IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1234 of 2009 (M/S) Nairmaljeet Kaur wife of Sri Arjinder Singh, resident of Village Chak Jogiwala, P.O. Chhiddarwala, Block Doiwala, District Dehradun. ……Petitioner. Versus State of Uttarakhand through Secretary Local Bodies, Government of Uttarakhand, Civil Secretariat, Dehradun and three others. …….Respondents. Sri Naresh Pant and Ms. Menka Tripathi, Advocates, for the petitioner. Sri K.P. Upadhyay, Additional C.S.C. for the respondent nos. 1 to 3. Sri Neeraj Garg, Advocate, for the respondent no. 4. Dated:-28.10.2009 Hon’ble B.S.Verma, J. Heard Sri Naresh Pant and Ms. Menka Tripathi, learned counsel for the petitioner, Sri K.P. Upadhyay, learned Additional C.S.C. for the respondent nos. 1 to 3 and Sri Neeraj Garg, learned counsel for the respondent no. 4. By means of this writ petition, the petitioner has sought writ in the nature of mandamus commanding the respondent no. 2 to decide the complaint dated 13.10. 2008 submitted by the petitioner (Annexure No. 4 to the writ petition) which was made to the Election Officer/Collector, Dehradun. The inquiry is pending before the scrutiny committee as directed by the District Magistrate. Sri Neeraj Garg, the learned counsel for the petitioner has contended that this issue could be raised by filing the election petition as has been held by the Division Bench of this Court in Writ Petition No. 6 of 2009, Smt. Puja Rajput Vs. State of Uttarakhand and five others. 2 I have perused the aforesaid Judgment passed by the Division Bench of this Court. The Judgment is of no help to the petitioner since the facts of the case at hand are different. The ratio of the Judgment is not disputed. The removal of the Pradhan or Pramukh can only be made by way of election petition. But in the complaint there is no such prayer that the respondent no. 4 be removed. Only prayer made in the complaint is that the respondent no.4 has obtained caste certificate by playing fraud and she does not belong to Other Backward Class (O.B.C.). She belongs to Scheduled Tribes (S.T.) community. By obtaining the caste certificate of O.B.C., she won the election for which the election petition is pending. The Division Bench of this Court has observed in its Judgment that Section 95 (1)(g) of the Panchayat Raj Act can be invoked against the Pradhan on a post election misconduct when the Pradhan is elected in a manner which is prejudicial to the Panchayat Raj Act. It is further held that the question as to whether a person stood disqualified due to having invalid caste certificate at the time of election can only be raised by way of election petition under Section 12 (c) of the Panchayat Raj Act. On the basis of this finding, the learned advocate appearing for the respondent no. 4 has raised this objection that this petition is not maintainable and no direction can be made to decide the complaint in the present petition. There is no such prayer in the complaint to remove the Pradhan by initiating proceedings under Section 16 and 29 of the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam. So far as the fact of removal of the Pramukh, for which the petitioner had also filed the election petition, is concerned, i.e., whether the caste certificate has been issued to the respondent no. 4 is correct or not, the issuing authority is not barred to examine the factual aspect of the matter for which the complaint has been made. This aspect is not the 3 subject matter of election petition whether the certificate was obtained by fraud or by misrepresenting the authority concerned. This matter is within the domain of the authority who issued the certificate and may examine the factual aspect of the matter for which the Collector had already referred the matter to the Scrutiny Committee, and the Scrutiny Committee has to take decision in the matter. The Election Tribunal cannot examine the genuineness of the certificate issued by the authority concerned. The Tribunal only can proceed on the basis of the certificate produced before him. By this Court in the case of Smt. Puja Rajput (supra) such finding has not been given that the authority who issued the caste certificate cannot examine the genuineness of the caste certificate during the pendency of the election petition. The objections raised by the learned counsel for the respondent no. 4 cannot be accepted. The prayer made by the petitioner is innocuous and the Collector concerned shall take decision on the complaint on the basis of the findings recorded by the scrutiny committee preferably within a period of eight weeks after giving opportunity of hearing to the petitioner as well as respondent no. 4. With the said observation, the writ petition be disposed of finally. All the pending applications stand disposed of accordingly. (B.S.Verma, J.) 28.10.2009 RMY 4