By the Court.—The petitioner was elected as President of the Nagar Palika Parishad, Behtaur, District Bijnor, which was reserved for OBC candidate. At the time of his nomination, the petitioner had filed a caste certificate issued by the Tehsildar dated 28th October, 2000 certifying that the petitioner belonged to Sheikh Sarwari caste. The petitioner was declared elected on 25th November, 2000.

2. It appears that the caste certificate dated 28th October, 2000 was cancelled by the Tehsildar, Dhampur, District Bijnor by order dated 25th November, 2000. This order was challenged by the petitioner in Writ Petition No. 54742 of 2000, which was allowed by a Division Bench of this Court by order dated 25th October, 2005 on the ground that the order of the Tehsildar cancelling the caste certificate was passed without giving opportunity of hearing to the petitioner. The Tehsildar was granted liberty to pass fresh order in accordance with law. In pursuance of the order passed by the Division Bench in the aforesaid writ petition, the Tehsildar considered the matter and has passed the order dated 15th April, 2006 rejecting the caste certificate of the petitioner on the ground that the petitioner does not belong to the Sheikh Sarwari caste and that the petitioner was rather ‘Sheikh’ which is an upper caste. This order dated 15th April, 2006 has been challenged in the present writ petition.

3. Two Election petitions were also filed against the declaration of the result of the petitioner one by Nizamuddin and the other by Buniyad Ali. Both the election petitions were unsuccessful. Buniyad Ali has filed writ petition No. 33582 of 2002 against the order of the Election Tribunal while Nizamuddin has filed writ petition No. 28570 of 2002 against the same order of the Election Tribunal.

4. It is not in dispute that the term of the election of the petitioner is over and that in the fresh elections subsequently held the petitioner was again elected on the post of President, but neither Buniyad Ali nor Nizamuddin contested the fresh elections. It is stated by the learned counsel for the parties that the fresh election has been challenged by one Khalil Ahmad who is not a party in the present writ petition. Sri M.A. Qadeer wanted to raise agruments challenging the order of the Election Tribunal on merits but in view of the fact that the term of the election is already over, the writ petitions filed by Buniyad Ali and Nizamuddin have become infructuous and are dismissed as such and it is not necessary to consider the case on merits.

5. We have heard Sri Mukhtar Alam, learned counsel for the petitioner in writ petition No. 54695 of 2006 and Sri M.A. Qadeer, learned Senior Advocate for the respondent Nos. 4 and 5 of this writ petition.

6. It is not in dispute that ‘Sheikh Sarwari’ is covered under OBC. The question which falls for determination in this writ petition is whether the petitioner belongs to Sheikh Sarwari caste. In support of his finding that the petitioner does not belong to this caste, the Tehsildar has relied upon the following documents :

(1) Sale deed dated 23.7.1975 executed by the father of Rashid Ahmad. In this sale deed, Rashid Ahmad is described as Sheikh.

(2) Sale deed executed by the custodian in favour of Jamir Ahmad father of the petitioner Rashid Ahmad dated 11.4.1961 in which too Jamir Ahmad is described as Sheikh.

(3) Description of Jamir Ahmad as Sheikh in case No. 198 of 1968, Shabbir Hussain v. Jamir Ahmad.

(4) Mark-sheet relating to the children of the petitioner in which they are described as Sheikh.

7. Clarification made by the Backward Caste Commission in reply to the letter by an Ex.MLA that Sheikh caste is not covered under OBC, but is an upper caste.

8. On the basis of the aforesaid materials, the Tehsildar recorded a finding that the petitioner is Sheikh and belongs to the upper caste. In the operative part of the order, the Tehsildar has observed that his findings are also based on the enquiries made at the l