# Satya Deo Shakya v. Ajay Kumar Gupta & Ors

- **Citation:** (2013) 3 ILRA 1333
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-05
- **Case number:** Special Appeal No.1270 of 2013
- **Bench:** Laxmi Kant Mohapatra, A.C.J. B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-deo-shakya-v-ajay-kumar-gupta-ors-42699
- **Pages:** 9

## Headnote

High Court Rules Chapter 8 Rule 5Section95(1)(g)(III-A)- Removal of village
pradan-on
allegation
of
false
cost
certificate-by
exercising
quasi
judicial
power by Distt. Magistrate-interference by
Single
Judge-whether
special
Appeal
Maintainable? held-'Yes'.

Held: Para-27
Since we are of the view that judgment in
Hoti Lal (supra) lays down the correct law
and that sub clause (iii-a) of Section
95(1)(g) of the U.P. Panchayat Raj Act,
1947 is ultra vires Article 243-O (b) of the
Constitution of India, therefore, in our view
the order dated 27.8.2011 of the District
Magistrate Bijnor impugned in the writ
petition no. 56084 of 2011 was wholly
without jurisdiction and is a non-est order
and, therefore, such an order cannot be said
to be a quasi judicial order as the very
foundation for exercise of such power by
the District Magistrate stood struck down in
the judgment of Hoti Lal (supra) which we
also approve. Therefore, in our view this
special appeal would be maintainable.

U.P. Panchayat Raj Act 1947-Section
95(1)(g)(III-a)Power exercised by Distt.
Magistrate-without
jurisdictionprovisions of Section 95(1)(g)(iii-a)in
contravention
of
Art.
243-d
of
constitution-already held ultra virus in
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
Hoti Lal Case-question referred before
larger Bench.

Held Para-24
However, there is an added twist to the
case before us. The judgment of Hoti Lal
(supra) where the learned single Judge
has held sub clause (iiii-a) of Section
95(1)(g) of the Act, 1947 to be ultra
vires Article 243-O(b) of the Constitution
of India and struck down sub clause (iiia) as ultra vires Article 243-O(b) of the
Constitution of India has not been
referred to at all by the Full Bench in the
case of Vivekanand (supra) where this
Court held that a Pradhan may be
removed under section 95(1)(g) of the
Act, 1947 even if cessation of financial
and
administrative
powers
are
not
contemplated. Thus the view we have
taken upholding the judgment of Hoti Lal
(supra) relying upon the provisions of
Article 243-O(b) and 12-C(1) (a) and 12C(1)(b) of the U.P. Panchayat Raj Act,
1947 stands in direct conflict with the
decision of the Full Bench in the case of
Vivekanand (supra).

Case Law discussed:
2002(3)AWC 1761; 2005(23) LCD 377; (2003)
1 UPLBEC 496; 1985 UPLBEC 484; 2008(4)
AWC 3749; 2010(1)ADJ 1.

## Text

3 All] Satya Deo Shakya Vs. Ajay Kumar Gupta & Ors.
1333
counter affidavit has stated in paragraph 5
that the deputation/merger of the private
respondent has been made under the quota of
direct recruitment for which 50% of the total
seats have been reserved and the remaining
50% are to be filled in by way of promotion
from amongst the existing employees of Zila
Panchayat. Therefore, it is absolutely
incorrect to say that merger of private
respondent has defeated the claim of
petitioner no.2 and other Junior Engineers.
Non-considering the claim of petitioner no.2
of similarly situated other Junior Engineers
for promotion in their quota by the
department is altogether a different cause of
action, which is not the subject matter of
dispute in the instant writ petition. However,
we would like to add that for filing up the
vacant post of 'Engineers' in Zila Panchayat,
Junior Engineers as well as petitioner no.2 of
writ petition no. 1237(SB) of 2005 initiated
legal proceedings and matter went upto
Hon'ble Supreme Court. Special Leave
Petition (Civil) No. 24206 of 2003 filed by
Amir Chandra Dubey (petitioner no.2) was
disposed of as having become infructuous
vide order dated 2.3.2009 as he was given
appointment
as
Officiating
Incharge
Engineer.

28. For the reasons aforesaid, writ
petition no. 1237 (SB) of 2005 is dismissed
and writ petition no. 115(SB) of 2008 is
allowed. The order dated 16.8.2005 passed
by the State Government is hereby quashed
and private respondent/petitioner shall be
entitled for all consequential benefits
attached to the post in question.

29. Parties shall bear their own
costs.
--------
APPELLATEJURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2013

BEFORE
THE HON'BLE LAXMI KANT MOHAPATRA,
A.C.J.
THE HON'BLE B. AMIT STHALEKAR, J.

Special Appeal No.1270 of 2013

Satya Deo Shakya
 ...Appellant
Versus
Ajay Kumar Gupta & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.D. Kautilya

Counsel for the Respondents:
C.S.C., Sri Nand Kishore
Sri H.R. Mishra, Sri B.R. J. Pandey

High Court Rules Chapter 8 Rule 5Section95(1)(g)(III-A)- Removal of village
pradan-on
allegation
of
false
cost
certificate-by
exercising
quasi
judicial
power by Distt. Magistrate-interference by
Single
Judge-whether
special
Appeal
Maintainable? held-'Yes'.

Held: Para-27
Since we are of the view that judgment in
Hoti Lal (supra) lays down the correct law
and that sub clause (iii-a) of Section
95(1)(g) of the U.P. Panchayat Raj Act,
1947 is ultra vires Article 243-O (b) of the
Constitution of India, therefore, in our view
the order dated 27.8.2011 of the District
Magistrate Bijnor impugned in the writ
petition no. 56084 of 2011 was wholly
without jurisdiction and is a non-est order
and, therefore, such an order cannot be said
to be a quasi judicial order as the very
foundation for exercise of such power by
the District Magistrate stood struck down in
the judgment of Hoti Lal (supra) which we
also approve. Therefore, in our view this
special appeal would be maintainable.

U.P. Panchayat Raj Act 1947-Section
95(1)(g)(III-a)Power exercised by Distt.
Magistrate-without
jurisdictionprovisions of Section 95(1)(g)(iii-a)in
contravention
of
Art.
243-d
of
constitution-already held ultra virus in
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
Hoti Lal Case-question referred before
larger Bench.

Held Para-24
However, there is an added twist to the
case before us. The judgment of Hoti Lal
(supra) where the learned single Judge
has held sub clause (iiii-a) of Section
95(1)(g) of the Act, 1947 to be ultra
vires Article 243-O(b) of the Constitution
of India and struck down sub clause (iiia) as ultra vires Article 243-O(b) of the
Constitution of India has not been
referred to at all by the Full Bench in the
case of Vivekanand (supra) where this
Court held that a Pradhan may be
removed under section 95(1)(g) of the
Act, 1947 even if cessation of financial
and
administrative
powers
are
not
contemplated. Thus the view we have
taken upholding the judgment of Hoti Lal
(supra) relying upon the provisions of
Article 243-O(b) and 12-C(1) (a) and 12C(1)(b) of the U.P. Panchayat Raj Act,
1947 stands in direct conflict with the
decision of the Full Bench in the case of
Vivekanand (supra).

Case Law discussed:
2002(3)AWC 1761; 2005(23) LCD 377; (2003)
1 UPLBEC 496; 1985 UPLBEC 484; 2008(4)
AWC 3749; 2010(1)ADJ 1.

(Delivered by Hon'ble Laxmi Kant
Mohapatra, A.C.J.)

1. This special appeal has been filed
by the appellant challenging the order of
the learned single Judge dated 7.8.2013
whereby the writ petition no. 56084 of
2011 filed by Ajay Kumar Gupta was
allowed and the order passed by the
District Magistrate setting aside the
election of Ajay Kumar Gupta was set
aside and a direction was given that the
petitioner would be reinstated as Pradhan
for the remainder of his term.

2. Ajay Kumar Gupta respondent no.
1 in the present special appeal was elected
as Gram Pradhan of village Hathin, Block
Chhibaramau, District Kannauj. He had
contested the election as an OBC
candidate claiming that he belongs to the
Halwai caste. The appellant alongwith
some other persons made a complaint to
the District Magistrate, Kannauj alleging
that Ajay Kumar Gupta was a general
candidate and he had contested the
election on a forged caste certificate
showing himself as belonging to OBC
caste. The District Magistrate issued
notice on 25.7.2011 to Ajay Kumar
Gupta, in response to which Ajay Kumar
Gupta submitted his reply and after
considering
the
reply
the
District
Magistrate by his order dated 27.8.2011
passed an order removing Ajay Kumar
Gupta from the post of Gram Pradhan of
the Gram Panchayat in question. This
order
was
passed
by
the
District
Magistrate, Kannauj in exercise of powers
under section 95(1)(g) (iii-a) read with
section 11-A(2) and section 12(5) of the
U.P. Panchayat Raj Act, 1947. Aggrieved
by the said order Ajay Kumar Gupta filed
writ petition no. 56084 of 2011. The
matter was considered by the learned
Single Judge and the order dated
27.8.2011
passed
by
the
District
Magistrate was set aside on the ground
that the District Magistrate had no power
under section 95(1)(g) (iii-a) of the U.P.
Panchayat Raj Act, 1947 as he has
contested the election on a forged caste
certificate and his election, therefore,
could only be set aside through an
election petition. The learned Single
Judge relied upon a Single Judge decision
of this Court reported in 2002 (3) AWC
1761, Hoti Lal Vs. State of U.P. and
another. A further direction was given in
the writ petition that the petitioner would
be reinstated as Pradhan for the remainder
of his term.
3 All] Satya Deo Shakya Vs. Ajay Kumar Gupta & Ors.
1335

3. We have heard Shri S.D.
Kautilya, learned counsel appearing for
the appellant, who had been impleaded as
respondent no. 5 in the writ petition and
Shri H.R. Mishra, learned senior counsel
assisted by Shri B.R.J. Pandey, learned
counsel appearing for the respondent no.
1.

4. It has been submitted by Shri S.D.
Kautilya, learned counsel for the appellant
that the impugned order passed by the
District Magistrate on 27.8.2011 was
absolutely correct and did not call for any
interference by the writ court since the
respondent no. 1 had contested the election
of gram Pradhan on a forged certificate
showing himself to be belonging to OBC
category of Halwai and the order of the
District Magistrate was passed under section
95(1) (g) (iii-a) of the U.P. Panchayat Raj
Act, 1947 was absolutely correct. Shri S.D.
Kautilya has referred to the provisions of
section 95(1) (g) (iii-a) of the U.P. Panchayat
Raj Act, 1947 and also relied upon a decision
of this Court in the case of Radhey Shyam
Sharma Vs. State of U.P. and others reported
in 2005(23) LCD 377 wherein this Court
while considering the order passed by the
District Magistrate under section 95(1) (g)
(iii-a) of the U.P. Panchayat Raj Act, 1947
has held that the petitioner in that writ
petition had contested the election on a false
caste certificate of OBC and later it was
found that he did not belong to the backward
class category and since the appointment had
been obtained by fraud and fraud vitiates
every action, therefore the order of the
District Magistrate did not call for any
interference. The said writ petition was
dismissed by the learned single Judge.

5. Shri H.R. Mishra, learned senior
counsel appearing for the respondent no.
1 in the present appeal controverting the
submission of Shri Kautilya, on the other
hand, relied upon a decision of a learned
single Judge of this Court reported in Hoti
Lal (Supra) wherein the learned single
Judge has held section 95(1) (g) (iii-a) of
the U.P. Panchayat Raj Act, 1947 to be
ultra
vires
Article
243-O
of
the
Constitution of India. The submission is
that section 95(1) (g) (iii-a) of the U.P.
Panchayat Raj Act, 1947 having been
held to be ultra vires Article 243-O of the
Constitution
of
India,
the
District
Magistrate could not have passed the
order dated 27.8.2011 removing the
respondent no. 1 (petitioner of the writ
petition) and the respondent no. 1 could
only have been removed through an
election petition. Shri H.R. Mishra also
raised a preliminary objection that the
special
appeal
is
not
maintainable
inasmuch as the writ petition was filed
against the order of the District Magistrate
and irrespective of the fact that the order
was valid or not, it was nevertheless a
quasi judicial power exercised by the
District Magistrate and, therefore, the
special appeal was not maintainable.
Reliance in this regard has been placed
upon the following decisions of the
Division Bench of this Court in the case
of:

Shyam Behari Vs. State of U.P. and
others reported in 2005(3) AWC 2189;
and

Vajara Yojna Seed Farm, Kalyanpur
(M/s) and others Vs. Presiding Officer,
Labour Court U.P. Kanpur and another
reported in (2003) 1 UPLBEC 496.

6. Having heard the learned counsel
for the parties we are of the view that the
preliminary objection will be dependent
upon the question as to whether the
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
District Magistrate was competent to pass
the order removing the Pradhan in
exercise
of
powers
under
section
95(1)(g)(iii-a) of the Act, 1947.

7. Section 95 (1)(g) of the U.P.
Panchayat Raj Act, 1947 provides for
removal of the Pradhan or member of
Gram Panchayat or the Joint Committee
or Bhumi Prabandhak Samiti or a Panch,
Sahayak Sarpanch or Sarpanch of a
Nyaya Panchayat. This power under
section 95(1) (g) of the U.P. Panchayat
Raj Act, 1947 has been conferred upon
the State Government in terms of Section
95(1) of the U.P. Panchayat Raj Act,
1947. The power under section 95(1) (g)
of the U.P. Panchayat Raj Act, 1947 has
been delegated by the State Government
to the District Magistrate by Notification
No.
1648/31-1-1979-123/97
Lucknow
dated 30.4.1997. The ground on which a
Pradhan may be removed have been
delineated in section 95(1)(g) (i) to (v).

8. For purposes of the present case
the other grounds are not relevant except
ground no. (iii-a) of the Act, 1947. The
section 95(1)(g) empowers the District
Magistrate to remove a Pradhan under sub
clause (iii-a), which reads as under:

(iii-a) if he "has taken the benefit of
reservation under sub-section (2) of
Section 11-A or sub-section (5) of Section
12, as the case may be, on the basis of a
false declaration subscribed by him
stating that he is a member of the
Scheduled Castes, the Scheduled Tribes
or the Backward Classes, as the case
may."

9. In the present case it is not in
dispute between the parties that the order
removing the respondent no. 1 dated
27.8.2011 was passed by the District
Magistrate Kannauj and, therefore, the
said power shall be deemed to have been
exercised by the competent authority on
behalf of the State Government under
section 95(1) (g) of the U.P. Panchayat
Raj Act, 1947. The question whether such
a power is a quasi judicial power has been
considered by this Court in two cases
reported in 1985 UPLBEC 484 Layak
Ram Vs. District Magistrate, Bijnor
wherein this Court has held that the power
exercised by the District Magistrate is a
quasi judicial power. Paragraph 11 and 12
of the said judgment read as under:

"11. proviso (I) to Section 95 (1) of
the Act lays down that-

"no action shall be taken under
clause (f), clause (g) or clause (h) except
after giving to the body or person
concerned a reasonable opportunity of
showing cause against the action propose.

12. This is in conformity with the
principles of natural justice. In Ved Singh
Pradhan's case (AIR 1965 Allahabad 370)
which arose from an order of removal of
Pradhan under Section (6(1) (g) (iii), a
Division Bench ruled tht " the principle of
natural
justice
imposed
only
this
obligation upon him (Assistant SubDivisional Officer) that he had to give the
appellant an opportunity to explain the
charge". The principle has undeniably
attained new dimensions with the advent
of the decisions in Meneka Gandhi (1978
(1) SCC 248) and M.S. Gil (1978 (1) SCC
405. The proceeding that leads to the
removal of the Pradhan from office is
clearly quasi judicial. The order affects
adversely civil rights of the claimant. The
authority has to reach his satisfaction on
objective
consideration
of
relevant
3 All] Satya Deo Shakya Vs. Ajay Kumar Gupta & Ors.
1337
grounds. There is statutory duty to afford
reasonable opportunity of showing cause
implying thereby the necessity to record
reasons and moreso because an appeal
lies to the District Magistrate. But even if
the enquiry be classed as administrative
in character, the observance of the basis
norms of natural justice is Inescapable.
A.K. Kraipak v. Union of India, (1969 (2)
SCC 262)."

10. In 2008 (4) AWC 3749 Smt.
Kamli Devi Vs. State of U.P. and others
again this Court has held the power
exercised by the District Magistrate under
section 95(1) (g) of the U.P. Panchayat
Raj Act, 1947 to be a quasi judicial
power. Paragraph 8 of the said judgment
reads as under:

"8. In the present case, the Court
finds that no show cause notice or
opportunity of hearing was given to the
petitioner by the authority before ceasing
the financial and administrative powers.
The Pradhan derives his power and status
under the Constitution pursuant to the
Constitution (73rd Amendment) Act,
1992. The purpose of this enactment was
to provide complete autonomy without
interference from the State Authorities.
The Court further finds that power
exercise by the authority under the
proviso to Section 95 (1) (g) of the Act is
a quasi-judical power, which entails civil
consequences and therefore, it becomes
all the more necessary that the principles
enshrined under Article 14 of the
Constitution
is
given
effect
to.
Consequently, this Court is of the opinion
that, a show cause notice and an
opportunity of hearing is the minimum
requirement to be given to the Pradhan,
by the authority, before passing an order
ceasing the financial and administrative
powers under the proviso to Section 95(1)
(g) of the Act. Since that has not been
done in the present case, consequently, I
direct that till the disposal of the writ
petition qua the decision of the larger
Bench, the impugned order ceasing the
financial and administrative powers of the
petitioner, shall remain stayed. It shall,
however be open to the authorities to
proceed and complete the formal enquiry
contemplated under Section 95(1) (g) of
the Act read with the U.P. Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997."

11. However, the learned Single
Judge deciding the case of Smt. Kamli
Devi (supra) referred the matter to a
larger Bench for consideration as to
whether prior to passing an order of
cessation of financial and administrative
powers of a Pradhan opportunity of
hearing is necessary or not. The matter
was considered by the Full Bench of this
Court in the case of Vivekanand Yadav
vs. State of U.P. and another reported in
2010 (1) ADJ 1. For purposes of the
present case we are not concerned with
cessation of financial and administrative
powers as contemplated in the proviso to
Section 95 (1) of the U.P. Panchayat Raj
Act, 1947 but so far as section 95 (1)(g)
of the said Act is concerned the Full
Bench has held that there can be a
proceeding for removal of a Pradhan
without
ceasing
his
financial
and
administrative powers and has further
held that though Section 95(1)(g) or its
proviso do not contemplate a formal
enquiry for removal but in Rule 6 of the
U.P. Panchayat Raj (Removal of Pradhan
and UP-Pradhan and Members) Enquiries
Rules, 1997 a detailed procedure for final
enquiry has been framed and, therefore, if
these Rules are applicable in cases of
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
cessation of financial and administrative
powers it would also be applicable in a
proceedings for removal of a Pradhan where
cessation of financial and administrative
powers of the Pradhan is not contemplated.
Paragraphs 74, 75, 76, 77 and 78 of the said
judgment read as under:

"74. In our opinion there can be a
proceeding for removal of a pradhan
without
ceasing
his
financial
and
administrative powers.

75. Section 95(1) (g)- or proviso to
Section 95(1) empowering removal of a
pradhan do not contemplate any preliminary
or formal enquiry before removing a
pradhan. They only envisage reasonable
opportunity to be given before removal. The
preliminary enquiry is mandated by the
proviso to Section 95(1) ((g) that stipulates
cessation of financial and administrative
powers during pendency of the removal
proceeding. The Enquiry Rules have been
framed in pursuance of the same.

76. Section 65(1) (g) or any of the
provisos do not contemplate formal final
enquiry for removal but in the Enquiry
Rules, a detailed procedure (rule 6) for the
final enquiry has been framed. To us, it
appears that these Rules were meant to
apply in those cases where it was
considered
expedient
to
cease
the
financial
and
administrative
power.
However, as there can be proceeding for
removal of a pradhan without ceasing his
power, does it mean that procedure of
Rules 6 does not apply to a removal
proceeding if it is undertaken without
ceasing power?

77. In our opinion, this cannot be
done,
as
this
will
amount
to
discrimination.

78. The proceeding for removal has
to be conducted in accordance with Rules
6
onwards
of
the
Enquiry
Rules,
irrespective of the fact whether right to
exercise financial and administrative
power was ceased or not. However, where
right
to
exercise
financial
and
administrative power is also to be cease
then procedure in Rule 3 and 5 ha to be
followed otherwise there is no necessity
to follow them."

12. Thus on a conspectus of the
several judicial pronouncements and the
judgement of the Full Bench referred to
above, we are of the view that the power
exercised by the District Magistrate under
section 95(1) (g) (iii-a) of the U.P.
Panchayat Raj Act, 1947 is a quasi
judicial power.

13. There still remains the other
aspect of the matter as to whether the
District Magistrate could have exercised
powers under section 95(1) (g) (iii-a) of
the U.P. Panchayat Raj Act, 1947
particularly in view of the decision of this
Court in the case of Hoti Lal (supra)
wherein clause (iii-a) of Section 95 (1)(g)
has been held to be ultra vires Article
243-O of the Constitution of India.

14. We cannot ignore considering this
question inasmuch as the learned single
Judge in the order impugned before us as
placed reliance upon the judgment of Hoti
Lal (supra) and held that a Pradhan who has
contested the election on a forged caste
certificate cannot be removed under section
95(1) (g) (iii-a) of the U.P. Panchayat Raj
Act, 1947 and his removal can be
questioned only through an election petition
and on this question the writ petition has
been allowed and the respondent no. 1 has
directed to be reinstated as Pradhan and
3 All] Satya Deo Shakya Vs. Ajay Kumar Gupta & Ors.
1339
allowed to continue till the end of his
remainder term.

15. Shri S.D. Kautilya, as already
mentioned above, has placed reliance on a
decision of a learned single Judge of this
Court in the case of Radhey Shyam
Sharma (supra) wherein the High Court
while considering the provisions of
section 95(1) (g) (iii-a) of the U.P.
Panchayat Raj Act, 1947 has held that
where election has been contested on a
forged caste certificate, the Pradhan can
be removed as fraud vitiates every act and
that writ petition was therefore dismissed.

16. On reading of the judgment of
Radhey Shyam Sharma (supra) we find
that there is no reference to the decision
of the earlier single Judge decision of this
Court in the case of Hoti Lal (supra)
wherein the learned single Judge had held
the provisions of sub clause (iii-a) of
Section 95 (1)(g) of the U.P. Panchayat
Raj Act to be ultra vires Article 243-O (b)
of the Constitution of India.

17. The Full Bench of this Court in the
case of Vivekanand (supra) has held that a
Pradhan can be removed under section 95
(1)(g) of the U.P. Panchayat Raj Act even
where
cessation
of
financial
and
administrative power is not contemplated but
such removal can only be ordered after
holding an enquiry as contemplated in Rule 6
of the U.P. Panchayat Raj (Removal of
Pradhan and UP-Pradhan and Members)
Enquiries Rules, 1997. The judgment of Hoti
Lal (supra) has not been considered by the
Full Bench and it appears that the
constitutional validity of sub clause (iii-a) of
the Act, 1947 was also not raised before the
Full Bench. Thus there is an unsettled
conflict between the various judgments of
this Court as to whether a Pradhan can be
removed from his office in exercise of power
under U.P. Panchayat Raj (Removal of
Pradhan and UP-Pradhan and Members)
Enquiries Rules,
1997 by the State
Government or whether he can be removed
only through an election petition.

18. Before considering the judgment
of Hoti Lal (supra) it will be relevant to
reproduce the provisions of Article 243-O
(b) of the Constitution of India:

"243-O. Bar to interference by courts
in electoral matters. - Notwithstanding
anything in this Constitution -

(a) .....................................

(b) no election to any Panchayat shall
be called in question except by an election
petition presented to such authority and in
such manner as is provided for by or
under any Law made by the Legislature of
a State."

19. Clause (b) of Article 243-O
provides
that
no
election
of
Zila
Panchayat shall be called in question
except by an election petition. Section 11A of U.P. Panchayat Raj Act, 1947
provides for reservation in the post of
Pradhan for S.C., S.T. and backward
classes. In so far as Scheduled caste and
Scheduled Tribes are concerned such
reservation in terms of the proviso to
Section 11-A (2) shall be as far as
possible in proportion to the total number
of offices of the Pradhan as the population
of scheduled caste in the State or
Scheduled Tribes in the State and it
further provides that reservation for the
backward classes shall not exceed 27% of
the total number of offices of Pradhan.

20. Section 12(5) of the Act, 1947
also provides that in every Gram
Panchayat the seats shall be reserved to
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
the extent of the proportion of the
Scheduled caste and Scheduled Tribes to
the population of S.C. and S.T. in the
Panchayat area and the proviso thereto
further provides that reservation for
backward classes shall not exceed 27% of
the total number of seats in the Gram
Panchayat.

21. Section 12-C(1) of the Act, 1947
provides that election of a person as
Pradhan or as member of a Gram
Panchayat including election of a person
appointed as Panch of a Nyaya Panchayat
under section 43 shall not be called in
question
except
by
an
application
presented to such authority within such
time and such manner as may be
prescribed. The grounds on which such
application may be moved have been
stated in section 12-C(1), which reads as
under:

"12-C. Application for questioning
the elections.- (1) The election of a person
as Pradhan or as member of a Gram
Panchayat including the election of a
person appointed as the Panch of a 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."

22. A conjoint reading of the
provisions of Article 243-O (b) of the
Constitution of India and 12-C(1) (a) and
12-C(1)(b) of the U.P. Panchayat Raj Act,
1947 would imply that the election of a
Pradhan can only be challenged through
an election petition on the grounds
mentioned in section 12-C(1) (a) and 12C(1)(b) of the U.P. Panchayat Raj Act,
1947. The learned single Judge while
deciding Hoti Lal (supra) has examined
the above provisions of Article 243-O (b)
of the Constitution of India and section
12-C(1) (a) and 12-C(1)(b) of the U.P.
Panchayat Raj Act, 1947 of the Act, 1947
and held that the election of a Pradhan can
only be set aside through an election
petition where such a Pradhan has been
elected on any of the grounds provided in
Section 12-C(1) (a) and 12-C(1)(b) of the
U.P. Panchayat Raj Act, 1947 and has
further held that the State Government
cannot remove a Pradhan on the ground
that he has taken the benefit of reservation
under sub section (2) of Section 11-A or
sub section 5 of Section 12 of the Act,
1947 as the case may, on the basis of a
false declaration subscribed by him
stating that he is a member of S.C., S.T.
or backward class as the case may, as
contemplated in sub clause (iii-a) of
Section 95(1)(g) of the U.P. Panchayat
Raj Act, 1947.

23. Having examined the provisions
of Article 243-O(b) of the Constitution of
India, section 12-C(1) (a) and 12-C(1)(b)
of the U.P. Panchayat Raj Act, 1947 of
the U.P. Panchayat Raj Act, 1947 we are
also
of
the
view
that
the
State
Government cannot remove an elected
Pradhan who has been elected on the
basis of a false declaration of belonging to
a reserved category otherwise than
through
an
election
petition
and,
3 All] Vinod Kumar Vs. Bank of India and Others
1341
therefore, we are of the opinion that the
view taken by the learned single Judge in
the case of Hoti Lal (supra) lays down the
correct law. The judgment in Hoti Lal
(supra) has, however, not been referred to
in the case of Radhey Shyam Sharma
(supra). May the judgment of Hoti Lal
was not cited before the learned single
Judge deciding the case of Radhey Shyam
Sharma. Be that as it may, for the reasons
states above, we hold that the judgment in
Radhey Shyam Sharma (supra) does not
lay down the correct law.

24. However, there is an added twist to
the case before us. The judgment of Hoti Lal
(supra) where the learned single Judge has held
sub clause (iiii-a) of Section 95(1)(g) of the
Act, 1947 to be ultra vires Article 243-O(b) of
the Constitution of India and struck down sub
clause (iii-a) as ultra vires Article 243-O(b) of
the Constitution of India has not been referred
to at all by the Full Bench in the case of
Vivekanand (supra) where this Court held that
a Pradhan may be removed under section
95(1)(g) of the Act, 1947 even if cessation of
financial and administrative powers are not
contemplated. Thus the view we have taken
upholding the judgment of Hoti Lal (supra)
relying upon the provisions of Article 243-O(b)
and 12-C(1) (a) and 12-C(1)(b) of the U.P.
Panchayat Raj Act, 1947 stands in direct
conflict with the decision of the Full Bench in
the case of Vivekanand (supra).

25. In view of the above conflicting
position of law we are, therefore, of the view
that the matter should be referred to a larger
Bench for settling this controversy and
clearing the ambiguity in law with regard to
removal of a Pradhan. We therefore, direct
that the records of this case be placed before
the Hon'ble Acting Chief Justice for
constituting a larger Bench to resolve the
above controversy.

26. So far as the present special
appeal is concerned we are not inclined to
grant any interim order inasmuch as in
paragraph 13 of the writ petition itself it
has been disclosed by the respondent no.
1 that the appellant has already filed an
election petition no. 3 of 2010 (Satyadeo
Vs. Ajay Kumar Gupta and others) which
has been registered on 29.11.2010.

27. Since we are of the view that
judgment in Hoti Lal (supra) lays down the
correct law and that sub clause (iii-a) of
Section 95(1)(g) of the U.P. Panchayat Raj
Act, 1947 is ultra vires Article 243-O (b) of
the Constitution of India, therefore, in our
view the order dated 27.8.2011 of the District
Magistrate Bijnor impugned in the writ
petition no. 56084 of 2011 was wholly
without jurisdiction and is a non-est order
and, therefore, such an order cannot be said
to be a quasi judicial order as the very
foundation for exercise of such power by the
District Magistrate stood struck down in the
judgment of Hoti Lal (supra) which we also
approve. Therefore, in our view this special
appeal would be maintainable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE Dr. SATISH CHANDRA, J.

Writ Petition No.1647 (SB) of 2010

Vinod Kumar

 ...Petitioner
Versus
Bank of India and Others. ...Opp. Parties

Counsel for the Petitioner:
Sri Ashwani Kumar

Counsel for the Respondents:
Sri Lalit Shukla