IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1415 of 2008 Reserved on: 29.6.2010 Date of decision: 16.07.2010 Chet Ram Bharti …. Petitioner Versus State of H.P. and others ... Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Ms. Pratima Malhotra, Advocate. For the respondents: Mr. J.S. Guleria, Assistant Advocate General, for respondents No. 1 to 3. Ms. Jyotsna Rewal Dua, Advocate, for respondent No.4. V.K. Ahuja, J. The present writ petition has been filed by the petitioner under Article 226 and 227 of the Constitution of India, for a writ of Quowarranto to be issued for declaring respondent No. 4 as a usurper of public office of Pradhan of village Jagatsukh, Tehsil Manali, Distt. Kullu, H.P. 2. Briefly stated, the facts of the case are that election for the post of Pradhan of Gram Panchayat Jagatsukh were held in December, 2005. It was alleged by the petitioner this seat is reserved for the scheduled caste candidate. The petitioner alleged that 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 he belongs to scheduled caste as per the certificate and contested the election alongwith respondent No. 4 for the post of Pradhan of Gram Panchayat Jagatsukh. It was alleged that respondent No. 4 belongs to Nath community, but he showed himself as a scheduled caste candidate. The certificate produced by him does not show the caste to which he belongs, as in the certificate of the petitioner shown as Lohar caste, which belongs to scheduled caste. Respondent No. 3 declared respondent No. 4 elected as Pradhan of the Panchayat of Jagatsukh as belonging to scheduled caste. 3. It was further alleged by the petitioner that when the petitioner obtained revenue papers in regard to caste of respondent No. 4, he came to know that respondent No. 4 belongs to Nath community and he was not eligible to contest the election as a Reserve Category person. The seat of the Pradhan was reserved for the scheduled caste candidate. It was further alleged that the petitioner learnt through a Notification dated 11.7.2007 that the Nath community which was earlier in the General Category now it has been declared as belonging to ‘Other Backward Class’ (OBC) and it was not in the scheduled caste. The petitioner alleged that he applied for a copy of the family register and learnt that respondent No. 4 had got the certificate changed regarding his caste from Nath to Jogi by fabricating the revenue record in connivance with the then Patwari. The Pedigree Table shows respondent No. 4 as belonging to Nath caste and thus, the petitioner alleged that he could not file the petition within thirty days after the results were declared and now he submitted a complaint alongwith other villagers to respondent No. 4 that he has made a false declaration at the time of election and he does not belong to scheduled caste 3 community, he was not eligible to be appointed as Pradhan. A preliminary inquiry was ordered to be conducted on 2.8.2007 and a report was submitted by the Additional District Magistrate, Kullu and on the basis of the said report, respondent No. 2 issued a letter to proceed further under Section 146(1) of the H.P. Panchayati Raj Act, 1994. Respondent No. 3 issued a show cause notice to respondent No. 4 regarding submission of a false certificate and as to why action should not be taken against him under Section 122 and 146 of the Panchayati Raj Act, 1994. It was also alleged that respondent No. 4 filed a civil writ petition on 28.2.2008, wherein a stay has been granted by this Court and respondent No. 2 withdrew the show cause notice illegally, which action of respondents No. 1 to 3 is wrong. It was alleged that withdrawal of the show cause notice was illegal and malafide and since the petitioner could not file any election petition after two years, therefore, he filed a complaint on which the proceedings were initiated as against respondent No. 4. Hence, the petition filed by the petitioner challenging the withdrawal of the show cause notice be held to be illegal and it may be declared that respondent No. 4 was wrongly holding the post of Pradhan and fresh election may be ordered to be held by respondent No. 3. 4. A notice of the petition was issued to State/respondents No. 1 to 3 as well as to respondent No. 4, who filed separate replies. 5. In its reply filed by respondent No. 3, it was pleaded that the respondent has not availed the statutory remedy available to him under the H.P. Panchayati Raj Act, 1994 and the petitioner has approached this Court against the exoneration of respondent No. 4. Respondent no. 4 filed reply pleading that he belongs to scheduled 4 caste and was accordingly rightly declared elected to the post and the petition is liable to be dismissed. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the petitioner were that respondent No. 4 did not belong to scheduled caste and the post was reserved for the scheduled caste and since the period to file the election petition had already expired, the petitioner had no other remedy except to make a complaint and accordingly, a notice was rightly issued by the Deputy Commissioner to respondent No. 4, which was illegally withdrawn by respondent No. 3. To substantiate her allegations, she had placed reliance upon the following decisions:- The decision in S. Nagarajan Vs. District Collector, Salem and others, AIR 1997 Supreme Court 935, shows that the question before the High Court was, as to whether the petitioner belongs to scheduled tribe, though in State Service he has not availed benefit of reservation as scheduled tribe. In considering that question, it was observed that by interpolation of the documents, none can get a particular social status unless it is recognized as per the Presidential Notification/Order under Article 341 or 342 to avail of the benefit of reservation made in that behalf. The decision in Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and others, (1994) 6 Supreme Court Cases 241, shows that the question pertained to admission in Medical College. The petitioner had allegedly obtained certificate fraudulently and secured admission on that basis. However, the question was not in regard to the challenge of the election for the 5 post of Pradhan or any other such post which was reserved for the scheduled caste candidate as in the present case. The decision in Pankaj Kumar Saha Vs. The Sub Divisional Officer, Islampur and others, AIR 1996 Supreme Court 1728, shows that there was finding of fact that for over a century the petitioner’s family found to be Saha by caste, scheduled caste certificate issued to petitioner was found wrong and it was held to be unconstitutional. 8. In the present case, the dispute is not in regard to this finding of fact to be given by the Court as to whether the petitioner was a scheduled caste or nor on the date he contested the election for the post of Pradhan of Gram Panchayat. The question to be determined by this Court is as to the forum where this question could be challenged by the petitioner. The assertions made by the petitioner were that respondent No. 4 was disqualified when he contested the election but since he learnt about the fact subsequently, therefore, a complaint had been filed to the Deputy Commissioner, who got an inquiry conducted and issued notice to respondent No. 4, which was illegally withdrawn by respondent No. 3. The other connected question was as to whether this was to be challenged by way of election petition to be filed before the Deputy Commissioner or by way of inquiry as was prima facie held earlier by the Deputy Commissioner by issuance of a show cause notice . 9. My attention has also been drawn to a decision of this Court in Surinder Singh Banolta Vs. State of H.P. and others, Latest HLJ 2003 (HP) (DB) 782. It shows that there was an allegation of encroachment and the question was of disqualification for being chosen as a member of Zila Parishad under Section 122 6 of the H.P. Panchayati Raj Act, 1994 and in that case it was alleged that in case the allegation of encroachment relates to the period of time before the election process has started, election of any person chosen as such can be called in question only through an election petition and not otherwise. The observations made in Paras 14 and 18 are relevant, which may be reproduced below:- “It would thus be clear that the scope of clause (ii) of sub section (2) of Section 122 is limited only to such fact situations where the allegation of encroachment upon the land of a municipality relates to a period of time after the election process was over, and not before the election process had started or during its pendency. Based on the aforesaid reasoning we have no hesitation in holding that the order dated June 27, 2002 as passed by respondent No. 4 declaring the petitioner as disqualified and setting aside his election, was patently erroneous and invalid because this order was passed by him in purported exercise of the power under clause (ii) of sub section (2) of Section 122 of the Act, but as noticed above, such a remedy was not available because the question of the petitioner being an encroacher upon the land of the municipality had not arisen after the election process was over because it was very much in existence, as per the allegation of respondent No. 2 himself, much prior to the stage of the election process, and the only remedy therefore which was available to respondent No. 2, was by way of filing an election petition under Section 163 of 1994 Act. “ 10. This decision was upheld by the Apex Court in State of H.P. and others Vs. Surinder Singh Banolta, (2006) 12 Supreme Court Cases 484. 7 11. It is clear from the above discussion that the respondent had the disqualification on the date he contested the election and the only question is that these facts came to the knowledge of the petitioner after he was declared elected. In such circumstances, he could still file an election petition taking grounds for condonation of delay from the date of the knowledge, which question could have been considered by the Deputy Commissioner in the election petition to be filed before him. The disqualification had not been earned by respondent No. 4 subsequently, but it was existing from the very first date when he contested the election and according to the decision of this Court in Surinder Singh Banolta’s case, supra and upheld by the Hon’ble Apex Court, it has to be challenged by way of election petition and not by way of issuance of show cause notice as was done in the present case. Therefore, the petitioner is not entitled to the relief claimed by him that a show cause notice be not quashed or that the post of Pradhan be declared as vacant and as such, the petitioner is not entitled to the reliefs claimed by him. 12. In view of the above discussion, I accordingly hold that there is no merit in the writ petition filed by the petitioner, which is dismissed. There is no order as to costs. 13. In view of the dismissal of the main petition, all the miscellaneous applications pending, if any, shall also stand dismissed. ( V.K. Ahuja ), July 16, 2010 Judge (BSS) 8