Allahabad High Court
Mohd. Haneef vs State Of U.P. Thru ... on 15 June, 2017
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 19
Case :- MISC. SINGLE No. - 13515 of 2017
Petitioner :- Mohd. Haneef
Respondent :- State Of U.P. Thru Prin.Secy.Panchayat Raj Deptt.Lko.& Ors.
Counsel for Petitioner :- Sharad Pathak
Counsel for Respondent :- C.S.C.,Ram Ashish
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Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and learned Standing Counsel for the State.
Petitioner has filed the present writ petition challenging order dated 29.05.2017, passed by the District Panchayat Raj Adhikari, Pratapgarh, by which, three members Committee has been constituted and charge of the village Pradhan has also been handed over to the said Committee for exercising the powers of Gram Pradhan.
The facts of the present care are that petitioner, claiming himself to be belonging to a backward caste (Kuraishi), contested the election of Gram Pradhan for a seat reserved for backward class. Petitioner was declared successful on 13.12.2015. After his succeeding in election, a complaint was made that he had wrongly obtained the caste certificate of belonging to a backward caste, while he does not belong to a backward caste. After holding an inquiry, the District Level Committee by order dated 21.12.2016 cancelled the backward caste certificate issued in his favour, finding that he does not belong to a backward caste. Against the said order, petitioner claims to have filed an appeal before the Regional Level Committee, which is pending till date and no stay order has been granted to the petitioner. In the said circumstances, the District Magistrate, Pratapgarh on 10.02.2017 issued a show cause notice seeking an explanation as to why action should not be taken against him under Section 95 (1) (g) of Uttar Pradesh Panchayat Raj Act, 1947. The said matter is also pending till date. Petitioner states that now by the impugned order dated 29.05.2017 Three Member Committee has been constituted to exercise the financial and administrative powers of Gram Pradhan.
Learned counsel for petitioner has vehemently argued that only remedy available to remove a Gram Prahdan is by way of an election petition and without there being an election petition, petitioner cannot be removed from the post of Gram Pradhan. For the said purpose, he relies upon the judgment dated 16.01.2017 passed by this Court in Writ -C No.1842 of 2017; Monika Devi vs. State of U.P., and judgment in case of Hoti Lal vs. State of U.P. reported in 2002 (3) AWC 1761 and the judgment dated 26.09.2014 rendered in Writ Petition No.4964 of 2014; Alimuddin vs. State of U.P. and others.
Admittedly, as on date, petitioner does not belong to a backward caste as his certificate of backward caste stands cancelled. Admittedly, the said action has taken place after conduct of election and the same did not happen either before the election or during the course of election.
In the case of Kurapati Maria Das vs. Dr. Ambedkar Seva Samajan and others reported in 2009 (7) SCC 387, the Apex Court had occasion to visit a similar controversy. In the said matter the High Court, after itself cancelling caste certificate found a candidate invalid to hold a reserved seat, and a writ of quo-warranto was issued. In the said matter the Apex Court found that a writ would be maintainable in cases where in circumstances occurring, after election, the person is found incompetent to hold post and in such matters election petition is not an appropriate remedy. The Apex Court further observed that validity of a caste certificate cannot be decided by the High Court and can only be looked into by the appropriate authority. For the purpose of this case paras-31, 35 and 39 of the judgment are relevant, which are quoted below:-
"31. It is an admitted position that Ward No.8 was reserved for Scheduled Caste and so also the Post of Chairperson. Therefore, though indirectly worded, what was in challenge in reality was the validity of the election of the appellant. According to the writ petitioners, firstly the appellant could not have been elected as a Ward member nor could he be elected as the Chairperson as he did not belong to the Scheduled Caste. We can understand the eventuality where a person who is elected as a Scheduled Caste candidate, renounces his caste after the elections by conversion to some other religion. Then a valid writ petition for quo warranto could certainly lie because then it is not the election of such person which would be in challenge but his subsequently continuing in his capacity as a person belonging to a particular caste.
35. Shri Gupta, however, pointed out that it was specifically proved that the appellant was a Christian and as such he did not belong to the "Mala" caste which was a Scheduled Caste. Now there is no dispute that the appellant was given two caste certificates within the definition of Section 2 of the 1993 Act. There is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after a full-fledged enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant.
39. Shri Gupta then contended that there was no opportunity for the writ petitioners to challenge the caste as the application filed by them for cancellation of the Caste before the authority under 1993 Act was never decided. It was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellant's caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to."
In the present case, the District Level Committee, which alone has jurisdiction, has already cancelled the caste certificate of petitioner and as on date there is no stay order in favour of petitioner. Thus, at present the petitioner is not a backward caste person.
Hence, it would be grossly inappropriate for this Court to exercise extraordinary jurisdiction in favour of such a person permitting him to exercise the financial and administrative powers of a post which today appears to have been usurped by him on the basis of a false certificate.
In view of above, this Court is not inclined to interfere in the impugned order. The petition lack merits and deserves to be dismissed.
It is accordingly, dismissed.
Order Date :- 15.6.2017
Suresh/
(Vivek Chaudhary, J.)
