is declared as Other Backward Class in the State of Madhya Pradesh by virtue of notification issued by the Government of Madhya Pradesh through its Scheduled Tribe, Scheduled Caste and Other Backward Class welfare department No.F8-5-25-4-84 dated 26.12.1984 and No.F23-4-97-54 dated 02.04.1997.

3. Respondent No.3 filed an application before Collector, Seoni for declaring petitioner's election as null and void as 2 Writ Petition No.12442/2016 the certificate issued in his favour on the basis of which he claimed and got elected from the constituency reserved for the Other Backward Class which being a disqualification under Section 36(2)(a) of Adhiniyam 1993, which envisages that :

"(2) If any person having been elected as an office bearer of Panchayat :-

(a) subsequently becomes subject to any of the disqualification mentioned in Sub-section (1) and such disqualification is not removable or being removable, is not removed or becomes office bearer concealing his disqualification for it, which has not been questioned and decided by any election petition under Section 122.

(emphasis supplied)

4. Sub-Section (3) of Section 36 of Adhiniyam 1993 confers certain powers in the Collector, it provides for :

"(3) In every case the authority competent to decide whether a vacancy has occurred under Sub-section (2) shall be Collector in respect of Gram Panchayat and Janpad Panchayat and Commissioner in respect of Jila Parishad who may give his decision either on an application made to him by any person or on his own motion. Until, the Collector or the Commissioner, as the case may be, decides that the vacancy has occurred, the person shall not cease to be an office bearer :

Provided that no order shall be passed under this sub-section against any office bearer without giving him a reasonable opportunity of being heard. "

5. Dwelling upon the scope of sub-Section (2) and (3) of Section 36, it is held in Roshanlal Maravi V.Shambhoo Singh and others:(2005) 1 MPLJ 467 :

"7. The question then is what would be the remedy if a person is elected by claiming to belong to a reserved category, either falsely or wrongly. The learned Single Judge has held that any irregularity in the caste certificate can give 3 Writ Petition No.12442/2016 rise to an election petition raising a dispute regarding election under Section 122 of the Act. Claiming a caste falsely or producing a false certificate would also amount to concealing the disqualification for becoming an office bearer. Section 36 (2) of the Act provides that if any person having been elected as an office bearer of a Panchayat, becomes such office bearer by concealing his disqualification for it and such disqualification had not been questioned and decided by any election petition under Section 122, he shall cease to be such office bearer and his office shall become vacant, subject to the provisions of sub-section (3). Sub-section (3) of Section 36 provides that the Collector shall be the authority competent to decide whether a vacancy has occurred under sub-section (2) in regard to a Gram Panchayat and he may give his decision either on an application made to him by any person or on his own motion. Sub- section (3) of Section 36 also makes it clear that until the Collector decides that a vacancy has occurred, the person shall not cease to be an office bearer. Proviso to sub-section (3) provides that no order shall be passed under sub-section (3) without giving him a reasonable opportunity of being heard. The grounds of disqualification are enumerated in clauses (a) to

(m) of sub- section (1) of Section 36. The concealment of the caste and making a representation that he belongs to Scheduled Caste or Scheduled Tribe, is a disqualification under clause (k) or (1). If a particular seat is reserved for a Scheduled Tribe, it follows that the person who does not belong to Scheduled Tribe is disqualified by law made by the State Legislature to be elected to such seat.

Therefore, there can be no doubt that a case relating to false caste certificate or false caste claim with reference to a reserved seat would fall under Section 36 (2) and/or Section 122 of the Act. Any act amounting to concealment of a disqualification, that is, a non-Scheduled Tribe person contesting for an election to a seat reserved for a Scheduled Tribe can be challenged either under Section 122 or by an application under Section 36 (3) of the Act. "

4 Writ Petition No.12442/2016

6. In Bhuvaneshwar Prasad @ Guddu Dixit V. State of M.P. and others:2009(1) MPLJ 435 it has been held:

"19 The question still would be of interpretation of section 36 (2) of the act. The aforesaid referred section 36 clearly provides that if any person having been elected as an officer bearer of panchayat (a) - becomes office bearer concealing his disqualification for it which has not been questioned and decided by any election petition under section 122; he shall, subject to the provisions of sub - section (3) , cease to be such office bearer and his office shall become vacant. Sub - section (3) , if is read in its true perspective and in accordance with legislature then would clearly show that legislature wanted the collector to exercise the powers to see that no disqualified person contests the election after concealing the disqualification or no person who has become disqualified after the elections are over is continued as an office bearer in the panchayat. Not only this, the collector also has to see that whether the disqualification is removable and if yes, but not removed then in such a case the collector may declare that the office has become vacant. "

7. This answers the contention raised on behalf of the petitioner that a proceedings cannot be initiated for declaring the elected candidate as not qualified. In other words even if an election petition is not filed under Section 122 of the Adhiniyam, 1993 then also a proceedings can be brought seeking removal of the office bearer for concealing the disqualification. Thus the proceedings initiated against the petitioner under Section 36 of the Adhiniyam 1993 cannot be faulted with.

8. Next contention is that in case where the Caste Certificate has been questioned unless there is a determination by the High Power Committee constituted by the State Government for a scrutiny and determination 5 Writ Petition No.12442/2016 of a Caste, it is beyond the competence of the Authority under Section 36 of the Adhiniyam to examine the Caste status.

9. The contention faces stiff resistance from and on behalf of the respondents. It is urged that it is not the social status of the petitioner which is being examined by the Competent Authority under Section 36 of the Adhiniyam, but the manner in which the certificate has been obtained is being scrutinized to establish that the petitioner became Sarpanch by concealing his disqualification through presentation of the fabricated certificate.

10. In Kumari Madhuri Patil V. Addl. Commissioner Tribal Development and others: (1994) 6 SCC 241 it has been held:

"13...............It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:

1. The application for grant of social status certificate shall be made to the Revenue Sub-

Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non- gazetted officer with particulars of castes and sub- castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six 6 Writ Petition No.12442/2016 months in advance before seeking admission into educational institution or an appointment to a post.

4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.

5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.

6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice 7 Writ Petition No.12442/2016 supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.

7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.

8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.

9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, 8 Writ Petition No.12442/2016 they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.

10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.

11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.

12. No suit or other proceedings before any other authority should lie.

13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.

14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and 9 Writ Petition No.12442/2016 confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post. "

11. Thus it is when there is a dispute as to the caste certificate of the person that the proceedings envisaged in Madhuri Patil (supra) is to be adhered to.

12. Whereas in the case at hand the impugned order dated 12.7.2016 reflects that the enquiry is caused by the Tahsildar and Sub Divisional Officer, Seoni. The Collector on the basis of said report has framed the following issues:

^1- D;k vukosnd ljiap }kjk QthZ ,oa xyr rF;ksa ds vk/kkj ij tkfr izek.k i= izkIr fd;k x;k gSA 2& D;k ljiap }kjk tkfr izek.k i= ds vk/kkj ij gh dksbZ ykHk ;k lqfo/kk vftZr dh tk jgh gSA 3& D;k tkap rF;ksa ds vk/kkj ij tkfr izek.k i= xyr ik;k x;kA 4& xyr tkfr izek.k i= dks fujLr fd;s tkus dk vf/kdkj ,oa xyr tkfr izek.k i= ds vk/kkj ij izkIr fd;s tk jgs ykHk ls oafpr fd;s tkus dk l{ke izkf/kdkjh dkSu gSA**

13. Collector found that the petitioner without furnishing the documents relating to being domicile from prior to 1984 had obtained said caste certificate. Collector further found:

^^14& mijksDr foosfpr fcUnqvksa ds laca/k esa mHk; i{kksa }kjk izLrqr fd;s x;s nLrkostksa] ekSf[kd rdZ ,oa tkap fjiksVZ ds vk/kkj ij ;g izekf.kr gksrk gS fd & 1& vukosnd ljiap lkftn [kku }kjk e/;izns'k 'kklu 10 Writ Petition No.12442/2016 lkekU; iz'kklu foHkkx ea=ky; ds i= Øekad ,Q 7&13@2004@vk-iz-@,d Hkksiky] fnukad 11 tqykbZ] 2005 vuqlkj eku0 loksZPp U;k;ky; ds fofHkUu izdj.kksa esa fn;s x;s U;k; n`"Vkar rFkk Hkkjr ljdkj }kjk le;≤ ij tkjh funsZ'kksa ds vuqlkj vU; fiNM+k oxZ ds fy;s fnukad 26&12&84 ;k mlds iwoZ dh fLFkfr esa lacaf/kr tkap lfefr vf/kdkjh rglhynkj ,oa vuqfoHkkxh; vf/kdkjh flouh ds le{k ,slk dksbZ izekf.kr nLrkost izLrqr ugha fd;k x;k gS fd mudh tkfr vU; fiNM+koxZ eksfeu tqykgk gksA 2& ;g ckr Hkh izekf.kr gksrh gS fd xzke iapk;r MksjyhNrjiqj xzke iapk;r dk ljiap in vU; fiNM+koxZ gsrq vkjf{kr Fkk bl ij vukosnd lkftn [kku }kjk vU; fiNM+koxZ dk tkfr izek.k i= yxkdj fot;h gksdj orZeku esa bl in dk ykHk vftZr fd;k tk jgk gSA 3& vuqfoHkkxh; vf/kdkjh ,oa rglhynkj flouh ds tkap izfrosnu ds vk/kkj ij ;g ckr izekf.kr gksrh gS fd vukosnd lkftn [kku }kjk vU; fiNM+koxZ tkfr ^^eksfeu tqykgk^^ tkfr gksus laca/kh dksbZ Hkh izekf.kr nLrkost tkap lfefr ds lkeus izLrqr ugha fd;k x;k vkSj u gh bl U;k;ky; dks bl ckr dks izekf.kr djus esa lQy gqvk vFkkZr vukosnd lkftn [kku }kjk izkIr fd;k x;k ^^eksfeu tqykgk^^ vU; fiNM+k oxZ tkfr dk izek.k i= xyr rF;ksa ds vk/kkj ij izkIr fd;k tkuk ik;k tkrk gSA 4& e0iz0 'kklu lkekU; iz'kklu foHkkx ds i= lkekU; iz'kklu foHkkx dk ifji= Øekad ,Q 7&2@96@vk-iz@,d fnukad 12 ekpZ] 1997 esa fiNM+k oxZ ds mEehnokjksa ds fy;s tkfr izek.k i= ,oa vk; izek.k i= tkjh djus gsrq l{ke izkf/kdkjh ftyk/;{k@vij ftyk/;{k@mi ftyk/; {k@vuqfoHkkxh; vf/kdkjh jktLo dks fu;qDr fd;k x;k gS lkFk gh mDRk ifji= dh dafMdk 21 fuEukuqlkj izko/kkfur dh xbZ gS %& 11 Writ Petition No.12442/2016 & tkap lfefr ;k izkf/kd`r vf/kdkjh }kjk tkap esa ;g ik;k tkrk gS fd tkfr izek.k i= vkosnd }kjk xyr rF;ksa ds vk/kkj ij izkIr dj fy;k gS rks tkfr izek.k i= ds vk/kkj ij yh xbZ lqfo/kkvksa ls rks vkosnd dks oafpr gksuk iMs+xk lkFk gh mlds }kjk tks ykHk izkIr fd;k x;k gS mld HkjikbZ Hkh djuh iM+sxh] e0iz0 'kklu lkekU; iz'kklu foHkkx ds i= lkekU; iz'kklu foHkkx dk ifji= Øekad ,Q 7&2@96@vk-iz@,d fnukad 12 ekpZ] 1997 dh dafMdk Øekad&2 fuEukuqlkj izko/kkfur dh xbZ gS%& funsZ'k&izkf/kd`r vf/kdkjh %& fiNM+k oxZ ds lnL;ksa dks LFkk;h izek.k i= ftyk/;{k@vij ftyk/;{k@miftyk/; {k@vuqfoHkkxh; vf/kdkjh ¼jktLo½ }kjk gh tkjh fd;s tk;saxsA izkf/kd`r vf/kdkjh 6 ekg ds vUnj vko';d #i ls izek.k i= tkjh djsaxs] tgka ij dk;ZHkkj vf/kd gks ogka ftyk/;{k lacaf/kr {ks= ds vuqfoHkkxh; vf/kdkjh ds vfrfjDr vU; fdlh vf/kdkjh dks tkfr izek.k i= tkjh djus ds fy;s vf/kd`r dj ldrk gS ftyk/;{k }kjk {ks=kf/kdkj dk #i ls mYys[k fd;k tk;sxkA mijksDr 'kklu ds ifji= ls Li"V izekf.kr gS fd tkfr izek.k i= gsrq izkf/kd`r vf/kdkjh ftyk/;{k gSA^^

14. Thus it is the Collector who has taken up the task of deciding as to whether Caste Certificate in favour of the petitioner is valid. The said action by the Collector is not in consonance with the verdict by the Supreme Court in Kumari Madhuri Patil (supra) wherein the procedure has been laid down to be adhered to.

15. It is informed by the parties that the State Government has already constituted a Committee to scrutinize the caste certificate wherein doubt has been raised.

16. In view whereof, the procedure adopted by the 12 Writ Petition No.12442/2016 Collector cannot be approved of therefore while setting aside the order dated 12.7.2016 the matter is relegated to Collector seoni for referring the matter to the High Power Scrutiny Committee to examine the validity of caste certificate issued to the petitioner.

17. It is expected of High Power Scrutiny Committee to take a decision within a period of three months from the date of reference made by the Collector Seoni.

18. Further proceedings before Collector seoni shall remain stayed till the report is received from High Power Scrutiny Committee.

19. Petition stands disposed of finally in above terms.

(SANJAY YADAV) JUDGE das

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