# Mujahid v. State of U.P. and another

- **Citation:** (2007) 3 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-07-22
- **Case number:** Civil Misc. Writ Petition No. 37617 of 2007
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mujahid-v-state-of-u-p-and-another-41171
- **Pages:** 5

## Headnote

U.P. Punchayat Raj Act-1947-Section 95
(1)-Power of District Magistrate-removal
of gram Pradhan-petitioner contested
Pradhan election as OBC candidateadmittedly belongs to 'Turk by cast-a
general cast-cast certificate issued by
Tehsildar having no power-fraud vitiate
every
thing-even
if
the
District
Magistrate
has
no
power-order
impugned-not interfered by writ Court.

Held: Para 11

In view of the aforesaid settled legal
position even if it is presumed that the
District
Magistrate
could
not
have
exercised powers under Section 95 (1)
(g) in the facts of the present case, this
Court is not willing to exercise its
jurisdiction under Article 226 of the
Constitution of India inasmuch as setting
aside of the order impugned in the
present writ petition could only result in
perpetuating illegal continuance of the
petitioner as Pradhan against the seat
reserved for Other Backward Classes
although petitioner does not belong to
the said caste.
Case law discussed:
J.T. 2000 (3) 151, 2003 (6) J.T. SC-20

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
14. In view of the above, the
impugned order passed by Labour Court
and consequential notice issued under
Section 33-C (1) are not liable to be
sustained in law and deserves to [be set
aside.

15. As a consequence, the writ
petition
succeeds
and
is
allowed.
Impugned 22.05.2004 passed by Presiding
Officer, Labour Court U.P. Saharanpur
(Annexure -6) and consequential order
dated 22.7.2004 passed by Deputy Labour
Commissioner, U.P. Saharanpur Kshetra,
Saharanpur (Annexure-7) are hereby
quashed.

16. Respondent, no. 3 has already
been paid wages for the period he has
worked under the interim order of this
Court. However payment of wages for
the period 1.2.1994 to 11.7.1995 shall
depend upon, the adjudication to be
made by this Court in Writ Petition No.
46131 of 1993 with regard to the
question as to whether respondent no. 3
was entitled to be superannuated at the
age of 58 years or 60 years and the
consequential order which may be
passed in that regard. Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 37617 of 2007

Mujahid

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Vivek Prakash Mishra
Counsel for the Respondents:
Sri Shahbuddin
S.C.

U.P. Punchayat Raj Act-1947-Section 95
(1)-Power of District Magistrate-removal
of gram Pradhan-petitioner contested
Pradhan election as OBC candidateadmittedly belongs to 'Turk by cast-a
general cast-cast certificate issued by
Tehsildar having no power-fraud vitiate
every
thing-even
if
the
District
Magistrate
has
no
power-order
impugned-not interfered by writ Court.

Held: Para 11

In view of the aforesaid settled legal
position even if it is presumed that the
District
Magistrate
could
not
have
exercised powers under Section 95 (1)
(g) in the facts of the present case, this
Court is not willing to exercise its
jurisdiction under Article 226 of the
Constitution of India inasmuch as setting
aside of the order impugned in the
present writ petition could only result in
perpetuating illegal continuance of the
petitioner as Pradhan against the seat
reserved for Other Backward Classes
although petitioner does not belong to
the said caste.
Case law discussed:
J.T. 2000 (3) 151, 2003 (6) J.T. SC-20

(Delivered by Hon'ble Arun Tandon, J.)

1. The petitioner Mujahid contested
the elections of Pradhan of Gram
Panchayat Hareta Vikas Khand Said
Nagar, District Rampur. It is admitted on
record that the seat of Pradhan of the
village was reserved for Backward Class.
The petitioner who belongs to Turk by
Caste and as such is a member of General
Category produced a caste certificate
from the Tehsildar Sadar, Rampur dated
06.9.1995
which
recorded
that
the
petitioner is to Jhojha by caste and,
3 All] Mujahid V. State of U.P. and another
773
therefore, within the category of Other
Backward Class.

On a complaint made in respect of
certificate so produced, a notice was
issued on 10.7.2007 to which the
petitioner has filed his reply.

2.

After
examination
of the
explanation furnished and the records the
District Magistrate under the impugned
order dated 23.7.2007 has recorded that
the reply filed by the petitioner to the
notice dated 10.7.2007, is not satisfactory.
He has held that petitioner has produced a
forged caste certificate and therefore, his
election is null and void. The District
Magistrate has removed the petitioner
from the office of the Pradhan under the
impugned order.

3. On behalf of petitioner it is
contended that the certificate which has
been issued by the Tehsildar has not been
cancelled and, therefore, the order of the
District Magistrate holding that the
petitioner is not a member of the
Backward
Class
cannot
be
legally
sustained. Counsel for the petitioner has
also referred to the judgment of this Court
in the case of Hotilal Vs. State of U.P. and
others reported in 2002 (3) AWC, 176,
wherein it has been held that the election
of the Pradhan cannot be set aside by the
District Magistrate, nor any restrain on
discharge of duties qua administrative and
financial powers can be directed, in
exercise of power under Section 95 (1) (g)
of the U.P. Panchayat Raj Act on the
ground that the Pradhan does not belong
to the Caste for which the seat was
reserved. The proper remedy has been
held to be by way of election petition.

I have heard counsel for the parties
and have gone through the records of the
case.

Two issues arises before this Court:

(a) should equitable writ jurisdiction
under Article 226 of the Constitution of
India be exercised in favour of the person
who has contested the elections claiming
to be the member of a caste on the basis
of a forged certificate.
(b) should this Court set aside an order of
the District Magistrate on the plea that the
proper remedy available is to file an
election petition as has been held in the
case of Hotilal (Supra).

4. In the opinion of the Court the
answer to first question is in itself
sufficient to dis-entitle the petitioner any
relief
under
Article
226
of
the
Constitution of India. This Court may
record that the Hon'ble Supreme Court in
the case of United India Insurance Co.
Ltd. Vs. Rajendra Singh & Ors.
Reported in JT 2000 (3) 151, has held that
fraud and justice cannot go together. The
relevant paragraph-3 reads as follows:

"Fraud and justice never dwell
together".
(Frans
et
jus
nunquam
cohabitant) is a pristine maxim which has
never lost its temper over all these
centuries. Lord Denning observed in a
language without equivocation that "no
judgment of a Court, no order of a
Minister can be allowed to stand if it has
been obtained by fraud, for, fraud
unravels everything" (Lazarus Estate Ltd.
v. Beasley 1956 (1) QB 702.)"

Similarly it has been held that writ
jurisdiction
cannot
be
invoked
for
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
questioning
an
order
which
may
perpetuate illegality.

5. In the facts of this case it has been
found that as a matter of fact, the
certificate produced by the petitioner in
respect of his being member of the Other
Backward Classes is a forged document.

6. Even otherwise the certificate
enclosed by the petitioner as Annexure 3
to the present writ petition and which is
the sheet anchor of the petitioner is only a
waste paper. It is worthwhile to produce
the contents of the certificate said to have
been issued:

"Bhulekh Nirikshak Umrao Singh Ki
Akhya Ke Adhar Per Pramanit Kiya Jata
Hai Ki Mujahid Hussain, putra Shri
Ahmad Hussain, Niwari Gram Haraita,
Tehsil Sadar Nagar Zila Rampur (U.P.)
Rajya Ki Jhojha Pichri Jati Ke Vyakti
Hain. Yah Jati Uttar Pradesh Lok Sewa
(Anusuchit Jatiyon, Anusuchit Jan Jatiyon
Ke Liye Arakshan Adhiniyam 1994 Ki
Soochi Ke Antargat Manyata Prapt Hai.
Yah Bhi Pramanit Kiya Jata Hai Ki Shri
Mujahid Hussain Ukt Adhiniyam, 1994 Ki
Anusuchi-2 Se achchadit Nahi Hai.
Shri Mujahid Hussain Tatha/Athwa
Unka Parivar Uttar Pradesh Ke Gram
Haraita Tehsil Sadar Nagar Va Zila
Rampur Mein Samanyata Rahta Hain."

7. Uttar Pradesh Public Service
(Reservation for Scheduled Caste and
Scheduled Tribes and Other Backward
Classes)
Act,
1994
defines
Other
Backward Classes of citizens to mean the
backward classes of citizens specified in
Schedule-I of the Act. Turk is not one of
the caste mentioned in Schedule-I of the
said Act. The Counsel for the petitioner
even today could not demonstrate before
this Court as to how the petitioner could
be treated to be a member of Jhojha Caste
for the purposes of his being treated as a
member of Other Backward Classes.

8. It may also be recorded that a
caste certificate under Section 9 of the
said Act can be issued by an authority or
officer in such manner as the State
Government may by order provide. There
is absolutely nothing on record which can
establish that the Tehsildar has been
conferred a power to issue any caste
certificate with reference to the aforesaid
Act.

9. The findings recorded by the
District Magistrate in the impugned order
could not be successfully assailed before
this Court. It is recorded that the
petitioner could not dispute before this
Court that he is Turk by caste and,
therefore, a member of General Category.
He could not have contested the elections
for the post of Pradhan which was
reserved for Other Backward Classes
only. Fraud as such is writ large on the
records.

10. The Hon'ble Supreme Court in
the case of Chandra Singh vs. State of
Rajasthan and others reported in 2003
(6) J.T. S.C., 20 in paragraph 42 has held
as follows :

"Issuance of a writ of Certiorari is a
discretionary remedy. [See Champalal
Binani v. CIT, West Bengal, AIR 1970
SC
645].
The
High
Court
and
consequently this Court while exercising
its
extraordinary
jurisdiction
under
Articles 226 or 32 of the Constitution of
India may not strike down an illegal order
although it would be lawful to do so. In a
given case, the High Court or this Court
3 All] Mujahid V. State of U.P. and another
775
may refuse to extend the benefit of a
discretionary releif to the applicant.
Furthermore, this Court exercised its
discretionary jurisdiction under Article
136 of the Constitution of India which
need not be exercised in a case where the
impugned judgment is found to be
erroneous if by reason thereof substantial
justice is being done. [See S.D.S.
Shipping Pvt. Ltd. v. Jay Container
Services Co. Pvt. Ltd. & Ors.]. Such a
relief can be denied, inter alia, when it
would be opposed to public policy or in a
case where quashing of an illegal order
would revive another illegal one. This
Court also in exercise of its jurisdiction
under Article 142 of the Constitution of
India is entitled to pass such order which
will be complete justice to the parties."
Again the Hon'ble Supreme Court in
the case of Maharaj Chintamani Saran
Nath Shahdeo vs. State of Bihar &
Others reported in (1999) 8 S.C.C., 16 in
paragraph 14 and 13 has held as follows :
"13........this Court cosndiered the
action of the State Government under the
Andhra Prdesh Panchayats Samithis and
Zila Parishads Act, 1959 and came to the
conclusion that the Government had no
power under Section 72 of the Act to
review an order made under Section 62 of
the Act but refused to inerfere with the
orders of the High Court on the ground
that if the High Court had quashed the
said order, it would have restored an
illegal order and, therefore, the High
Court rightly refused to exercise its
extraordinary jursidctional power.
14. In Mohd. Swalleh v. IIIrd ADJ
similar view was also expressed by this
Court. In that case the order passed by
the prescribed authority under the U.P.
(Temporary) Control of Rent and Eviction
Act, 1947 was set aside by the District
Judge in appeal though the appeal did not
lie. The High Court came to the finding
that the order of the prescribed authority
was invalid and improper but the District
Judge had no power to sit in appeal. The
High Court did not interfere with the
orders of the District Judge. The order of
the High Court was affirmed by this Court
on the ground that though technically the
appellant had a point regarding the
jurisdiction of the District Judge but the
order of the prescribed authority itself
being bad, no exception can be taken
against the refusal of the High Court to
exercise power under Article 226."

11. In view of the aforesaid settled
legal position even if it is presumed that
the District Magistrate could not have
exercised powers under Section 95 (1) (g)
in the facts of the present case, this Court
is not willing to exercise its jurisdiction
under Article 226 of the Constitution of
India inasmuch as setting aside of the
order impugned in the present writ
petition could only result in perpetuating
illegal continuance of the petitioner as
Pradhan against the seat reserved for
Other
Backward
Classes
although
petitioner does not belong to the said
caste.

12. In view of the aforesaid
conclusion the second issue is also
answered against the petitioner.

13. Writ petition is accordingly
dismissed.
---------
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 37896 of 2007

Anil Kumar Yadav

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Miss Bushra Maryam

Counsel for the Respondents:
Sri. Abhinav Prasad

Payment of wages Act Section 17-read
with U.P. Dukan aur Vanijya Adhisthan
Adhiniyam 1962-section-18(2) and (3)-
Petitioner
working
as
manager
in
Cinema Hall-claim wages-allowed by the
prescribed authority -appellate authority
decided
the
claim
on
the
ground
provision of payment of wages not
applicable on cinema oil-and being the
manager excluded from the definition of
workman
-held-totally
misconceivedcomplete non consideration of the Act of
1962-nature of duty discharged by the
workman
is
material
and
not
the
designation- Appellate authority directed
to consider and decide as fresh.

Held: Para 7 & 9

From the aforesaid provisions it is
apparently clear that the commercial
establishments, which include a Cinema
Hall are covered by the provision of U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam, 1962 and employees of such
commercial establishment, if not paid
their wages as provided under the Act,
the withheld wages can be recovered in
accordance with the provisions of the
Payment of Wages Act, 1976 (Reference
Section 2 (4) read with Section 18 of the
Act). The provisions of Payment of
Wages Act have been made applicable by
in corporation. The aforesaid aspect of
the matter has completely been ignored
by the Appellate Authority while passing
the impugned order. Consequently the
finding recorded in the impugned order
to the effect that provisions of Payment
of Wages Act do not apply to Cinema
Halls is totally misconceived.

Counsel for the petitioner submits that
the petitioner although designated as
Manager in fact did not discharge any
duties,
which
can
be
termed
as
managerial in nature. He clarifies that it
is the character of the duties discharged
which
is
material
and
not
the
designation.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
parties.
Counsel for the parties agree that the
writ petition may be finally disposed at
this stage without calling for a counter
affidavit specifically in view of the order
proposed to be passed today.

2. Petitioner Anil Kumar Yadav
made
three
applications
under
the
provisions of Payment of Wages Act
alleging therein that the employers M/s.
Imperial Cinema have not made payment
of wages for the period mentioned in the
applications.
The
applications
were
numbered as PWA-1 of 1995, PWA-2 of
1995 and PWA-3 of 1995. The Prescribed
Authority under the Act vide order dated
15.7.2003 held that the applications made
were liable to be allowed and, therefore,
directed payment of withheld wages along
with interest thereon and penalty.

3. Against this order of the
Prescribed Authority, the employers M/s.
Imperial Cinema filed an Appeal under