Allahabad High Court
Narendra Dev vs State Of U P And Another on 1 March, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - C No. - 4945 of 2023
Petitioner :- Narendra Dev
Respondent :- State Of U P And Another
Counsel for Petitioner :- Ashish Kumar
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ashish Kumar, learned counsel for petitioner and learned Standing Counsel for State respondents.
2. The petitioner was declared a returned candidate in an election for Gram Pradhan, from a seat reserved for Scheduled Tribes.
3. An inquiry was initiated to verify caste certificate (ST) submitted by the petitioner. The District Level Caste Scrutiny Committee, after considering evidence and objections, made a recommendation dated 28.07.2021 for cancellation of caste certificate. Petitioner has filed an appeal before Regional Level Caste Scrutiny Committee which is still pending.
4. Meanwhile, Tehsildar, on the basis of recommendation of District Level Caste Scrutiny Committee, cancelled the caste certificate issued to petitioner by an order dated June 16, 2022.
5. Consequently, the District Magistrate issued a notice to petitioner under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 as petitioner has attained disqualification under Section 95(1)(g)(iii-a) of the Act of 1947 and sought reply why not he be removed from post of Pradhan. Since caste certificate was cancelled, administrative and financial powers of petitioner were suspended.
6. Learned counsel for petitioner submits that Section 95(1)(g)(iii-a) of Act of 1947 has been declared ultra-vires by the Court in a judgment passed in a case of Hoti Lal and others vs. State, AIR 2002 ALD 257 and it has been approved by a Division Bench of this Court in Satya Deo Shakya vs. Ajay Kumar Gupta and others, 2013(9) ADJ 248, therefore, petitioner cannot be removed from post of Pradhan on basis of provisions of Section 95(1)(g)(iii-a) of Act of 1947. Therefore, impugned order is illegal.
7. He further submits that an election petition is pending against him, wherein issue of caste certificate being issued wrongly is also one of the grounds.
8. Per contra, learned Standing Counsel for State submits that petitioner can raise all contentions in inquiry as well as in the election petition and this Court may expedite both proceedings.
9. Heard learned counsel for parties and perused record.
10. This Court in Hoti Lal (supra) has declared Section 95(1)(g)(iii-a) ultra-vires. The Court held that -:
"49. As a result of aforesaid discussion, the instant two writ petitions are allowed. The newly inserted provisions in Sub-clause (iii-a) after Sub-clause (iii) in Clause (g) of Sub-section (1) of Section 95 of U.P. Panchayat Raj Act, quoted hereinabove, are hereby struck down as ultra vires to the mandatory provisions enshrined underArticle 243-O(b)of the Constitution?..."
11. A Division Bench in Satya Deo Shakya (supra) has held that Hoti Lal (supra) lays down correct law that -:
"24. 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."
12. A coordinate Bench in Dhirendra Kumar vs. State of U.P. and 2 others, Writ C No. 7137 of 2020 decided on 08.09.2020 has directed that -:
"Since it is evident that the functionaries of the State Government are continuing to act under the provision of Section 95 (1)(g) (iii-a) of the Act that has been declared ultra vires by this Court, and disregard of the judgement in Hoti Lal is causing unnecessary litigation, the Registrar General is directed to send a copy of this judgement to the State Government within a week. It is directed that within a period of one month from today, the State Government shall issue appropriate order / directions, in terms of this judgement, to the various District Magistrates / other functionaries."
13. In the present case, the District Magistrate has suspended the administrative and financial powers of petitioner while exercising powers under proviso to Section 95(1)(g) of Act of 1947 on ground that petitioner has attained a disqualification under Section 95(1)(g)(iii-a), ignoring the judgment of Hoti Lal (supra) that said provision has already been declared ultra-vires to Constitution, therefore, impugned order dated 02.01.2023 passed by respondent No.2 is wrong and non-est and liable to be quashed and is hereby quashed.
14. Resultantly, writ petition succeeds and is allowed.
15. This order shall not be construed as an impediment in deciding election petition pending against petitioner in accordance with law.
Order Date :- 1.3.2023
Nirmal Sinha
