MEENA DEVI Vs. STATE OF UP

JUDGEMENT

(1.) Present writ petition has been filed by petitioner, Smt. Meena Devi for following reliefs:

(2.) Brief background of the case is that during the year 2005 election qua the post of Pradhan of Gram Sabha Vishambharpur, Parana Dehma, Tehsil Mohammadabad, District Ghazipur was held. Said seat was reserved for female scheduled caste category candidate. In the said election 5 female candidates, including petitioner as well as respondent No. 5, Smt. Iner Bala filed their respective nomination papers, and respondent No. 5 was declared elected. This is accepted position that at no point of time, questioning the validity of said election, declaring Smt. Iner Bala as Pradhan, any election petition had ever been filed, as is provided for under Section 12C of the U.P. Panchayat Raj Act, 1947, and it is reflected that complaint had been made before the District Magistrate, Ghazipur on 12.11.2007 requesting therein to hold enquiry regarding fake caste certificate of respondent No. 5 and to remove her from the post of Pradhan. The facts mentioned in the said complaint were that Smt. Iner Bala was not at all Kharwar by caste, as such she was not scheduled caste category candidate, and on the basis of fake certification, she had succeeded in representing the constituency, which was reserved for scheduled caste category candidate. The Tehsildar who had issued certificate on earlier occasion made enquiry on 07.12.2007 and proceeded to pass order cancelling the caste certificate of respondent No. 5. Against the said order cancelling her caste certificate, Smt. Iner Bala preferred writ petition No. 5262 of 2008 before this Court, and this Court, in view of the fact that entire action against Smt. Iner Bala was in violation of the principles of natural justice, proceeded to pass order dated 29.12.2007, giving liberty to Tehsildar to pass fresh order, after giving opportunity of hearing to the parties. Thereafter, Tehsildar on 24.04.2008 proceeded to pass order holding that Smt. Iner Bala comes basically from Kahar /Kamkar caste, which falls within OBC, and in this background caste certificate issued to her on earlier occasion showing her to be Kharwar, which is scheduled caste, was cancelled. Thereafter, petitioner requested the District Magistrate that once caste certificate of Smt. Iner Bala stood cancelled, then she had got no right to continue on the post of Pradhan and her continuance is liable to be stopped by issuing a writ of quo-warranto. At this juncture, present writ petition has been filed.

(3.) Counter affidavit has been filed and therein stand has been sought to be taken that the petitioner had contested and lost the election, and she having failed in filing any election petition, the request made by her cannot be accepted. Respondent No. 5 has tried to contend that after the order had been passed by Tehsildar, representation has been made by her before the District Magistrate, complaining therein that the opinion made qua her that she is Kanhar/Kamkar by caste is incorrect opinion. It has been sought to be contended that till date, the District Magistrate has not passed any order and further it has been sought to be justified that relevant consideration has not been made by Tehsildar while forming such opinion and it has been sought to be stated that her election was based on duly issued caste certificate, as such petitioner has got no right to challenge the same.