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2007 DIGILAW 2126 (ALL)

MUJAHID v. STATE OF UTTAR PRADESH

2007-08-14

ARUN TANDON

body2007
JUDGMENT Hon’ble Arun Tandon, J.—The petitioner Mujahid contested the elections of Pradhan of Gram Panchayat Hareta Vikas Khand Said Nagar, District Rampur. It is admitted on record that the seat of Pradhan of the village was reserved for Backward Class. The petitioner who belongs to Turk by Caste and as such is a member of General Category produced a caste certificate from the Tehsildar Sadar, Rampur dated 6.9.1995 which recorded that the petitioner is belongs to Jhojha by caste and, therefore, within the category of Other Backward Class. 2. On a complaint made in respect of certificate so produced, a notice was issued on 10.7.2007 to which the petitioner has filed his reply. 3. After examination of the explanation furnished and the records the District Magistrate under the impugned order dated 23.7.2007 has recorded that the reply filed by the petitioner to the notice dated 10.7.2007, is not satisfactory. He has held that petitioner has produced a forged caste certificate and therefore, his election is null and void. The District Magistrate has removed the petitioner from the office of the Pradhan under the impugned order. 4. On behalf of petitioner it is contended that the certificate which has been issued by the Tehsildar has not been cancelled and, therefore, the order of the District Magistrate holding that the petitioner is not a member of the Backward Class cannot be legally sustained. Counsel for the petitioner has also referred to the judgment of this Court in the case of Hotilal v. State of U.P. and others, 2002 (3) AWC 176, wherein it has been held that the election of the Pradhan cannot be set aside by the District Magistrate, nor any restrain on discharge of duties qua administrative and financial powers can be directed, in exercise of power under Section 95 (1)(g) of the U.P. Panchayat Raj Act on the ground that the Pradhan does not belong to the Caste for which the seat was reserved. The proper remedy has been held to be by way of election petition. 5. I have heard Counsel for the parties and have gone through the records of the case. 6. The proper remedy has been held to be by way of election petition. 5. I have heard Counsel for the parties and have gone through the records of the case. 6. Two issues arises before this Court : (a) should equitable writ jurisdiction under Article 226 of the Constitution of India be exercised in favour of the person who has contested the elections claiming to be the member of a caste on the basis of a forged certificate; (b) should this Court set aside an order of the District Magistrate on the plea that the proper remedy available is to file an election petition as has been held in the case of Hotilal (supra). 7. In the opinion of the Court the answer to first question is in itself sufficient to disentitle the petitioner any relief under Article 226 of the Constitution of India. This Court may record that the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. v. Rajendra Singh and others, JT 2000(3) SC 151, has held that fraud and justice cannot go together. The relevant paragraph-3 reads as follows : “Fraud and justice never dwell together” (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that “no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything” (Lazarus Estate Ltd. v. Beasley, 1956 (1) QB 702.)” 8. Similarly it has been held that writ jurisdiction cannot be invoked for questioning an order which may perpetuate illegality. 9. In the facts of this case it has been found that as a matter of fact, the certificate produced by the petitioner in respect of his being member of the Other Backward Class is a forged document. 10. Even otherwise the certificate enclosed by the petitioner as Annexure 3 to the present writ petition and which is the sheet anchor of the petitioner is only a waste paper. It is worthwhile to produce the contents of the certificate said to have been issued : “Bhulekh Nirikshak Umrao Singh Ki Akhya Ke Adhar Per Pramanit Kiya Jata Hai Ki Mujahid Hussain, putra Shri Ahmad Hussain, Niwari Gram Haraita, Tehsil Sadar Nagar Zila Rampur (U.P.) Rajya Ki Jhojha Pichri Jati Ke Vyakti Hay. It is worthwhile to produce the contents of the certificate said to have been issued : “Bhulekh Nirikshak Umrao Singh Ki Akhya Ke Adhar Per Pramanit Kiya Jata Hai Ki Mujahid Hussain, putra Shri Ahmad Hussain, Niwari Gram Haraita, Tehsil Sadar Nagar Zila Rampur (U.P.) Rajya Ki Jhojha Pichri Jati Ke Vyakti Hay. Yah Jati Uttar Pradesh Lok Sewa (Anusuchit Jatiyon. Anusuchit Jan Jatiyon Ke Liye Arakshan Adhiniyam 1994 Ki Soochi Ke Antergat Manyata Prapt Hai. Yah Bhi Pramanit Kiya Jata Hai Ki Shri Mujahid Hussain Ukt Adhiniyam, 1994 Ki Anusuchi-2 Se achchadit Nahi Hai. Shri Mujahid Hussain Tatha/Athwa Unka Parivar Uttar Pradesh Ke Gram Haraita Tehsil Sadar Nagar Va Zila Rampur Mein Samanyata Rahte Hain.” 11. Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes) Act, 1994 defines Other Backward Classes of citizens to mean the backward classes of citizens specified in Schedule-I of the Act. Turk is not one of the caste mentioned in Schedule-I of the said Act. The Counsel for the petitioner even today could not demonstrate before this Court as to how the petitioner could be treated to be a member of Jhojha caste for the purposes of his being treated as a member of Other Backward Classes. 12. It may also be recorded that a caste certificate under Section 9 of the said Act can be issued by an authority or officer in such manner as the State Government may by order provide. There is absolutely nothing on record which can establish that the Tehsildar has been conferred a power to issue any caste certificate with reference to the aforesaid Act. 13. The findings recorded by the District Magistrate in the impugned order could not be successfully assailed before this Court. It is recorded that the petitioner could not dispute before this Court that he is Turk by caste and, therefore, a member of General Category. He could not have contested the elections for the post of Pradhan which was reserved for Other Backward Classes only. Fraud as such is writ large on the records. 14. The Hon’ble Supreme Court in the case of Chandra Singh v. State of Rajasthan and others, JT 2003 (6) S.C., 20, in paragraph 42 has held as follows : “Issuance of a writ of Certiorari is a discretionary remedy. [See Champalal Binani v. CIT West Bengal, AIR 1970 SC 645 ]. 14. The Hon’ble Supreme Court in the case of Chandra Singh v. State of Rajasthan and others, JT 2003 (6) S.C., 20, in paragraph 42 has held as follows : “Issuance of a writ of Certiorari is a discretionary remedy. [See Champalal Binani v. CIT West Bengal, AIR 1970 SC 645 ]. The High Court and consequently this Court while exercising its extraordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned Judgment is found to be erroneous if by reason thereof substantial justice is being done. [See S.D.S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and others]. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Article 142 of the Constitution of India is entitled to pass such order which will be complete justice to the parties.” 15. Again the Hon’ble Supreme Court in the case of Maharaj Chintamani Saran Nath Shahdeo v. State of Bihar and others, (1999) 8 SCC 16 , in paragraph 14 and 13 has held as follows : “13........this Court considered the action of the State Government under the Andhra Pradesh Panchayats Samities and Zila Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the order of the High Court on the ground that if the High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdiction power. 14. In Mohd. Swalleh v. Illrd ADJ, similar view was also expressed by this Court. 14. In Mohd. Swalleh v. Illrd ADJ, similar view was also expressed by this Court. In that case the order passed by the prescribed authority under the U.P. (Temporary) Control of Rent and Eviction Act, 1947 was set aside by the District Judge in appeal though the appeal did not lie. The High Court came to the finding that the order of the prescribed authority was invalid and improper but the District Judge had no power to sit in appeal. The High Court did not interfere with the orders of the District Judge. The order of the High Court was affirmed by this Court on the ground that though technically the appellant had a point regarding the jurisdiction of the District Judge but the order of the prescribed authority itself being bad, no exception can be taken against the refusal of the High Court to exercise power under Article 226.” 16. In view of the aforesaid settled legal position even if it is presumed that the District Magistrate could not have exercised powers under Section 95 (1) (g) in the facts of the present case, this Court is not willing to exercise its jurisdiction under Article 226 of the Constitution of India inasmuch as setting aside of the order impugned in the present writ petition could only result in perpetuating illegal continuance of the petitioner as Pradhan against the seat reserved for Other Backward Classes although petitioner does not belong to the said caste. 17. In view of the aforesaid conclusion the second issue is also answered against the petitioner 18. Writ petition is accordingly dismissed. ————