R.R. Yadav, J.
1. In the aforesaid two writ petitions, common question of legislative transgression of State Legislature inserting Sub-clause (iii-a) in Clause (g) of Sub-section (1) of Section 95 of U.P. Panchayat Raj Act by way of Uttar Pradesh Panchayat Raj (Amendment) Act, 1998 (hereinafter referred to as U.P. Act No. 21 of 1998) in contravention of mandatory provisions enshrined under Article 243-O of the Constitution of India is involved. therefore, I propose to decide these two writ petitions by a composite order giving brief facts of both these cases indicating laissez faire and arbitrariness in passing the Impugned orders by Executive Officers having no jurisdiction in such disputes ignoring the supremacy of rule of law in a democratic polity like ours.
2. In Writ Petition No. 2579 of 2002, Hoti Lal contested the election for the office of Pradhan of Gram Panchayat, Jarani Kalan as a scheduled caste candidate as he belongs to Kanjar caste which finds place in the list of scheduled caste. The aforesaid constituency was reserved for scheduled caste candidate. It is averred in the writ petition that the election for the office of Pradhan of the said Gram Panchayat was contested by him and one Chandra Pal. In the said election, the petitioner was declared elected by Returning Officer. Against declaration of result, his opponent, Chandra Pal filed election petition under Section 12C of U.P. Panchayat Raj Act before Prescribed Authority (Up Ziladhikari, Jalesar, Etah). a copy whereof is filed and marked as Annexure-1 to the writ petition. The aforesaid election petition was filed by Chandra Pal on the ground, inter alia, that the petitioner is not Kanjar and Kanjar is not covered under the definition of 'scheduled caste'. The aforesaid election petition filed by Chandra Pal was dismissed on 21.5.2001 and the defeated candidate, Chandra Pal instead of filing a revision against the aforesaid order under Sub-section (6) of Section 12C of U.P. Panchayat Raj Act, he initiated proceedings by lodging a complaint under Section 95(1)(g)(iii-a) of the said Act and during the pendency of the said enquiry, the District Panchayat Raj Officer, Etah restrained the petitioner from operating Bank Account of the Gram Panchayat by his order dated 10.8.2001, Annexure-11 to the writ petition against the mandatory provisions envisaged under the proviso of the said section wherein it is provided that an elected Pradhan can be deprived of to exercise and perform the financial and administrative powers and functions only after preliminary enquiry under Uttar .Pradesh (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, by State Government after affording reasonable opportunity of being heard to him. It is known to all of us that State Government has delegated its powers under Section 95(1)(g) of U.P. Panchayat Raj Act to all District Magistrates in State.
3. It is to be noticed that petitioner had filed earlier Writ Petition No. 47653 of 2000 against a similar . order passed by Block Development Officer restraining him to operate Bank Account which was ordered to be kept in abeyance on 3.11.2000 by learned single Judge of this Court till final decision of the objection by Block Development Officer by speaking order, a copy whereof is filed and marked as Annexure-10 to the writ petition. As a matter of fact, neither Block Development Officer nor District Panchayat Raj Officer have power to deprive an elected Pradhan from exercising and performing financial and administrative powers under Section 95(1)(g) of U.P. Panchayat Raj Act as mentioned hereinabove.
4. In Writ Petition No. 2673 of 2002, Hafizullah contested election for the office of Pradhan of Gram Panchayat, Basantpur, in the month of April, 2000, which was reserved for backward class candidate. He was declared elected by Returning Officer on 24.6.2000. No election petition as required under Section 12C of the U.P. Panchayat Raj Act was filed against him within limitation before the Election Tribunal in the manner prescribed under the rules of the said Act. The complainant instead of filing election petition filed a complaint against the petitioner on 16.11.2000 purported to be under Section 95(1)(g)(iii-a) of U.P. Panchayat Raj Act alleging therein that the petitioner is not member of backward class, hence not entitled to contest election of Pradhan from a Constituency reserved for a member of backward class. It is revealed from perusal of material available on record that his caste certificate was cancelled ex parte by Tehsildar, Deoria on 4.1.2001, a copy whereof is filed and marked as Annexure-2 to the writ petition.
5. After coming to know of the aforesaid ex parte cancellation of his caste certificate by Tehsildar, Deoria on 4.1.2001, the petitioner moved a recall application and demonstrated before the Tehsildar, Deoria, that Sheikh Sarwari (Pirai) Pirahi are within the list of backward class at Sl. No. 62 of the notification issued by the State Government on 31.5.1998. A copy of the notification was filed before the Tehsildar, Deoria and is also filed and marked as Annexure-11 to the writ petition. The aforesaid recall application filed by the petitioner before the Tehsildar, Deoria, was allowed on 3.2.2001 after being satisfied that the petitioner belongs to backward class, a copy whereof is filed and marked as Annexure-7 to the writ petition.
6. It is apparent from perusal of Annexure-8 to the writ petition that a show cause notice was issued by District Magistrate, Deoria, to the petitioner calling upon him to show cause as to why he should not be removed from the office of Pradhan of Village Panchayat, Basantpur, on the basis of cancellation of his backward class certificate by Tehsildar, Deoria, on 4.1.2001. The aforesaid show cause notice was purported to be issued to the petitioner by District Magistrate, Deoria in exercise of his power under Section 95(1)(g)(iii-a) of U.P. Panchayat Raj Act. The petitioner filed detailed explanation to the aforesaid show cause notice stating therein that ex partg order dated 4.1.2001 passed by Tehsildar, Deoria cancelling his caste certificate has been recalled by his subsequent order dated 3.2.2001 whereby he restored backward class certificate of the petitioner on the basis of notification dated 31.5.1998 issued by the State Government.
7. It is apparent on face of record from perusal of the impugned order dated 18.12.2001, Annexure-10 to the writ petition, passed by District Magistrate, Deoria removing the petitioner from the office of Pradhan of. Village Panchayat. Basantpur that without looking into the explanation submitted by the petitioner dated 18.9.2001 (Annexure-9 to the writ petition) with closed mind, he removed the petitioner from the office of Pradhan of Village. Panchayat, Basantpur, on the basis of ex parte cancellation of his caste certificate by Tehsildar, Deoria on 4.1.2001, Annexure-2 to the writ petition, which has already been recalled and his backward class certificate is restored on 3,2.2001 by Tehsildar, Deoria vide Annexure-7 to the writ petition. The District Magistrate, Deoria, without verifying the fact whether the petitioner belongs to backward class within the definition of backward class in view of notification issued by the State Government on 31.5.1998, Annexure-11 to the writ petition, has passed the impugned myopic order removing the petitioner from the office of Pradhan of Village Panchayat, Basantpur.
8. This Court is flooded with such type of writ petitions due to insertion of Sub-clause (iii-a) in Clause (g) of Sub-section (1) of Section 95 of U.P. Panchayat Raj Act in the Principal Act by U.P. Act No. XXI of 1998 leading removal of elected Pradhans in State by Administrative functionaries in utter breach of Article 243-O of the Constitution. This state of affairs prevailing in State of U.P. due to aforesaid amendment is to be viewed seriously by this Court. For in depth discussion and to curb litigation on the subject before this Court learned Advocate General, Sri R. P. Goyal on 24.1.2002 was called upon to justify constitutional vires of aforesaid amendment Inserted in Section 95 of the Principal Act. On the aforesaid date, Sri U.N. Sharma was appointed as Amicus Curiae to assist the Court.
9. I have heard learned Amicus Curiae. Sri U.N. Sharma and learned Advocate General, Sri R.P. Goyal ably assisted by Sri K.M. Sahai, learned standing counsel at length. I have also heard the learned counsel for the parties and gone through the material available on record.
10. In these two writ petitions, no disputed question of facts are involved and these petitioners can be disposed of on pure question of law, therefore, I propose to decide these petitions without calling counter-affidavits.
11. It is submitted by the learned Amicus Curiae Sri U.N. Sharma that newly inserted amendment in Sub-clause (iii-a) in Sub-section (1) of Section 95 of the Principal Act in Clause (g) after Sub-clause (iii) by U.P. Act No. 21 of 1998 cannot be allowed to transgress mandatory provisions envisaged under Article 243-O of the Constitution. It is submitted by Sri Sharma that since the aforesaid newly inserted statutory provision is inconsistent to the constitutional provisions envisaged under Article 243-O of the Constitution, therefore, it is to be struck down as ultra vires. It is contended by learned Amicus Curiae that the provisions of Article 243-O of the Constitution are non-obstante, therefore, it has overriding effect on other provisions of law. According to Sri Sharma, no elected Pradhan of Village Panchayat can be non-seated from his elected office except by an election petition presented to such authority and in such manner as is provided by or under any law made by the Legislature of the State as contemplated by Article 243-O(b) of the Constitution. The State Legislature has already enacted Section 12C of U, P. Panchayat Raj Act and framed rules thereunder prescribing limitation, naming Election Tribunal and prescribing the manner how a election petition against an elected Pradhan can be filed. According to Sri Sharma except Election Tribunal no Executive .Officer has legal authority to call in question the election of an elected Pradhan. According to him within the purview of Section 95(1)(g)(iii-a) of U.P. Panchayat Raj Act if any elected Pradhan obtained benefit of reservation as scheduled caste/ scheduled tribe or backward class candidate by filing a fictitious caste certificate then it tantamounts that him nomination was improperly accepted within the meaning of Section 12C of the said Act and aggrieved party can file an election petition on this ground within the meaning of Article 243-O(b) of the Constitution instead of indirectly circumventing constitutional provisions enshrined under Article 243-O of the Constitution holding an enquiry about the caste certificate under newly inserted amendment by U.P. Act No. XXI of 1998 by an Executive Officer.
12. The aforesaid argument of learned amicus curiae is controverted by learned Advocate General, Sri Goyal with equal emphasis. It is submitted by the learned Advocate General that under Article 50 of the Constitution, equality of three wings, viz..--Executive, Legislature and Judiciary is to be recognised by this Court 1 Judiciary is under constitutional obligation to give due regard to the fundamental nature and importance of legislative process adopted in the present case by State Legislature. It is submitted by learned Advocate General that while interpreting newly inserted amendment introduced by U.P. Act No. XXI of 1998, a presumption should be raised by this Court in favour of constitutionality of the said amendment. This Court is to sustain its validity to the extent possible by ironing out its creases if any in drafting. According to learned Advocate General, Sri Goyal, the aforesaid amendment may be declared as ultra vires only if its unconstttuttonality is clearly established. The burden to prove unconstitutionality of the aforesaid inserted amendment is upon the shoulder of the petitioners in these cases. In support of his aforesaid contention he placed reliance on decisions rendered by Supreme Court in case of Charanjit Lal Choudhary v. Union of India, AIR 1951 SC 41 and in the case of Burrakur Goal Co. Ltd. v. Union of India, AIR 1961 SC 954. The learned Advocate General has cited before me a decision rendered by Apex Court in the case of Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, wherein it is ruled by Supreme Court which reads thus :
'(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him, who attacks to show that there has been a clear transgression of the constitutional principles ;
(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation, and..............'
13. I have given my thoughtful anxious consideration to the aforesaid contentions raised by the learned Amicus Curiae and the learned Advocate General. There is no quarrel with the proposition of law argued by the learned Advocate General and decisions cited by him in support of his aforesaid contention. I am of the view that constitutional vires of newly inserted amendment by U.P. Act No. XXI of 1998 in Principal U.P. Panchayat Raj Act is to be adjudicated keeping in view legal parameters suggested by learned Advocate General in such matters.
14. In my humble opinion, on the basis of aforesaid contentions of thelearned Advocate General, this Court cannot simply fold its hands but is called upon to adjudicate the points urged by the learned Amicus Curiae, Sri U. N. Sharma after taking constructive task of finding out the intention of Parliament in enacting Article 243-O of the Constitution and legislative competence of the State Legislature inserting amendment in Section 95 of the Principal Act, in Sub-section (1) in Clause (g), after Sub-clause (iii) by Amending Act No. XXI of 1998.
15. It is well to remember that now-a-days, the legislation in modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is directed to the problems before the Legislature based on information derived from the past and present experience. What is true for ordinary legislation in modern State it is attributable to constitutional legislation as well with greater force and sanctity. In the above background 1 would like to discuss legislative history of Panchayat Raj in brief to ascertain the policy of the Parliament enacting Part IX of the Constitution consisting of Article 243 to 243-O by Constitution (73rd Amendment) Act, 1992 which is made enforceable w.e.f. 24.4.1993.
16. It is to be noticed that Part IX of the Constitution envisages a three tier system of Panchayats, namely, village Panchayats at the village level, district Panchayats at the district level and Intermediate Panchayat, which stand between the village level and district level in a State which are called block level Panchayats. All the seats in Panchayat are to be filled by persons chosen by direct election from territorial constituencies in the panchayat area. The electorate has been named 'Gram Sabha' consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Panchayat. In this way. representation in democracy is introduced by Part IX of the Constitution at the grass root level. Article 243D provides that seats are to be reserved for scheduled castes and scheduled tribes. The reservation shall be in proportion to their population. Under Part IX of the Constitution, a State may by law also reserve seats or offices of Chairpersons in the Panchayat at any level in favour of backward classes of citizens. Keeping in view Part IX of the Constitution, the State of U.P. has earmarked constituencies for scheduled castes, scheduled tribes and backward classes on rotational basis in proportion to their population in State.
17. Sub-section (2) of Section 11A of U.P. Panchayat Raj Act provides that the State Government shall, by order, reserve offices of Pradhans fon. the scheduled castes, the scheduled tribes and the backward classes. The first proviso to aforesaid Sub-section (2) of Section 11A lays down that the number of offices of Pradhans reserved for the scheduled castes, the scheduled tribes and the backward classes in the State shall bear, as nearly as may be, the same proportion to the total number of such offices as the population of the scheduled castes in the State or of the scheduled tribes in the State or of the backward classes in the State bears to the total population of the State. The second proviso to the aforesaid Sub-section (2) lays down that reservation for backward classes shall not exceed twenty seven per cent of the total number of offices of Pradhans. The aforesaid Sub-section (2) also provides that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner. A similar provision is made under Sub-section (5) of Section 12 of U.P. Panchayat Raj Act which provides that in every Gram Panchayat, seats shall be reserved for the scheduled castes, the scheduled tribes and the backward classes and the number of seats so reserved shall, as nearly as may be, bear the same proportion to the total number of seats in the Gram Panchayat, as the population of the scheduled castes in the panchayat area or of the scheduled tribes in the panchayat area or of the backward classes in the panchayat area bears to the total population of such area and such seats may be allotted by rotation to different territorial constituencies in the Gram Panchayat in such order as may be prescribed provided that the reservation for the backward classes shall not exceed twenty-seven per cent of the total number of seats in the Gram Panchayat and provided further that if the figures of population of the backward classes are not available, their population may be determined by carrying out a survey in the prescribed manner. Rest of the provisions relating to reservation, which are not relevant for just decision of the instant writ petitions, are being omitted.
18. A close scrutiny of Article 243K of the constitution reveals that it provides for constitution of State Election Commission in respect of panchayats. The power of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to the panchayat shall vest in the Election Commission. To ensure independence of Commission, it is laid down that State Election Commissioner can be removed only in the same manner and on the same ground as a Judge of the High Court and conditions of service of State Election Commissioner shall not be varied to his disadvantage after his appointment.
19. It is to be noticed that Article 243-O of the Constitution is comparable to Article 329 of the Constitution. Under Article 329(b), no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 243-O(b) is part materia to Article 329(b) of the Constitution.
20. From the aforesaid discussion, it is crystal clear thatpanchayats are elevated up to theconstitutional status by Part IX of theConstitution introduced byConstitution (73rd Amendment) Act.1992. The fairness of panchayat election is raised upto the level of election of Members of Parliament and either House of the Legislature of a State. To ensure independence of the State Election Commissioner, it is laid down that he can be removed only in the same manner and on the same ground as a Judge of the High Court. The objection of Part IX introduced in the Constitution is to make election of Panchayats free from favouritism or nepotism. In order to maintain the sanctity of Panchayat election. Article 243-O is enacted by Parliament laying down in unambiguous language that election to a Panchayat can be called in question only by election petition which should be presented to such authority and in such manner which may be prescribed by or under any law made by the State Legislature.
21. Indisputably the State Legislature by enacting Section 12C of U.P. Panchayat Raj Act has provided election petition under Section 12C of U.P. Panchayat Raj Act and rules framed thereunder to maintain sanctity of election conducted by State Election Commission and results declared by Returning Officer. Election petition filed by an aggrieved person and decision taken by Election Tribunal under Section 12C of U.P. Panchayat Raj Act is kept under judicial vigilance of District Judge under Sub-section (6) of Section 12C of the said Act. It is to be imbibed by all of us that democracy based on collective wisdom cannot survive unless implicit faith and confidence is reposed in fairness of Panchayat election conducted by independent Election Commission of State and declaration of results by Returning Officers. Any person aggrieved can file election petition before the Election Tribunal. Against the decision taken by Election Tribunal, there is a provision under Sub-section (6) of Section 12C of the said Act to the effect that a revision can be filed before the District Judge. The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer. The aforesaid provision is also enacted to keep a constant vigil that an elected Pradhan is not unseated on irrelevant consideration. Conferring revisional power on judicial side against the order of Election Tribunal is again a check and balance to ensure that an elected Pradhan may not be non-seated on non-existent ground or irrelevant consideration based on expediency of any selfish nature of an Administrative functionary emanating from favouritism. It is to be imbibed that there is distinction between Administrative Officers mind set and Judicial Officers mind set. The paramount consideration for an Administrative Officer is to maintain expediency of administration, which may lead to justice or injustice whereas for Judicial Officers mind set justice is paramount consideration even if it may lead to inconvenience to administrative expediency. Judicial constraint does not permit me to elaborate further except to observe that the party in corridor of power in State is to learn to respect opposition parties in power in Village Panchayats, Block Panchayats and District Panchayats level. The facts of these two cases speak louder than words.
22. It is to be kept in view while deciding the constitutional vires of newly inserted provisions in Principal Act by Amending Act No. 21 of 1998 that if any enactment is inconsistent to the constitutional provisions it is repugnant to the extent of its inconsistency to the constitutional provisions. If statutory rules framed under an enactment transgress the provisions of an enactment, it should always be treated to be redundant and repugnant to the extent of its transgression to the provisions of the enactment. Similarly, if G.O. (Government order), Circular letters Office Memorandum and departmental instructions are found by a court of law to be inconsistent to the statutory rules, such Government orders. Circular letters. Office Memorandum and departmental instructions must be treated to be nan est to the extent of inconsistency to the statutory rules framed under an enactment. However, it is made clear that if statutory Rules are silent on a particular subject, it can always be supplemented by Government order, Circular letter, Office Memorandum and departmental instructions.
23. With the aforesaid introspection, I would like to decide the vires of newly inserted amendment in Section 95(1)(g) of U.P. Panchayat Raj Act by Amending Act No. XXI of 1998 in the light of mandatory provisions enshrined under Article 243-O of the Constitution and Section 12C of U.P. Panchayat Raj Act. For deeper and better evaluation of the vires of the newly inserted provisions of U.P. Panchayat Raj Act by Amending Act No. XXI of 1998, it would be expedient to quote hereinbelow the newly inserted provisions along with Article 243-O of the Constitution with Section 12C of U.P. Panchayat Raj Act.
24. Newly inserted provisions Sub-clause (iii-a) in U.P. Panchayat Raj Act by Amending Act No. XXI of 1998 after Sub-clause (iii) of Clause (g) of Sub-section (1) of Section 95 of the said Act read thus :
'(iii-a) has taken the benefit of reservation under Sub-section (2) of Section 11A or Sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the scheduled castes, the scheduled tribes or the backward classes, as the case may be.'
25. The mandatory provisions enshrined under Article 243-O of the Constitution run as follows :
'243-O. Notwithstanding anything in this Constitution.--(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any Court;
(b) no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.'
26. The provisions of Section 12C of U.P. Panchayat Raj Act are also quoted hereinbelow for ready reference :
'12-C. Application for questioning the elections.--(1) The election of a person as Pradhan - or as member of a Gram Panchayat including the election of a person appointed as the panch of the Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that:
(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or
(b) that the result of the election has been materially affected :
(i) by the improper acceptance or rejection of any nomination or ;
(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.'
27. A close scrutiny of newly inserted amendment by Amending Act No. XXI of 1998 quoted hereinabove reveals that even if no election petition is filed within the meaning of Article 243-O(b) of the Constitution as contemplated under Section 12C of U.P. Panchayat Raj Act and rules framed thereunder before Election Tribunal yet, it can be called inn question by State Government provided State Government is satisfied that the elected Pradhan has taken the benefit of reservation under Sub-section (2) of Section 11A or under Sub-section (5) of Section 12 as the case may be on the basis of false declaration subscribed by him stating that he is a member of scheduled castes, scheduled tribes or backward class as the case may be. It is not disputed before me by learned counsel for the both sides that powers of State Government under Section 95(1)(g) of U.P. Panchayat Raj Act have been delegated to all District Magistrates in State.
28. A conjoint reading of Article 243-O of the Constitution and Section 12C of U.P. Panchayat Raj Act leads towards an irresistible conclusion that no election of panchayat can be called in question except by way .of election petition prescribed by appropriate State Legislature. No Court or authority is entitled to call in question the declaration of result of an elected Pradhan except by way of election petition. Thus Article 243-O(b) excludes the jurisdiction of the Court as well as any authority to entertain a complaint for setting aside election of an elected Pradhan except by way of election petition before Election Tribunal, provided the question relating to invalidity of the election of elected Pradhan is capable to be raised by way of election petition under Section 12C of U.P. Panchayat Raj Act and rules framed thereunder. For example, if a person contested the election of the office of Pradhan and declared elected on the ground of fictitious caste certificate or his nomination is rejected on the ground of caste certificate, then in such a situation it clearly falls within the purview of Section 12C (b) of U.P. Panchayat Raj Act which provides that result of election has been materially affected by improper acceptance or rejection of any nomination. Thus, acceptance or rejection of nomination by Returning Officer on the ground of fictitious caste certificate can be raised by way of filing election petition under Section 12C of U.P. Panchayat Raj Act which is in full consonance with Article 243-O(b) of the Constitution and no Court or authority is entitled to call in question or entertain such question relating to acceptance or rejection of nomination by Returning Officer on the basis of caste certificate. It is made clear that any matter which arises while elections are in progress i.e., each and every stage from the time of issue of notification appointing a date of nomination till results are declared is covered by Article 243-O(b) of the Constitution read with Section 12C of U.P. Panchayat Raj Act and insertion in Section 95 of U.P. Panchayat Raj , Act in Sub-section (1), in Clause (g) after Sub-clause (iii) as Sub-clause (iii-a) which is quoted hereinabove confirming to adjudicate improper acceptance or rejection of nomination by Returning Officer upon an Executive Officer, is expressly barred by the mandatory provisions envisaged under Article 243-O(b) of the Constitution and as such, it is liable to be declared ultra vires.
29. From the aforesaiddiscussion, it is clear beyond anypale of doubt that there is noambiguity either under Article 243-O(b) of the Constitution or underSection 12C of U.P. Panchayat RajAct whereby the jurisdiction of Courtand any authority to call in questionthe declaration of result of an electedoffice bearer of panchayat byReturning Officer is expresslyexcluded. The aforesaid provisions ofthe Constitution and U.P. PanchayatRaj Act both contain expressprovisions to that effect withoutdiscrimination whether electedcandidate is a General Castecandidate, scheduled castescandidate, scheduled tribes candidateor backward class candidate. It is true where there is right there mustbe remedy (ubi jus ibi remedium).Generally speaking the broad guidingconsiderations are that when a rightpre-existing in common law is createdby the Constitution raising the statusof Panchayat election up to status ofconstitutional functionaries and theconstitutional provisions t.e., Article243-O(b) itself provided a machineryfor calling in question an election ofan office bearer of Panchayat by wayof election petition mandating theLegislature of a State to make law onthe subject. The State Legislaturekeeping in view the mandate of Article 243-O(b) of the Constitution enactedSection 12C of U.P. Panchayat Raj Act providing therein that election of a person as Pradhan shall not be called in question except by election petition presented to such authority within such time and in such manner as may be prescribed in conclusive and final and there is no scope to create a different forum for adjudicating the same issue arising out of same cause of action before Administrative functionaries which is capable to be adjudicated before Election Tribunal subject to judicial control under Sub-section (6) of Section 12C of U.P. Panchayat Raj Act by way of revision. The expression 'a person' used under Section 12C of U.P. Panchayat Raj Act by necessary implication includes male and female belonging to General Castes, scheduled castes, scheduled tribes and backward classes and an argument contrary to it is unacceptable. The newly inserted amendment by Amending Act No. 21 of 1998 by State Legislature creating two forums one for General Caste and other for scheduled caste, scheduled tribe or backward class for same cause of action to the disadvantage to latter is against the key concept of equality assurances guaranteed in constitutional philosophy and expressed in unequivocal terms in preamble of our Constitution. For example if a nomination of General Caste candidate is improperly accepted or rejected by a Returning Officer, then in such a situation election wrong can be remedied by filing election petition under Section 12C of U.P. Panchayat Raj Act whereas in same situation in garb of newly inserted amendment by Amending Act No. XXI of 1998 for improper acceptance or rejection of nomination, a proceeding can be initiated by making a complaint against scheduled castes, scheduled tribes and backward class before District Magistrate. This creation of alternative forum for scheduled castes, scheduled tribes and backward class for the same cause of action is disadvantageous to them. Reasons are not far to seek. All of us know that in dispute resolution by a Tribunal or Court, the element of objectivity and independence is predominant whereas in dispute resolution by Administrative functionaries invested with quasi judicial powers, element of subjectivity and expediency is predominant.
30. Let us investigate and ascertain as to what evil Article 243-O of the Constitution intends to curb and what benefit It intends to confer upon the elected officer bearer of panchayat? Let us examine as to why Article 243-O of the Constitution is made pari materia to Article 329 of the Constitution. It is obvious that Parliament has information that elections of panchayats are not held periodically within five years in States and even after elections are held, there is no proper forum to decide election disputes. Some times elections are delayed due to delimitation of constituencies or allotment of seats to the scheduled castes, scheduled tribes and backward classes. Thus, to avoid periodical delay in panchayat elections by States, it is made obligatory by Part IX of the Constitution upon States to hold panchayat election periodically through an Independent State Election Commissioner. After holding elections to decide election disputes, every State Legislature under Section 243-O (b) is mandated by Parliament to make law on the subject prescribing authority and procedure to file an election petition. By the aforesaid constitutional provisions a valuable right and benefit is conferred upon elected officer bearer of Panchayat that he cannot be non-seated from his/her elected office of Panchayat except by an election petition. The non-seating of an elected office bearer of Panchayat is raised up to level of non-seating to either House of Parliament or to the House or either House of the Legislature of State making Article 243-O(b) of the Constitution pari materta to Article 329(b) of the Constitution. It is to be imbibed by all of us that due to Article 329 of the Constitution, no election to either House of Parliament or to the House or either House of the Legislature of State is called in question except by an election petition presented before the High Court and in the manner as provided under the Representation of People Act. Similarly, in State of Uttar Pradesh, due to Article 243-O(b) of the Constitution, which is verbatim reproduction of Article 329(b) of the Constitution, the election of an elected office bearer of a Panchayat cannot be called in question except by an election petition presented before Sub-Divisional Officer and in the manner as provided under Section 12C of U.P. Panchayat Raj Act. It is held that constitutional benefit conferred upon an elected office bearer of Village Panchayat to remain in such elected office till statutory period unless declaration of result by Returning Officer is set aside by Prescribed Authority/Sub-Divisional Officer within whose Jurisdiction elected office bearer holds his office cannot be permitted to be encroached upon by routine State Legislature by inserting Sub-clause (iii-a) in Clause (g) of subsection (1) of Section 95 of U.P. Panchayat Raj Act by Amending Act No. XXI of 1998. Articles 243 to 243-O of the Constitution inserted under Part IX of the Constitution are not ordinary routine legislations of Parliament, but these articles are inserted in exercise of its power under Article 368 of the Constitution, wherein by non-obstante provisions, it is provided that Parliament has exclusive legislative power to amend the Constitution by way of addition, variation or repeal any provision in accordance with procedure laid down under sub-article (2) of the said article in the Constitution. Under Article 254 of the Constitution, inconsistency between laws made by Parliament and laws made by Legislature of a State is confined to the subject enumerated under Concurrent List of Seventh Schedule of the Constitution.
31. I have reason to believe that mandatory provisions enshrined under Article 243-O(b) of the Constitution escaped the notice of State Legislature while Inserting Sub-clause (iii)(a) in Clause (g) of subsection (1) of Section 95 of U.P. Panchayat Raj Act by Amending Act No. XXI of 1998. I am of the view that if State Legislature would have taken note of Article 243-O(b) of the Constitution, it would not have inserted aforesaid provisions in U.P. Panchayat Raj Act by Amending Act No. XXI of 1998 depriving an elected office bearer of Village Panchayat from his elected office within statutory period otherwise than presenting election petition before Election Tribunal on the grounds enumerated under Section 12C of U.P. Panchayat Raj Act. The State Legislature ought to have taken notice that decision of Election Tribunal under Section 12C of U.P. Panchayat Raj Act is placed within the judicial scrutiny of a Judicial Officer within Sub-section (6) of the said section.
32. A close scrutiny of Article 243-O(b) of the Constitution reveals that Parliament has prohibited the State Legislature from enacting any other law for settling the election dispute of an elected office bearer of Village Panchayat except by presenting an election petition before Election Tribunal in conformity of Article 329 of the Constitution applicable to either House of Parliament or to the House or either House of the Legislature of State. The State Legislature enacted Section 12C of U.P. Panchayat Raj Act (adopted the said section) after enforcement of Article 243-O(b) of the Constitution enumerating grounds on basis of which election of an elected officer bearer of Village Panchayat can be called in question before Election Tribunal. In such a situation for the same cause of action for which an aggrieved person is entitled to file an election petition under Section 12C of U.P. Panchayat Raj Act in compliance of mandatory provisions of Article 243-O(b) of the Constitution cannot be permitted to be transgressed by State Legislature by inserting offending provisions by Amending Act No. XXI of 1998 throwing same adjudication in the hands of executive officers against the provisions of Article 50 of the Constitution. Shifting of adjudication pertaining to election disputes of Village Panchayat at from Election Tribunal subject to judicial control to Executive Officer by aforesaid offending amendment is Impermissible within constitutional provisions discussed hereinabove.
33. Bottom line argument of the learned Advocate General before me is that amendment inserted by Amending Act No. XXI of 1998 is justifiable within the meaning of Article 243(F) of the Constitution. The relevant provisions of the aforesaid Article 243(F) is reproduced hereinbelow for ready reference :
'243F. Disqualifications for membership.--(1) A person shall be disqualified for being chosen as, and for being a member of a panchayat :
(a) if he is so disqualified by or under any law for the time being in force for the purposes of. elections to the Legislature of the State concerned.
(b) if he is so disqualified by or under any law made by the Legislature of the State.
(2) if any question arises as to whether a member of a panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.'
34. The aforesaid submission made by learned Advocate General is not acceptable to me for the reasons given hereinbelow :
Firstly, the Parliament has reproduced Article 329 in verbatim as Article 243-O under Part IX of the Constitution. It is pertinent to mention that Article 329 deals with bar to Interference by courts in electoral matters relating to either House of Parliament or to the House or either House of the Legislature of a State except by an election petition. The Parliament has also enacted Articles 191 and 192 relating disqualification for membership and decision on question as to disqualifications of members. Disqualification for membership enumerated under Article 191 of the Constitution if proved at the time of nomination up to declaration of results by Returning Officers, it is always challenged by way of election petition. In case disqualification is earned by a member of a House of the Legislature of a State after declaration of result, it can be referred for decision as to 'disqualification of a member of State Legislature under Article 192 to the Governor but there is no pari materia provision about disqualification of membership of either House of Parliament. It is nowhere mentioned if disqualification from membership pertains to a member of either House of Parliament where reference is to be made under newly inserted Article by the Constitution (Forty-second) Amendment Act, 1976 and the Constitution (Forty-fourth Amendment) Act, 1978. Disqualification of House of Legislature of a State is subject to decision by Governor if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualification mentioned in Clause (1) of Article 191. The aforesaid article is silent about reference of disqualification of membership of either House of Parliament.
35. Be that as it may, it is reiterated at the risk of repetition that if disqualification from membership of either House of Parliament or to the House or either House of Legislature of a State exists on the date of filing of nomination and continues to exist up to declaration of results by Returning Officers, then all these questions of disqualifications can be raised by way of election petition filed under Representation of the People Act, 1951.
36. Similarly, a disquallflcation of a person elected as office bearer of Village Panchayat if it exists at the time of filing of nomination and continues to exist up to declaration of his result, then such disqualification is to be agitated by way of filing an election petition before the Election Tribunal under Section 12C of U.P. Panchayat Raj Act but if such disqualification is earned by a person after filing of nomination paper and declaration of results, then State Legislature, if feels, may make law prescribing authority to undergo whether a person is disqualified to continue as a member of panchayat or not and such authority before passing an order disqualifying an elected office bearer of a Village Panchayat is to obtain opinion of the State Election Commissioner and such authority shall be bound to act according to such opinion tendered by a State Election Commissioner and an argument contrary to it is not acceptable at maintain dignity of conduct of election by independent Election Commissioner and declaration of results by Returning Officers of Village Panchayats.
37. Secondly, it is to be presumed that while Parliament was enacting Article 243-O, the enactment of Article 243(F) was within its knowledge, still the Parliament by a non-obstante Article 243-O made mandatory provisions under Clause (b) that no election to any Panchayat shall be called in question except by election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
38. Thirdly, it is settled principle of law that non-obstante Section of a Statute has overriding effect on other provisions in the same enactment and other enactments as well. It is held that non-obstante provisions of an Article of the Constitution has overriding effect upon other provisions of the Constitution and has overriding effect upon other statutory provisions of enactment enacted in routine either by Parliament or State Legislature, It has overriding effect over the offending amendment inserted by State Legislature by U.P. Act No. XXI of 1998. the connotation 'notwithstanding anything in this Constitution' leads towards an irresistible conclusion that unequivocally the Parliament has laid down that irrespective of any other provision on the subject in the Constitution the provision made under Article 243-O would prevail over any other provision of the Constitution in this regard, which includes Article 243(F) as well. The aforesaid expression 'notwithstanding anything in this Constitution' contained in the beginning of Article 243-O of the Constitution is used with a view to give overriding effect over Article 243F of the Constitution in case of conflict between two aforesaid articles or any other provisions in the Constitution. The expression 'notwithstanding anything in this Constitution' used under Article 243-O of the Constitution is used in contradiction to the phrase 'subject to the latter conveying the idea of yielding to the provisions of Article 243F of the Constitution whereas former would prevail over the latter in case of conflict between two articles.' Article 243-O of the Constitution which is a non-obstante article is distinguishable with Article 243F of the Constitution and an argument of learned Advocate General contrary to it is not acceptable and it is hereby repelled.
39. Lastly, I am of the view that assuming for argument sake even if Article 243F is subject to two interpretations, one in favour of subject and other in favour of State, then this Court would prefer an interpretation in favour of the subject. The anomaly of Articles 243F and 243-O can be resolved by holding that if a cause of action relating to disqualification enumerated under Sub-section (2) of Section 11A or Sub-section (5) of Section 12C of U.P. Panchayat Raj Act exists on the date of filing of nomination by a person who contests election of office bearer of Village Panchayat and such disqualification continues to exist up to declaration of result by Returning Officer, then aggrieved party has no option except to challenge the same by way of filing election petition alleging disqualification with which an elected person suffers on the date of filing of his nomination and got himself declared as elected office bearer of Village Panchayat irrespective of the fact that he was not eligible to contest such election.
40. An identical question came up for consideration before me in case of Ram Din Shakya v. State of U.P. and Ors., 2002(93) RD 39, wherein it held which is reproduced hereinbelow :
'Para 9,--A close scrutiny of Sub-clause (1) of Clause (b) of Sub-section (1) of Section 12C speaks that if the result of person elected as Pradhan is materially affected by improper acceptance or rejection of any nomination paper, then such declaration of result of Pradhan can be questioned by way of filing an election petition. Here, in the present case, indisputably as urged by learned counsel for the petitioner with emphasis, the respondent No. 4, who is an elected Pradhan was convicted in the year 1980, meaning thereby that he was not eligible to contest the election and his nomination paper ought to have been rejected by the Returning Officer. Assuming for argument sake that before Returning Officer such objection was not raised on account of n on-availability of opportunity to the petitioner, then an opportunity was available to the petitioner by way of filing election petition for non-seating respondent No. 4 from the office of Pradhan on the ground that as respondent No. 4 has been convicted in the year 1980, therefore, his nomination paper was improperly accepted by Returning Officer. If an election petition would have been filed under Section 12C of U.P. Panchayat Raj Act , then the Election Tribunal would have decided the same on merit after probing into the facts as to whether respondent No. 4 was convicted on moral turpitude or his conviction does not fall within the definition of 'moral turpitude'. Similarly, the Election Tribunal ought to have enquired in deep as to whether the limit of five years prescribed for disqualification still exists or it has expired. But, no election petition has been filed, therefore, tn my considered opinion in view of the mandatory provisions enshrined under Article 243-O of the Constitution read with Section 12C of the U.P. Panchayat Raj Act and rules framed thereunder the present writ petition for issue of a quo warranto is not maintainable and is liable to be dismissed at admission stage.
Para 10.--In my considered opinion the election of Pradhan in the present case cannot be questioned by way of filing a writ of quo warranto in view of mandatory provisions enshrined under Article 243-O of the Constitution which has overriding effect on either law on the subject. It is well to remember that norms of the Constitution are supreme norms under which every enactment is to be passed and every action of the constitutional functionaries is to be tested. No statutory provision can be allowed to prevail over mandatory provisions postulated under Article 243-O of the Constitution. I may. hasten to add here that even under statutory provisions under Section 12C of U.P. Panchayat Raj Act, 1947 the election of Pradhan cannot be called in question except by way of an election petition to such authority within such time and in such manner as may be prescribed on the grounds enumerated under the said section.'
41. The learned Advocate General submitted that the ratio decidendi propounded by me in case of Ram Din Shakya (supra) requires reconsideration in the light of Article 243F of the Constitution. In my considered opinion, the aforesaid proposition of law propounded by me in case of Ram Din Shakya (supra) does not require reconsideration in the light of Article 243F of the Constitution and it is hereby reiterated.
42. In addition to aforesaid arguments, it is submitted by the learned Amiens Curiae that the order impugned dated 10.8.2001, Annexure-II to the Writ Petition No. 2579 of 2002, passed by District Panchayat Raj Officer, district Etah depriving the petitioner to exercise and perform financial and administrative powers and functions is per se illegal and without jurisdiction even within the meaning of Section 95(1)(g) of U.P. Panchayat Raj Act and against mandatory provisions envisaged under aforesaid section and passed without giving opportunity of being heard to him.
43. It is next contended by the learned Arnicas Curiae that the powers under Section 95(1)(g) of U.P. Panchayat Raj Act can'be exercised by the State Government which is indisputably delegated to the District Magistrate, therefore, only District Magistrate is authorised to restrain the petitioner to exercise and perform financial and administrative powers and functions after giving opportunity of being heard to the petitioner under the aforesaid Act and also after holding preliminary enquiry under Uttar Pradesh (Removal of Pradhans, Up-Pradhan and Member) Rules, 1997 and by no stretch of imagination, the District Panchayat Raj Officer, respondent No. 6, has jurisdiction to deprive financial and administrative powers and functions of the petitioner as Pradhan of Gram Panchayat. There is inherent lack of jurisdiction in passing the order impugned by the District Panchayat Raj Officer, respondent No. 6.
44. It is further contended by the learned Amicus Curiae that the defeated candidate indisputably has filed election petition against petitioner on the ground that petitioner was not entitled to contest the election as scheduled caste candidate. It was alleged in the election petition that petitioner is Kanjar and 'Kanjars' do not fall within the definition of 'schedule caste'. The aforesaid election petition filed by defeated candidate was dismissed by the Prescribed Authority/Up-Ziladhikari, district Etah on 21.5,2001. The defeated candidate instead of filing a revision under Sub-section (6) of Section 12C of U.P. Panchayat Raj Act has initiated proceedings before the District Magistrate on the same cause of action alleging same fact what he has already alleged in the election petition. Once the order passed by Election Tribunal on 21.5.2001 attained finality, the same question, i.e., the petitioner being Kanjar was not entitled to contest the election in the constituency reserved for scheduled caste, cannot be reagitated before any authority Including District Magistrate under the amendment inserted by the State Legislature by Amending Act No. XXI of 1998.
45. There is substance in the aforesaid arguments of the learned Amicas Curiae. The learned Advocate General is not in position to give satisfactory answer to the aforesaid questions asked to him. Thus, the instant Writ Petition No. 2579 of 2002 is also liable to be allowed on aforesaid grounds.
46. As regards Writ Petition No. 2673 of 2002. it is submitted by the learned Amicus Curiae that it is apparent from perusal of explanation submitted by the petitioner before the District Magistrate that he has clearly stated in reply to show cause notice issued to him that ex parte cancellation order of his caste certificate passed by Tehsildar, Deoria, on 4.1.2001, has already been recalled on the recall application of the petitioner on 3.2.2001. The copy of the representation is available on record. In support of the explanation, the petitioner has brought to the notice of the Tehsildar, Deoria. the notification dated 31.5.1998 issued by the State of U.P. wherein at Sl. No. 62 Sheikh Sarwari (Pirai) Pirahi, to which caste the petitioner belongs, are included in backward class. It is apparent from perusal of the order impugned passed by the District Magistrate, Deoria that he non-seated the petitioner without looking into subsequent order passed by Tehsildar, Deoria, on 3.2.2001 and he has also Ignored the notification dated 31.5.1998 wherein Sheikh Sarwari (Pirai) Pirahi are included in the list of backward class.
47. This Court takes judicial notice of the fact that aforesaid notification dated 31.5.1998 has assumed that character of enactment which is known as Uttar Pradesh Public Services (Reservation for scheduled castes, scheduled tribes and other backward classes)(Amendment) Act, 2001, received the assent of the Governor on October 5, 2001 and published in the U.P. Gazette, Extra, Part I, Section (Ka) dated 6th October, 2001, pages 10-19 wherein Sheikh Sarwari (Pirai), Pirahi is reiterated to be a member of backward class at Sl. No. 48. The aforesaid Act came into force with effect from 15.9.2001.
48. There is substance in the aforesaid argument of learned Amicus Curiae and the order impugned (Annexure-10 to the writ petition) passed by District Magistrate, Deoria non-seating the petitioner from office of Pradhan deserves to be quashed on the aforesaid ground alone.
49. As a result of aforesaid discussion, the instant two writ petitions are allowed. The newly inserted provisions in Sub-clause (iii-a) after Sub-clause (iii) in Clause (g) of Sub-section (1) of Section 95 of U.P. Panchayat Raj Act, quoted hereinabove, are hereby struck down as ultra vires to the mandatory provisions enshrined under Article 243-O(b) of the Constitution and the order impugned dated 10.8.2001 (Annexure-6 to writ petition of Writ Petition No. 2579 of 2002) passed by District Panchayat Raj Officer, Etah during pendency of proceedings for removal of petitioner under aforesaid offending Sub-clause (iii-a) is quashed. Similarly by corollary of reasons, the order impugned dated 18.12.2001, Annexure-10 to writ petition passed by District Magistrate Deoria in Writ Petition No. 2673 of 2002, removing and non-seating the petitioner from the office of Pradhan in his purported exercise of power under aforesaid Sub-clause (iii-a) introduced by Amending Act No. XXI of 1998 is also hereby quashed.
50. I record my appreciation for assistance extended to me in deciding these two writ petitions by Sri U.N. Sharma, learned Amicus Curiae.