- (1.) S. K. Phaujdar, J. The three writ petitions were taken up for hearing together as the primary question involved in this writ petition is the cancellation of caste certificate of Bhikham Kharwar. He was given a caste certificate by the Tehsildar Chakiya, Chandauli, on 21-1-1994 cer tifying him to have belonged to Kharwar community, a schedule caste. On the basis of this certificate he contested an election for the post of the Pradhan of a gram panchayat and candidature therein was reserved for scheduled caste candidates only. He was elected as the Pradhan. Sub sequent to this election certain persons questioned his caste and upon an enquiry it was found that he belonged to Kahar sect, a backward class but not scheduled caste. Caste certificate was cancelled by Tehsildar on 5-9-1997 pursuant to an order of the District Magistrate dated 28-8-1997.
(2.) THE cancellation of the caste cer tificate has been challenged in Civil Misc. Writ Petition No. 32072 of 1997 on the ground that he was not given any hearing before cancellation of his caste certificate and the concerned authorities had no right to cancell the caste certificate once given. As a consequence to the cancella tion of the caste certificate the District Magistrate took an action under Section 95 (l) (g), of the U. P. Panchayat Raj Act in removing the Pradhan and the order in this respect was passed on 10-6-1999. This order of removal was challenged in Civil Misc. Writ Petition No. 25547 of 1999 by Bhikham Kharwar on the ground that the provisions of Section 95 (l) (g), and the Rules under the U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and members) Rules were not followed. This petition was contested not only by the State but also by R. K. Pandey who was the Up-Pradhan, put in charge of the post of the Pradhan after the removal of Bhikham Kharwar. After the removal of the Pradhan by an order dated 10-6-1999 a direction was issued on 14-6-1999 to make over the charge of the office of the Pradhan to the Up-Pradhan within three days. The Up-Pradhan made out a case that the charge was made over to him as directed. In the meantime, there had been an interim order in the second mentioned writ peti tion staying the operation of the order dated 10-6- 1999. When this order reached the authorities charge was taken away from R. K. Pandey and was placed in the hands of Bhikham Kharwar again. Being aggrieved, R. K. Pandey moved the third writ petition to say that the interim order could not have nullified the accomplished fact of charge having been made over to him. This prayer was contested by Bhik ham Kharwar. The State was also heard.
(3.) IN the first mentioned writ petition the question that arises for determination is whether the cancellation was made ac cording to law and the point raised by the petitioner was to the effect that he was not heard at all and on this point reliance was placed on a decision of the Supreme Court in the case of Gulzar Singh v. Sub-Divisional Magistrate and another as reported in (1999) 3 SCC at page 107. The learned counsel for R. K. Pandey pointed out to certain admission by Bhikham Kharwar in Annexure No. 15 to his second mentioned writ petition wherein he had admitted to have shown cause before the Up- Zila Adhikari. A perusal of paragraph 10 of Annexure No. 15 to the Writ Petition No. 25547 of 1999 indicates that the petitioner had placed his evidence before the Up-Zila Adhikari but the same were not acted upon. It appears that when the complaint regarding the caste of Bhikham Kharwar was made before the District Magistrate, he caused an enquiry to be conducted and the enquiry revealed, as per Annexure No. 1 to the amendment peti tion filed in Writ Petition No. 32072 of 1997, that the earlier certificate, certifying Bhikham Kharwar as belonging to Kharwar caste was based merely on the revenue record and basically the record had indi cated his caste as "kahar" but only in 1994-95 it was abruptly changed to "kharwar". Enquiry revealed that the papers were tampered with to indicate the caste as Kharwar. From an enquiry of the records only, the earlier certificate was cancelled. If an officer is authorised to issue a caste certificate, it must be deemed to be an in built power in him to cancell the certificate obtained from him on mis-representation of fact. Thus the authority exercised by the officer in cancelling the caste certificate may not be challenged. The Supreme Court decision in the case of Gulzar Singh stated that when the appellant was issued a caste certificate any action towards cancel lation thereof should have been taken after giving him an opportunity of showing cause on the principles of the natural jus tice and audi alter em partem. IN this case papers are not there to indicate whether the show cause was demanded from him or not. But he will be bound by his own admis sion in the concerned second Writ Petition No. 25547 of 1999 wherein he had ac cepted that he appeared before the Up-Zila Adhikari. The learned counsel for the petitioner proposed to indicate that this was in respect of the order of his removal but the trend of submissions indicate that it rsiated to the cancellation of the caste certificate only. That suggest that he had very much taken part in the proceeding before his caste certificate was cancelled and it is not for the writ Court to determine which caste he belongs to. The authorities competent determine that disputed ques tion had arrived at a conclusion on the basis of document both for grant and for cancellation and materials indicate fur ther that the petitioner had an opportunity of presenting his case before the authorities. There was thus no violation of the principles of natural justice and the petition was not condemned without hear ing. Seen in this light the order of cancella tion cannot be interfered with. This answers the controversy in Writ Petition No. 32072 of 1997. Even with this back ground a ques tion still remains in Writ Petition No. 25547 of 1999 whether the removal of the Pradhan was made according to law and following the procedure. It was contended by the learned counsel of R. K. Pandey that Section 95 (l) (g) (iii-a), provided for removal of a Pradhan if he stood elected on a false declaration of his caste and the District Magistrate was within his com petence to remove a Pradhan. The power of the District Magistrate to remove the Pradhan upon such allegation is not dis puted but the law requires a particular course to be followed. In this respect the U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rule, 1997 maybe looked into. These Rules have been made in exercise of powers conferred by Section 110, read with clause (g) of sub- section (1), of Section 95 of the U. P. Panchayat Raj Act. Rules 3,4,5 and 6 are relevant in respect of complaint, prelimi nary enquiry and financial enquiry into a matter. For this reason, we must back to the provision to Section 95 (l) (g) of the Panchayat Raj Act itself. The proviso to this section speaks that where in an en quiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other ir regularities, such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is ex onerated of the charges in the final en quiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government. A further proviso says that no action shall be taken under Clause (f) and Clause (g), except after giving to the Pradhan a reasonable opportunity to show cause against action proposed. The learned counsel for R. K. Pandey sub mitted that sub-section (3) to Section 95, provided that no order made by the State Government under Section 95, shall be called in question in any Court. If the term "any Court" excluded the writ jurisdiction of'the High Court that would be taking away a valuable right of a person aggrieved by an arbitrary act of the State. Sub-section (3), must not, therefore, be meant to ex clude even a writ petition challenging an order under Section 95.;