Tahira Begam vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 7438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 1951 of 2023
 

 
Petitioner :- Tahira Begam
 
Respondent :- State Of U.P. Thru. Prin. Secy. Panchayat Raj Deptt. Civil Secrett. Lko. And 4 Others
 
Counsel for Petitioner :- Ashish Kumar Shukla,Shiv Prakash Mishra
 
Counsel for Respondent :- C.S.C.,Dinesh Kumar Ojha
 

 
Hon'ble Rajnish Kumar,J.

1. Heard Shri Shameemuddin Khan, learned counsel for the petitioner, Shri Anirudh Singh, learned Standing Counsel and Shri Dinesh Kumar Ojha, for the opposite party no.5 who has put in appearance through caveat.

2. This petition has been filed challenging the order dated 30.01.2023 passed by the opposite party no.4 in Election Petition No.02326 of 2021; Pradeep Kumar Vs. Tahira Begam U/S 12C of U.P. Panchayat Raj Act, 1947 and the order dated 17.02.2023 passed by the District Judge, Pratapgarh in Civil Revision No.45 of 2023.

3. Submission of learned counsel for the petitioner is that the respondent no.5 has filed the election petition questioning the election of petitioner on the basis of caste certificate of the petitioner. The validity of the caste certificate has been upheld by the District Caste Scrutiny Committee by means of the order dated 30.05.202, therefore the election petition could not proceed, therefore the petitioner moved an application for abatement of election petition but the application has been rejected and the revision filed by the petitioner has also been rejected without considering that once the caste certificate has been verified and upheld by the District Caste Scrutiny Committee it could not be proceeded. He relies on Shaba @ Munni Vs. District and Sessions Judge, Barabanki and Others; 2019 (7) ADJ 207.

4. Learned Standing Counsel as well as learned counsel for the respondent no.5, while opposing the submissions of learned counsel for the petitioner, submit that there is no provision for abatement of election petition. They further submit that the decision of the District Caste Scrutiny Committee can be considered by the prescribed authority before whom the election petition is pending while deciding the election petition. Learned counsel for the respondent no.5 also submitted that appeal filed, against the decision of District Level Committee, by him is pending.

5. Having considered the submissions of learned counsel for the parties I have perused the records of writ petition and the impugned orders.

6. The respondent no.5 has filed election petition questioning the election of the petitioner. The caste certificate of the petitioner of backward caste was also questioned before the District Caste Scrutiny Committee. The caste certificate of the petitioner has been verified and found to be genuine by means of the order dated dated 30.05.2022 by the District Caste Scrutiny Committee. An appeal filed by respondent no.5 against the said order is pending before the appellate authority.

7. The petitioner moved an application for abatement of the election petition on the ground that the caste certificate of the petitioner has been verified and upheld by the District Caste Scrutiny Committee. The application has been rejected on the ground that there is no provision of the abatement of the proceedings in such a condition. The election petition can be abated if there is only sole petitioner and he dies or there is sole respondent and he dies under Rule-4, Proviso (III) of the Uttar Pradesh Panchayat Raj (Settlement Of Election Disputes) Rules, 1994 (here-in-after referred as Rules 1994).

8. Proviso (iii) to Rule 4 of Rules 1994 provides: "if there is a sole petitioner and he dies, or there is a sole respondent and he dies, the petition shall abate". Therefore an election petition can abate only if there is only sole petitioner or sole respondent and he dies. Thus the election petition can not abate only because the caste certificate of the petitioner has been verified and upheld by the District Caste Scrutiny Committee. Learned counsel for the petitioner also failed to show any contrary provision, which may be applicable in the case in hand, therefore this Court is of the view that the application of the petitioner for abatement of Election Petition has rightly been dismissed in accordance with law and the revision has also been dismissed in accordance with law.

9. This Court, in the case of Shaba @ Munni Vs. District and Sessions Judge, Barabanki and Others (Supra), has also held that the District Caste Scrutiny Committee shall undertake an exercise for verification of the caste-certificate in accordance with law and shall communicate the decision to the prescribed authority, who shall thereafter proceed to consider the election petition and the prescribed authority shall take a decision on the election petition as per law considering the decision taken by the Scrutiny Committee. The relevant paragraph nos.41 to 44 are extracted here-in-below.:-

"41. As the opposite party No.3 has already challenged the caste certificate issued to the petitioner before the District Level Caste Scrutiny Committee headed by the District Magistrate, therefore, considering the the fact that the caste certificate issued to the petitioner was never verified in terms of Madhuri Patil (supra) and the government order dated 5.1.1986 etc. and it is necessary to do so in view of the dictum of the Supreme Court in Kurapati Maria Das (supra), the ends of justice require that the proceedings of the election petition be allowed to take place and in the interregnum the proceedings for verification of the caste certificate be held by the Caste Scrutiny Committee, thereafter, based on its decision and the discussion made hereinabove, the Prescribed Authority shall take a decision on the election petition as per law. This would secure the ends of justice.

43. The observations of the Revisional Authority wherein he has held the Prescribed Authority to be competent to decide the validity of the caste certificate of the petitioner (without any decision by the Caste Scrutiny Committee) are set aside and are substituted by the reasonings given in this judgment but the operative portion of his order setting aside the order of the Prescribed Authority is maintained for the foregoing reasons for a reconsideration of the election petition as aforesaid. As regards contention of Sri Tilahri that the election petition itself was not maintainable, the Court for the reasons aforesaid, is not persuaded to accept this argument at this stage, therefore, this question is left to be raised before the Prescribed Authority after the result of Caste Scrutiny Committee is made available.

43. In the case of Hotilal it has already been held that section 95(1)(g)(iiia) of the Act 1947 is ultra vires, meaning thereby, proceedings for removal of the petitioner on the ground of having illegally obtained benefit of reservations for the office of Gram Pradhan are not maintainable and the only remedy available is by way of an election petition, but, in view of Kumari Madhuri Patil's cse (supra) as followed by this Court in Hizwana Bano and other cases, the Prescribed Authority can not determine the validity of petitioner's Caste Certificate, which can only be done by the Caste Scrutiny Committee, but there has to be some reedy in such matters, hence it is necessary to have the caste certificate of the petitioner verified by such Committee, especially as, this process is already on, before the District Level Committee. The Supreme Court in Kurapati Maria Das (supra) has emphasised the examination/verification of candidates elected against reserved constituencies, obviously to further and protect the constitutional objectives in this regard.

44. In view of the facts and circumstances of this case it is provided that the District Caste Scrutiny Committee shall undertake an exercise for verification of the caste-certificate issued to the petitioner on 9.11.2015 by Tehsildar Nawabganj, District Barabanki, in terms of the directions issued by the Supreme Court in Kumari Madhuri Patil's case (supra) and the provisions of the government order dated 5.1.1996, 27.1.2011 and 28.2.2011 in tune therewith and shall complete this verification procedure within 2 months. On completion of this procedure, the decision taken by the said Committee, subject to any challenge made in appeal or under Article 226 of the constitution of India and in an intra court appeal, as the case may be, in terms of the decision in Kumari Madhuri Patil's case (supra) and Dayaram's case (supra), shall be communicated by the Committee to the Prescribed Authority i.e. the S.D.M., Nawabganj, who shall thereafter proceed to consider the election petition based on the pleadings and grounds taken therein which will include the question of its maintainability, as, in this scenario he would not be required to consider the validity of the caste-certificate nor the caste status of the petitioner, but would only have to take into consideration the decision taken by the Committee and would record its conclusions after hearing the concerned parties and referring to the pleadings, grounds and evidence in this regard in the light of the provisions contained in section 12-C and such other provisions of the Act as may be relevant. This will serve the constitutional/statutory objective as also the dictum of the Supreme Court in Madhuri Patil's case (supra) and in Kurapati Maria Das case (supra). If any appeal is filed against the decision of the District Committee, the same shall be decided with expedition, say within 2 months."

10. In view of above, the decision taken by the District Caste Scrutiny Committee in regard to the caste certificate of the petitioner is to be considered by the prescribed authority subject to any challenge made in appeal or Article 226 of the Constitution of India and in intra court appeal as the case may be in terms of the decision in Kumari Madhuri Patil case and Daya Ram case, while deciding the election petition based on the pleadings and grounds taken therein which include the question of its maintainability as observed by this Court in paragraph-44 of Shaba @ Munni Vs. District and Sessions Judge, Barabanki and Others as reproduced above.

11. In view of above and considering the overall facts and circumstances of the case, this Court is of the view that the application of the petitioner for abatement of the election petition and the revision have rightly been dismissed in accordance with law. There is no illegality or infirmity in it. This writ petition has been filed on misconceived and baseless grounds which is liable to be dismissed.

11. Dismissed accordingly. No order as to costs.

...................................................................(Rajnish Kumar, J.)

Order Date :- 15.3.2023

Haseen U.