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IN THE HIGH COURT OF ALLAHABAD
R. R. YADAV
HOTILAL - Appellant
Versus
STATE OF U. P - Respondents
C. M. W. P. 2579 Of 2002
Decided On : 05/16/2002
PANCHAYAT RAJ ACT - U. P. ACT NO. 21 OF 1998 - CONSTITUTIONALITY - ARTICLE 243-O - ELECTION DISPUTES - ELECTION TRIBUNAL - JURISDICTION - EXECUTIVE OFFICERS - OUSTER OF JURISDICTION - ULTRA VIRES.
Fact of the Case:
The petitioners, who were elected as Pradhans of Gram Panchayats, challenged the constitutional validity of the newly inserted sub-clause (iii-a) in clause (g) of sub-section (1) of Section 95 of the Uttar Pradesh Panchayat Raj Act, 1947 (the Act) by way of Amendment Act No. 21 of 1998. The amendment empowered District Magistrates to remove elected Pradhans from office on the ground that they had obtained the benefit of reservation by filing fictitious caste certificates. The petitioners contended that the amendment was ultra vires Article 243-O of the Constitution, which provides that election disputes in Panchayats can only be adjudicated by an Election Tribunal. The State Government argued that the amendment was a valid exercise of its legislative power under Article 243-F of the Constitution, which deals with disqualifications for membership of Panchayats.
Finding of the Court:
The Court held that the amendment was ultra vires Article 243-O of the Constitution. It held that Article 243-O was a non-obstante clause, which meant that it prevailed over all other provisions of the Constitution, including Article 243-F. The Court also held that the amendment was an impermissible attempt to oust the jurisdiction of the Election Tribunal, which was the only body empowered to adjudicate election disputes in Panchayats. The Court further held that the amendment was arbitrary and discriminatory, as it created two different forums for adjudicating election disputes, one for general caste candidates and the other for Scheduled Caste, Scheduled Tribe, and Backward Class candidates.
Issues: 1. Whether the newly inserted sub-clause (iii-a) in clause (g) of sub-section (1) of Section 95 of the Uttar Pradesh Panchayat Raj Act, 1947 (the Act) by way of Amendment Act No. 21 of 1998 was ultra vires Article 243-O of the Constitution? 2. Whether the amendment was a valid exercise of the State Government's legislative power under Article 243-F of the Constitution?
Ratio Decidendi: 1. Article 243-O of the Constitution is a non-obstante clause, which means that it prevails over all other provisions of the Constitution, including Article 243-F. 2. The amendment was an impermissible attempt to oust the jurisdiction of the Election Tribunal, which was the only body empowered to adjudicate election disputes in Panchayats. 3. The amendment was arbitrary and discriminatory, as it created two different forums for adjudicating election disputes, one for general caste candidates and the other for Scheduled Caste, Scheduled Tribe, and Backward Class candidates.
Final Decision: The Court allowed the petitions and struck down the newly inserted sub-clause (iii-a) in clause (g) of sub-section (1) of Section 95 of the Act as ultra vires Article 243-O of the Constitution. It also quashed the impugned orders passed by the District Magistrates removing the petitioners from office.
( 1 ) IN the aforesaid two writ petitions common question of legislative transgression of State legislature inserting sub-clause (iii-a) in clause (g) of Sub-sec. (1) of S. 95 of U. P. Panchayat Raj Act by way of Uttar Pradesh Panchayat Raj (Amendment) Act, 1998 (hereinafter referred to as U. P. Act No. 21 of 1998) in contravention of mandatory provisions enshrined under Art. 243-O of the Constitution of India is involved, therefore, I propose to decide these two writ petitions by a composite order giving brief facts of both these cases indicating laissez faire and arbitrariness in passing the impugned orders by Executive Officers having no jurisdiction in such disputes ignoring the supremacy of rule of law in a democratic polity like ours.
( 2 ) IN writ petition No. 2579 of 2002 Hoti Lal contested the election for the office of Pradhan of Gram Panchayat, Jarani Kalan as a scheduled caste candidate as he belongs to Kanjar caste which finds place in the list of scheduled caste. The aforesaid constituency was reserved for scheduled caste candidate. It is averred in the writ petition that the election for the office of Pradhan of the said Gram Panchayat was contested by him and one Chandra Pal. In the said election the petitioner was declared elected by Returning Officer. Against declaration of result, his opponent, Chandra Pal filed election petition under S. 12-C of U. P. Panchayat Raj Act before Prescribed Authority (UP Ziladhikari, Jalesar, Etah), a copy whereof is filed and marked as Annexure-1 to the writ petition. The aforesaid election petition was filed by Chandra Pal on the ground inter-alia that the petitioner is not Kanjar and Kanjar is not covered under the definition of scheduled caste. The aforesaid election petition filed by Chandra Pal was dismissed on 21-5-2001 and the defeated candidate, Chandra Pal instead of filing a revision against the aforesaid order under sub-sec. (6) of S. 12-C of U. P. Panchayat Raj Act, he initiated proceedings by lodging a complaint under S. 95 (1) (g) (iii-a) of the said Act and during the pendency of the said enquiry, the District Panchayat Raj Officer, Etah restrained the petitioner from operating Bank Account of the Gram Panchayat by his order dated 10-8-2001. Annexure-11 to the writ petition against the mandatory provision envisaged under the proviso of the said Section wherein it is provided that an elected Pradhan can be deprived of to exercise and perform the financial and administrative powers and functions only after preliminary enquiry under Uttar Pradesh (Removal of Pradhans, Up Pradhans and Members) enquiry Rules, 1997 by State Government after affording reasonable opportunity of being heard to him. It is known to all of us that State Government has delegated its powers under S. 95 (1) (g) of U. P. Panchayat Raj Act to all District Magistrates in State.
( 3 ) IT is to be noticed that petitioner had filed earlier writ petition No. 47653 of 2000 against a similar order passed by Block Development Officer restraining him to operate Bank Account which was ordered to be kept in abeyance on 3-11-2000 by learned single Judge of this Court till final decision of the objection by Block Development Officer by speaking order, a copy whereof is filed and marked as Annexure-10 to the writ petition. As a matter of fact neither Block Development Officer nor District Panchayat Raj Officer have power to deprive an elected Pradhan from exercising and performing financial and administrative powers under S. 95 (1) (g) of U. P. Panchayat Raj Act as mentioned hereinabove.
( 4 ) IN writ petition No. 2673 of 2002 Hafizullah contested election for the office of Pradhan of Gram Panchayat, Basantpur in the month of April 2000 which was reserved for backward class candidate. He was declared elected by Returning Officer on 24-6-2000. No election petition as required under S. 12-C of the U. P. Panchayat Raj Act was filed against him within limitation before the Election Tribunal in the
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