Allahabad High Court
Farzand Ali vs State Of U.P. Lucknow And 3 Others on 24 July, 2018
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 23 Case :- WRIT - C No. - 7554 of 2018 Petitioner :- Farzand Ali Respondent :- State Of U.P. Lucknow And 3 Others Counsel for Petitioner :- Brijesh Kumar Pandey Counsel for Respondent :- C.S.C.,Arvind Srivastava,Satyendra Kumar Pandey,Subhash Chandra Pandey AND Case :- WRIT - C No. - 9048 of 2018 Petitioner :- Smt. Yashoda Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Manoj Kumar Shukla,Sanjeev Singh,Siddharth Khare,Sr. Advocate Ashok Khare Counsel for Respondent :- C.S.C.,Vivek Prakash Mishra Hon'ble Salil Kumar Rai,J.
1. Heard counsel for the petitioners and the Standing Counsel representing the State respondents in the aforesaid cases as well as Sri Vivek Prakash Mishra, for the caveator in Writ Petition No. 9048 of 2018.
2. Writ Petition Nos. 7554 of 2018 and 9048 of 2018 were connected by order dated 12.03.2018 as the controversy involved in both the writ petitions were similar and, therefore, both the writ petitions have been heard together and are being decided by a common judgment.
3. The facts of the case in Writ Petition No. 7554 of 2018 are that the petitioner is the elected Gram Pradhan of Gram Panchayat Aarsal Parsal, District Rampur. The petitioner was elected on the post of Gram Pradhan in the elections held in December, 2015. The post of Gram Pradhan in Gram Panchayat Aarsal Parsal, District Rampur was reserved for members of Backward Class. The petitioner, on the basis of caste certificate issued to him by the competent authority, contested the elections declaring himself to be a member of Backward Class and was declared elected. An Election Petition No. 21 of 2017, under Section 12C of the Uttar Pradesh Panchayat Raj Act, 1947 was filed challenging the election of the petitioner but the same was dismissed by the Prescribed Authority by its judgment and order dated 07.02.2018. Subsequently, on a complaint, the District Level Scrutinee Committee, vide its order dated 27.10.2017, cancelled the caste certificate of the petitioner. Against the order dated 27.10.2017 passed by the District Scrutinee Committee, an appeal has been filed by the petitioner before the Divisional Scrutinee Committee. It has been stated in paragraph No. 12 of the writ petition that the aforesaid appeal is still pending before the Divisional Scrutinee Committee. However, by order dated 13.02.2018, the District Magistrate, Rampur i.e., respondent No. 4 in Writ Petition No. 7554 of 2018, ostensibly exercising his powers under Section 95(1)(g) of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as the ''Act, 1947') removed the petitioner from the post of Gram Pradhan on the ground that the petitioner had taken benefit of reservation to contest the election on the basis of a false declaration that he was a member of Backward Class. The order dated 13.02.2018 has been annexed as annexure No. 8 to the writ petition and the petitioner has prayed for a writ of certiorari to quash the aforesaid order.
4. The facts of the case in Writ Petition No. 9048 of 2018 are that the post of Gram Pradhan in Gram Panchayat Senta Kheda, Block-Swar, District Rampur was reserved for members of Scheduled Caste. The petitioner, claiming herself to be ''Pasi' by caste and on the basis of a scheduled caste certificate issued to her by the competent authority, contested the election for the post of Gram Pradhan held in December, 2015 and was declared elected. No election petition was filed challenging the election of the petitioner. However, subsequently the District Level Scrutinee Committee, vide its order dated 03.01.2017, cancelled the scheduled caste certificate issued to the petitioner. Against the order dated 03.01.2017, the petitioner filed an appeal before the Divisional Level Committee, which was dismissed by the Divisional Level Committee vide its order dated 21.04.2017. The orders dated 03.01.2017 and 21.04.2017 passed by the District Level Committee and the Divisional Scrutinee Committee, respectively, have been challenged by the petitioner in appeal before the State Level Committee. It has been stated in paragraph No. 13 of the writ petition that the aforesaid appeal is still pending before the State Level Committee. However, the District Magistrate, Rampur i.e., respondent No. 4, ostensibly exercising his powers under Section 95(1)(g) of the Act, 1947, vide his order dated 13.02.2018, removed the petitioner from the post of Gram Pradhan on the ground that petitioner had taken benefit of reservation to contest the election on the basis of a false declaration that she was a scheduled caste. The order of the District Magistrate, Rampur has been annexed as annexure No. 7 to the writ petition and the petitioner has prayed for a writ of certiorari to quash the aforesaid order.
5. Before proceeding further, it would be appropriate to reproduce Section 95(1)(g)(iii-a) of the Act, 1947:-
"95 Inspection-(1) The State Government may-
(g). [remove a Pradhan, [Up- Pradhan] or member of a Gram Panchayat] [* * *] or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he]-
[(iii-a). has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or the backward Classes, as the case may be.]
6. Section 95(1)(g) is the only provision in Act, 1947 which confers power on any administrative authority to remove an elected Gram Pradhan through administrative orders.
7. In both the writ petitions, the argument of the counsel for the petitioners is that Section 95(1)(g)(iii-a) of Act, 1947 was declared ultra-vires Article 243-O(b) of the Constitution and was struck down by this Court in Hoti Lal and others Vs. State of U.P. & Others (AIR 2002 Allahabad 257). It was argued that, in Hoti Lal (Supra), it was held that the election of a Pradhan can be set aside only through an election petition where such a Pradhan had been elected on any of the grounds provided in Sections 12 C (1)(a) and 12C (1) (b) of the Act, 1947 and the State Government cannot remove a Pradhan on the ground that he had taken benefit of reservation under Section 11-A(2) or Section 12 (5) of the Act, 1947, as the case may be, on the basis of a false declaration subscribed by him stating that he/she was a member of Scheduled Caste/Scheduled Tribe or Backward Class, as the case may be, and as contemplated in Section 95(1)(g)(iii-a) of the Act, 1947. It has been stated that the judgment of this Court in Hoti Lal (Supra) was approved and upheld by a Division Bench of this Court in Satya Deo Shakya Vs. Ajay Kumar Gupta & Others, 2013 (121) R.D. 621. It was further argued by the counsel for the petitioners that as Section 95(1)(g)(iii-a) of Act, 1947 had been declared ultra vires Article 243-O(b) of the Constitution, the orders dated 13.02.2018 passed by the District Magistrate, Rampur removing the petitioners from the post of Gram Pradhan are without jurisdiction, void and non-est and, therefore, liable to be quashed.
8. Rebutting the arguments of the counsel for the petitioners, Sri Vivek Prakash Mishra representing the caveator in Writ Petition No. 9048 of 2018 and the Standing Counsel representing the State respondents, have argued that the posts of Gram Pradhan, involved in the writ petitions were reserved for members of backward class and scheduled caste. The petitioners cannot be treated as members of backward class or scheduled caste as the caste certificates issued to them have been cancelled by the competent authority. It has been argued that petitioners were not eligible to contest and be elected for the posts of Gram Pradhan involved in the writ petitions and had contested and won the elections for the post of Gram Pradhan on the basis of false declarations made by them regarding their caste. The counsel for respondents argued that, assuming that the orders dated 13.02.2018 passed by the District Magistrate, Rampur were without jurisdiction, the same were not liable to be set aside by this Court in exercise of its powers under Article 226 of the Constitution, as setting aside the impugned orders would amount to restoring an illegality and a state of affairs brought in existence due to false declarations made by the petitioners. In support of their arguments, counsel for the respondents have relied upon the judgments of this Court reported in Meena Devi Vs. State of U.P. & Others, 2010 (9) ADJ 603, Mujahid Vs. State of U.P. & Others, 2008 (1) ESC 170 and Mohd. Haneef Vs. State of U.P. & Others, 2017 (4) AWC 3581.
9. I have considered the rival submissions of counsel for the parties and perused the records.
10. It is admitted that petitioners had contested elections for the posts of Gram Pradhan which were reserved for members of Backward Classes and Scheduled Castes and had contested the same, representing themselves to be members of the said categories, on the basis of caste certificates issued to them. It is also admitted that the caste certificates issued to petitioners have been cancelled by the competent authority and appeals filed by the petitioners against the orders cancelling the caste certificates are still pending. It is also admitted that Section 95(1)(g)(iii-a) of the Act, 1947 was declared ultra vires Article 243-O(b) of the Constitution by this Court in Hoti Lal (supra) and the said judgment was approved by the Division Bench of this Court in Satya Deo Shakya (supra). In view of the aforesaid, there can be no doubt, and there appears to be no dispute between the counsel for the petitioners and the counsel for the respondents that the orders dated 13.02.2018 passed by the District Magistrate, Rampur under Section 95(1)(g)(iii-a) of the Act, 1947, are without jurisdiction.
11. However, the issue to be decided in the present case is whether, under Article 226 of the Constitution of India, this Court should interfere to quash the impugned orders dated 13.02.2018 passed by the District Magistrate, Rampur on the ground that they are without jurisdiction or refuse to exercise its discretion in favour of the petitioners because the caste certificates issued to the petitioners on the basis of which, they had claimed benefits of Sections 11A(2) and 12(5) of the Act, 1947 have been cancelled by the competent authorities?
12. It was held by a Division Bench of this Court in Satya Deo Shakya (supra) that such an order, i.e., an order passed by the District Magistrate in exercise of his powers under Section 95(1)(g)(iii-a) was non-est as the very foundation for exercise of power had been struck down by this Court. The rationale for the judgments of this Court in Hoti Lal (supra) and Satya Deo Shakya (supra) was that Section 95(1)(g)(iii-a) was ultra vires Article 243-O(b) of the Constitution which provides that elections to any Panchayats shall not be called in question except by an election petition presented to such authority and in such manner as was provided for by or under any law made by the Legislation of a State and an elected Gram Pradhan who had been elected on the basis of a false declaration of belonging to a reserved category cannot be removed from his post except through an election petition. Paragraph Nos. 23 and 27 of the judgment of this Court in Satya Deo Shakya (supra) are relevant and are being reproduced below-:
"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.
27. Since we are of the view that judgment in Hoti Lal (supra) lays down the correct law and that sub clause (iii-a) of Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 is ultra vires Article 243-O(b) of the Constitution of India, therefore, in our view the order dated 27.08.2011 of the District Magistrate Bijnor impugned in the writ petition No. 56084 of 2011 was wholly without jurisdiction and is a non-est order and, therefore, such an order cannot be said to be a quasi judicial order as the very foundation for exercise of such power by the District Magistrate stood struck down in the judgment of Hotil Lal (supra) which we also approve. Therefore, in our view this special appeal would be maintainable"
(Emphasis added)
13. After the judgments of this Court in Hoti Lal (supra) and Satya Deo Shakya (supra), any order passed by the District Magistrate removing an elected Gram Pradhan on the ground that he had taken the benefit of reservation under Section 11-A(2) or Section 12(5) on the basis of a false declaration subscribed by him stating that he was a member of the Scheduled Caste, Scheduled Tribe or Backward Class, as the case may be, would be in defiance of the Constitutional mandate prescribed in Article 243-O(b) and thus, not merely an illegal order contrary to any statutory provision, but an unconstitutional order and, therefore, void and non-est.
14. In Kurapati Maria Das Vs. Dr. Ambedkar Seva Samajan & Others 2009 (7) 3 SCC 387, Supreme Court while dealing with Article 243-ZG(b) which is identical to Article 243-O(b), held that the bar imposed by the aforesaid provision was ''absolute'. Paragraph 19 of the aforesaid judgment is reproduced below:-
"19. ... In the first place, it would be better to consider as to whether the bar under Article 243 ZG (b) is an absolute bar. The Article reads as thus:
"243ZG (b) no election to any Municipality 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".
"At least from the language of clause (b), it is clear that the bar is absolute. Normally, where such a bar is expressed in a negative language as is the case here, it has to be held that the tone of clause (b) is mandatory and the bar created therein is absolute"
(Emphasis added)
15. It was held by this Court in Hoti Lal (supra) that Article 243-O(b) confers a valuable right on the elected Gram Pradhan that he cannot be non-seated from his elected office except by an election petition. The relevant observations made by the Court in paragraph Nos. 29 and 30 of the judgment are reproduced below:-
"29...The newly inserted amendment by Amending Act No. 21 of 1998 by State Legislature creating two forums one for General Caste and other for scheduled caste, scheduled tribe or backward class for same cause of action to the disadvantage to latter is against the key concept of equality assurances guaranteed in constitutional philosophy and expressed in unequivocal terms in preamble of our Constitution....All of us know that in dispute resolution by a Tribunal or Court, the element of objectivity and independence is predominant whereas in dispute resolution by Administrative functionaries invested with quasi judicial powers, element of subjectivity and expediency is predominant".
(Emphasis added) "30...It is held that constitutional benefit conferred upon an elected office bearer of Village Panchayat to remain in such elected office till statutory period unless declaration of result by Returning Officer is set aside by Prescribed Authority/Sub-Divisional Officer within whose Jurisdiction elected office bearer holds his office cannot be permitted to be encroached upon by routine State Legislature by inserting Sub-clause (iii-a) in Clause (g) of subsection (1) of Section 95 of U.P. Panchayat Raj Act by Amending Act No. XXI of 1998".
(Emphasis added)
16. The effect of a void and unconstitutional order which infringes on the constitutional rights of a person were considered by the Supreme Court in Nawabkhan Abbaskhan Vs. The State of Gujarat 1974 (2) SCC 121. The Supreme Court, while dealing with the penal consequences of violating an externment order which was subsequently quashed because it had been passed in violation of the audi-alterem partem rule, observed as follows:-
6....... An unconstitutional order is void, consequential administrative inconveniences being out of place where an administrator abandons constitutional discipline and limits of power. What about the peril to the citizen if an official, in administrative absolutism, ignores the constitutional restrictions on his authority and condemns a person to flee his home ? A determination is no determination if it is contrary to the constitutional mandate of Article 19. On this footing the externment order is of no effect and its violation is no offence".
14. Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal. May be that in ordinary legislation or at common law a Tribunal, having jurisdiction and failing to hear the parties, may commit an illegality which may render the proceedings voidable when a direct attack is made thereon by way of appeal, revision or review, but nullity is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, we may roundly conclude that the order of an administrative authority charged with the, duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab initio of no legal efficacy. The duty to hear manacles his jurisdictional exercise and any act is, in its inception, void except when performed in accordance with the conditions laid down in regard to hearing. May be, this is a radical approach, but the alternative is a travesty of constitutional guarantees, which leads to the conclusion of post-legitimated disobedience of initially unconstitutional orders".
(Emphasis added)
18. The test of ex-facie illegality or bad on its face or in Lord Radcliffe's words 'it bears no brand of invalidity on its forehead', is also unworkable in the work-a-day world of law. Error of jurisdiction and error within jurisdiction, have, been suggested as a means to cut the Gordian Knot. Many great writers have dealt with the subject but few have offered a fair answer to the question, is a determination a determination, at all when made without a statutory hearing and when is it void and to what extent? Decisions are legion where, the conditions for the exercise of power have been contravened and the order treated as void. And when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when a finality clause exists. The order becomes 'infallible in error', a peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to a learned author, Lord Denning is largely responsible. The legal chaos in this branch of jurisprudence should be avoided by evolving simpler concepts, which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties from the beginning, any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by court with retroactive force."
(Emphasis added)
17. Though the issue before the Supreme Court in Nawabkhan (supra) mainly related to retroactivity of an order declared void by the competent Court and the legal consequences of violation of the audi-alterem partem rule but the observations reproduced above are relevant as they relate to the effect of an order which is ex-facie unconstitutional and infringes the constitutionally guaranteed rights of the subject. The Supreme Court held that such an order would be a nullity, void and ab-initio of no legal efficacy.
18. In Deep Chand Vs. State of U.P. & Others AIR 1959 SC 648 the Supreme Court, while dealing with the effect of a legislation which was unconstitutional, observed as follows:-
"16. If Arts. 245 and 13(2) define the ambit of the power to legislate, what is the effect of a law made in excess of that power? The American Law gives a direct and definite answer to this question. Cooley in his "Constitutional Limitations" (Eighth Edition, Volume I) at page 382 under the heading "Consequences if a statute is void" says :-
" When a statute is adjudged to be unconstitutional, it is as if it had never been................. And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force."
In Rottschaefer on Constitutional Law, much to the same effect is stated at page 34:
"The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provisions never had legal force as applied to cases within that clause."
In " Willis on Constitutional Law ", at page 89:
"A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties is concerned. The Courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed......................... "
Willoughby on Constitution of the United States Second Edition, Volume I, page 10:
"The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. ...................."
"19......Mahajan, J., as he then was, who delivered a separate judgment, put the same view in different phraseology at page 251 (of SCR ): (at p. 136 of AIR):
The effect of Article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are not affected by Part III of the Constitution."
The learned Judge, when American law was pressed on him in support of the contention that even the pre-Constitution law was void, observed thus, at page 256 (of SCR ): (at p. 138 of AIR):-
"It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. The courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law......"
(Emphasis added)
19. Even though the above observations of the Supreme Court were made while considering the constitutionality of a statute in the light of prohibitions imposed by Article 13 of the Constitution of India, but the same are relevant for the present case also as in the extracts reproduced above, the Supreme Court has referred, with approval, the views of different writers on constitutional law and the view of Mahajan-J, in Keshav Madhav Menon Vs. The State of Bombay AIR 1951 SC 128 who had expressed the opinion that the Courts shall refuse to recognize an unconstitutional statute while determining the rights of the parties and anything done under an unconstitutional statute would be wholly illegal and relief in one shape or another has to be given to the person affected by an unconstitutional law.
20. The effect of an order, which is void or non-est, was also considered by the Supreme Court in Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society, Jaipur & Others, 2013 (5) SCC 427. In the aforesaid case, it was held that void means non existent and having no legal force or legal effect. It was also held in the aforesaid case that there was no need to quash or set aside such an order though it may sometimes be convenient to do so. It was further held by the Supreme Court that the continuation order would also be a nullity because no one can continue in nullity. The relevant extracts from paragraph Nos. 15 to 18 of the judgment of the Supreme Court are being reproduced below:-
"15. In Kalawati v. Bisheshwar, this Court held: (AIR p. 265, para 9) "9.......void [means] non-existent from its very inception........"
"16. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, this Court held: (SCC p. 439, para 7)"
"7...........The word 'void' has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise......."
"17. The word "void" has been defined as: ineffectual; nugatory; having no legal force or legal effect; unable in law to support the purpose for which it was intended. (Vide Black's Law Dictionary.) It also means merely a nullity; invalid; null; worthless; cipher; useless and ineffectual and may be ignored even in collateral proceeding as if it never were".
"18. The word "void" is used in the sense of incapable of ratification. A thing which is found non est and not required to be set aside, though it is sometimes convenient to do so. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because no one can continue a nullity. (Vide Behram Khurshid Pesikaka v. State of Bombay, Pankaj Mehra v. State of Maharastra, Dhurandhar Prasad Singh v. Jai Prakash University and Govt. of Orissa v. Ashok Transport Agency)".
(Emphasis added)
21. In view of the observations of the Supreme Court in Nawabkhan (supra), Deep Chand (supra) and Rajasthan State Industrial Development (supra) read with the judgments of this Court in Hoti Lal (supra) and Satya Deo Shakya (supra), the orders dated 13.02.2018 passed by the District Magistrate, Rampur under Section 95(1)(g)(iii-a) of the Act, 1947 are unconstitutional, without jurisdiction, non-est and void as they infringe the constitutional rights of the petitioners provided under Article 243-O(b). The Court can not acquiesce in the continuance of the said orders by refusing to interfere on behalf of the petitioners. In such a situation, the refusal by this Court to interfere on behalf of the elected Gram Pradhan would be incompatible with the constitutional mandate prescribed in Article 243-O(b).
22. The Counsel for the respondents have argued that the petitioners had taken benefit of reservation under Section 11-A(2) and Section 12(5) of the Act, 1947 on the basis of caste certificates issued to them and had contested the elections for the post of Gram Pradhan reserved for members of Scheduled Caste and Backward Class and were declared elected. It was contended by the counsel for the respondents that the petitioners had taken benefit of reservation by making a false declaration regarding their caste and their caste certificates have been cancelled by the competent authority. It was argued that setting aside or quashing the impugned orders dated 13.02.2018 passed by the District Magistrate would result in restoring an illegality brought in existence by false declarations made by the petitioners regarding their caste and in identical circumstances, this Court had refrained from exercising its discretion under Article 226 of the Constitution of India to set aside such orders passed by the District Magistrate. In support of their arguments, the counsel for respondents have relied upon the judgments of this Court in Meena Devi (supra), Mujahid (supra) and Mohd. Haneef (supra). The arguments of counsel for the respondents cannot be accepted for the reasons stated subsequently.
23. It is true that the posts of Gram Pradhan to which the petitioners were elected were reserved for members of Scheduled Caste and Backward Class under Section 11-A(2) and Section 12(5) of the Act, 1947. It is also true that the petitioners, on the basis of caste certificates issued to them, had contested for the said posts declaring themselves to be members of Scheduled Caste/Backward Class. The caste certificates issued to the petitioners have been cancelled by the competent authorities. However, the petitioners have filed appeals challenging the orders cancelling their caste certificates. The said appeals are still pending. In this view of the matter, the orders cancelling the caste certificates of the petitioners have not yet attained finality. Till the appeals filed by the petitioners are pending, it cannot be said with certainty, that the petitioners had made false declarations regarding their caste to take benefit of reservation under Section 11-A(2) and Section 12(5) of the Act, 1947 while contesting for the posts of Gram Pradhan or that their continuance as Gram Pradhans would be an illegal state of affairs.
24. Apart from the above, Section 95(1)(g)(iii-a) of the Act, 1947, conceived of the existence of an illegal state of affairs brought in existence by the act of the Gram Pradhan, i.e. a state of affairs in existence because of a false declaration made by the elected Gram Pradhan regarding his caste while filing his nomination papers as a candidate. Still this Court, in Hoti Lal (supra), proceeded to declare the provision as ultra vires Article 243-O(b) repelling the contention of the Advocate General that Section 95(1)(g)(iii-a) was not unconstitutional because of Article 243-F of the Constitution. The effect of the judgment of this Court in Hoti Lal (supra) is that the State Government stood deprived of its power to put an end to the illegal state of affairs in existence due to a false declaration made by the Gram Pradhan as described in Section 95(1)(g)(iii-a). If the arguments of the counsel for the respondents regarding exercise of discretion by this Court under Article 226 of the Constitution of India are accepted and if, in such a situation, this Court refuses to interfere on behalf of the aggrieved person, the same would amount to nullifying the judgments of this Court in Hoti Lal (supra) and Satya Deo Shakya (supra) and would also enable the State Government to annul the aforesaid judgments of this Court merely through administrative orders.
25. There is a practical aspect of the matter also. Section 95(1)(g)(iii-a) has been declared as ultra vires Article 243-O(b) of the Constitution of India by this Court. In such a situation, no direction can be issued, under Article 226 of the Constitution, directing the District Magistrate to consider exercising his powers under Section 95(1)(g) if the illegality described in Section 95(1)(g)(iii-a) exists i.e., in a situation where a person has been elected as a Gram Pradhan after taking benefit of reservation under Section 11-A(2) and Section 12(5) of the Act, 1947 by subscribing to a false declaration regarding his caste. The refusal of the District Magistrate to remove such a Gram Pradhan from his post exercising his powers under Section 95(1)(g) would be a valid refusal and no writ can be issued quashing an order containing such a refusal. Such an order of the District Magistrate would be according to law. But what if in such a situation i.e., the situation conceived by Section 95(1)(g)(iii-a) of the Act, 1947, an overzealous District Magistrate, defies the constitutional mandate and ignores the limits of his powers and passes an order removing a Gram Pradhan from his post? If the argument of the counsel for the respondents is accepted, such an order would not be set aside by the High Court under Article 226 of the Constitution of India and the same would, for all practical and administrative purposes, continue to be in force, albeit illegally. This would create an anomalous situation and would open the doors for the District Magistrates to indulge in favoritism and arbitrariness inasmuch as the fate of a Gram Pradhan covered by the situation described in Section 95(1)(g)(iii-a) of the Act, 1947 would be at the discretion of the District Magistrates with this Court merely standing on the sidelines. This Court, in Hoti Lal (supra), dealing with the rationale of Section 12-C(b) of Act, 1947 which provides for a remedy of Revision before the District Judge against the orders passed by the Prescribed Authority/Election Tribunal, observed as follows:-
"21...Conferring revisional power on judicial side against the order of Election Tribunal is again a check and balance to ensure that an elected Pradhan may not be non-seated on non-existent ground or irrelevant consideration based on expediency of any selfish nature of an Administrative functionary emanating from favouritism. It is to be imbibed that there is distinction between Administrative Officers mind set and Judicial Officers mind set. The paramount consideration for an Administrative Officer is to maintain expediency of administration, which may lead to justice or injustice whereas for Judicial Officers mind set justice is paramount consideration even if it may lead to inconvenience to administrative expediency. Judicial constraint does not permit me to elaborate further except to observe that the party in corridor of power in State is to learn to respect opposition parties in power in Village Panchayats, Block Panchayats and District Panchayats level. The facts of these two cases speak louder than words."
(Emphasis added)
26. This Court cannot ignore the above mentioned practical aspect of the matter when confronted with the plea of the respondents that it should not interfere in favour of the petitioners to set aside the unconstitutional orders as setting aside the orders would amount to restoring an illegality.
27. At this stage, it would be appropriate to consider the judgments of this Court referred to by the counsel for the respondents in support of their arguments.
28. The issue in Meena Devi (supra) related to issuing a writ of quo-warranto by the High Court and is an authority on the question as to whether in such circumstances a writ of quo-warranto could be issued asking the Gram Pradhan to vacate the post and is not an authority either on the validity of exercise of powers by the District Magistrate under Section 95(1)(g) in situations conceived by Section 95(1)(g)(iii-a) or whether this Court should exercise or refuse to exercise its discretion, under Article 226, if the District Magistrate passes an order under Section 95(1)(g) removing a Gram Pradhan from his post on the grounds mentioned in Section 95(1)(g)(iii-a). Similarly, in Mohd. Haneef (supra), the challenge was to an order passed by the District Magistrate ceasing the financial and administrative powers of the Gram Pradhan and the show cause notice issued to him. No order had been passed by the District Magistrate under Section 95(1)(g) removing the Gram Pradhan from his post. Therefore, Mohd. Haneef (supra) also does not help the respondents. The judgment of the learned Single Judge of this Court in Mujahid (supra) is previous to the judgment of the Division Bench of this Court in Satya Deo Shakya (supra) wherein it was held that any order passed by the District Magistrate exercising his powers under Section 95(1)(g) on the ground stated in Section 95(1)(g)(iii-a) would be non-est.
29. For all the aforesaid reasons, the argument of the counsel for the respondents regarding exercise of discretion by this Court under Article 226 of the Constitution of India cannot be accepted and is hereby, rejected.
30. In view of the reasons given above, the writ petitions are allowed. The orders dated 13.02.2018 passed by the District Magistrate, Rampur, though technically do not require to be quashed as they are void and non-est but are hereby quashed and set aside in order to remove any confusion regarding their continuance and legal effect. Consequently, the District Magistrate, Rampur is directed to restore the powers of the petitioners as Gram Pradhan of their respective Gram Panchayats within one month from the date a certified copy of this order is produced before him. It is further directed that the District Magistrate, Rampur or any other executive authority shall not interfere in the functioning of the petitioners as Gram Pradhan of their respective Gram Panchayats on the basis of the orders dated 13.02.2018.
31. With the aforesaid directions, Writ Petition- C No.- 7554 of 2018 and Writ Petition-C No. - 9048 of 2018 are allowed.
Order date:- 24.07.2018 Sattyarth