Allahabad High Court
Smt. Meena Devi vs State Of U.P. And Others on 13 September, 2010
Author: V.K. Shukla
Bench: V.K. Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Civil Misc. Writ Petition No.8837 of 2009 Smt. Meena Devi Versus State of U.P. and others Hon'ble V.K. Shukla, J.
Present writ petition has been filed by petitioner, Smt. Meena Devi for following reliefs:
"i) issue a writ, order or direction in the nature of quo-warranto commanding and directing the respondent No.5 to vacate the post of Gram Pradhan of Gram Sabha Vishambharpur, Parana Dehma, Tehsil Mohammadabad, District Ghazipur forthwith.
ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to hand over the charge of Gram Pradhan of Gram Pradhan of Gram Sabha Vishambharpur, Parana Dehma, Tehsil Mohammadabad, District Ghazipur to the petitioner by declaring her as elected Gram Pradhan and treat her duly elected.
iii) Issue a writ, order or direction in the nature of mandamus commanding the respondent No.2 to hold an inquiry and take appropriate action in regard to corruption and financial irregularities by respondent No.5.
iv) Issue or pass any other further order as this Hon'ble Court may deem fit and proper in the circumstances of the case.
v) Award cost to the petitioner."
Brief background of the case is that during the year 2005 election qua the post of Pradhan of Gram Sabha Vishambharpur, Parana Dehma, Tehsil Mohammadabad, District Ghazipur was held. Said seat was reserved for female scheduled caste category candidate. In the said election 5 female candidates, including petitioner as well as respondent No.5, Smt. Iner Bala filed their respective nomination papers, and respondent No.5 was declared elected. This is accepted position that at no point of time, questioning the validity of said election, declaring Smt. Iner Bala as Pradhan, any election petition had ever been filed, as is provided for under Section 12C of the U.P. Panchayat Raj Act, 1947, and it is reflected that complaint had been made before the District Magistrate, Ghazipur on 12.11.2007 requesting therein to hold enquiry regarding fake caste certificate of respondent No.5 and to remove her from the post of Pradhan. The facts mentioned in the said complaint were that Smt. Iner Bala was not at all Kharwar by caste, as such she was not scheduled caste category candidate, and on the basis of fake certification, she had succeeded in representing the constituency, which was reserved for scheduled caste category candidate. The Tehsildar who had issued certificate on earlier occasion made enquiry on 07.12.2007 and proceeded to pass order cancelling the caste certificate of respondent No.5. Against the said order cancelling her caste certificate, Smt. Iner Bala preferred writ petition No5262 of 2008 before this Court, and this Court, in view of the fact that entire action against Smt. Iner Bala was in violation of the principles of natural justice, proceeded to pass order dated 29.12.2007, giving liberty to Tehsildar to pass fresh order, after giving opportunity of hearing to the parties. Thereafter, Tehsildar on 24.04.2008 proceeded to pass order holding that Smt. Iner Bala comes basically from Kahar /Kamkar caste, which falls within OBC, and in this background caste certificate issued to her on earlier occasion showing her to be Kharwar, which is scheduled caste, was cancelled. Thereafter, petitioner requested the District Magistrate that once caste certificate of Smt. Iner Bala stood cancelled, then she had got no right to continue on the post of Pradhan and her continuance is liable to be stopped by issuing a writ of quo-warranto. At this juncture, present writ petition has been filed.
Counter affidavit has been filed and therein stand has been sought to be taken that the petitioner had contested and lost the election, and she having failed in filing any election petition, the request made by her cannot be accepted. Respondent No.5 has tried to contend that after the order had been passed by Tehsildar, representation has been made by her before the District Magistrate, complaining therein that the opinion made qua her that she is Kanhar/Kamkar by caste is incorrect opinion. It has been sought to be contended that till date, the District Magistrate has not passed any order and further it has been sought to be justified that relevant consideration has not been made by Tehsildar while forming such opinion and it has been sought to be stated that her election was based on duly issued caste certificate, as such petitioner has got no right to challenge the same.
Rejoinder affidavit has been filed, and therein the averments mentioned in the counter affidavit have been disputed and that of writ petition have been reiterated. Judgment of this Court in the case of Pooranmasi Dehati vs. Shambhu Chaudhary, 2009 (3) ADJ 5, has been appended, wherein, in proceedings under the provisions of Representation of People Act, 1951, while deciding election petition, opinion had been formed that Karmkars are not scheduled caste, as they have not been shown in the list prepared in 1950, as such there was statutory disqualification from contesting election from a constituency reserved for Scheduled caste. Supplementary counter affidavit has also been filed, in respect of representation moved before the District Magistrate.
After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Learned counsel for the petitioner, Sri R.P. Mishra, Advocate appearing with Sri S.K. Pandey, Advocate, contended with vehemence that in the present case once seat was reserved for scheduled caste category candidates, subsequent to holding of election and declaration of result, declaration has been made by competent authority i.e. Tehsildar that the caste certificate had been issued on wrong facts, then in such a situation and in this background, as office of Pradhan is public office, the candidate, who is not member of the said category cannot be permitted to continue on the post in question. In such a situation and in this background writ of quo-warranto has to be issued, prohibiting the usurper to represent the constituency, as such writ petition deserves to be allowed.
Countering the said submission Sri Rakesh Pandey, Advocate, representing Sri Iner Bala, respondent No.5, on the other hand, has contended that the petitioner having lost the election did not file any election petition , as such once what could not be got by her directly, then she cannot be permitted to get the same indirectly, and further it has been stated that against the order cancelling caste certificate by Tehsildar, representation has been made before the District Magistrate, but till date no final decision has been taken on the same.
After respective arguments have been advanced, constitutional provisions as well as provisions of U.P. Panchayat Raj Act, 1947 are being looked into. "Panchayats" have been provided for in Part IX of the Constitution. Article 243 (d) defines the Panchayat as an institution of self government constituted under Article 243-B for the rural areas, and Gram Sabha has been provided under Article 243A as a body which may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide. Article 243B deals with constitution of panchayats and Article 243D deals with reservation of seats. Article 243D being relevant to resolve the controversy in question is being quoted below:
"243-D. Reservation of seats.- (1) Seats shall be reserved for-
(a) the Scheduled Castes; and
(b) the Scheduled Tribes in every Panchayat and the number of seas so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the proportion of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filed by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes and Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide;
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the proportion of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward lass of citizens."
Pursuant to the aforesaid constitutional mandate provided for under Section 12 of the U.P. Panchayat Raj Act, 1947, Gram Panchayats have to be constituted under Chapter IIIA of the U.P. Panchayat Raj Act, 1947. Section 11A deals with Pradhan and Up-Pradhan of Gram Panchayat and also provides for reservation qua the office of Pradhan.
"CHAPTER III-A 11-A. Pradhan and Up-Prqadhan of Gram Panchayat.- (1) There shall be a Pradhan and a Up-Pradhan of the Gram Panchayat, who shall respectively be the Chairperson and Vice Chairperson thereof.
(2) The State Government shall, by order, reserve offices of Pradhans for the Scheduled Castes, the Scheduled Tribes and the Backward Classes:
Provided that the number of offices of Pradhan reserved for the Scheduled Tribes and the Backward classes in the state shall be as nearly as may be, the same proportion to the total number of such officesl as the proportion of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that the reservation for the Backward Classes shall not exceed twenty seven per cent of the total number of offices of Pradhans:
Provided also that if the figures of population of the Backward Classes are not available, their population may be determined by carrying out a survey in the prescribed manner.
(3) Not less than one-third of the total number of Pradhans reserved under sub-section (2) shall be reserved for women belonging to the Scheduled Castes, Scheduled Tribes and the Backward Classes.
(4) Not less than one-third of the total number of offices of Pradhans, including number of Pradhans reserved under sub-section (3) shall be reserved for women.
(5) The offices of Pradhans reserved under this section shall be allotted by rotation to different Gram Panchayats in such order as may be prescribed.
(6) The reservation of the offices of Pradhans for the Scheduled Castes and the Scheduled Tribes under this Section shall cease to have effect on the expiration of the period specified in Article 334 of the Constitution.
Explanation- It is clarified that nothing in this section shall prevent persons belonging to the Scheduled Castes, the Scheduled Tribes, the backward Classes and the women from contesting election to unreserved seats."
Hon'ble Apex Court in the case of Kasambhai vs. Chandubha. D Rasjput, 1998 (1) SCC 283 took the view, that the idea of providing reservation for the weaker section of the society is not only to ensure their participation in the conduct of affairs of municipality but it is also an effort to improve their lot. The reservation ensures that specified minimum number of persons belonging to that category become member of municipality. Hon'ble Apex court in the case Deshraj vs. Bodhraj, AIR 2008 SC 632, has clarified the position, that person who does not belong to scheduled caste, cannot offer himself as a candidate in reserved constituency.
Once effective representation/participation of scheduled caste candidate is the motto, then any candidate not belonging to scheduled caste category cannot offer himself as a candidate in reserved constituency, and in case such an offer is made claiming to be from reserved category, then election of such candidate is open to challenge under Section 12-C of the Act, on the ground that such person was not qualified to be nominated as a candidate for the said election, and in the said election petition, Election Tribunal as per procedure prescribed is entitled to make enquiry, as it deems necessary, qua the said person, and then record finding, and requisite orders under Section 12 (4) of the Act can be passed. Election of Pradhan has to be questioned by way of filing election petition, within the time frame provided for, before the Election Tribunal as per the mandate of Article 243-O of the Constitution This Court in the case of Ram Din Shakya vs. State of U.P. and others, 2002 (93) R.D.39 vis-a-vis filing of election petition/Writ of quo-warrnto has taken the view as follows:
"10. - In my considered opinion the election of Pradhan in the present case cannot be questioned by way of filing a writ of quo warranto in view of mandatory provisions enshrined under Art. 243-O of the Constitution which has overriding effect on other law on the subject. It is well to remember that norms of the Constitution are supreme norms under which every enactment to is to be passed and every action of the constitutional functionaries is to be tested. No statutory provision can be allowed to prevail over mandatory provisions postulated under Art. 243-O of the Constitution. I may, hasten to add here that even under statutory provisions under Section 12-C of U.P. Panchayat Raj Act, 1947 the election of Pradhan cannot be called in question except by way of an election petition to such authority within such time and in such manner as may be prescribed on the grounds enumerated under the said section."
This Court in the case of Hoti Lal vs. State of U.P. and others, 2002 (93) R.D.451, has held as follows:
"31. I have reason to believe that mandatory provisions enshrined under Article 243 O (b) of the Constitution escaped the notice of State Legislature while inserting sub-clause (iii) (a) in clause (g) of sub-sec. (1) of S. 95 of U.P. Panchayat Raj Act by amending Act No. 21 of 1998. I am of the view that if State Legislature would have taken note of Article 243 O (b) of the Constitution, it would not have inserted aforesaid provisions in U.P. Panchayat Raj Act by Amending Act No. 21 of 1998 depriving an elected office bearer of village Panchayat from his elected office within statutory period otherwise than presenting election petition before Election Tribunal on the grounds enumerated under S. 12-C of U.P. Panchayat Raj Act. The State Legislature ought to have taken notice that decision of election tribunal under S. 12-C of U.P. Panchayat Raj Act is placed within the judicial scrutiny of a Judicial Officer within sub-sec. (6) of the said Section.
32. A close scrutiny of Article 243 O (b) of the Constitution reveals that Parliament has prohibited the State Legislature from enacting any other law for setting the election dispute of an elected office bearer of village panchayat except by presenting an election petition before Election Tribunal in conformity of Article 329 of the Constitution applicable to either House of Parliament or to the House or either House of the Legislature of State. The State Legislature enacted S. 12-C of U.P. Panchayat Raj Act (adopted the said Section) after enforcement of Article 243 O (b) of the constitution enumerating grounds on basis of which election of an elected office bearer of Village Panchayat can be called in question before Election Tribunal. In such a situation for the same cause of action for which an aggrieved person is entitled to file an election petition under S. 12-C of U.P. Panchayat Raj Act in compliance of mandatory provisions of Article 243 O (b) of the Constitution cannot be permitted to be transgressed by State Legislature by inserting offending provisions by Amending Act No. 21 of 1998 throwing same adjudication in the hands of executive officers against the provisions of Article 50 of the Constitution. Shifting of adjudication pertaining to election disputes of Village Panchayat from election Tribunal subject to judicial control to Executive Officer by aforesaid offending amendment is impermissible within constitutional provisions discussed hereinabove.
33. Bottom line argument of the learned Advocate General before me is that amendment inserted by Amending Act No. 21 of 1998 is justifiable within the meaning of Art. 243 F of the Constitution. The relevant provisions of the aforesaid Art. 243F is reproduced hereinbelow for ready reference :
"243F. Disqualifications for membership - (1) A person shall be disqualified for being chosen as, and for being a member of a Panchayat -
(a) if he is do disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned.
(b) if he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide."
34. The aforesaid submission made by learned Advocate General is not acceptable to me for the reasons given hereinbelow :
Firstly, the Parliament has reproduced Art. 239 in verbatim as Art. 243 O under Part IX of the Constitution. It is pertinent to mention that Article 329 deals with bar to interference by Courts in electoral matters relating to either House of Parliament or to the House or either House of the Legislature of a State except by an election petition. The Parliament has also enacted Arts. 191 and 192 relating disqualification for membership and decision on question as to disqualifications of members. Disqualification for membership enumerated under Art. 191 of the Constitution if proved at the time of nomination up to declaration of results by Returning Officers, it is always challenged by way of election petition. In case disqualification is earned by a member of a House of the Legislature of State after declaration of result it can be referred for decision as to disqualification of a member of State Legislature under Art. 192 to the Governor but there is no pari materia provision about disqualification of membership of either House of Parliament. It is no where mentioned if disqualification from membership pertain to a member of either House of Parliament where reference is to be made under newly inserted Article by the Constitution (Forty second) Amendment Act, 1976 and the Constitution (Forty-Fourth Amendment) Act, 1978 Disqualification of House of Legislature of State is subject to decision by Governor if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualification mentioned in clause (1) of Art. 191. The aforesaid Article is silent about reference of disqualification of members of either House of Parliament.
35. Be that as it may it is reiterated at the risk of repetition that if disqualification from membership of either House of Parliament or to the House or either House of Legislature of a State exists on the date of filing of nomination and continue to exist up to declaration of results by Returning Officers, then all these questions of disqualifications can be raised by way of election petition filed under Representation of the People Act, 1951.
36. Similarly, a disqualification of a person elected as office bearer of Village Panchayat if it exists at the time of filing of nomination and continue to exist up to declaration of his result, then such disqualification is to be agitated by way of filing an election petition before the Election Tribunal under Section 12-C of U.P. Panchayat Raj Act but if such disqualification is earned by a person after filing of nomination paper and declaration of results, then State Legislature, if feels, may make law prescribing authority to undergo whether a person is disqualified to continue as a member of Panchayat or not and such authority before passing an order disqualifying an elected office bearer of a Village Panchayat is to obtain opinion of the State Election Commissioner and such authority shall be bound to act according to such opinion tendered by a State Election Commissioner and an argument contrary to it is not acceptable to maintain dignity of conduct of election by independent Election Commissioner and declaration of results by Returning Officers of Village Panchayats.
37. Secondly, it is to be presumed that while Parliament was enacting Art. 243 O, the enactment of Art. 243 F was within its knowledge, still the Parliament, by a non obstinate Art. 243 O made mandatory provisions under Clause (b) that no election to any Panchayat shall be called in question except by election petition present to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
38. Thirdly, it is settled principle of law that non obstinate Section of a Statute has overriding effect on other provisions in the same enactment and other enactments as well. It is held that non obstinate provisions of an Article of the Constitution has overriding effect upon other provisions of the Constitution and has overriding effect upon other statutory provisions of Enactment enacted in routine either by Parliament or State Legislature. It has overriding effect over the offending amendment inserted by State Legislature by U.P. Act No. 21 of 1998. The connotation "Notwithstanding anything in this Constitution" leads towards an irresistible conclusion that unequivocally the Parliament has laid down that irrespective of any other provision on the subject in the Constitution the provision made under Art. 243 O would prevail over any other provision of the Constitution in this regard, which includes Art. 243 F as well. The aforesaid expression "notwithstanding anything in this Constitution" contained in the beginning of Art. 243 O of the Constitution is used with a view to gave overriding effect over Art. 243 F of the Constitution in case of conflict between two aforesaid Articles or any other provisions in the Constitution. The expression "notwithstanding anything in this Constitution" used under Art. 243 O of the Constitution is used in contradiction to the phrase "subject to the latter conveying the idea of yielding to the provisions of Art. 243 F of the Constitution whereas former would prevail over the latter in case of conflict between two Articles. " Article 243 O of the Constitution which is a non obstinate Article is distinguishable with Art. 243F of the Constitution and an argument of learned Advocate General contrary to it is not acceptable and it is hereby repelled.
39. Lastly, I am of the view that assuming for argument sake even if Art. 243 F is subject to two intepretations, one in favour of subject and other in favour of State, then this Court would prefer an interpretation in favour of the subject. The anomaly of Arts. 243F and 243 O can be resolved by holding that if a cause of action relating disqualification enumerated under sub-section (2) of Section 11A or sub-section (5) of Section 12-C of U.P. Panchayat Raj Act exists on the date of filing of nomination by a person who contests election of office bearer of Village Panchayat and such disqualification continues to exist up to declaration of result by Returning Officer, then aggrieved party has no option except to challenge the same by way of filing election petition alleging disqualification with which an elected person suffers on the date of filing of his nomination and got himself declared as elected office bearer of Village Panchayat irrespective of the fact that he was not eligible to contest such election."
The view has been taken that election to the office of Pradhan can be challenged only by way of forum provided for to question the validity of election is by way of election petition under Section 12-C of the Act, as provided for under Article 243-O of the Constitution, which has overriding effect. There is another facet of the matter and the said facet is that there are two stages of disqualification of a person elected as office bearer of Village Panchayat; (i) if it exists at the time of filing of nomination and continue to exist up to declaration of his result, then such disqualification is to be agitated by way of filing an election petition before the Election Tribunal under Section 12-C of U.P. Panchayat Raj Act; (ii) but if such disqualification is earned by a person after filing of nomination paper and declaration of results, then State Legislature has authority to make law disqualifying such an incumbent as a member of Panchayat.
Hon'ble Apex Court in the case of Kurupati Maria Das vs. M/S Dr. Ambedkar Sewa Sansthan and others, AIR 2009 SC 2475, after taking into account the judgment of Hon'ble Apex Court in the case of K. Venkatchalam v. A. Swamickan, 1999 (4) SCC 526; Jaspal Singh Arora vs. State of M.P. 1998 (9) SCC 594; Gurdeep Singh Dhillo vs. Satpal and others, 2006 (10) SCC 616, has taken the view that election cannot be under challenge in a writ of quo-warranto, but subsequent continuance of such a person in his capacity as a person belonging to that particular caste can always be subject matter of challenge and writ of quo-warranto would lie, in paragraph 22 of judgment word of caution is there, that in the garb of writ petition of Quo-Warranto, question of caste and question of election which are so inextricably mixed, cannot be permitted, as in pith and substance, it is nothing but questioning the validity of election. High Court itself cannot take up the issue of deciding the question of caste. The law on the subject, thus, stands clarified that writ of quo-warranto would lie in a case wherein subsequent continuance of such a person in his capacity as a person belonging to that particular caste is an issue and the same can always be subject matter of challenge. In paragraph 27 wherein inaction was complained of, on behalf of authorities enjoined upon to decide the issue of caste under Section 5 of 1993 Act has been dealt with inclusive of the issue of consequence of cancellation certificate as follows:
"That was done. If that application had been decided upon and concerned authority had found that appellant's caste certificate itself was false and fraudulent and he genuinely did not belong to Scheduled Caste, then that itself could have been enough for the appellant to loose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies."
In the aforementioned judgment, a thin line of distinction has been drawn for challenging the election which was open till declaration of result, and qua the disqualification occurred subsequent to the same, i.e., after filing nomination papers and declaration of result, then certainly, situation cannot be left at the prerogative of the authority, and in appropriate matters Court can always issue writ of quo-warranto, when it is established that the person who holds the post of an independent substantive public office, by what rights he holds the office, so that his title is duly determined, and in case it is found that holder of the office has no title, he should be ousted from the office by a judicial order. Procedure of quo-warranto comes under judicial remedy, but control of executive from making appointment to public office cannot be taken away. It protects such persons from being deprived of the public office, who has right. A person can avail the remedy of writ of quo-warranto by satisfying the Court that the office in question is public office and the same is held by usurper without legal authority, and on inquiry as to whether the appointment of the said usurper had been made in accordance with law or not, the authority of quo-warranto is thus judicial remedy to undo a wrong when public office is involved and the incumbent who is holding the office, same is without any authority of law.
In the case of B. Srinivasa Reddy vs. Karnataka Urban. Water Supply & Drainage Board Employees' Association, 2006 (3) AIR Kar R 497, the parameters of issuance of writ of quo-warranto along with the issue of locus has been dealt with extensively providing that there is no dispute regarding the legal provision that the rights under Article 226 of the Constitution can be enforced only by aggrieved person, but said principles are not at all attracted when writ prayed for is for quo-warranto/ Habeas Corpus. Qua-warranto should be refused when it is outcome of malice or ill-will.
The larger question involved in the present case is that the candidate, Smt. Iner Bala claiming herself to be Scheduled caste, obtained certificate, contested the election and was declared elected. On subsequent inquiry by Tehsildar, it was found that the very foundation and basis of her caste certificate was incorrect and the same has been cancelled on 24.04.2008 by the Tehsildar. Tehsildar while proceeding to cancel the caste certificate has proceeded to mention that Smt. Iner Bala is from Kahar/Kamkar category which is recognized as O.B.C. in the State of U.P. and only in order to derive benefit of Scheduled caste category she has been claiming herself to be from Kharwar in this background order has been passed. This Court also while deciding election petition in Poornmasi Dehati Vs. Shambhu Chaudhary, 2009 (3) ADJ 5 has taken the view that Kamkar is not sub-caste of Kharwar, which is the Scheduled caste. Kamkar is not mentioned in 1950 Scheduled Castes order. Can even in such a situation remedy of election petition be availed. Such remedy could have been availed, had the order of cancellation been passed prior to the declaration of result, but here, in the present case, elections had taken place and result had been declared and the office was being held, then on inquiry it had been found that Smt. Iner Bala was not from Scheduled caste category candidate. Once Smt. Iner Bala was not from Scheduled caste category candidate, then it is not at all that her election is under challenge, but her subsequent continuance in the said capacity as a person not belonging to that particular caste is subject matter of challenge. Hon'ble Apex Court in the case of Kurupati Maria Das (supra), as quoted above, has itself proceeded to mention, if the application for cancellation of caste certificate had been decided upon and concerned authority had found that appellants caste certificate itself was false and fraudulent and she genuinely did not belong to Scheduled caste, then that itself could have been enough for the appellant to loose the post that she was elected. Case in hand is falling in the said category as here certificate has been cancelled by the competent authority. Hon'ble Apex Court in such a situation has taken the view that writ of quo-warranto would lie.
Much emphasis has been laid on the fact that in the present case though certificate in question has been cancelled but still the matter has been represented to the District Magistrate. The certificate on which Smt. Iner Bala had contested the election as Scheduled caste candidate, was issued by Tehsildar. Earlier, Tehsildar proceeded to cancel the said certificate, against which Smt. Iner Bala had preferred writ petition, which was allowed and the matter was remanded back to Tehsildar, and the Tehsildar, thereafter again has proceeded to cancel the said certificate by holding that she did not genuinely belong to Scheduled Caste, as such Smt. Iner Bala cannot be treated as member of the said category and based on said certification in the year 2005 she had contested the election and once the very foundation and basis for contesting the election had vanished, then net effect of the same is that she had no lawful authority or right to represent the constituency, which was reserved for scheduled caste category candidate. Counsel for Smt. Iner Bala was confronted with this situation as to whether representation moved before District Magistrate against the order of Tehsildar was statutory in character. Counsel has miserably failed to satisfy the Court on this score, that against the order of cancellation of caste certificate, there is remedy of moving representation. Once representation moved before District Magistrate is not at all statutory one, and there is no interim order operating against the order of Tehsildar, the net effect of the same is that it is operating with full force, mere pendency of representation is neither here nor there. Counsel for Smt. Iner Bala has collaterally tried to substantiate before this Court that order passed by Tehsildar is bad. Collateral challenge is not at all permissible, and coupled with this, question of caste cannot be decided in writ petition, as writ petitions are to be decided on the parameters of judicial review. Emphasis has been made that action of approaching this Court by the petitioner is on account of malice or ill-will. Merely because incumbent has pushed the issue of Smt. Iner Bala not being from Scheduled Caste category and has succeeded in the same, it cannot be said that proceedings are motivated or of ill-will, as petitioners' contention is that they cannot be represented by non-scheduled caste category candidate and said factum has been substantiated by cancellation of caste certificate. In such a situation and in this background, writ of quo-warranto can be issued when public office is being held, wherein election is not under challenge, but challenge is to her subsequent continuance in her capacity belonging to a particular caste.
Consequently, in the facts of the case writ of quo-warranto is being issued, as the office of Pradhan is a constitutional office under the Constitution of India and a statutory office under the provisions of U.P. Panchayat Raj Act, 1947, and once the same is statutorily reserved for scheduled caste category candidate, then Smt. Iner Bala, who does not come from that category, she has no right to represent such constituency and to continue as Pradhan, as she has failed to show her authority to represent the said constituency in question reserved for Scheduled Caste category . She is directed to quit the public office of Pradhan forthwith as her continuance is totally contrary to law.. Rest of the prayers have not been pressed. Writ petition stands partly allowed.
13.09.2010 SRY