Andhra HC (Pre-Telangana)
Durga Singh vs M. Lakshman Yadav And Ors. on 10 June, 2003
Equivalent citations: 2003(4)ALD604
ORDER V. Eswaraiah, J.
1. This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 25-11-2002 made in I.A.No. 3365/2002 in O.P.No. 681/ 2002 on the file of the Chief Judge, City Civil Court, Hyderabad in allowing the application of the respondent filed under Order VI Rule 17 Code of Civil Procedure to amend the main petition by adding Para 7(a) after Para 7.
2. The respondent herein is the Election Petitioner in the said O.P. No. 681/ 2002. The petitioner herein is the 1st respondent in the said O.P. and elected candidate as member of Municipal Corporation of Hyderabad from Kachiguda Ward No. 13. For the sake of convenience, the petitioner hereinafter referred to as the 'Election Petitioner' and the 1st respondent hereinafter referred to as the 'Returned Candidate'. The 1st respondent filed the said election petition before the Chief Judge, City Civil Court, Hyderabad: Election Tribunal under Sections 71 to 75 of Municipal Corporation of Hyderabad Act to try the election petition. The Election Petition is filed under Sections 71, 74, 77, 78, 79 and 80 of the Municipal Corporation of Hyderabad Act mainly on the grounds of improper receipt of votes in the election and counting irregularities. The Election Petitioner also alleged that the Returned Candidate has indulged in the corrupt practices. Section 79 deals with the grounds for declaration by Returned Candidate to be void. Section 79(1) deals with the bribery, undue influence, and group intimidation. Section 79(2) also deals with the corrupt and illegal practice. Under Section 79(2)(d), if a Returned Candidate incurs disqualification for the election as a member, his election can be declared as void. Disqualification for registration in the electoral rolls are dealt under Section 10 and disqualification for voting are dealt under Section 20 and disqualification for being elected as a member is dealt under Sections 21, 22 and 23. Admittedly, the Returned Candidate did not incur any disqualification. If there is any disqualification, authorities are empowered to decide the question of disqualification of the members under Section 23(d). The Returned Candidate filed his nomination, which was scrutinized under Section 39 and the final list of the contesting candidates was also published under Section 41. The seat in question is reserved for the Backward Class Community. There was no objection for the candidature of the Returned Candidate to contest for the said seat.
3. The election petition was filed in April, 2002. The Election Petitioner filed I.A. No. 3365/2002 under Order VI Rule 17 CPC in November, 2002 contending as follows:
"For the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon'ble Court be pleased to permit the petitioner to amend the Para 7(a) "The Respondent No. 1 by producing a bogus caste certificate belonging into another person by impersonation of his name as Sri M. Durga Singh S/o. Shamboo Singh got elected under reserved B.C. Reservation quota. The actual certificate produced by him belong to a totally different person by name Sri M. Durga Singh S/o.M Shamboo Singh got elected under issued by the MRO, Himayatnagar vide Certificate No. C/3 657/2001 dated 1-1-2002, based upon the said B.C.Caste Certificate the Election Officer improperly accepted his nomination and held him as eligible under B.C.reservation. The Returning Officer ought to have seen that the certificate produced by respondent No. 1 belonging to another person and respondent No. 1 cannot take benefit of the same. As per ballot paper and the voter list, it is called as Durga Singh but not M. Durga Singh and his father's name in the voter list shown as S. Singh whereas in the B.C.Caste Certificate it is shown as one M. Shamboo Singh, Thus there is a great discrepancy in the B.C.Caste Certificate, which does not entitle the respondent No. 1 to claim the said reservation. In view of the above his election under B.Creservation is void."
and to add the aforesaid Para as 7(a) after Para 7.
4. The returned candidate filed a counter opposing for the aforesaid amendment and stated that the petition filed seeking amendment of the main petition is not maintainable and it is misconceived. Sub-rule (5) 6f Rule 71 of the Municipal Corporation of Hyderabad Act, elections of the Mayor, members and election petitioners Rules 1987, the amendment cannot be allowed as the Election Petitioner introduced a new Para altogether which was not pleaded in the main election petition. Rule 71(5) Rules reads as follows:
Rule 71(5): The Tribunal may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt or illegal practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment to the petition which will have the effect of introducing particulars of a corrupt or illegal practice not previously alleged in the petition.
5. It is the case of the petitioner that the so-called amendment sought to be made does not come within the ambit of corrupt or illegal practice and, therefore, the said amendment cannot be allowed as it will not amount to amplify the corrupt or illegal practice mentioned in the main petition. Major corrupt practices are dealt under Section 17 and minor corrupt practices are dealt under Section 18 and illegal practices are dealt under Section 19 of the Municipal Corporation of Hyderabad Act. The amendment sought to be made does not come within the ambit of any of the aforesaid Sections 17, 18 or 19 of the Act and, therefore, the issue sought to be canvassed is beyond the jurisdiction of the Tribunal and the said question as to whether the returned candidate is the Backward Class candidate or not cannot be gone into by the Tribunal. However, this plea was not at all taken in the main election petition and, therefore, it is not open for the election petitioner to seek for the said amendment. Even otherwise, it is stated that the returned candidate is a Backward Class candidate and merely because there is some insignificant discrepancy in the voters' list that cannot constitute a ground to hold that the returned candidate has indulged in corrupt practice or illegal practice and as long as the Caste Certificate issued by the competent authority is valid and in force and not set aside, the Election Petitioner cannot question the same and make an issue in the Election Petition for setting aside the election of the petitioner on the ground that the returned candidate is not a Backward Class candidate. The grievance of the Election Petitioner is that in the electoral list at Sl.No. 769, the house of the returned candidate was correctly mentioned as 3-1-446 and the name of the returned candidate is shown as 'Durga Singh' but his father's name was shown as 'S.Singh' instead of 'Shamboo, Singh'. The sex and the age were also correctly shown. It is the contention that the Mandal Revenue Officer issued the Caste Certificate showing the returned candidate as M.Durga Singh S/o.M.Shamboo Singh R/o.3-1-446 whereas the name of the returned candidate was shown as 'Durga Singh' but not 'M. Durga Singh' and his father's name was shown as 'S.Singh' instead of 'M. Shamboo Singh' and, therefore, the said Caste Certificate issued by the Mandal Revenue Officer does not belong to the returned candidate but belongs to another person and the returned candidate by impersonation of his name as M. Durga Singh S/o. M Shamboo Singh got elected under the reserved Backward Class reserved quota. It is stated that the actual certificate produced by the returned candidate is in respect of a different person but the returned candidate is Durga Singh S/o. Shamboo Singh but not M. Durga Singh S/o. M. Shamboo Singh as certified by the Mandal Revenue Officer vide Certificate No. C/3657/2001 dated 1-1-2002. In effect, the election petitioner wants the election of the returned candidate to be set aside on the ground that there is a discrepancy in the voters' list from that of the Caste Certificate issued by the Mandal Revenue Officer.
6. A perusal of the voters' list and the Caste Certificate issued by the Mandal Revenue Officer disclose that the House Number is correct, name of the returned candidate and the father's name also correct but in the voters' list the names were shown in abbreviated form but whereas in the Caste Certificate the surname and full names are mentioned. However, it is not within the scope and ambit of the Election Tribunal to go into the legality and validity of the said Caste Certificate. As long as the petitioner does not take steps before the appropriate forum for declaring that the returned candidate is not a Backward Class candidate, the said question as to whether the returned candidate is not a Backward Class cannot be gone into by the Election Tribunal and the said issue cannot be decided as it is not one of the grounds to set aside the election of the returned candidate. The issue raised in this Civil Revision Petition is squarely covered by a judgment of this Court in Rajendra Pratap Bhanj Deo v. Regu Mahesh @ Regu Maheshwar Rao, , rendered by my learned Brother L. Narasimha Reddy, J, while dealing with the similar contentions, as held in Paras 24,25, 26 and 27 as follows:
Para 24.The contention of the petitioner is that the 1st respondent does not belong to Scheduled Tribe. The allegation of the petitioner on this ground turns around the fact as to whether the 1st respondent holds a valid Caste Certificate to the effect that he belongs to Scheduled Tribe community. It is true that it is permissible in an Election Petition to verify as to whether a particular candidate fits into the status, which he claims, to contest as a candidate. However, where the decision as to the status of a candidate is left or reserved to be decided by a special enactment, the procedure prescribed thereunder needs to be followed.
Para 25. In this context, it needs to be observed that the A.P.State Legislature has enacted the State Act of 16 of 1993 to regulate the issue of Community Certificate relating to persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and matters connected thereof or incidental thereto. Section 5 of the State Act provides for cancellation of the certificates. The proceedings for cancellation can be initiated either suo motu by the competent authority or on a written application by any person. Section 6 places the burden on the person claiming the social status. In the event of the refusal to issue a Caste Certificate under Section 5 of the State Act, an appeal is provided under Section 7. A further revision is provided to the Government under Section 8. The jurisdiction' of the Civil Court is barred under Section 17. Section 19 confers overriding effect on the Act in the event of an inconsistency with any other law for the time being in force. Under Section 21, the Certificate issued by any competent authority before the commencement of the Act, is conferred legitimacy, unless it is cancelled under the provisions of the State Act.
Para 26. It is not as if the petitioner was not aware of these provisions of the State Act. As a matter of fact, in the Election Petition, reference was made to a show-cause notice said to have been issued to the 1st respondent under the provisions of the State Act. As long as Caste Certificate issued to the 1st respondent is not cancelled or varied, it cannot be said that he does not or ceased to belong to ST community. If an independent enquiry into the validity or otherwise of the Caste Certificate issued to the 1st respondent is to be undertaken in this Election Petition, it would result in parallel exercise, one by the machinery provided for under the Act and the other by this Court. While proceedings under the State Act by the competent authority therein confirms to that Act an enquiry by this Court would be at the teeth of several provisions of the State Act.
Para 27. It is true that in the State Act, the purport of the said certificates is said to be for the benefit of admission into educational institutions, public employment, and the elections to the local authorities and co-operative institutions. However, it is not the case of the petitioner that any other law governs the issuance of certificates conferring social status for the purpose of election under the RP Act. Once the competent authority under the State Act is in seisin of the matter, property and harmonious interpretation of the provisions, demand that this Court gives the way for machinery provided for under the State Act to take its course. This would accord with the principle that the special will prevail over the general. Though this may become relevant, if the trial of the petitioner is undertaken, still, it may throw light on the existence or otherwise of cause of action."
7. Admittedly, the Election Petitioner has not challenged the Caste Certificate issued in favour of the returned candidate. As long as the Caste Certificate issued in favour of the returned candidate is not" cancelled or varied, it cannot be said that he does not or ceased to belong to Backward Class community. If an independent enquiry into the validity or otherwise of the Caste Certificate issued to the returned candidate is to be undertaken in the election petition, it would result in parallel exercise one by the machinery provided under the Act and the other by the Election Tribunal. However, the Election Tribunal is not empowered to go into the validity, legality, genuineness or otherwise of the Caste Certificate issued by the competent authority in favour of the returned candidate. However, the amendment sought to be made beyond the scope of the election petition and the petitioner has not pleaded anything about the so-called corrupt practice with regard to the alleged filing of the bogus Caste Certificate and, therefore, the said amendment sought to be made in effect introduce a new plea and the said plea is not at all been taken in the main petition. Under Rule 71 (5), the amendment petition can be allowed with regard to the amendment or amplification of any particulars of any corrupt or illegal practice alleged in the petition but here it is not the case of the Election Petitioner that the said amendment is only an amendment or amplification of corrupt practice or illegal practice as alleged in the election petition. There is an embargo under the said rule for allowing the said amendment to the main petition, which will have the effect of introducing particulars of corrupt or illegal practice not previously alleged in the petition. As a matter of fact, the so-called alleged Caste Certificate does not come within the ambit of corrupt or illegal practice and, therefore, the question of allowing the amendment does not arise.
8. The Tribunal exceeded its jurisdiction and allowed the said amendment contrary to the law. No doubt, the amendment of the pleading under Order VI Rule 17 CPC can be allowed if such amendment is required for the proper and effective adjudication of the controversy between the parties and to avoid multiplicity of the judicial proceedings. But such amendment sought to be made is beyond the scope of the enquiry of the Election Petition and the said amendment would cause prejudice to the returned candidate and the Tribunal is not empowered to go into the said question and, therefore, the said amendment as ordered by the Tribunal is unsustainable and cannot be allowed.
9. It is argued on behalf of the Election Petitioner that the scope of the powers of this Court under Article 227 of the Constitution of India are limited and not intended to correct all illegal acts. Article 277 of the Constitution of India confers a right of superintendence over all Courts and Tribunals in relation to which it exercises jurisdiction. In the instant case, the Tribunal exceeded its limits of authority and as the Tribunal crossed the limits in performance of its duties, it cannot be said that this Court cannot set right the said action of the Tribunal. The decision of the Tribunal is not merely a wrong one but the said order made by the Tribunal allowing the amendment is nothing but dereliction of duty and flagrant abuse of power by the Tribunal resulting gave injustice to the returned candidate and, therefore, I am of the opinion that the said order of the Tribunal is unsustainable and illegal.
10. For the aforesaid reasons, the order under revision is set aside and the Civil Revision Petition is allowed. There shall be no order as to costs.