Allahabad High Court
Monika Devi vs State Of U.P. And 2 Others on 16 January, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 28 Case :- WRIT - C No. - 1842 of 2017 Petitioner :- Monika Devi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vinod Kumar Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. This writ petition has been filed for the following relief:
(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.11.2016 passed by the respondent no.2.
(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to interfere in the peaceful functioning of the petitioner as village Pradhan of Gram Panchayat Shahpur Bajbat, Block & Tehsil - Nakud, District - Saharanpur.
2. Briefly stated the facts of the present case are that the petitioner was elected as Pradhan of Village Panchayat Shahpur Majbata, Vikas Khand-Nakud, District Saharanpur in the election held in December 2015.
3. A P.I.L. No.6150 of 2015 (Sonu Bavara Vs. Union of India through Principal Secretary and six others) was filed in which it was held as under:
"An entry in the Presidential Order notified under Article 341 of the Constitution, has to be read and construed as it stands. The power to include or exclude from the list of Scheduled Castes, is vested in Parliament under clause (2) of Article 341 of the Constitution. Hence, it is not open to any administrative authority to direct that a community, which is not listed in the form of an entry in the Presidential Order, is synonymous with or included in a caste which is duly notified. The power to include or add to an entry in the list, is conferred exclusively upon Parliament. The impugned circular does not make any change in that position and necessarily has to be construed in accordance with the settled position in law laid down by the Supreme Court. The benefit would be available only to those who belong to the Kori Caste. Hence, it is not necessary for the Court to entertain the petition. It is, accordingly, disposed of. There shall be no order as to costs."
4. The aforesaid P.I.L. was filed challenging the Government Order dated 17.2.2011, which provides that such "Hindu Julaha" who are of Kori caste may be issued caste certificate of "Kori" after carefully examining their way of living/revenue records/relevant certificate of their forefathers etc.
5. The petitioner who is 'Hindu Julaha' contested the election by obtaining a caste certificate of "Kori". She won the election of Village Pradhan from the seat reserved for Scheduled Castes.
6. The aforesaid facts gave rise to an application for cancellation of caste certificate of the petitioner on the ground that since nothing can be included or excluded from the list of Scheduled Castes and Scheduled Tribes and therefore, the petitioner could not have been granted caste certificate "Kori" being a "Hindu Julaha".
7. In the light of the aforesaid facts and legal position the matter was considered by the competent committee which cancelled caste certificate of "Kori" of the petitioner by order dated 14.6.2016. Thereafter, a notice dated 27.7.2016 was issued by the District Magistrate, Saharanpur to the petitioner for her removal from the post of Village Pradhan under Section 95(1)(g)(iii-a) of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act') .
8. The said notice was adjudicated and by impugned order dated 17.11.2016, the petitioner has been removed from the post of village Pradhan of the village.
9. Aggrieved with this order, the petitioner has filed the present writ petition on the ground that firstly, the provisions of Section 95(1)(g)(iii-a) of the Act has been declared ultra vires in the case of Hoti Lal Vs. State of U.P. and others 2002(3) A.W.C. 1761 which has been affirmed by the Division Bench in the case of Satya Deo Shakya Vs. Ajay Kumar Gupta 2013(121) RD 621 (paras 12,13,15 and 23) and secondly that an Election Petition number 200 of 2016 (Sudesh Rani wife of Chardra Prakash Vs. Monkia Devi and five others) has been filed against the petitioner before the Tribunal/Prescribed Authority under Section 12-C(1) of the Act on 13.1.2016 which is pending. It is, thus, contended the impugned order is wholly without jurisdiction.
10. Learned standing counsel supports the impugned order.
11. I have carefully considered the submission of learned counsel for the parties and with their consent the writ petition is being finally heard.
12. It is undisputed that the caste certificate of the petitioner as "Kori" was cancelled by the competent committee by order dated 24.6.2016. It is the case of the petitioner that against the aforesaid order of the cancellation of caste certificate, petitioner has filed an appeal before State Level Caste Certificate Scrutiny Committee which is pending. After cancellation of the aforesaid caste certificate, the District Magistrate, Saharanpur issued a show cause notice dated 27.7.2016 requiring the petitioner to show cause as to why she be not removed from the post of Village Pradhan, on account of cancellation of her caste certificate; under Section 95(1)(g)(iii-a) of the Act.
13. The aforesaid notice was adjudicated and the impugned order dated 17.11.2016 was passed removing the petitioner from the post of Village Pradhan under Section 95(1)(g)(iii-a) of the Act.
14. Before cancellation of the caste certificate one, Smt. Sudesh Rani wife of Chardra Prakash had filed an election petition No.200 of 2016 on 13.1.2016 before the Tribunal/Prescribed Authority under Section 12-C(1) of the Act which is still pending.
15. The constitutional validity of Section 95(1)(g)(iii-a) of the Act was challenged in the case of Hoti Lal (supra) and the said provisions was held ultra vires being violative of Article 243 - O (b) of the Constitution of India. However, a contrary view was taken in the case of Radhey Shyam Sharma Vs. State of U.P. and others, 2005(23) LCD 377. Consequently, the question of constitutionality of the aforesaid provision of Section 95(1)(g)(iii-a) of the Act as well as the jurisdiction of the District Magistrate to exercise the power conferred under the said provision was considered by the Division Bench in the case of Satya Deo Shakya Vs. Ajay Kumar Gupta (supra) (para 12,13,14,15 and 23 ) and it was held as under:
12. Thus on a conspectus of the several judicial pronouncements and the judgement of the Full Bench referred to above, we are of the view that the power exercised by the District Magistrate under section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 is a quasi judicial power.
13. There still remains the other aspect of the matter as to whether the District Magistrate could have exercised powers under section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 particularly in view of the decision of this Court in the case of Hoti Lal (supra) wherein clause (iii-a) of Section 95 (1)(g) has been held to be ultra vires Article 243-O of the Constitution of India.
14. We cannot ignore considering this question inasmuch as the learned single Judge in the order impugned before us as placed reliance upon the judgment of Hoti Lal (supra) and held that a Pradhan who has contested the election on a forged caste certificate cannot be removed under section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 and his removal can be questioned only through an election petition and on this question the writ petition has been allowed and the respondent no. 1 has directed to be reinstated as Pradhan and allowed to continue till the end of his remainder term.
15. Shri S.D. Kautilya, as already mentioned above, has placed reliance on a decision of a learned single Judge of this Court in the case of Radhey Shyam Sharma (supra) wherein the High Court while considering the provisions of section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 has held that where election has been contested on a forged caste certificate, the Pradhan can be removed as fraud vitiates every act and that writ petition was therefore dismissed.
23. Having examined the provisions of Article 243-O(b) of the Constitution of India, section 12-C(1) (a) and 12-C(1)(b) of the U.P. Panchayat Raj Act, 1947 of the U.P. Panchayat Raj Act, 1947 we are also of the view that the State Government cannot remove an elected Pradhan who has been elected on the basis of a false declaration of belonging to a reserved category otherwise than through an election petition and, therefore, we are of the opinion that the view taken by the learned single Judge in the case of Hoti Lal (supra) lays down the correct law. The judgment in Hoti Lal (supra) has, however, not been referred to in the case of Radhey Shyam Sharma (supra). May the judgment of Hoti Lal was not cited before the learned single Judge deciding the case of Radhey Shyam Sharma. Be that as it may, for the reasons states above, we hold that the judgment in Radhey Shyam Sharma (supra) does not lay down the correct law.
(emphasis supplied by me)
16. In the case of Kismataul Nisha Vs. State of U.P. and others 2016 (130) RD 586 (paras 5,6 &7) another Division Bench took notice of the judgment in the case of Hoti Lal (supra) and held as under :
5. Section 95 of the Act vests with the State Government certain powers in respect of the Gram Panchayat and the Gram Pradhan. The said provision empowers the State Government to remove a Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Committee or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat on the grounds mentioned in the said Section. Sub clause (iii-a) of sub section (g) of Section 95 (1) mentions a ground of removal of Gram Pradhan, according to which, in case the Gram Pradhan has taken benefit of reservation on the basis of a false declaration subscribed by him/her stating that he/she is a member of Scheduled Castes, Schedules Tribes or the Other Backward Classes, as the case may be, he/she is liable to be removed. Thus, as per sub clause (iii-a) of Section 95(1)(g) of the Act in case it is found by the State Government that the benefit of reservation has been taken on the basis of some false declaration by a Gram Pradhan stating that he/she belongs to the reserved category and in fact such a declaration is found to be false, he/she can be removed from his/her office.
6. The proviso appended to Section 95(1)(g) also empowers the State Government to divest a Pradhan of his/her financial and administrative powers, if on an enquiry it is found that the Gram Pradhan is found, prima facie, to have committed financial and other irregularities. The impugned order does not make a mention of any other ground including the ground of financial and other irregularities which may be attributed to the petitioner as Pradhan. The reason indicated in the impugned order is that she got elected on the basis of OBC certificate which was subsequently cancelled. It is also worth noticing that in the counter affidavit filed by the State nothing has been indicated as to whether any proceedings for removal as contemplated in Section 95(1)(g) have been initiated or concluded or not. The impugned order, thus, appears to have been passed in ignorance of the fact that sub clause (iii-a) of Section 95 (1) (g) of the Act has been declared to be ultra vires. In various cases, in similar circumstances, this Court has interfered with such matters.
7. Accordingly, in the result, the writ petition deserves to be allowed, which is hereby allowed. The impugned order dated 15.08.2012, passed by the District Magistrate, Pratapgarh, as is contained in Annexure No.1 to the writ petition, is hereby quashed. As a result of this order, the petitioner shall immediately be given the charge of the office of Pradhan for the residual period. However, there will be no order as to costs.
(emphasis supplied by me)
17. Learned standing counsel could not point out or show any decision which over rules the aforesaid two Division Bench judgments in the case of Satya Deo Shakya (supra ) and Kismataul Nisha (supra). The provisions of Section 95(1)(g)(iii-a) of the act has already been declared ultra vires. Consequently, the impugned order passed by the District Magistrate, Saharanpur is without jurisdiction and can not be sustained.
18. Article 243-O starts with non obstante clause. Clause (b) of Article 243-O clearly mandates that no election to any Panchayat shall be called in question except by an election petition presented to such Authority and in such manner as is provided for by or under any law made by the legislature of a State. Thus the election of the petitioner as Village Pradhan can be questioned only by an election petition which has been filed as aforementioned and only in which the legality of the election of the petitioner can be decided.
19. In view of the above discussion, this writ petition deserves to be allowed and is hereby allowed. The impugned order dated 17.11.2016 passed by the District Magistrate, Saharanpur, is hereby quashed. The petitioner shall be immediately given charge of the office of Pradhan which shall be subject to the result of the election petition. The Election Petition No.200 of 2016 (Sudesh Rani wife of Chardra Prakash Vs. Monkia Devi and five others) under Section 12-C(1) of the Act shall be decided in accordance with law by the Tribunal/Prescribed Authority concerned, expeditiously, preferably within six months from the date of production of a certified copy of this order, after affording reasonable opportunity of hearing to the parties concerned and without granting any unnecessary adjournment and also without being influenced by any of the observation made in the body of this order.
20. Writ petition is allowed with the directions indicated above.
Order Date :- 16.1.2017/vkg