Vinod Kumar Yadav vs State of Uttarakhand and Others

Alok Singh, J.

Present petition is filed assailing the order dated 19th July, 2014, passed by Tehsildar Gadarpur whereby O.B.C. certificate issued in favour of the petitioner on 09.12.2013 certifying that petitioner belongs to caste "Ahir" is cancelled. Brief facts of the present case, inter alia, are that petitioner claiming himself resident of Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar, moved application before the Tehsildar Gadarpur to issue O.B.C. certificate in favour of the petitioner certifying that petitioner belongs to "Ahir" caste, an O.B.C. Having inquired into the matter, Tehsildar was pleased to issue caste certificate (O.B.C.) in favour of the petitioner on 09.12.2013. Petitioner filed his nomination to contest the election for the post of Gram Pradhan of Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar as O.B.C. candidate since post of Gram Pradhan, Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar was reserved for the O.B.C. candidate only. Nomination papers of the petitioner were scrutinized by the Returning Officer and petitioner was allowed to contest the election. Petitioner contested the election of Gram Pradhan of Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar and was declared successful/elected. Respondent No. 4 also contested the election of the Gram Pradhan of Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar, however, was defeated by the petitioner. Thereafter, respondent No. 4 moved application before the Tehsildar saying petitioner is not permanent resident of Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar, therefore, caste certificate issued in favour of the petitioner certifying that petitioner belongs to "Ahir" caste (O.B.C.) should be cancelled. Thereafter, learned Tehsildar was pleased to cancel the caste certificate issued in favour of the petitioner. Feeling aggrieved, petitioner has filed present writ petition under Article 226 of the Constitution of India.

I have heard Mr. Tumul K. Nailwal, learned counsel for the petitioner, Mr. A.K. Joshi, Addl. C.S.C. for the State and Mr. Vikas Anand, learned counsel for respondent No. 4 and have carefully perused the record.

Undisputedly, O.B.C. certificate was issued in favour of the petitioner by the Tehsildar Gadarpur after due inquiries on 09.12.2013; on the strength of O.B.C. certificate issued by the Tehsildar, petitioner filed his nomination to contest the election of Gram Pradhan of Village Prem Nagar, Tehsildar Gadarpur; nomination papers filed by the petitioner were scrutinized by the Returning Officer and were accepted and thereafter petitioner was allowed to contest the election wherein petitioner was declared elected and respondent No. 4 who was also contesting the election, was declared unsuccessful.

In view of the above, the question arises as to whether election of the petitioner can be challenged under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 or respondent No. 4, i.e. unsuccessful candidate should be allowed to move miscellaneous application before the Revenue Authorities to cancel the caste certificate which would ultimately result in the removal of the elected Pradhan.

Section 12-C of Uttar Pradesh Panchayat Raj Act, 1947 reads as under:

"12-C. Application for questioning the elections - (1) The election of a person as Pradhan [* * *] or as member of a Cram Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that-

(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or

(b) that the result of the election has been materially affected-

i. by the improper acceptance or rejection of any nomination or;

ii. by gross failure to comply with the provisions of this Act or the rules framed thereunder.

(2) The following shall be deemed to be corrupt practices of bribery or undue influence for the purposes of this Act-

(A) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of any gratification of any person whomsoever, with the object, directly, or indirectly of including-

(a) a person to stand or not to stand as, or withdraw from being, a candidate at any election; or

(b) an elector to vote or refrain from voting at an election; or as a reward to-

i. a person for having so stood or not stood or having withdrawn his candidature; or

ii. an elector for having voted or refrained from voting.

(B) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right:

Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

i. threatens any candidate, or any elector, or any person in whom a candidate or any elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or

ii. induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.

(3) This application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed.

Explanation-Any person who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to be a candidates at the election.

(4) The authority to whom the application under sub-section (1) is made shall in the matter of-

i. hearing of the application and the procedure to be followed at such hearing.

ii. setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed.

(5) Without prejudice to generality of the powers to be prescribed under sub-section (4) the rules may provide for summary hearing and disposal of an application under sub-section (1).

[(6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely-

(a) that the prescribed authority has exercised a jurisdiction not vested in it by law;

(b) that the prescribed authority has failed to exercise a jurisdiction so vested;

(c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity.

(7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer.

(8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for rehearing and pending its decision pass such interim orders as may appear to it to be just and convenient.

(9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final.]"

Bare perusal of Section 12-C of the Act would demonstrate that improper acceptance of any nomination is one of the grounds to challenge the election of Gram Pradhan. Judgment passed by the Election Tribunal/Prescribed Authority under Section 12-C of the Act can be challenged before the District Judge in statutory revision filed under Section 12-C(6) of the Act. Election petition so filed before the Prescribed Authority is always decided after giving sufficient opportunities to lead evidence and after discussing the evidence at length.

Undisputedly, respondent No. 4 herein has filed Election Petition challenging the election of the petitioner and, mean while, also filed application before the Tehsildar for the cancellation of the caste certificate earlier issued in favour of the petitioner. Tehsildar, during the pendency of the Election Petition was pleased to pass impugned order canceling the caste certificate. Learned Tehsildar nowhere held that petitioner does not belong to caste "Ahir". Learned Tehsildar did not take into consideration that earlier caste certificates were also issued in favour of the petitioner in the years 1999 and 2006 by the Tehsildar Gadarpur. Learned Tehsildar also did not take into consideration that permanent resident certificate was also issued in favour of the petitioner certifying that petitioner is permanent resident of Village Prem Nagar, Tehsil Gadarpur, District Udham Singh Nagar and straightway cancelled the caste certificate of the petitioner having observed that petitioner''s name also figure in the voter list of District Gajipur (U.P.). It is also important to point out that permanent resident certificate issued in favour of the petitioner has not been cancelled or revoked as yet. Therefore, cancellation of caste certificate only on the ground that name of the petitioner also figured in the voter list of District Gajipur, U.P. seems to be totally unjustified.

In my considered opinion, if a person is permitted to contest the election after accepting his nomination and was declared elected, his election can be set aside only by the Election Tribunal. If regular Court (Election Tribunal) is hearing the question of wrong acceptance of nomination paper or as to whether elected candidate does not belong to reserved category, then in such eventuality, parallel administrative side action should not be permitted. Otherwise, it would amount to overlapping and multiplicity and shall also amount unnecessary interference in the jurisdiction of Regular Court hearing the Election Petition. Consequently, writ petition is allowed. Impugned order passed by the learned Tehsildar is hereby set aside. However, it is made clear that learned Prescribed Authority shall decide the Election Petition at its own merit in accordance with law without being prejudice by any observation made in the impugned judgment or in the impugned order passed by the learned Tehsildar.