HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 24 Writ Petition No. 7200 of 2011 (MS) Kamlesh Kumar Versus Shri Abhishek Prakash and others ***** Hon'ble Rajiv Sharma, J.
Heard Sri Ashok Pandey, counsel for the petitioner, Sri N.C. Mehrotra for the State Election Commission (Local Bodies) and Sri Sanjay Sarin, Standing Counsel for the State.
Petitioner has filed the instant writ petition assailing the order dated 14.11.2011 passed by the District Magistrate, Lakhimpur Kheri, whereby the petitioner has been removed from the post of Pradhan of village Trilokpur, district Lakhimpur-Kheri. It has been inter-alia argued that the petitioner is "Bot" by caste which is a sub-caste of "Tharu" and the same has been included in the Scheduled Tribe but the opposite parties with a mala fide intention have taken punitive action against the petitioner on flimsy grounds, which are imaginary and not based on record.
Counsel for the petitioner has argued that the order of removal is in total contravention and violation of the provisions of Section 95(g)(iii-a) of U.P. Panchayat Raj Act [hereinafter referred to as 'Act'] as it can be invoked only when a declaration given by the contestant is found to be false and incorrect. The constituency of Trilokpur was declared reserved for member of the Schedule Tribe, which means that a person, who is not a member of the Scheduled Tribe community, is not eligible to contest the election. As stated above, the petitioner being Tharu by Caste, filed his nomination paper and was declared elected in the Panchayat Election-2010. He further submitted that in village Trilokpur, several persons of the petitioner's family are residing and in Parivar Register maintained by the government, all the persons have been shown as "Tharoo".
Elaborating his arguments, Counsel for the petitioner has submitted that the petitioner will be guilty of forgery and can be removed from the office of Pradhan, in case it is proved after due inquiry that the petitioner is not a Schedule Tribe rather he belongs to some other caste. Therefore, the impugned order is wholly bad, illegal and unjustified. He further added that election of the petitioner as a Pradhan has been questioned by one Pravesh Kumar by filing an Election Petition under Section 12(c) of the Act before the SDM, Palia, which is still pending and in this election petition, the aforesaid question has already been raised and therefore, it was not proper for the District Magistrate to pass the impugned order during the pendency of the aforesaid election petition.
In support of his submission, the petitioner has relied upon the judgment of this Court rendered in the case of Aisun Nisha Versus State of U.P. and others, [2011 (29) LCD 2405] and Bali Ram Versus State of U.P., [2011 (29) LCD 570].
In contrast, Standing Counsel has submitted that the impugned order dated 12/14-11-2011 is perfectly justified and in consonance with the provisions of Section 95(i)(g) and natural justice. The impugned order has been passed after issuing show cause notice to the petitioner and considering the reply of the petitioner. On the basis of record, Counsel for the respondents have submitted that the Caste Certificate which was filed by the petitioner bears Serial Number 9772 whereas such serial number never reached in the year 1998. It has also been pointed out that the question whether the petitioner belongs to Tharu community or not, cannot be decided in this writ petition as in this respect the petitioner alongwith others have filed writ petitions, which are pending.
Before dealing with the merits of the case, it would be apt to mention that Chapter VII of the Act deals with the External Control. Section 95 (1)(g) of the Act deals the eventualities when the Pradhan or a member of Gram Panchayat can be removed. Section 95(1)(g) which is relevant in the present context reads as under:-
[Remove a Pradhan,or member of Gram Panchayat] or a Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat, if he-
(i) absents himself without sufficient cause from more than three consecutive meetings or sittings;
(ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude;
(iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest;
[(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 the Scheduled Casts, the Scheduled Tribes or the backward classes, as the case may be;]
(iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics; or At the out set it is relevant to clarify that after considering submissions made by the Counsel for the parties, I am of the considered opinion that whether the "Bot" community has been included in "Tharu" community or not cannot be looked into, as in the instant writ petition, this Court is confined only to see the validity of the impugned order whereby the petitioner has been removed.
From the record, which has been produced by the Standing Counsel, it comes out that the petitioner had deposited Rs. 2000/-through treasury challan on 4.10.2010.Along-with the nomination form, the petitioner had filed an affidavit with regard to criminal antecedents. He has also declared his movable and immovable assets on the requisite form. The petitioner has also filed another affidavit dated 5.10.2010 wherein he has declared that the petitioner is a resident of village Trilokpur and belongs to Tharu community. To substantiate this fact, the petitioner has annexed copy of the Caste Certificate dated 21.12.1998 bearing serial number 9772.
It appears from the record, that erstwhile Pradhan of village Trilokpur made a complaint against the present petitioner on which an inquiry was conducted by Sub Divisional Magistrate, Palia. During the course of inquiry, it was found that the Caste Certificate, which was furnished by the petitioner at the time of filing nomination, was not issued from the concerned Tehsil, as the number 9772 did not reach in the relevant year. The Register pertaining to Caste, Domicile and Encumbrance certificate maintained at Tehsil Nighasan shows that on 21.12.1998, the serial number started from 3139 and ended at 3208. Thus, it is clear that number 9772 did not reach on that date.
It is also pertinent to mention that petitioner had tendered reply to the show cause notice dated 26.7.2011. The reply to the show cause notice, which has been annexed as Annexure-10 to the writ petition, is not available on record produced by the Standing Counsel and there is another reply dated 1.8.2010, which is on record. When the Counsel for the petitioner was shown the reply, he initially stated that this reply was not submitted by him. As the petitioner himself was present during the course of hearing, he was called and shown the reply dated 1.8.2010, he admitted his signature and submitted that this reply was sent by him to the show cause notice. In the said reply, the petitioner himself has admitted that the Caste Certificate bearing serial no. 9772 was filed by him alongwith nomination paper and on this basis his nomination was accepted.
Thus it appears that the petitioner with a view to mislead this Hon'ble Court and oblique motive, has filed a different copy of the reply to the show cause notice than that which he submitted to the office of the District Magistrate.
Where a writ petitioner approaches a High Court he must place all facts before the Court without any reservation. Where there is a suppression of material facts on the part of the petitioner or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition or dismiss it without entering into the merits of the matter. [2007 AIR SCW 5350].The power which the High Court has under Article 226, is a discretionary one. It would refuse to exercise its discretion in favour of a party if he makes a false statement or suppresses facts in his application to the Court.[AIR 1954 All 746(FB)]. However, to secure the ends of justice, this court examined the validity of the order as well.
It is also pertinent to add that when the petitioner was issued show cause notice dated 26.7.2011 as the certificate which was filed by the petitioner alongwith nomination paper was not found correct on the basis of record, the petitioner filed a Writ Petition No. 7972 (MB) of 2011 praying inter-alia for quashing of the show cause notice dated 26.7.2011. This Court vide its order dated 11.8.2011 disposed of the writ petition with the direction to the authority concerned to decide and dispose of the pending show cause notice and reply thereof. Thereafter, another show cause notice dated 3.10.2011 was sent to the petitioner, which was received by him on 10.10.2011. The petitioner vide letter dated 24.10.2011, sought fifteen days' time which expired on 8.11.2011 but even after expiry of the extended period of time, the petitioner did not furnish his reply. Therefore, the District Magistrate on the basis of record and the earlier reply dated 1.8.2010, considered the matter and passed the impugned order dated 12-14/11/2011. Thus it is wrong to say that the impugned order has been passed in breach of the provisions of natural justice.
The cases, namely, Bali Ram (supra) and Aisun Nisha (supra), relied upon by the petitioner, are of no help and cannot be applied in the present case for the reason that in Bali Ram (supra), the dispute was regarding electoral list, whereas in Aisun Nisha's case (supra), the allegation against the Pradhan was of financial irregularities and the District Magistrate had passed an order to recover the money which was determined in the report of the Inquiry Officer. In the instant case, the petitioner has been removed from the post of Pradhan, as Caste Certificate, which was filed alongwith the nomination paper, was not found to be genuine, as the serial number which is indicated in the Certificate, did not reach in the relevant year.
It is also relevant to mention that the petitioner has relied upon the Constitution (Schedule Tribes ) (Uttar Pradesh) Order, 1967 [hereinafter referred to as 'Order 1967']. A perusal of provisions of Order 1967 shows that Tharu has been declared as a Schedule Tribe community. The petitioner's claim is that he belongs to 'Bot' community and it is the sub-caste of Tharu. Whether 'Bot' community has been included in Tharu community as a sub-caste or not, is not the question involved in the instant writ petition and as such, this Court refrains itself from recording any finding on this aspect of the matter. As averred above, the petitioner has been removed on account of filing a document, which was not issued by the Tehsil Nighasan, which is established from the documentary evidence produced by the Standing Counsel.
In view of the above, I find no infirmities or illegality in the impugned order of removal and the writ petition lacks merit, which is hereby dismissed. Costs easy.
Order Date : 15.12.2011 HM/-