ORDER Palok Basu J.
1. Sri Ejaz Ahmad has filed this writ petition against the order dated 16-5-1995 (Annexure-5), whereby his nomination for contesting election for the office of Adhyaksh Zila Panchayat, Azamgarh has been rejected by the Assistnat District Election Officer, Azamgarh.
2. When this writ petition was filed on 19-5-1995, time was obtained by the counsel for the State Election Commission to obtain instructions. Thereafter, a counter affidavit has been filed, a copy of which has been served on the petitioner's counsel on 25-3-1995. Rejoinder affidavit has also been filed. As prayed, the matter being extremely urgent is finally disposed of at the admission stage.
3. Dr. R. G. Padia and Sri Govind Krishna on behalf of the petitioner Sri Ejaz Ahmad, and Sri Aditya Narain, Standing Counsel for the State Election Commission and Sri Kirpa Shanker, learned Standing Counsel for the Exective Officer, have been heard at sufficient length for and against this Writ petition. Each and every document filed alongwith this writ petition and the affidavits have been minutely examined.
4. According to the law prevalent in the State of U.P., some districts have been reserved for Scheduled Caste and Backward Class so far as the offices of member as well as Adhyaksh or Up-Adhyaksh of the Zila Panchayat are concerned. It may be mentioned that Zila Panchayat are District Board. Nomenclature District Board and the Zila Panchayat are the same as has been said by relevant law and notification.
5. Azamgarh happens to be a constituency where only backward candidates can file nomination for being elected as members. The petitioner Sri Ejaz Ahmad was one such candidate who had, however, made declaration before the concerned officials in unequivocal terms that he is a members of a community known as Muslim Kayastha. It is not disputed that if any one belongs to the community known as Muslim Kayastha he would be backward candidate as is evident from the notification and declaration made so far by the relevant authority appointed by the Government. When the nomination was filed by Sri Ejaz Ahmad, it was accepted at that stage and he fought the election and was declared elected. However, one interesting thing to mention is the application which is contained in (Annexure-4 to the writ petition). It is an application by the petitioner dated 28-4-1995 addressed to the District Magistrate Azamgarh. It says that the petitioner has been elected as a member from ward No. 39 Sikraur and bas obtained a certificate to that effect. It is further stated that the petitioner heard rumours in the village that some opponents have made complaint or application challenging the aforesaid certificate obtained by the petitioner declaring him to be a member of the backward class. It further indicates that the petitioner has already been elected a member and that he proposed to contest election of the office of Adhyaksh of the Zila Panchayat. It has been prayed in the application that in case any enquiry is made, the petitioner maybe afforded an opportunity to have his say in the matter.
6. The fact, however, is that in view of some complaint a detailed order has been passed by Sri Mohd. Vakil, Tehsildar Phoolpur dated 13-5-1995 (Annexure-C.A.-l to the counter affidavit). This indicates that the petitioner had made wrong declaration to the effect that he belongs to backward class known as Muslim Kayastha. Several documents and materials have been referred to in the said order oh the basis of which the Tehsildar was of the view that the earlier certificate of the then Tehsildar dated 1-12-
1994, whereby the petitioner had been certified to be one belonging to a backward class has to be cancelled.
7. From a bare perusal of the impugned order dated 16-5-1995, it appears that the Returning Officer had before him the aforesaid report of the Tehsildar dated 13-5-1995. He had also before him a letter from the State Election Commission dated 15-5-1995, which contains a direction that Sri Ejaz Ahmad should be treated as belonging to the general category and not belonging to any backward class. Therefore, his nomination for the Office of Adhyaksh, Zila Panchayat, Azamgarh, if filed may not be accepted. It is stated in the last but one paragraph of the impugned order that in view of the report of the Tehsildar dated 13-5-1995 and the aforesaid letter of the Commission dated 15-5-1995, it is established that Sri Ejaz Ahmad belongs to 'general category' and he does not possess any valid certificate and, thus, has no legal right to contest election for the Office of Adhyaksh which is reserved for backward candidate. Consequently, he rejected the nomination paper. The averments in the counter affidavit indicates that the petitioner was present when this order was passed. The order further indicates that the petitioner was also heard when the nomination paper was rejected. However, in the rejoinder affidavit this assertion that the impugned order was passed after hearing the petitioner has been denied but nonetheless the fact remained that the petitioner had himself received the copy of the impugned order dated 16-5-1995 and his signature exists on the copy of the order, which has been filed as Annexure-C.A.-4 to the counter affidavit.
8. Three principal contentions have been advanced by Dr. R. G. Padia on behalf of the petitioner rather vehemently. They are taken up seriatim and discussed as follow:
The first argument is that once the certificate was granted by the Tehsildar, the petitioner must have been afforded an opportunity of hearing before the subsequent order dated 13-5-1995 was passed. It was rightly canvassed by the other side in reply that the petitioner has filed this writ petition in this Court on 17-5-1995. The petitioner himself had already moved an application before the District Magistrate on 20-4-1995 concerning the rumour which he heard about the complaint being rightly or wrongly made to declare his backward candidature as cancelled.
9. It would have been desirable that the petitioner instead of rushing to this Court may have filed an application before the Tehsildar for re-hearing of the matter had he really not been heard. The order dated 13-5-1995 needs no further comment in this regard at this stage for the directions to be given at the end of this judgment. Suffice it to say that the aforesaid certificate was the basis on which the petitioner fought the election for the office of the member similarly his proposal to fight for the Office of Adhyaksh depended upon his belonging to the backward class. Once the right to fight the election as Muslim Kayastha community has been taken away, the petitioner had no legal right to file nomination or get himself declared as a candidate for a backward constituency.
10. The second argument advanced by Sri Padia was that the impugned order dated 16-5-1995 has been passed without affording any opportunity to the petitioner of being heard, as stated above, this argument may not be correct for the reason that the impugned order indicates that the petitioner was present and that he had been heard orally. To repeat, the petitioner had himself signed the impugned order which is a prima facie proof of the fact of his presence before the Returning Officer when the impugned order was passed. Consequently, the nomination paper of the petitioner was rejected. That being so, remedy available to the petitioner against the said order is by way of filing election petition. If the election petition is filed, the election petition shall be disposed of by the authority concerned in accordance with law as expeditiously as possible.
11. The third contention relates to the mentioning in the impugned order of the fact that a direction had come from the State Election Commission to the effect that if Ejaz Ahmad's nomination is filed, it should be rejected. The argument proceeds that in view of the aforesaid direction of the State Election Commission the nomination paper of petitioner was rejected as there was no option left for the Returning Officer but to abide by it because he was a subordinate officer. The argument suffers from inherent infirmities. While passing the impugned order, the report of the Tehsildar was also seen and examined by the Returning Officer apart from the order of the State Election Commission. It was held by the Tehsildar in his report dated 13-5-1995 that some fraudulent action had taken place at the time the petitioner had obtained the certificate in his favour declaring him to be a member of backward class. The impugned order is a well reasoned order and is based on objective considerations and not subjective satisfaction. When the basis of the election of the petitioner as "Member" stood knocked out, his candidature for "Adhyaksha" (Chairman) was bound to tumble because it is only from out of members that one may be elected as Adhyaksha.
12. The report of Tehsildar and the letter of the State Election Commission both cumulatively as well as individually left no alternative for the Returning Officer but to reject the nomination of petitioner Ejaz Ahmad filed as a candidate belonging to backward class. Dr. Padia also referred to a decision in the case of Mahadayal v. Commercial Tax Officer, AIR 1958 SC 667. It was a matter where some instructions came from the higher officer to the subordinate tax officer. Therefore, the facts of the aforesaid case are distinguishable and the ratio does not apply to the present case.
13. However, in order to uphold interest of justice, it has to be directed that if the petitioner approaches the Tehsildar and makes an application for a decision afresh on the question as to whether he belongs to Muslim Kayastha community or not, the Tehsildar should give him a reasonable opportunity to produce material or evidence and the application be disposed of expedi-tiously after hearing the parties.
14. Dr. Padia requested during the dictation of judgment that the matter may be be got decided by a Tehsildar other than Sri Mohd. Vakil, Tehsildar, Phoolpur, who had passed the order dated 13-5-1995. At the spur of the moment the request appeared acceptable. But on hearing Dr. Padia further such a direction was not expected to enhance the cause of justice. If the said Tehsildar Shri Mohd. Vakil is still posted at Azamgarh, he alone shall decide the representation/application to rehear as he would be the best Judge to know the facts and circumstances how the earlier order was passed. Therefore, the matter must be raised before him. It is being so ordered by this Court particularly because future rights not only that of the petitioner but of some other depend upon the findings of fact which may be recorded by the Tehsildar in the matter. He is directed to complete the said re-hearing within one month of filing of the copy of this order; should some more time become necessary, he will state the reasons thereof in the order sheet to be maintained meticulously.
15. With the aforesaid direction this writ petition fails and is dismissed. The parties will bear their own costs.
16. Petition dismissed.