Karnataka High Court
Smt Rubina Gauhar vs The State Of Karnataka on 22 March, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 3757 OF 2021(LB-RES)
BETWEEN:
SMT RUBINA GAUHAR,
W/O SYED SIBGATHULLA,
AGED ABOUT 33 YEARS,
R/O HONGANOOR VILLAGE,
KASABA LHOBLI, CHANNAPATNA TALUK,
RAMANAGARA DISTRICT
... PETITIONER
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPARTMENT OF PANCHAYAT RAJ
AND RURAL DEVELOPMENT,
VIDHANA SOUDHA, BENGALURU 560 001.
2. THE STATE ELECTION COMMISSION
BY ITS COMMISSIONER,
KSCMF BUILDING NO 8,
1ST FLOOR, CUNNINGHAM RD,
VASANTH NAGAR, BENGALURU,
KARNATAKA 560 052.
3. THE TAHSILDAR
CHANNAPATNA TALUK,
CHANNAPATNA,
RAMANAGARA DISTRICT 562 159.
4. THE PRESCRIBED AUTHORITY AND
RETURNING OFICER
ASSISTANT EXECUTIVE ENGINEER,
KANVA MODERNIZATION SUB DIVISION,
CHANNAPATNA TALUK, CHANNAPATNA,
RAMANAGARA DISTRICT - 562 159.
2
5. THE PANCHAYAT DEVELOPMENT OFFICER
HONGANOOR VILLAGE PANCHAYAT,
KASABA HOBLI, CHANNAPATNA TALUK,
RAMANAGARA DISTRICT 562 159.
6. REKHA URS
W/O H T RAMAKRISHNARAJE URS,
AGED ABOUT 35 YEARS,
R/O HONGANOOR VILLAGE,
KASABA HOBLI, CHANNAPATNA TALUK,
RAMANAGARA DISTRICT 562 159.
... RESPONDENTS
(BY SMT. PRATHIMA HONNAPURA, AGA FOR R1 & R3;
SMT. VAISHALI HEGDE, ADVOCATE FOR R2;
SRI. MANJUNATH N, ADVOCATE FOR R6;
SRI. M S DEVARAJU, ADVOCATE FOR R5;
R4 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE CASTE CERTIFICATE ISSUED BY R-3 DATED 04-
02-2021 AS PER ANNEXURE-C AND ALSO THE RESOLUTION
OF R-5 VILLAGE PANCHAYAT IN SO FAR ELECTION OF R-6 AS
AN ADHYAKSHA OF R-5 VILLAGE PANCHAYAT DATED 10-02-
2021 AS PER ANNEXURE-G IN SO FAR AS IT RELATES TO THE
ELECTION OF R-6 AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Petitioner an elected member of the 5th respondent- Grama Panchayat is knocking at the doors of writ court essentially for ousting the 6th respondent from the office of Adhyaksha of the said Panchayat on the grounds that she does not belong to a community for which the political reservation is provided for the said office. She complains that the 'social status certificate' obtained at the hands of 3rd 3 respondent-Tahsildar is illegal and she should be declared to be duly elected in the stead of said respondent.
2. The principal prayers as scripted in the writ petition assuming particular importance for adjudication are reproduced below:
"a) Issue a writ in the nature of certiorari or any other writ to quash the Caste Certificate issued by respondent No.3 dated 04- 02-2021 in No.JATHI(CHU)CR/09/20-21 as per Annexure-C and also the resolution of respondent No.5 Village Panchayat in so far election of respondent No.6 as an Adhyaksha of respondent No.5 Village Panchayat dated 10-02- 2021 as per Annexure-G in so far as it relates to the election of respondent No.6;
b) Issue a writ in the nature of quo-
warranto, by restraining the respondent No.6 to continue in the office of the Adhyaksha of respondent No.5 Village Panchayat as she usurped the office despite ineligible to hold the office, as she suffered with inherent lack of ineligibility to hold the office under the law;
c) Consequently, issue a writ in the nature of mandamus directing respondent No.4 Retuning Officer to declare the petitioner as elected as Adhyaksha of respondent No.5 Village Panchayat;
3. After service of notice respondents have entered appearance through their advocates. The respondent nos. 1 & 3 being represented by learned AGA have filed a brief Statement of Objections resisting the writ petition. All the advocates make submission opposing the writ petition principally on the ground that, the prayer for the issuance of 4 a Writ of Certiorari for quashing the Caste Certificate at Annexure-C and Writ of Quo Warranto for ousting the 6th respondent from the office of Adhyaksha are misconceived. They also state that the prayer for Writ of Mandamus to the "4th respondent-Returning Officer to declare the petitioner as elected as Adhyaksha of respondent No.5-Village Panchayat"
is also equally misconceived.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
(a) Both the petitioner and the 6th respondent have been the elected members of the 5th respondent-Grama Panchayat from the reserved constituencies. The office of Adhyaksha in the Panchayat is reserved for a person belonging to BCM-A (Woman). The 6th respondent came to be elected to this office and the petitioner happens to be defeated and therefore, disappointed aspirant for the same.
These facts are not in dispute.
(b) The first contention of the petitioner that the 6th respondent does not belong to the community for which the office of the Adhyaksha is reserved, is bit difficult to countenance inasmuch as admittedly there is a Caste Certificate dated 04.02.2021 issued by the 3rd respondent- 5 Tahsildar at Annexure-C. It was open to the petitioner to lay a challenge thereto by filing appeal u/s.4(D) of the Karnataka Scheduled Castes Scheduled Tribes and other Backward Classes (Reservation of Appointment, etc.,) Act, 1990. Why this alternate and equally efficacious remedy provided by the statute is not availed by her remains inscrutable. Ordinarily, availability of such a remedy disentitles a litigant to the grant of a Writ of Certiorari as held by the Apex Court in NEYVELY LIGNITE CORPORATION LIMITED v. SPECIAL TAHSILDAR AND OTHERS (LAND ACQUISITION) AIR 1995 SC 1004(1).
(c) Petitioner in substance is calling in question the election of 6th respondent to the office of Adhyaksha on the ground that she has obtained a false Caste Certificate. It has been consistently held by this Court that the elections can be challenged before the appropriate authority even on the ground falsity of social status of the returned candidate, without laying a challenge to the Caste Certificates before the statutory authorities under the 1990 Act. However, this could have been done by filing an election petition u/s.45(2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. Rule 14 of Karnataka Panchayat Raj (Election of Adhyaksha & Upadhyaksha of Gram Panchayat) Rules 1995 which 6 prescribes a limitation period of 15 days and the forum for such a challenge is the jurisdictional Civil Judge Sr. Division. Obviously there is no provision for the condonation of delay in such matters and thus after the expiry of limitation period, fate of the parties is sealed. This apart, Article 243-O of the Constitution of India bars challenge to the election of the kind except by way of a properly constituted election petition. Article 243-O(b) which is introduced by 73rd Amendment in 1992 reads: "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". Rule 14 is the law since it is promulgated under the 1993 Act. In a sense there is a legal bar created against challenge after the expiry of limitation and therefore no writ can be issued completely disregarding such a bar. This view gains support from a Co- ordinate Bench decision in SMT.GEETHA vs. THE RETURNING OFFICER & OTHERS, 2021(2) KLJ 170. An argument to the contrary amounts to approximating the Writ Petition to the Election Petition, when their structure & limitations are essentially different from each other.
(d) Petitioner specifically admits in her petition that she is an aspirant for the post of Adhyaksha, being an eligible & elected member of the Panchayat. She has not whispered 7 anything as to why she could not lay a challenge to the election of the 6th respondent as Adhyaksha, on whatever grounds arguably availing therefor. Ordinarily, a Writ of Quo Warranto is granted when the claim is animated by sufficient public interest, whereas the pleadings of the petitioner are structured on the basis of predominantly her private interest. In REX vs. STACEY (14) 1785 99 ER 938, it was held that a Writ of Quo Warranto is not a motion of course and it is in the discretion of the Court to issue it considering the circumstances of the case. In the KING EX REL BEUDRT vs. JOHNSTON (15) 1923 2 DLR 278, it was held that before issuing a Writ of Quo Warranto, the Court has to take into consideration public interest, the consequences to follow the issuance of such a Writ and all the circumstances of the case. Apparently this petition is filed long after period of limitation which the law prescribes for filing the Election Petition has expired. Such a circumstance disentitles the petitioner to the issuance of Writ of Quo Warranto vide KAILASH CHAND SHARMA vs. STATE OF RAJASTHAN, (2002) 6 SCC 562 at paragraph 46.3. A Three Judge Bench of this Court in SMT. RANIAMMA vs. M.HEMALA NAYAKA, ILR 1997 KAR 2518 has observed at paragraph 12 as under:
"12. It is not disputed that Rule 7 of the Rules referred to herein above provides for the alternative remedy of election petition against the election of Adhyaksha or Upadhyaksha 8 within the time and the manner specified therein. Such an election can be challenged only by a member of the Panchayat and none else. Evert though Article 243-O was no bar to the maintainability of the Writ Petition, yet the existence of the alternative efficacious remedy under Rule 7 of the Rules framed under the Karnataka Panchayat Raj Act was a sufficient ground to dismiss the Writ Petitions and direct the concerned to file an election petition in terms of the aforesaid rule. Even though the existence of an alternative remedy was not an absolute bar in entertaining the Writ Petition yet no ground was made out for not having resort to the efficacious, alternative, statutory remedy provided with respect to a right created and continued under a statute...."
(e) Learned AGA is more than justified in seeking dismissal of the petition by pressing into service KURAPATI MARIA DAS vs. DR. AMBEDKAR SEVA SAMAJAN & OTHERS, (2009) 7 SCC 387. The Apex Court at paragraphs 21 to 24 has observed as under:
"21. The second such decision is reported as Gurdeep Singh Dhillon v. Satpal & Ors. 2006 (10) SCC 616]. In that decision, after quoting Article 243 ZG (b) the Court observed that the shortcut of filing the writ petition and invoking Constitutional jurisdiction of the High Court under Article 226/227 was not permissible and the only remedy available to challenge the election was by raising the election dispute under the local statute.
22. There is no dispute that Rule 1 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967, specifically provides for challenging the election of Councillor or Chairman. It was tried to be feebly argued that this was a petition for quo warranto and not only for challenging the election of the appellant herein. This contention is clearly incorrect. When we see 9 the writ petition filed before the High Court, it clearly suggests that what is challenged is the election. In fact the prayer clauses (b) and (c) are very clear to suggest that it is the election of the appellant which is in challenge.
23. Even when we see the affidavit in support of the petition in paragraph 8, it specifically suggested that the Ward No. 8 was reserved for the persons belonging to the Scheduled Castes from where the appellant contested the election representing himself to be a person belonging to the Scheduled Caste.
Paragraph 9 speaks about the election of the appellant as the Chairperson. Paragraph 30 also suggests that the complaint has been made against the appellant that he had usurped the public office by falsely claiming himself to be a person belonging to the Scheduled Caste. In paragraph 33, it is contended that the first petitioner had no remedy to question the election of the 9th respondent by way of an election petition. Therefore, though apparently it is suggested in the writ petition was only for the writ of quo warranto, what is prayed for is the setting aside of the election of the appellant herein on the ground that he did not belong to the Scheduled Caste.
24. It is further clear from the writ petition that the writ-petitioners were themselves aware of the situation that the writ of quo- warranto could have been prayed for only on invalidation or quashing of the election of the appellant, firstly as a Councillor and secondly, as a Chairman and that was possible only by an Election Petition. The two decisions quoted above, in our opinion, are sufficient to hold that a writ petition of the nature was not tenable though apparently the writ petition has been couched in a safe language and it has been represented as if it is for the purpose of a writ of quo warranto...".
The above observations are a complete answer to the contentions urged on behalf of the petitioner. 10
(f) Very strangely, the 3rd principal prayer in the Writ Petition is for a mandamus to the Returning Officer to declare petitioner as elected to the office of Adhyaksha. This is premised on the invalidation of the election of the incumbent of the said office i.e., the 6th respondent. It hardly needs to be stated that the Returning Officer becomes functus officio once the election results are announced by notification vide Jharkhand High Court decision in BASANTI DEVI vs. THE STATE OF JHARKHAND & OTHERS L.P.A.No.420/2011 disposed off on 24.07.2012. Such a relief could have been claimed by the petitioner in a properly constituted Election Petition since Sec.16(3) of the 1993 Act specifically provides for it with the following text:
"16(3). A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."
It has been a settled position that law of election is what the statute says. Common law doctrines like equity & other remain strangers to election law vide JYOTI BASU vs. DEBI GHOSAL, AIR 1982 SC 983. What the Apex Court observed at paragraph 8 being instructive, is reproduced:
"...Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles 11 of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied..."
These observations although were made in a challenge to the election of a Member of Legislative Assembly, equally apply to Local Bodies which have constitutional recognition vide 77th Amendment of 1992. The remedy which the petitioner failed to seek by instituting an Election Petition, ordinarily cannot be granted in the Constitutional jurisdiction, at the instance of a defeated candidate.
(g) The submission of learned counsel for the petitioner that the Caste Certificate at Annexure-C is exclusively meant for availing the benefit of reservation in education and in employment, the same having been issued under the provisions of 1990 Act arguably may be true, especially in the absence of a notification issued u/s.2(2) of the 1993 Act. However, a contention of the kind could have been a ground if petitioner had filed a properly constituted Election Petition calling in question. No petition as such having been filed, a Writ court exercising constitutional jurisdiction, ordinarily does not undertake a deeper examination of such a contention. It is more so because the Legislature in its wisdom has provided for a machinery for the 12 adjudication of election disputes and prescribed the frame of Election Petition and the grounds therefor, as a matter of statutory scheme.
In the above circumstances, this Writ Petition being devoid of merits is liable to be dismissed and accordingly it is, costs having been made easy.
This Court places on record its deep appreciation for the able services rendered by learned AGA Smt. Prathima Honnapura.
Sd/-
JUDGE Snb/