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Dhirendra Kumar v/s State of U.P. & Others


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    Writ - C No. 7137 of 2020

    Decided On, 08 September 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE JAYANT BANERJI

    For the Petitioner: Sushil Kumar Srivastava, Advocate. For the Respondent: C.S.C., Awadhesh Tiwari, Advocates.



Judgment Text


Heard Shri Sushil Kumar Srivastava, learned counsel for the petitioner and Shri Sudhanshu Srivastava, learned Additional Chief Standing Counsel appearing for the State.

This writ petition has been filed challenging the order dated 11.2.2020 passed by the respondent no. 2- District Magistrate, Firozabad, removing the petitioner from the post of Gram Pradhan pursuant to the provisions of Section 95(1)(g)(iii-a) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act').

The contention of the learned counsel for the petitioner is that the petitioner was duly elected as Pradhan in the General Election of Gram Panchayat in the year 2015. It is stated that the petitioner belongs to 'Dhangar' caste which is a Scheduled Caste in the State of Uttar Pradesh at Entry No. 27 in the Presidential Order, that is, Constitution (Scheduled Castes) Order, in the year 1950 as amended. It is stated that the petitioner submitted his nomination paper for the election of Pradhan from Gram Panchayat Ramgadh @ Ummargadh in which he declared himself to be of Scheduled Castes on the basis of a Scheduled Caste certificate dated 10.9.2015 issued by the competent authority. The petitioner was declared elected as Pradhan by the returning officer who issued a certificate to him accordingly. Thereafter, an election petition was filed under Section 12C of the Act challenging the election of the petitioner, which was dismissed by the prescribed authority by a judgement and order dated 30.1.2019. Thereafter, by a notice dated 16.4.2019, the District Panchayat Raj Officer directed the petitioner to submit his explanation to the complaint made by one Prempal Singh on the allegation that the Caste certificate of the petitioner was canceled by the Tehsildar, Jewar. It is stated that no document was provided by the authority so he sought a copy of the order of the Tehsildar, Jewar under the Right to Information Act which was never provided to him. Therefore, the petitioner filed a Writ Petition No. 17107 of 2019 (Dhirendra Kumar Vs. State of U.P. and Others) challenging the order of the Tehsildar, Jewar dated 18.1.2016. That writ petition is pending before this Court. It is stated that thereafter despite a reply being submitted by the petitioner before the District Panchayat Raj Officer, Firozabad to his notice, the District Magistrate issued a show cause notice dated 17.12.2017 directing him to submit an explanation within 7 days failing which the action under the provisions of Section 95(1)(g)(iii-a) of the Act would be taken against the petitioner. Thereafter, on 11.2.2020, the impugned order was passed by the District Magistrate, Firozabad.

The contention of the learned counsel for the petitioner is the the provisions of Section 95(1)(g)(iii-a) of the Act has been declared ultra vires by this Court in the case of Hotilal Vs. State of U.P. reported in AIR 2002 Alld 257 and so the order passed by the District Magistrate dated 11.02.2020 is wholly illegal and non est. Learned counsel further states that the issue of the validity of the Caste certificate is engaging the attention of this Court in the earlier writ petition. It is contended that in view of the provisions of Article 243-O(b) of the Constitution of India, the petitioner's election can be called in question only by way of an election petition presented before the election authority given the fact that the disputed Caste certificate was filed by the petitioner during the process of election. In support of his contention the learned counsel for the petitioner has placed reliance on the judgements of this Court in Hotilal Vs. State of U.P. reported in AIR 2002 Alld 257, Monika Devi Vs. State of U.P. and Others (Writ-C No. 1842 of 2017), Satya Deo Shakya Vs. Ajay Kumar Gupta (Judgement dated 05.10.2013 passed in SPECIAL APPEAL No. - 1270 of 2013).

Countering the submissions made by the learned counsel for the petitioner, learned Additional Chief Standing Counsel has argued that the Division Bench in Satya Deo Shakya has noticed and directed the matter be referred to the Full Bench in view of the perceived conflict in the judgement of Hoti Lal and Vivekanand Yadav. Learned counsel states that since the matter has been referred to the Full Bench it cannot be said that the case of Hoti Lal operates conclusively as far as the vires of Section 95(1)(g)(iii-a) of the Act is concerned. Learned counsel has referred to the judgement of this Court in Misc Single No.- 19585 of 2019 (Nasimuddin Vs. State of U.P.) to contend that action can still to be taken under Section 95(1)(g)(ii) of the Act.

Countering the submissions of the learned counsel for the respondents, the counsel for the petitioner in his rejoinder has stated that the decision of the Full Bench in the case of Vivekanand Yadav has been duly considered by the Division Bench of this Court in the case of Satya Deo Shakya (supra) which has held that the decision in the case of Hotilal declaring the provisions of Section 95(1)(g)(iii-a) of the Act ultra vires the Constitution of India as good law. It is contended that the judgement in the case of Hotilal and Satya Deo Shakya have been repeatedly followed by this Court in several judgements, one of them being the judgement and order dated 16.1.2017 passed in Writ-C No. 1842 of 2017, Monika Devi Vs. State of U.P. and others. Learned counsel has contended that neither the judgement in the case of Hotilal nor in the case of Satya Deo Shakya have been overruled by any Court and as such they are good law.

The impugned order dated 11.02.2020 passed by the District Magistrate is admittedly an order passed in exercise of the power under the provisions of Section 95(1)(g)(iii-a) of the Act. The operative part of the order states that the Caste certificate has been canceled by the Tehsildar, Jewar and that the Sub-Divisional Magistrate, Tundla in his report has said that the petitioner belongs to 'Gadaria' Caste which is a backward class. Therefore, it was held that the Scheduled Castes certificate obtained by the petitioner was by wrongful means pursuant to which he was elected as Pradhan and as such under the provisions of Section 95(1)(g)(iii-a) of the Act, he is being removed with immediate effect which would be subject to the decision of the Court.

By means of U.P. Act No. 21 of 1998, sub-clause (iii-a) was inserted in Section 95 (1) (g) in the U.P. Panchayat Raj Act, 1947. Section 95 appears in Chapter VII of the Act which bears the heading 'External Control'. The relevant part of the Section for purpose of this case is as follows:-

"95. Inspection - (1) The State Government may -

................

(g) remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he -

...........

(iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) or Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or the backward classes, as the case may be.

............." .

In Hoti Lal, this court held as follows:

"28. A conjoint reading of Article 243O of the Constitution and S. 12-C of U.P. Panchayat Raj Act leads towards an irresistible conclusion that no election of Panchayat can be called in question except by way of election petition prescribed by appropriate State Legislature. No Court or authority is entitled to call in question the declaration of result of an elected Pradhan except by way of election petition. Thus Article 243O(b) excludes the jurisdiction of the Court as well as any authority to entertain a complaint for setting aside election of an elected Pradhan except by way of election petition before Election Tribunal, provided the question relating to invalidity of the election of elected Pradhan is capable to be raised by way of election petition under S. 12-C of U.P. Panchayat Raj Act and rules framed thereunder. For example, if a person contested the election of the office of Pradhan and declared elected on the ground of fictitious caste certificate or his nomination is rejected on the ground of caste certificate, then in such a situation it clearly falls within the purview of S. 12-C (b) of U.P. Panchayat Raj Act which provides that result of election has been materially affected by improper acceptance or rejection of any nomination. Thus, acceptance or rejection of nomination by Returning Officer on the ground of fictitious caste Certificate can be raised by way of filing election petition under S. 12-C of U.P. Panchayat Raj Act which is in full consonance with Article 243O(b) of the Constitution and no Court or authority is entitled to call in question or entertain such question relating to acceptance or rejection of nomination by Returning Officer on the basis of caste certificate. It is made clear that any matter which arises while elections are in progress i.e. each and every stage from the time of issue of notification appointing a date of nomination till results are declared is covered by Article 243O(b) of the Constitution read with S. 12-C of U.P. Panchayat Raj Act and insertion in S. 95 of U.P. Panchayat Raj , Act in sub-sec. (1), in clause (g) after sub-clause (iii) as sub-clause (iii-a) which is quoted hereinabove confirming to adjudicate improper acceptance or rejection of nomination by Returning Officer upon an Executive Officer, is expressly barred by the mandatory provisions envisaged under Article 243O(b) of the Constitution and as such, it is liable to be declared ultra vires."

In the case of Vivekanand Yadav (supra), while answering a reference, a full bench of this court had reformulated the points for determination in paragraph no. 33 of that case as follows:

(i) Whether the proviso to section 95(1) of the Panchayat Raj Act providing for opportunity applies to the preliminary enquiry under the proviso to section 95(1)(g) or only to the main section 95(1)(g);

(ii) Whether the rules are necessary to be framed for the preliminary and final enquiry under the proviso to section 95(1)(g);

(iii) What is the meaning of word 'otherwise' in sub rule 1 of rule 4 {Rule 4(1)} of the Enquiry Rules;

(iv) Can a pradhan object to a complaint on the ground that it is not in conformity with rule 3 of the Enquiry Rules;

(v) In case the answer to the first point is in the negative then, whether a pradhan is entitled to be associated in the preliminary enquiry on the ground that principles of natural justice are applicable to it;

(vi) In case a pradhan is entitled to be associated or given opportunity then what is the extent of his rights;

(vii) Whether a pradhan is entitled to an opportunity before the order ceasing the financial and administrative powers is passed against him under the proviso to section 95(1)(g).

(viii) Can there be proceeding for removal of a pradhan under section 95(1) (g) of the Panchayat Raj Act, without ceasing his financial and administrative powers;

(ix) In case answer to the preceding question is in the affirmative then, will rule 6 of the Enquiry Rules providing the procedure in the final enquiry apply to the case where power is not so ceased;

(x) What is the meaning of word 'otherwise' in sub-rule 1 of rule 5 {rule 5(1) of the Enquiry Rules};

(xi) Whether a preliminary report submitted by the DPRO or an officer defined as enquiry officer under sub-rule (c) of Rule 2 {rule (2)(c) of the Enquiry Rules}--without being formally asked to conduct the preliminary enquiry--can be accepted under rule 5 to, Constitute a three member committee to exercise financial and administrative powers; and Appoint an enquiry officer to conduct the final enquiry under rule 6."

The full bench in Vivekanand Yadav did not look into the vires of sub-clause (iii-a) of Section 95 (1) (g) of the Act, and, moreover, the judgement in Hoti Lal was not considered.

It is not disputed that this Court in the case of Hoti Lal had declared the provision of Section 95(1)(g)(iii-a) of the Act ultra vires, and that judgement has not been overruled. Moreover, a division bench of this court, in the case of Satya Deo Shakya, while holding that the view taken by this Court in Hoti Lal lays down the correct law, held that this Court in the case of Radhey Shyam Sharma Vs. State of U.P. and Others reported in 2005 (23) LCD 377 did not consider the judgement of Hoti Lal and does not lay down the correct law.

The judgement in the case of Satya Deo Shakya was passed in Special Appeal No.1270 of 2013 that was filed against the judgement and order of a learned Judge passed in Writ Petition No.56084 of 2011. The learned Judge had allowed the writ petition and the order of 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 Act 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 had relied upon the aforesaid decision of this court in Hoti Lal. A further direction was given in the writ petition that the petitioner would be reinstated as Pradhan for the remainder of his term. The Division Bench in the Special Appeal observed:

"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.

..............

..............

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."

Thus, the division bench of this court in the case of Satya Deo Shakya while referring the matter to the Chief Justice to constitute a full bench, has held that the judgement in the case of Hoti Lal lays down the correct law.


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/>Therefore, for purposes of the instant case and also in matters where the State Government or its functionaries may consider proceedings under the provisions of Section 95 (1)(g) (iii-a) of the Act, the judgement in the case of Hoti Lal declaring that provision ultra vires, would hold the field and render any act of the State Government under Section 95 (1)(g) (iii-a) of the Act, non est. Mere reference made by the division Bench of this Court in Satya Deo Shakya would not operate as a hold on the operation of the judgement in Hoti Lal. Further in the case of Monika Devi, a Coordinate Bench of this Court noticed the various decisions of this court consequent to the judgement of the Hoti Lal and allowed the writ petition on the basis of the judgement of this Court in Hoti Lal. In the present case, admittedly, the District Magistrate has exercised his powers under the aforesaid Section 95(1)(g)(iii-a) of the Act to remove the petitioner as Pradhan by means of the impugned order dated 11.02.2020 totally ignoring the judgement of this Court in the case of Hoti Lal. Under the circumstances, it is held that the order dated 11.2.2020 passed by the District Magistrate, Firozabad removing the petitioner as Pradhan under the provision of Section 95(1)(g)(iii-a) of the Act is wrong and non est and is hereby quashed. 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. This writ petition is, accordingly, allowed.
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