Jamal Kha vs Siraj Ahmad And 11 Others
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Allahabad High Court

Jamal Kha vs Siraj Ahmad And 11 Others on 5 January, 2024

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:2312
 
Court No. - 6
 

 
Case :- WRIT - C No. - 21084 of 2023
 

 
Petitioner :- Jamal Kha
 
Respondent :- Siraj Ahmad And 11 Others
 
Counsel for Petitioner :- Anand Kumar Srivastava,Indra Bhan Yadav,Om Narayan Dwivedi,Ramesh Chandra Dwivedi
 
Counsel for Respondent :- C.S.C.,Asad Ahmad,Raj Kumar Singh,Tarun Agrawal,Vinay Kumar Pathak
 
with
 
Case :- WRIT - C No. - 30737 of 2023
 

 
Petitioner :- Jamal Kha
 
Respondent :- State Election Commissioner And 2 Others
 
Counsel for Petitioner :- Ramesh Chandra Dwivedi
 
Counsel for Respondent :- CSC,Ashok Kumar Pandey,Tarun Agrawal,Vinay Kumar Pathak
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. Supplementary affidavit as well as supplementary counter affidavit, filed today, are taken on record.

2. Heard Sri R.C. Dwivedi, learned counsel for the petitioner, Sri Ashok Kumar Pandey, learned counsel for respondent no. 1 and learned Standing Counsel for the State.

3. These two writ petitions filed by petitioner under Article 227 & 226 of Constitution of India, assail the order passed by District Judge, Basti in Civil Revision No. 65 of 2022 dated 05.05.2023 upholding the order dated 16.12.2022 passed by Prescribed Authority/ Sub-divisional Magistrate, Harraiya, District- Basti in Case No. 6023 of 2021 (election petition), under Section 12-C of U.P. Panchyat Raj Act, 1947 (hereinafter called as 'the Act of 1947') and also the notification dated 16.08.2023 issued by Election Commission, U.P., Lucknow.

4. The brief facts of the case, leading to filing of these writ petitions are that election to the post of Village Pradhan of Village Panchayat- Hyderabad, Tappa Sikandarpur, Block- Parasrampur, Pargana- Amorha, Tehsil- Harraiya, District- Basti was held in April, 2021. The petitioner was declared elected as Pradhan.

5. Respondent no. 1 challenged the election of petitioner on the ground that he belongs to general category but had contested election as backward class category and the seat of Village Pradhan of said village was reserved for Other Backward Category (OBC). Hence, election petition under Section 12-C of the Act of 1947 was instituted on 12.07.2021. The petitioner contested the election petition and filed his written statement. The Prescribed Authority allowed the election petition on 16.12.2022 and set aside the election of petitioner. Aggrieved by the order, a revision was preferred before District Judge, Basti being Revision No. 65 of 2022 which was dismissed vide order dated 05.05.2023. Hence, present writ petition.

6. Sri R.C. Dwivedi, learned counsel appearing for petitioner submitted that petitioner belongs to OBC category and was issued a caste certificate in the year 2010 from District- Prayagraj, demonstrating that he belongs to Mewati caste which comes under Other Backward Category (OBC), thereafter another certificate was issued in the year 2014 and thereafter on 27.01.2021. He then contended that denial of the caste certificate from District- Basti was under challenge in Writ-C No. 10917 of 2021, and during pendency of the said petition, the petitioner had contested the election and once he stood elected, the petition was dismissed as infructuous.

7. He then contended that the Prescribed Authority was not correct to allow the election petition without framing issues, and it was mandatory on behalf of Prescribed Authority to have proceeded with election petition only after framing of issues. Reliance has been placed upon a decision of co-ordinate Bench of this Court in case of Smt. Subodh Kanti vs. District Judge, Unnao and others, 2023 (157) ALR 510. Reliance has also been placed upon another decision of co-ordinate Bench of this Court in case of Shaba @ Munni vs. District and Sessions Judge, Barabanki and others, 2019 (145) RD 500.

8. Sri Ashok Kumar Pandey, counsel appearing for respondent no. 1 submitted that it is not a case of refusal of grant of caste certificate by district authorities at Basti but in fact the application submitted by petitioner for issuance of caste certificate was rejected by Tehsildar- Harraiya, Basti on 22.02.2021 on the ground that the petitioner was required to produce evidence as to entry in the revenue records of 1359 fasli. It was on the application moved by petitioner before Tehsildar that an enquiry was conducted by Lekhpal who had submitted his report, in which it was stated that the tenure holder Badal Kha, grand father of petitioner was recorded as person belonging to 'Pathan' caste which comes under the General category and petitioner does not belong to 'Mewati' caste. The rejection order was challenged by petitioner before this Court, and it was on the statement made by petitioner counsel that Writ-C No. 10917 of 2021 was dismissed as infructuous.

9. He further contended that the Prescribed Authority had only dealt with one issue, and that was whether petitioner comes under General category or belongs to Mewati caste which comes under OBC category. There was no other question involved in the election petition to be decided by Prescribed Authority, hence, reliance placed by petitioner on the decision of this Court is not applicable in the instant case.

10. I have heard respective counsel for the parties and perused the material on record.

11. The short question which needs adjudication of this Court is as to whether Prescribed Authority rightly proceeded to decide the election petition without framing issues, and moreover the revisional authority had rightly upheld the order passed by Prescribed Authority partly allowing the election petition.

12. From the pleading of the parties, it is not in dispute that the petitioner had applied for issuance of caste certificate from office of Tehsildar- Harraiya, District- Basti which was rejected on 22.02.2021, requiring the petitioner to produce the evidence of 1359 fasli. It is also not in dispute that post rejection of issuance of caste certificate, petitioner had moved an application before Tehsildar- Harraiya for issuing a caste certificate on the basis of caste certificate issued to his nephew of Mewati caste which comes under OBC category. An enquiry was ordered by Tehsildar, and a report was submitted by Lekhpal on 09.03.2021, which clearly provided that in the fasli 1359, the grand father of petitioner was recorded as 'Pathan' belonging to General category and not 'Mewati' belonging to OBC category. The matter had travelled to this Court through Writ-C No. 10917 of 2021, and it was on the strength of the pendency of the writ petition that petitioner had contested the election of Pradhan in the month of April, 2021 disclosing his certificate of Mewati caste belonging to OBC category which had been issued on 27.01.2021 by Tehsildar- Prayagraj. The said writ petition was dismissed as infructuous on the statement of counsel for the petitioner on 21.06.2021, meaning thereby that rejection order passed by Tehsildar- Harraiya on 22.02.2021 rejecting the application for grant of caste certificate to petitioner stands.

13. It is also not in dispute that petitioner had contested the election for Village Pradhan of Village- Hyderabad, Tehsil- Harraiya, District- Basti on the basis of a caste certificate issued by office of Tehsildar- Prayagraj, the seat of which was reserved for OBC category, while Tehsildar- Harraiya, Basti had rejected the grant of caste certificate to petitioner for OBC category on 22.02.2021.

14. Now coming to the question raised in the writ petition that the election Tribunal did not frame the issue before deciding the election petition, and thus vitiates the entire election proceedings.

15. From perusal of the election petition as well as judgment of election Tribunal, it is clear that only one question was raised for consideration before Prescribed Authority, and that was whether the petitioner belongs to 'Mewati' caste which falls under OBC category or 'Pathan' caste which falls under General category. The Prescribed Authority after dealing with sole issue found that petitioner does not belong to Mewati caste falling under OBC category and is Pathan by caste which falls under General category. The revisional court had also recorded the same finding after appreciating the oral testimony as well as the documentary evidences produced by the parties and came to the conclusion that petitioner is Pathan by caste belonging to General category. The revisional court had also taken note of the earlier rejection of the application of petitioner for grant of caste certificate by Tehsildar- Harraiya, District- Basti.

16. Reliance placed by petitioner on the decision of Smt. Subodh Kanti (supra) does not help his case as the present case is distinguishable on the facts of the said case, and there was only one issue before Prescribed Authority to deal with and that was as to genuineness of the caste certificate issued to the petitioner, which had been dealt with by Prescribed Authority as well as revisional court in extenso.

17. Moreover, once petitioner himself had withdrawn the writ petition filed by him challenging the rejection of caste certificate application by Tehsildar- Harraiya, District- Basti on 21.06.2021, thus, the order dated 22.02.2021 passed by Tehsildar- Harraiya revives and benefit claimed by petitioner on the basis of caste certificate issued by Tehsildar- Prayagraj would not entitle him to continue as a Pradhan. The writ Court at that time while entertaining Writ-C No. 10917 of 2021 had only permitted him to contest the election, but once after contesting the election on the basis of certificate issued by office of Tehsildar- Prayagraj, the petitioner had withdrawn his writ petition on 21.06.2021, the order dated 22.02.2021 stood revived and he cannot claim to continue on the basis of an order which is still in existence. The revisional court had rightly considered the fact that application for grant of caste certificate by Tehsildar- Harraiya, District- Basti was rejected on the ground that in the fasli year 1359, the grandfather of petitioner was recorded as Pathan belonging to General category, any certificate issued from another district stating that he belongs to Mewati caste which falls under OBC category cannot be accepted.

18. It is the Tehsildar under which the village in question falls can issue a caste certificate of the person residing therein. As enquiry is required to be conducted in the matter before grant of caste certificate, issuance of caste certificate by Tehsildar of another district cannot be said to help the case of petitioner as Tehsildar- Prayagraj is not competent to hold enquiry in the Tehsil of Harraiya, District- Basti, as it is beyond his jurisdiction. Moreover, the election of Village Pradhan was held for Village- Hyderabad, which falls under Tehsil- Harraiya, and it was after the enquiry conducted at the behest of Tehsildar-Harraiya that conclusion can be drawn as to whether the petitioner falls under Mewati caste or Pathan by caste. Once the rejection of application for grant of Mewati caste by Tehsildar- Harraiya had taken place on 22.02.2021 and order has been put to challenge, but later on the case itself has been withdrawn by petitioner reviving the order of Tehsildar- Harraiya, no benefit can be extended to the petitioner on the basis of the earlier caste certificate issued by Tehsildar- Prayagraj.

19. Considering the facts and circumstances of the case of this case, I find that petitioner has failed to make out any case for interference of this Court exercising extraordinary jurisdiction under Article 227 of Constitution of India for setting aside the order dated 16.12.2022 and 05.05.2023 passed by Prescribed Authority and Revisional Court in Election Petition no. 6023 of 2021 and Revision No. 65 of 2022. Further, once the Election Commission had proceeded to notify the election on 16.08.2023, no interference is required for setting aside the said notification.

20. Both the writ petitions fail and are hereby dismissed.

21. However, no order as to costs.

Order Date :- 5.1.2024

V.S.Singh