- (1.) HEARD Sri Ashok Pandey, counsel for the petitioner, Sri N.C. Mehrotra for the State Election Commission (Local Bodies) and Sri Sanjay Sarin, Standing Counsel for the State.
(2.) PETITIONER has filed the instant writ petition assailing the order dated 14.11.2011 passed by the District Magistrate, Lakhimpur Kheri, whereby the petitioner has been removed from the post of Pradhan of village Trilokpur, district Lakhimpur-Kheri. It has been inter-alia argued that the petitioner is "Bot" by caste which is a sub-caste of "Tharu" and the same has been included in the Scheduled Tribe but the opposite parties with a mala fide intention have taken punitive action against the petitioner on flimsy grounds, which are imaginary and not based on record. Counsel for the petitioner has argued that the order of removal is in total contravention and violation of the provisions of Section 95(g)(iii-a) of U.P. Panchayat Raj Act [hereinafter referred to as 'Act'] as it can be invoked only when a declaration given by the contestant is found to be false and incorrect. The constituency of Trilokpur was declared reserved for member of the Schedule Tribe, which means that a person, who is not a member of the Scheduled Tribe community, is not eligible to contest the election. As stated above, the petitioner being Tharu by Caste, filed his nomination paper and was declared elected in the Panchayat Election-2010. He further submitted that in village Trilokpur, several persons of the petitioner's family are residing and in Parivar Register maintained by the government, all the persons have been shown as "Tharoo". Elaborating his arguments, Counsel for the petitioner has submitted that the petitioner will be guilty of forgery and can be removed from the office of Pradhan, in case it is proved after due inquiry that the petitioner is not a Schedule Tribe rather he belongs to some other caste. Therefore, the impugned order is wholly bad, illegal and unjustified. He further added that election of the petitioner as a Pradhan has been questioned by one Pravesh Kumar by filing an Election Petition under Section 12(c) of the Act before the SDM, Palia, which is still pending and in this election petition, the aforesaid question has already been raised and therefore, it was not proper for the District Magistrate to pass the impugned order during the pendency of the aforesaid election petition. In support of his submission, the petitioner has relied upon the judgment of this Court rendered in the case of Aisun Nisha Versus State of U.P. and others, [2011 (29) LCD 2405] and Bali Ram Versus State of U.P., [2011 (29) LCD 570].
(3.) IN contrast, Standing Counsel has submitted that the impugned order dated 12/14-11-2011 is perfectly justified and in consonance with the provisions of Section 95(i)(g) and natural justice. The impugned order has been passed after issuing show cause notice to the petitioner and considering the reply of the petitioner. On the basis of record, Counsel for the respondents have submitted that the Caste Certificate which was filed by the petitioner bears Serial Number 9772 whereas such serial number never reached in the year 1998. It has also been pointed out that the question whether the petitioner belongs to Tharu community or not, cannot be decided in this writ petition as in this respect the petitioner alongwith others have filed writ petitions, which are pending. Before dealing with the merits of the case, it would be apt to mention that Chapter VII of the Act deals with the External Control. Section 95 (1)(g) of the Act deals the eventualities when the Pradhan or a member of Gram Panchayat can be removed. Section 95(1)(g) which is relevant in the present context reads as under:- [Remove a Pradhan,or member of Gram Panchayat] or a Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat, if he- (i) absents himself without sufficient cause from more than three consecutive meetings or sittings; (ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude; (iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest; [(iii-a)] 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 Casts, the Scheduled Tribes or the backward classes, as the case may be;] (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics; or ;