Satya Deo Shakya vs Ajay Kumar Gutpa And 6 Others
2013 Latest Caselaw 6324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 35
 

 
Case :- SPECIAL APPEAL No. - 1270 of 2013
 

 
Appellant :- Satya Deo Shakya
 
Respondent :- Ajay Kumar Gutpa And 6 Others
 
Counsel for Appellant :- S.D. Kautilya
 
Counsel for Respondent :- C.S.C.,Nand Kishore
 

 
Hon'ble Laxmi Kanta Mohapatra,Acting Chief Justice
 
Hon'ble B. Amit Sthalekar,J.

This special appeal has been filed by the appellant challenging the order of the learned single Judge dated 7.8.2013 whereby the writ petition no. 56084 of 2011 filed by Ajay Kumar Gupta was allowed and the order passed by the District Magistrate setting aside the election of Ajay Kumar Gupta was set aside and a direction was given that the petitioner would be reinstated as Pradhan for the remainder of his term.

Ajay Kumar Gupta respondent no. 1 in the present special appeal was elected as Gram Pradhan of village Hathin, Block Chhibaramau, District Kannauj. He had contested the election as an OBC candidate claiming that he belongs to the Halwai caste. The appellant alongwith some other persons made a complaint to the District Magistrate, Kannauj alleging that Ajay Kumar Gupta was a general candidate and he had contested the election on a forged caste certificate showing himself as belonging to OBC caste. The District Magistrate issued notice on 25.7.2011 to Ajay Kumar Gupta, in response to which Ajay Kumar Gupta submitted his reply and after considering the reply the District Magistrate by his order dated 27.8.2011 passed an order removing Ajay Kumar Gupta from the post of Gram Pradhan of the Gram Panchayat in question. This order was passed by the District Magistrate, Kannauj in exercise of powers under section 95(1)(g) (iii-a) read with section 11-A(2) and section 12(5) of the U.P. Panchayat Raj Act, 1947. Aggrieved by the said order Ajay Kumar Gupta filed writ petition no. 56084 of 2011. The matter was considered by the learned Single Judge and the order dated 27.8.2011 passed by the District Magistrate was set aside on the ground that the District Magistrate had no power under section 95(1)(g) (iii-a) of the U.P. Panchayat Raj Act, 1947 as he has contested the election on a forged caste certificate and his election, therefore, could only be set aside through an election petition. The learned Single Judge relied upon a Single Judge decision of this Court reported in 2002 (3) AWC 1761, Hoti Lal Vs. State of U.P. and another. A further direction was given in the writ petition that the petitioner would be reinstated as Pradhan for the remainder of his term.

We have heard Shri S.D. Kautilya, learned counsel appearing for the appellant, who had been impleaded as respondent no. 5 in the writ petition and Shri H.R. Mishra, learned senior counsel assisted by Shri B.R.J. Pandey, learned counsel appearing for the respondent no. 1.

It has been submitted by Shri S.D. Kautilya, learned counsel for the appellant that the impugned order passed by the District Magistrate on 27.8.2011 was absolutely correct and did not call for any interference by the writ court since the respondent no. 1 had contested the election of gram Pradhan on a forged certificate showing himself to be belonging to OBC category of Halwai and the order of the District Magistrate was passed under section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 was absolutely correct. Shri S.D. Kautilya has referred to the provisions of section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 and also relied upon a decision of this Court in the case of Radhey Shyam Sharma Vs. State of U.P. and others reported in 2005(23) LCD 377 wherein this Court while considering the order passed by the District Magistrate under section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 has held that the petitioner in that writ petition had contested the election on a false caste certificate of OBC and later it was found that he did not belong to the backward class category and since the appointment had been obtained by fraud and fraud vitiates every action, therefore the order of the District Magistrate did not call for any interference. The said writ petition was dismissed by the learned single Judge.

Shri H.R. Mishra, learned senior counsel appearing for the respondent no. 1 in the present appeal controverting the submission of Shri Kautilya, on the other hand, relied upon a decision of a learned single Judge of this Court reported in Hoti Lal (Supra) wherein the learned single Judge has held section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 to be ultra vires Article 243-O of the Constitution of India. The submission is that section 95(1) (g) (iii-a) of the U.P. Panchayat Raj Act, 1947 having been held to be ultra vires Article 243-O of the Constitution of India, the District Magistrate could not have passed the order dated 27.8.2011 removing the respondent no. 1 (petitioner of the writ petition) and the respondent no. 1 could only have been removed through an election petition. Shri H.R. Mishra also raised a preliminary objection that the special appeal is not maintainable inasmuch as the writ petition was filed against the order of the District Magistrate and irrespective of the fact that the order was valid or not, it was nevertheless a quasi judicial power exercised by the District Magistrate and, therefore, the special appeal was not maintainable. Reliance in this regard has been placed upon the following decisions of the Division Bench of this Court in the case of:

Shyam Behari Vs. State of U.P. and others reported in 2005(3) AWC 2189; and

Vajara Yojna Seed Farm, Kalyanpur (M/s) and others Vs. Presiding Officer, Labour Court U.P. Kanpur and another reported in (2003) 1 UPLBEC 496.

Having heard the learned counsel for the parties we are of the view that the preliminary objection will be dependent upon the question as to whether the District Magistrate was competent to pass the order removing the Pradhan in exercise of powers under section 95(1)(g)(iii-a) of the Act, 1947.

Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947 provides for removal of the Pradhan or member of Gram Panchayat or the Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat. This power under section 95(1) (g) of the U.P. Panchayat Raj Act, 1947 has been conferred upon the State Government in terms of Section 95(1) of the U.P. Panchayat Raj Act, 1947. The power under section 95(1) (g) of the U.P. Panchayat Raj Act, 1947 has been delegated by the State Government to the District Magistrate by Notification No. 1648/31-1-1979-123/97 Lucknow dated 30.4.1997. The ground on which a Pradhan may be removed have been delineated in section 95(1)(g) (i) to (v).

For purposes of the present case the other grounds are not relevant except ground no. (iii-a) of the Act, 1947. The section 95(1)(g) empowers the District Magistrate to remove a Pradhan under sub clause (iii-a), which reads as under:

(iii-a) if he "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 Castes, the Scheduled Tribes or the Backward Classes, as the case may."

In the present case it is not in dispute between the parties that the order removing the respondent no. 1 dated 27.8.2011 was passed by the District Magistrate Kannauj and, therefore, the said power shall be deemed to have been exercised by the competent authority on behalf of the State Government under section 95(1) (g) of the U.P. Panchayat Raj Act, 1947. The question whether such a power is a quasi judicial power has been considered by this Court in two cases reported in 1985 UPLBEC 484 Layak Ram Vs. District Magistrate, Bijnor wherein this Court has held that the power exercised by the District Magistrate is a quasi judicial power. Paragraph 11 and 12 of the said judgment read as under:

"11. proviso (I) to Section 95 (1) of the Act lays down that-

"no action shall be taken under clause (f), clause (g) or clause (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action propose.

12. This is in conformity with the principles of natural justice. In Ved Singh Pradhan's case (AIR 1965 Allahabad 370) which arose from an order of removal of Pradhan under Section (6(1) (g) (iii), a Division Bench ruled tht " the principle of natural justice imposed only this obligation upon him (Assistant Sub-Divisional Officer) that he had to give the appellant an opportunity to explain the charge". The principle has undeniably attained new dimensions with the advent of the decisions in Meneka Gandhi (1978 (1) SCC 248) and M.S. Gil (1978 (1) SCC 405. The proceeding that leads to the removal of the Pradhan from office is clearly quasi judicial. The order affects adversely civil rights of the claimant. The authority has to reach his satisfaction on objective consideration of relevant grounds. There is statutory duty to afford reasonable opportunity of showing cause implying thereby the necessity to record reasons and moreso because an appeal lies to the District Magistrate. But even if the enquiry be classed as administrative in character, the observance of the basis norms of natural justice is Inescapable. A.K. Kraipak v. Union of India, (1969 (2) SCC 262)."

In 2008 (4) AWC 3749 Smt. Kamli Devi Vs. State of U.P. and others again this Court has held the power exercised by the District Magistrate under section 95(1) (g) of the U.P. Panchayat Raj Act, 1947 to be a quasi judicial power. Paragraph 8 of the said judgment reads as under:

"8. In the present case, the Court finds that no show cause notice or opportunity of hearing was given to the petitioner by the authority before ceasing the financial and administrative powers. The Pradhan derives his power and status under the Constitution pursuant to the Constitution (73rd Amendment) Act, 1992. The purpose of this enactment was to provide complete autonomy without interference from the State Authorities. The Court further finds that power exercise by the authority under the proviso to Section 95 (1) (g) of the Act is a quasi-judical power, which entails civil consequences and therefore, it becomes all the more necessary that the principles enshrined under Article 14 of the Constitution is given effect to. Consequently, this Court is of the opinion that, a show cause notice and an opportunity of hearing is the minimum requirement to be given to the Pradhan, by the authority, before passing an order ceasing the financial and administrative powers under the proviso to Section 95(1) (g) of the Act. Since that has not been done in the present case, consequently, I direct that till the disposal of the writ petition qua the decision of the larger Bench, the impugned order ceasing the financial and administrative powers of the petitioner, shall remain stayed. It shall, however be open to the authorities to proceed and complete the formal enquiry contemplated under Section 95(1) (g) of the Act read with the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997."

However, the learned Single Judge deciding the case of Smt. Kamli Devi (supra) referred the matter to a larger Bench for consideration as to whether prior to passing an order of cessation of financial and administrative powers of a Pradhan opportunity of hearing is necessary or not. The matter was considered by the Full Bench of this Court in the case of Vivekanand Yadav vs. State of U.P. and another reported in 2010 (1) ADJ 1. For purposes of the present case we are not concerned with cessation of financial and administrative powers as contemplated in the proviso to Section 95 (1) of the U.P. Panchayat Raj Act, 1947 but so far as section 95 (1)(g) of the said Act is concerned the Full Bench has held that there can be a proceeding for removal of a Pradhan without ceasing his financial and administrative powers and has further held that though Section 95(1)(g) or its proviso do not contemplate a formal enquiry for removal but in Rule 6 of the U.P. Panchayat Raj (Removal of Pradhan and UP-Pradhan and Members) Enquiries Rules, 1997 a detailed procedure for final enquiry has been framed and, therefore, if these Rules are applicable in cases of cessation of financial and administrative powers it would also be applicable in a proceedings for removal of a Pradhan where cessation of financial and administrative powers of the Pradhan is not contemplated. Paragraphs 74, 75, 76, 77 and 78 of the said judgment read as under:

"74. In our opinion there can be a proceeding for removal of a pradhan without ceasing his financial and administrative powers.

75. Section 95(1) (g)- or proviso to Section 95(1) empowering removal of a pradhan do not contemplate any preliminary or formal enquiry before removing a pradhan. They only envisage reasonable opportunity to be given before removal. The preliminary enquiry is mandated by the proviso to Section 95(1) ((g) that stipulates cessation of financial and administrative powers during pendency of the removal proceeding. The Enquiry Rules have been framed in pursuance of the same.

76. Section 65(1) (g) or any of the provisos do not contemplate formal final enquiry for removal but in the Enquiry Rules, a detailed procedure (rule 6) for the final enquiry has been framed. To us, it appears that these Rules were meant to apply in those cases where it was considered expedient to cease the financial and administrative power. However, as there can be proceeding for removal of a pradhan without ceasing his power, does it mean that procedure of Rules 6 does not apply to a removal proceeding if it is undertaken without ceasing power?

77. In our opinion, this cannot be done, as this will amount to discrimination.

78. The proceeding for removal has to be conducted in accordance with Rules 6 onwards of the Enquiry Rules, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. However, where right to exercise financial and administrative power is also to be cease then procedure in Rule 3 and 5 ha to be followed otherwise there is no necessity to follow them."

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.

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.

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.

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.

On reading of the judgment of Radhey Shyam Sharma (supra) we find that there is no reference to the decision of the earlier single Judge decision of this Court in the case of Hoti Lal (supra) wherein the learned single Judge had held the provisions of sub clause (iii-a) of Section 95 (1)(g) of the U.P. Panchayat Raj Act to be ultra vires Article 243-O (b) of the Constitution of India.

The Full Bench of this Court in the case of Vivekanand (supra) has held that a Pradhan can be removed under section 95 (1)(g) of the U.P. Panchayat Raj Act even where cessation of financial and administrative power is not contemplated but such removal can only be ordered after holding an enquiry as contemplated in Rule 6 of the U.P. Panchayat Raj (Removal of Pradhan and UP-Pradhan and Members) Enquiries Rules, 1997. The judgment of Hoti Lal (supra) has not been considered by the Full Bench and it appears that the constitutional validity of sub clause (iii-a) of the Act, 1947 was also not raised before the Full Bench. Thus there is an unsettled conflict between the various judgments of this Court as to whether a Pradhan can be removed from his office in exercise of power under U.P. Panchayat Raj (Removal of Pradhan and UP-Pradhan and Members) Enquiries Rules, 1997 by the State Government or whether he can be removed only through an election petition.

Before considering the judgment of Hoti Lal (supra) it will be relevant to reproduce the provisions of Article 243-O (b) of the Constitution of India:

"243-O. Bar to interference by courts in electoral matters. - Notwithstanding anything in this Constitution -

(a) .....................................

(b) 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."

Clause (b) of Article 243-O provides that no election of Zila Panchayat shall be called in question except by an election petition. Section 11-A of U.P. Panchayat Raj Act, 1947 provides for reservation in the post of Pradhan for S.C., S.T. and backward classes. In so far as Scheduled caste and Scheduled Tribes are concerned such reservation in terms of the proviso to Section 11-A (2) shall be as far as possible in proportion to the total number of offices of the Pradhan as the population of scheduled caste in the State or Scheduled Tribes in the State and it further provides that reservation for the backward classes shall not exceed 27% of the total number of offices of Pradhan.

Section 12(5) of the Act, 1947 also provides that in every Gram Panchayat the seats shall be reserved to the extent of the proportion of the Scheduled caste and Scheduled Tribes to the population of S.C. and S.T. in the Panchayat area and the proviso thereto further provides that reservation for backward classes shall not exceed 27% of the total number of seats in the Gram Panchayat.

Section 12-C(1) of the Act, 1947 provides that election of a person as Pradhan or as member of a Gram Panchayat including election of a person appointed as Panch of a Nyaya Panchayat under section 43 shall not be called in question except by an application presented to such authority within such time and such manner as may be prescribed. The grounds on which such application may be moved have been stated in section 12-C(1), which reads as under:

"12-C. Application for questioning the elections.- (1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of a Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that-

(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or

(b) that the result of the election has been ,materially affected-

(i) by the improper acceptance or rejection of any nomination; or

(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder."

A conjoint reading of the provisions of Article 243-O (b) of the Constitution of India and 12-C(1) (a) and 12-C(1)(b) of the U.P. Panchayat Raj Act, 1947 would imply that the election of a Pradhan can only be challenged through an election petition on the grounds mentioned in section 12-C(1) (a) and 12-C(1)(b) of the U.P. Panchayat Raj Act, 1947. The learned single Judge while deciding Hoti Lal (supra) has examined the above provisions of Article 243-O (b) of the Constitution of India and section 12-C(1) (a) and 12-C(1)(b) of the U.P. Panchayat Raj Act, 1947 of the Act, 1947 and held that the election of a Pradhan can only be set aside through an election petition where such a Pradhan has been elected on any of the grounds provided in Section 12-C(1) (a) and 12-C(1)(b) of the U.P. Panchayat Raj Act, 1947 and has further held that the State Government cannot remove a Pradhan on the ground that he has taken the benefit of reservation under sub section (2) of Section 11-A or sub section 5 of Section 12 of the Act, 1947 as the case may, on the basis of a false declaration subscribed by him stating that he is a member of S.C., S.T. or backward class as the case may, as contemplated in sub clause (iii-a) of Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947.

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.

However, there is an added twist to the case before us. The judgment of Hoti Lal (supra) where the learned single Judge has held sub clause (iiii-a) of Section 95(1)(g) of the Act, 1947 to be ultra vires Article 243-O(b) of the Constitution of India and struck down sub clause (iii-a) as ultra vires Article 243-O(b) of the Constitution of India has not been referred to at all by the Full Bench in the case of Vivekanand (supra) where this Court held that a Pradhan may be removed under section 95(1)(g) of the Act, 1947 even if cessation of financial and administrative powers are not contemplated. Thus the view we have taken upholding the judgment of Hoti Lal (supra) relying upon the provisions of Article 243-O(b) and 12-C(1) (a) and 12-C(1)(b) of the U.P. Panchayat Raj Act, 1947 stands in direct conflict with the decision of the Full Bench in the case of Vivekanand (supra).

In view of the above conflicting position of law we are, therefore, of the view that the matter should be referred to a larger Bench for settling this controversy and clearing the ambiguity in law with regard to removal of a Pradhan. We therefore, direct that the records of this case be placed before the Hon'ble Acting Chief Justice for constituting a larger Bench to resolve the above controversy.

So far as the present special appeal is concerned we are not inclined to grant any interim order inasmuch as in paragraph 13 of the writ petition itself it has been disclosed by the respondent no. 1 that the appellant has already filed an election petition no. 3 of 2010 (Satyadeo Vs. Ajay Kumar Gupta and others) which has been registered on 29.11.2010.

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 27.8.2011 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 Hoti Lal (supra) which we also approve. Therefore, in our view this special appeal would be maintainable.

Order Date :- 5.10.2013

o.k.