Hon'ble Attau Rahman Masoodi,J.
The petitioner has challenged the elections of the respondent no. 4 Smt. Wahida Begum as a Member of the Kshetra Panchayat, thereby also questioning the election process for the office of Pramukh of Laxmanpur, Tehsil Lalganj, District Pratapgarh on the ground that the respondent no. 4 has succeeded in getting herself elected as Member on the basis of forged and manipulated records relating to her caste.
Dr. L.P. Misra learned counsel for the petitioner submits that the manipulation in relation to the caste of the respondent no. 4 in a fraudulent manner is self-evident and, therefore, this Court should call for a response and issue a mandamus as prayed for declaring the elections of respondent no. 4 a nullity.
The writ petition has not been framed as a writ of quo-warranto and does not pray for any certiorari. A preliminary objection has been raised by the respondents to the maintainability of the writ on the ground that the petitioner has the remedy of filing an election petition and, therefore, this writ in the manner as framed is not maintainable and deserves to be rejected. This preliminary objection has been taken by the learned counsel for the respondent no. 4 Sri Raghvendra Singh, Senior Advocate assisted by Sri Padam Kant Misra, as well as by the learned counsel for the State Election Commission Ms. Aprajita Bansal. A similar objection has been taken by the learned Standing Counsel on behalf of the State as well.
Sri Misra has vehemently urged that the respondent no. 4 does not belong to the backward caste at all inasmuch as she is a 'Sheikh' and does not belong to the backward castes of 'Sheikh Sarvari (Pirai)' which is one of the backward caste mentioned in the schedule of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) (Amendment) Act, 2002. Sri Misra submits that several castes including 'Sheikh' were shown as other backward classes within the meaning of Section 2(b) of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. This was amended and the schedule to the Principal Act was substituted whereafter only 'Sheikh Sarvari (Pirai)' is scheduled as a backward class.
The allegation against the 4th respondent made is that a manipulation has been made in the revenue records and the insertion of the word 'Sarvari' has been made fraudulently in a different ink which is recorded in the remarks column in the said records. Sri Misra has then invited the attention of the Court to the antecedent records to contend that this manipulation could not be made in all the revenue records either in the parental family caste status of the 4th respondent or in the family where she has been married. The revenue records have been filed along with the writ petition to substantiate the aforesaid submission. It is urged that on the strength of a manipulation in the record of rights of 1331 Fasli that the caste certificate has been obtained by the respondent no. 4 on the strength whereof she contested the election as a backward class candidate. Accordingly the respondent no. 4 having taken recourse to such fraudulent practice, which is established on record an appropriate writ should be issued for declaring her elections to be a nullity. Sri Misra has relied on ten judgments including several of the Supreme Court to urge that a petition would be maintainable for declaring such election as a nullity on the ground so raised. He has further invited the attention of the Court to three judgments to urge that fraud vitiates all solemn proceedings, and in this context the constitutional bar under Article 243-K would not apply so as to relegate the petitioner to file an election petition.
Responding to the aforesaid submissions learned counsel for the State Election Commission has cited the decision of Lakhpati vs. State of U.P. passed in W.P. No. 5121 (MB) 2016 contending that the nature of dispute raised herein is also a matter that would raise questions of evidence and which cannot be gone into under Article 226 of the Constitution of India. Learned counsel for the respondent no. 4 has also urged that the inquiry with regard to the alleged manipulation in the revenue records cannot be made the basis for raising a challenge inasmuch as the elections have been contested on the basis of a caste certificate and in respect thereof a complaint was made before the issuing authority, namely the Tehsildar, Tehsil Lalganj, District Pratapgarh who has submitted a report on 13.3.2016 before the District Magistrate urging that the said report be considered as the complaints with regard to the caste certificate are not true. The aforesaid recommendation has been made under the government orders that have been enforced for conducting an inquiry into the status of a caste certificate where the District Level Screening Committee is chaired by the District Magistrate.
We have considered the aforesaid submissions raised and the judgments that have been cited at Bar. The following 13 judgments have been cited on behalf of the petitioner:
"(i) (1994) 4 SCC 526- Para 26 to 28, K. Venkatachalam Vs. A. Swamickan and another.
(ii) (2005) 8 SCC 383 - Para 16, Harnek Singh Vs. Charanjit Singh and others.
(iii) (2004) 7 SCC 492- Para 16,17 and 18, Manda Jaganath Vs. K.S. Rathnam and others.
(iv) (1985) 4 SCC 689- Para 26 and 30, Lakshmi Charan Sen and othrs vs. A.K.M. Hasan Uzzaman and others along with other connected matters.
(v) Writ-C No. 53941 of 2015- Para 7 to 21, Suresh Jaiswal Vs. State of U.P. and another along with other connected matters.
(vi) Civil Misc. Writ Petition No. 41077 of 2014, Kamla Devi vs. State of U.P. and others.
(vii) 2007 (66) ALR 354- Para 4 and 5, Angad Yadava vs. Election Commission of India, through Chief Election Commissioner New Delhi and others.
(viii) AIR 1999 (P&H) 1- Para 35 adn 36, Lal Chandra vs. State of Haryana and others.
(ix) AIR 1996 (A.P.) 324-Para 14 and 19, Smt. Sk. Khasim Bee vs. State Election Commissioner and others.
(x) AIR 2002 PATNA 17- Para 26, Chand Prasad and others vs. State of Bihar and others.
(xi) (2007) 4 SCC 221-Para 20 to 31, 33, 39 and 46 A.V. Papayya Sastry and others vs. Govt. of A.P. and others.
(xii) (2010) 8 SCC 383-Para 28 to 37, Meghmala vna others vs. G. Narasimha Reddy and others.
(xiii) (2005) 7 SCC 605-Para 9 to 16, Bhaurao Dagdu Paralkar vs. State of Maharashtra and others."
Sri Raghvendra Singh learned Senior Counsel appearing for the respondent no. 4 has invited the attention of the Court towards the decision in the case of Smt. Ayesha vs. State of U.P. in W.P. No. 12004 of 2010 decided on 15.7.2011 to urge that this Court may not enter into any such inquiry relating to the status of the caste of respondent no. 4 which is already engaging the attention of the competent authority, namely the District Magistrate. He submits that so long as the caste certificate stands, the election of the respondent no. 4 cannot be annulled as she has contested the elections not only on the basis of the entries in the revenue records but on the strength of a caste certificate that was issued by the competent authority after making full inquiry.
It is also not in dispute that the caste certificate has not yet been cancelled and some aggrieved persons have also filed election petitions. Sri Singh, therefore, contends that the caste certificate also being a public document, its authenticity without any challenge raised to the same cannot be doubted at this stage. It is urged that there is no challenge raised to the caste certificate issued to the respondent no. 4 in the present writ petition.
Having considered the submissions raised and having heard Dr. L.P. Misra for the petitioner and Sri Raghvendra Singh learned Senior Counsel for respondent no. 4 the issue of caste of the respondent no. 4 has arisen on account of allegations of manipulation in the revenue record where the caste of the respondent no. 4 is alleged to have been altered by inserting word 'Sarvari'. From the report of the Tehsildar dated 14.3.2016 which has been placed by the learned counsel for respondent no. 4 it appears that apart from the revenue records other evidence in the shape of affidavits and statements of other persons have been relied on for making recommendations to the District Magistrate who is the Chairman of the District Level Screening Committee which is pending consideration. Thus, at this stage it would be premature and not appropriate to delve into the issue of the caste certificate which is already engaging the attention of District Level Screening Committee through the District Magistrate as its Chairman.
The Collector also happens to be the District Record Keeper of all revenue records and, therefore, the District Magistrate / Collector can make an inquiry into the allegations of any fake or manipulated entries in the revenue records as alleged by the petitioner. Thus, while examining the issue of genuineness of the caste of respondent no. 4 this issue can also be gone into by the Collector in appropriate proceedings if a challenge is raised to any such entry under the revenue law for the time being in force.
Apart from this these issues can be raised in an election petition.
Consequently for all the aforesaid reasons we are not inclined to investigate or to enter into an inquiry on the genuineness or otherwise of the revenue entries which have been made the basis of allegations in relation to the caste of respondent no. 4. The caste certificate having been issued independently under the separate rule, can only be annulled in accordance with the procedure prescribed and / or under the procedure as already set into motion. It will not be possible for us to presume and simultaneously assume that the entries are fake in the revenue records which would yet require another inquiry as it is alleged that the word 'Sarvari' has been entered in the revenue record in a different ink. Presumption cannot be a substitute for proof. The production of the original revenue record and any evidence in relation to the same would have to be investigated by the competent authority in order to ascertain the correctness or otherwise of such an allegation. It is only thereafter that the same can be made a ground to raise a challenge if it is established that any fraud or manipulation was committed to which the respondent no. 4 was a party for obtaining any benefit in relation to her caste and resulting in issuance of the caste certificate.
In view of what has been stated above, we do not find it necessary to entertain the petition at this stage leaving it open to the District Magistrate to proceed with the inquiry relating to the issuance of the caste certificate or also the revenue entries as alleged by the petitioner and then pass appropriate orders in accordance with law as expeditiously as possible preferably within two months. It would thereafter be open to the aggrieved person to approach the appropriate forum for contesting the status of the election of the respondent no. 4 as a Member of the Kshetra Panchayat concerned in accordance with law.
The writ petition is disposed of with the above observations.
Order Date :- 1.4.2016 Om.
[Attau Rahman Masoodi, J.] [Amreshwar Pratap Sahi, J.]