Reeta Rani w/o Sri Krishna Kumar vs State Of Uttarakhand & Another

Alok Singh, J

1) CLMA No.2432 of 2019 has been filed by the applicant-Rakesh Kumar with a prayer to direct the petitioner to implead him as a respondent. It was also prayed that applicant-Rakesh Kumar be granted permission to argue the case. Considering the averments made in the said application, this Court grants permission to the applicant-Rakesh Kumar to place his submissions as an intervenor. CLMA No.2432/2019 stands disposed of accordingly.

2) By means of present writ petition, the petitioner seeks following relief, among others:-

"(i) issue a writ, order or direction in the nature of certiorari calling for the records and the impugned G.O. dated 17.01.2019 issued by the respondent no.2 and all consequential orders may very kindly be quashed."

3) Brief facts of the case, according to the petitioner, are that the petitioner was born in Najibabad in the State of Uttar Pradesh; she is a member of Scheduled Castes community (Chamar) by birth; she was married to one Krishna Kumar, who is also a member of Scheduled Castes community; after marriage, she is residing in Dehradun alongwith her husband and children; she is a permanent resident and elector of Ward No. 61, Cross-2, Tapovan Enclave, Aamwala Tarla, District Dehradun, Uttarakhand; a caste certificate dated 20.07.1996 was issued by the Tehsildar, Najibabad to the effect that the petitioner is a member of the Scheduled Caste; the authorities had also issued a caste certificate dated 01.05.2018 to the petitioner; a notification for elections to the post of the Mayor and the Municipal Corporators of Nagar Nigam, Dehradun was issued by the State Government; in these elections, Ward no.61, Aamwala Tarla was reserved for members of the Scheduled Caste; the petitioner had filed her nomination for contesting the elections to the post of Municipal Corporator of Ward no.61, Aamwala Tarla; she was elected as the Municipal Corporator of Ward no.61; thereafter, a complaint was filed before the authorities on 29.11.2018 by one Rakesh (intervenor herein) that the caste certificate issued in favour of the petitioner by the Tehsildar, Dehradun was forged; pursuant to it, a committee was constituted by the District Magistrate for making an enquiry in this regard; a report was given by the said Committee that the petitioner in support of her application for issuance of a caste certificate had attached a copy of a forged sale deed; the certificate no.UK304/180036187 was cancelled by the Tehsildar, Dehradun; and pursuant to this, the impugned order was passed declaring the seat/post of Sabhasad of Ward No.61 as vacant.

4) Before proceeding further, it needs to be mentioned here that the qualification for election as a corporator has been provided under Section 24 of the U.P. Municipal Corporation Act, 1959 (hereinafter referred to as the Act, 1959) as applicable in the State of Uttarakhand. As per Section 24 (c) of the Act, 1959, a person shall not be qualified for being chosen as, and for being a Corporator unless he belongs in respect of a seat reserved for the Scheduled Castes, the Scheduled Tribes, backward classes or women, to such category, as the case may be. Section 25(7) of the Act, 1959 prescribes that any person who after being elected as Corporator becomes disqualified shall not remain a Corporator and his seat shall become vacant with effect from the date of incurring such disqualification. Section 80 provides disqualification for electoral offences and corrupt practices. Section 83 of the Act, 1959 provides for removal of the Corporator by the State Government.

5) The Uttar Pradesh Election to Urban Bodies (Caste Certificate) Order, 1999 (as applicable in the State of Uttarakhand) specifically provides that in any election to a Nagar Panchayat, Municipal Council or Municipal Corporation, a person intending to contest an election to a seat or post reserved for the Scheduled Tribes, the Scheduled Castes or the Backward Classes shall submit caste certificate issued by the concerned Tehsildar or Deputy Collector, together with a declaration in Form-I and affidavit in Form-II appended to the aforesaid said Order, 1999. The declaration and the affidavit as appended to the said order specifically require a declaration/affidavit with regard to the fact that the caste certificate submitted by the candidate shows the caste of the candidate as a reserved caste in the State.

6) The petitioner contested the election for the post of Corporator, Nagar Nigam, Dehradun on the basis of a caste certificate obtained by her from Dehradun claiming herself to be a member of Scheduled Castes community in the State of Uttarakhand and by giving the affidavit and declaration. The post of Corporator, Nagar Nigam in ward no. 61, Aamwala, Dehradun was reserved for a Scheduled Caste candidate. The petitioner contested the said election on the strength of a Scheduled Caste certificate dated 01.05.2018 issued by the authorities in the State of Uttarakhand mentioning the petitioner as member of the Scheduled Castes in the State of Uttarakhand.

7) The petitioner won the election. One Rakesh (intervenor herein) filed a complaint to the effect that the petitioner obtained the forged certificate. In the complaint, it was contended that for obtaining the caste certificate dated 01.05.2018, the petitioner produced a sale deed dated 15.07.1984 registered with Sub-Registrar II Dehradun, however, on inquiring from the office of Sub-Registrar II Dehradun, it revealed that 15.07.1984 was a Sunday and Office of Sub-Registrar II Dehradun was itself constituted in the year 1991; she has not furnished any certificate with regard to her residence in the State of Uttarakhand prior to 1984 and the permanent residence certificate of her husband, which was issued in the year 2012, is also forged as the same has been obtained on the basis of sale deed of the year 2003, however, as per rule, for obtaining a permanent residence certificate, one should be resided in the State for the last 15 years; the family of the petitioner is residing in the State of Uttarakhand after creation of the State only and, prior to her marriage, she was a resident of Nazibabad, Uttar Pradesh and, prior to 2003, her husband was the resident of Bijnor, Uttar Pradesh; the said family has obtained permanent residence certificate and caste certificate by forgery, which needs to be cancelled immediately. It was further prayed that the caste certificate obtained through forgery be cancelled and simultaneously her certificate of winning the election be cancelled and the said seat be declared as vacant.

8) Thereafter, the Tehsildar on the basis of inquiry of Regional Sub Inspector found that the petitioner had filed a sale deed registered on 15.07.1984 in the name of her father-in-law along with her application for issuance of caste certificate, which sale deed appears to be fraudulent and the permanent resident certificate issued to her husband doesn't appear to be appropriate as per the prevalent rules on the subject. The Tehsildar recommended the matter to be placed before scrutiny committee for cancelation of her caste certificate. The scrutiny committee, thereafter, proceeded with the matter. The scrutiny committee gave an opportunity of hearing to the petitioner. Before the scrutiny committee, the petitioner tried to wriggle out from the sale deed dated 15.07.1984 and denied the same to be filled by her. On such denial, the scrutiny committee called upon the petitioner to produce any other document or evidence with regard to her stay in the boundaries of the State of Uttarakhand prior to 1985, but the petitioner failed to produce any documents in that respect. It has further come in the scrutiny committee report that the matter was inquired into by a SIT Dehradun also and it was found that the certificate was obtained fraudulently. The scrutiny committee cancelled the caste certificate issued to the petitioner, vide its report dated 10.12.2018.

9) It was argued by learned senior counsel for the petitioner that for contesting an election for the post of corporator of a Nagar Nigam reserved for scheduled castes, one need to be a member of scheduled caste (be it of whatever State) and the petitioner holds a caste certificate from the State of U.P. issued in the year 1996; the said caste is also recognized as scheduled caste in the State of Uttarakhand and, therefore, mere cancellation of caste certificate would have no effect.

10) The aforesaid argument of learned senior counsel for the petitioner is misconceived. Reservation is always State specific. One caste may be a reserved caste in two States but the benefits of reservation to the members of such reserved caste will not be available to a particular individual in two States simultaneously. The residents of one State belonging to a reserved caste will get benefit of reservation in their State only and merely because the said caste is notified as reserved caste in other State, they will not get the benefit of reservation in the other State. Further, as per the Uttar Pradesh Election to Urban Bodies (Caste Certificate) Order 1999, it is explicitly clear that members of scheduled caste belonging to the State itself in whose favour a caste certificate has been issued by the State can contest the election against a reserved post in the State. The petitioner in compliance of such order had given an affidavit and declaration that she belongs to scheduled caste of the State of Uttarakhand, which has been found to be false. Thus, the cancellation of caste certificate attracts disqualification within the purview of the Act and the Government Order.

11) Learned senior counsel for the petitioner placed reliance upon a decision of Hon'ble Supreme Court in Raviyashwant Bhoir vs. District Collector, Raigad & others, 2012 (4) SCC 407. This Court has carefully gone through the said judgment, which relates to the removal of the Chairman of Municipal Corporation on the ground of misconduct. The said case is not applicable in the facts of the present case, inasmuch as, the present case is not the case of removal on the ground of misconduct, but in the case in hand (instant case), the seat has been declared vacant as the petitioner has been disqualified. Suffice to state that the provisions of the Act have been complied.

12) Be that as it may, the fact remains that the petitioner has committed a fraud and the fraud vitiates every solemn act and a person who commits fraud cannot invoke the extra ordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India.

13) On the basis of scrutiny committee report, the Tehsildar, Sadar, Dehradun cancelled the caste certificate dated 01.05.2018 issued to the petitioner, vide its order dated 15.12.2018. The State Government vide Government Order dated 17.01.2019 declared the seat of Corporator of Ward No. 61, Aamwala, Dehradun as vacant. The petitioner has filed the present writ petition assailing the order dated 17.01.2019.

14) The petitioner in its writ petition has contended that the petitioner holds a valid caste certificate dated 20.07.1996 issued from Nazibabad, Uttar Pradesh and she has also relied upon a caste certificate dated 28.08.1990 issued in favour of her husband.

15) For grant of a caste certificate in the State of Uttarakhand as per government order dated 02.04.2013, one has to be a member of Scheduled Castes in the State of Uttarakhand and he/she has to be a permanent resident of the State of Uttarakhand as per government order dated 20.11.2001. The Government Order dated 20.11.2001 prescribes that one has to be a resident of an area falling within the boundaries of Uttarakhand in the erstwhile State of Uttar Pradesh for the last 15 years from 20.11.2001. The petitioner and her husband both were granted caste certificates in the State of Uttar Pradsh from Nazibabad, Bijnore in the year 1996 and 1990 respectively. Since the petitioner's husband was issued a caste certificate in the State of Uttar Pradesh in the year 1990 in Bijnore, her husband too cannot be a permanent resident of State of Uttarakhand in view of the Government Order dated 20.11.2001 and, thus, the petitioner even by marrying him cannot become a permanent resident of the State of Uttarakhand. As a consequence thereof, the petitioner cannot be a permanent resident and member of the Scheduled Castes community in the State of Uttarakhand.

16) The petitioner in para 7 of her writ petition has alleged that the caste certificate issued to her from Nazibabad, District Bijnore in the year 1996 is still valid. Thus, the same is an admission on the part of the petitioner that she still holds a caste certificate from the State of Uttar Pradesh and she is a member of Scheduled Castes community in the State of Uttar Pradesh.

17) The benefit of caste reservation is a State specific. One cannot claim benefit of being member of a reserved caste in two States simultaneously. By the own admission of the petitioner, it is evident on record that the petitioner is holding a caste certificate from the State of Uttar Pradesh. The petitioner on the basis of a sale deed obtained a caste certificate from the State of Uttarakhand and then contested the election for the post of Corporator of the Nagar Nigam, Dehradun, which was reserved for a scheduled castes candidate.

18) Learned counsel for the intervenor would submit that the petitioner has repeatedly committed frauds; she belongs to the State of U.P. and has frequently obtained a caste certificate in the State of Uttarakhand and, then, she has herself admitted that she has simultaneously possessed caste certificate from two States.

19) This Court in Dr. Azim Iliyas vs. State of Uttarakhand & others, 2015 (2) U.D. 179 has held that fraud vitiate entire proceedings; it is settled position of law that caste reservation shall be available to domicile of that particular State and none can claim domicile of two States; a cost of Rs. 5 Lakhs was imposed on respondent no.2 in the said matter for having caste certificates from two States.

20) Vide judgment and order dated 31.05.2018, the Division Bench of this Court in Special Appeal No. 273 of 2018, Sriram vs. State of Uttarakhand & others has held that the period of 15 years is to be reckoned from the date of Government Order dated 20.11.2001 and a caste certificate can be given only to those persons, who are permanent resident within the purview of Government Order dated 20.11.2001.

21) The coordinate Bench of this Court in Smt. Pooja Rajpoot vs. District Magistrate, Dehradun & others, 2012 (1) U.D. 394 has held that the States have no power to amend the Presidential Order under Articles 341 & 342 of the Constitution of India.

22) Hon'ble Apex Court in Bharati Reddy vs. State of Karnataka & others, 2018 (12) SCC 61 has held that as per Article 243-O, the election to any panchayat cannot be called in question, except by an election petition, however, any voter can maintain a writ petition challenging the election and power of review under Articles 226 & 227 of the Constitution of India.

23) Hon'ble Apex Court in Bharati Balkrishna Dhongade vs. State of Maharashtra & others, 2012 (1) SCC 566 has held that a particular caste may be a scheduled caste in one State, but may not be a Scheduled Caste in other State. Thus, the caste reservation is always State specific.

24) In Kalpana Dilip Bahirat vs. PUne Municipal Corporation & others, 2014 (15) SCC 654, the appellant therein contested election to Pune Municipal Corporation to a seat reserved for OBC and filed, as proof of her caste, a caste certificate issued by the authority and caste validity certificate purportedly issued by the Caste Scrutiny Committee; the Commissioner of Municipal Corporation on receiving an information that the caste certificate, on the basis of which the appellant therein contested the election, was never actually issued by the Caste Scrutiny Committee concerned, passed an order declaring the election ab initio null and declaring the seat of Pune Municipal Corporator as vacant; aggrieved against the same, the petitioner therein preferred a writ petition before the High Court, which was dismissed; when the matter came up before the Hon'ble Supreme Court, Hon'ble Supreme Court dealt with the contention of the appellant with regard to Article 243-ZG of the Constitution of India that the election can only be called in question by an election petition and held that as per the act a caste certificate is to be furnished; and held that it would be open for the appellant therein to pursue her claim before the Caste Scrutiny Committee that she is entitled to a caste certificate as a person belonging to OBC and the Caste Scrutiny Committee would consider the same on its own merits.

25) Hon'ble Apex Court in Chairman and Managing Director, Food Corporation of India & others vs. Jagdish Balaram Bahira & others, 2017 (8) SCC 670 has held that the act of obtaining a benefit reserved for designated castes, tribes and classes by an individual who does not belong to the designated community, on the basis of a false caste claim has been held to constitute an egregious violation, even a fraud on the Constitution. The invalidation of a caste certificate may result in two consequences : (i) immediate cancellation or withdrawal of the benefits received by the candidate on the basis of a false caste certificate; (ii) prosecution of a claimant who procures a certificate which is found to be false by the Scrutiny Committee. The intent of a candidate may be of relevance only if there is a prosecution for a criminal offence. However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent.

26) Hon'ble Court in Bir Singh vs. Delhi Jal Board & others, 2018 (10) SCC 312 (Five Judges Bench) has held that reservation for a particular caste is always State Specific. Hon'ble Apex Court has held that a person, who is recognized as a member of scheduled castes/scheduled tribes in his original State, will be entitled to all the benefits of reservation under the Constitution in that State only and not in other States/Union Territories and not entitled to the benefits of reservation in the migrated State/Union Territory.

27) Apart from this, a person who commits fraud cannot claim any equity and cannot invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner has committed fraud by obtaining caste certificate from the State of Uttarakhand by filing a forged sale deed. The petitioner further committed a fraud by holding caste certificate simultaneously from two States and the petitioner played a fraud upon the constitution by contesting election on the post reserved for a scheduled caste candidate on the basis of a forged caste certificate.

28) The petitioner does not qualify the conditions as provided in government order dated 02.04.2013 and 20.11.2001 for getting a caste certificate and permanent residence certificate in the State of Uttarakhand. As per law, only a person who has been issued a caste certificate from the State of Uttarakhand can contest an election for the reserved post. The petitioner obtained the caste certificate from the State of Uttarakhand on the basis of forged documents. As per admitted case, the petitioner is holding caste certificate from the State of U.P. and, thus, by no stretch of imagination the petitioner can be a member of scheduled castes of the State of Uttarakhand. The petitioner thus could not have contested the election reserved for the scheduled castes of the State of Uttarakhand. The authority has rightly declared the post as vacant in exercise of the power conferred under the provisions of the Act, 1959.

29) In the light of above discussion, this Court finds that the writ petition is devoid of merit and is liable to be dismissed. The same is dismissed accordingly. No order as to costs.