Karnataka High Court
Sri G Manjunath S/O Late Govindu vs State Of Karnataka on 18 September, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P. No.17122/2013 (GM-CC)
c/w
W.P. Nos.20025/2013 & 20026/2013 (GM-CC)
and
W.P. No.24119/2013 (GM-CC)
W.P. No.17122/2013
BETWEEN:
SRI G MANJUNATH
S/O LATE GOVINDU
AGED ABOUT 34 YEARS
MARAHERU KOTHUR
AMBLIKAL POST
MULBAGAL TALUK
KOLAR DISTRICT-563 131 ... PETITIONER
(BY SRI ASHOK HARANAHALLI, SR. COUNSEL FOR
SRI K RAGHUPATHY, ADV.)
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF SOCIAL WELFARE
M S BUILDING
BANGALORE- 560 001
2. THE SUPERINTENDENT OF POLICE
CIVIL RIGHTS ENFORCEMENT CELL
BANGALORE REGION
CAUVERY BHAVAN, II FLOOR
'F' BLOCK, K G ROAD,
BANGALORE- 560 009
2
3. THE DEPUTY COMMISSIONER
KOLAR DISTRICT
KOLAR -563 102.
4. THE TAHSILDAR
MULBAGAL TALUK, MULBAGAL
KOLAR DISTRICT-563 102
5. D V RAMAMURTHY
S/O LATE VENKATAKRISHNAMACHAR
AGED ABOUT 59 YEARS
PRESENTLY WORKING AS TAHSILDAR
MULBAGAL TALUK
KOLAR DISTRICT-563 131
6. B.N. MUNIRAJU
S/O NARAYANAPPA
AGED ABOUT 36 YEARS
"THEE TRUST" MEMBER
R/AT NO.37, 2ND FLOOR
3RD CROSS, MOTAPPANAPALYA
INDIRA NAGAR
BANGALORE -560 038
7. K. HANUMAPPA
S/O DODDA VENKATAPPA
AGED ABOUT 50 YEARS
R/AT J KURUBARAHALLI VILLAGE
ANGONDAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE-560 031
8. GHATTAPPA S/O HANUMAPPA
AGED ABOUT 55 YEARS
R/AT SEEGE HOSAHALLI VILLAGE
NANGALI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE-560 031
9. V. VINAYAKA S/O VENKATAPPA
AGED ABOUT 40 YEARS
R/AT RAJENDRAHALLI VILLAGE
RAJENDRAHALLI POST
BYRAKUR HOBLI
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE-560 031
3
10. G. VENKATARAMAPPA
S/O GANGULAPPA
AGED ABOUT 34 YEARS
R/AT C GUNDLAHALLI VILLAGE
RAJENDRAHALLI POST
BYRAKUR HOBLI
KOLAR DISTRICT
PIN CODE-560 031
11. M. VENKATESHAPPA
S/O MOGILAPPA
AGED ABOUT 49 YEARS
R/AT MARANDAHALLI VILLAGE
KAPPALAMADAGU POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE-560 031
12. V. VENKATARAMAIAH
S/O VASANTHAPPA
AGED ABOUT 43 YEARS
R/AT THAMMAREDDYHALLI VILLAGE
HEBBANI POST
BYRAKURU HOBLI
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
13. V. RAMESH
S/O VENKATARAMAPPA
AGED ABOUT 41 YEARS
R/AT ANGONDAHALLI VILLAGE
& POST, MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
14. C. RAMACHANDRA
S/O CHENNAPPA
AGED ABOUT 40 YEARS
R/AT SHANKARAPURA VILLAGE
GOOKUNTE POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
15. G.V. RAMAKRISHNAPPA
S/O VENKATARAMAPPA
AGED ABOUT 44 YEARS
4
R/AT RAJENDRAHALLI VILLAGE
& POST, BYRAKURU HOBLI
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
16. S. SRINIVAS S/O GANTALAPPA
AGED ABOUT 52 YEARS
R/AT K CHADUMANAHALLI VILLAGE
KHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
17. NAGARAJU
S/O NARAYANAPPA
AGED ABOUT 30 YEARS
R/AT MARANDAHALLI VILALGE
KAPPALAMADAGU POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
18. G SRIRAMAPPA
S/O LATE CHIKKAGATTAPPA
AGED ABOUT 42 YEARS
R/AT PEDDURU VILLAGE
MUSTOOR POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
19. M.R. SUKRATHI
S/O M. Y. RAJANNA
AGED ABOUT 30 YEARS
R/AT MARANDAHALLI VILLAGE
KAPPALAMADAGU POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
20. NARAYANASWAMY
S/O VENKATARAMAPPA
AGED ABOUT 35 YEARS
R/AT SIDDAGATTA VILLAGE
MULABAGAL POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
5
21. V NARAYANAPPA
S/O VENKATARAMAPPA
AGED ABOUT 48 YEARS
R/AT J KURUBARAHALLI VILLAGE
ANAGONDAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
22. MUNIVENKATAPPA
S/O VENKATASWAMY
AGED ABOUT 55 YEARS
R/AT THATHIGHATTA VILLAGE
AMBLICAL POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
23. R. VENKATESH S/O RAMAIAH
AGED ABOUT 39 YEARS
R/AT ERAGAMUTHANAHALLI VILLAGE
BYRAKUR POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
24. NARAYANAPPA S/O VENKATAPPA
AGED ABOUT 35 YEARS
R/AT PEDDAKASHTI VILLAGE
YEMMENATHA POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
25. VENKATESHAPPA S/O SONNAPPA
AGED ABOUT 50 YEARS
R/AT SIDDAGHATTA VILLAGE
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
26. N VIJAY KUMAR
S/O G NARAYANAPPA
AGED ABOUT 39 YEARS
R/AT SANGASANDRA VILLAGE
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
6
27. D. VENKATARAMAPPA
(GRAMA PANCHAYATH MEMBER)
S/O DASAPPA
AGED ABOUT 45 YEARS
R/AT MEHALAGANI VILLAGE
YEMMENATHA POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
28. NARAYANAPPA
S/O HANUMANTHAPPA
AGED ABOUT 35 YEARS
R/AT BALASANDRA VILLAGE
AMBLIKAL POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
29. G. RADHAKRISHNA
S/O GURAPPA
AGED ABOUT 50 YEARS
R/AT PADAKASHTI VILLAGE
YEMMENATHA POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
30. CHALAPATHI
(INDEPENDENT CANDIDATE)
S/O VENKATESHAPPA
AGED ABOUT 38 YEARS
R/AT NAGAMANGALA VILLAGE
MALLANAYAKANAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
31. M VENKATARAMAPPA
S/O MUNISWAMY
AGED ABOUT 30 YEARS
R/AT KADU KACHANAHALLI VILLAGE
MULABAGAL POST & TALUK
KOLAR DISTRICT
PIN CODE - 560 031
32. HANUMANTHAPPA
S/O VENKATAPPA
7
AGED ABOUT 52 YEARS
R/AT SUNAPAKUNTE VILLAGE
HEBBANI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
33. S LAKSHMANAPPA
S/O SEENAPPA
AGED ABOUT 36 YEARS
R/AT GOPASANDRA VILLAGE
ANGONDAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
34. K V SHANKAR
S/O LATE VENKATESHAPPA
MAJOR IN AGE
R/AT KAMMAREDDY VILLAGE
HANUMANAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
35. SUBRAMANI S/O MUNISHAMAPPA
AGED ABOUT 35 YEARS
R/AT ANNAHALLI VILLAGE
KAPPALAMADAGU POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
36. V NAGARAJ S/O VENKATAPPA
AGED ABOUT 30 YEARS
R/AT MARANDAHALLI VILLAGE
KAPPALAMADAGU POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
37. V M LAKSHMAIAH
S/O MUNIVENKATAPPA
AGED ABOUT 40 YEARS
R/AT VEERASHETTAHALLI VILLAGE
ANGONDAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
8
38. K M NARASIMHAPPA
S/O MUNIVENKATAPPA
AGED ABOUT 36 YEARS
R/AT H KODIHALLI VILLAGE
HEBBANI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
39. SANJEEVAPPA M
S/O MALARAPPA
AGED ABOUT 45 YEARS
R/AT KUNIBANDE VILLAGE
AMBLICAL POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
40. N CHANDRAPPA
S/O P NARAYANAPPA
AGED ABOUT 45 YEARS
R/AT NEW AD COLONY
MULABAGAL TOWN
WARD NO.4 MULABAGAL
KOLAR DISTRICT
PIN CODE - 560 031
41. K JAYARAMAPPA
S/O KRISHNAPPA
AGED ABOUT 34 YEARS
R/AT GOPASANDRA VILLAGE
ANGONDAHALLI POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
42. M RAMESH S/O MUNIVENKATAPPA
AGED ABOUT 36 YEARS
R/AT YEMMENATHA VILLAGE
& POST, MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
43. GURUPRASAD M
S/O MUNISHAMAPPA
AGED ABOUT 29 YEARS
R/AT KAVATHANAHALLI VILLAGE
MULABAGAL POST & TALUK
9
KOLAR DISTRICT
PIN CODE - 560 031
44. MUNISWAMY
S/O VENKATASWAMY
AGED ABOUT 42 YEARS
R/AT PADAKAHTI VILLAGE
YEMMENATHA POST
MULABAGAL TALUK
KOLAR DISTRICT
PIN CODE - 560 031
45. SRI MURULIDHAR
S/O GANGAPPA
AGED ABOUT 47 YEARS
R/AT TEACHERS COLONY
MUTHYAL PET
MULABAGAL TOWN
KOLAR DISTRICT. ... RESPONDENTS
(BY SRI C JAGADISH, SPL. G.A. FOR R1-4
SRI P NARAYANAPPA, ADV. FOR R6 -44
SMT. PRAMILA M NESARGI, SR. COUNSEL FOR
M/S. PRAMILA ASSTS. ASSTS., FOR R-45)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO; QUASH
THE ENDORSEMENT DATED 14.3.2013 ISSUED BY THE 5TH
RESPONDENT VIDE ANEXURE-A & DECLARE THE CERTIFICATE
DATED 3.4.2012 ISSUED BY THE 4TH RESPONDENT AS VALID
AND LEGAL VIDE ANNEXURE-P.
W.P. Nos.20025/2013 & 20026/2013
BETWEEN:
G. ALANGURU RAMANNA
S/O GANESHAPPA
AGED ABOUT 34 YEARS
SONNAWADE VILLAGE
KASABA HOBLI
MULBGAL TALUK
KOLAR DISTRICT-563 101. ... PETITIONER
(BY SMT. NALINI CHIDAMBARAM, SR. COUNSEL FOR
SRI S LAKSHMINARAYANA AND
SRI N R BHASKAR, ADVS.)
10
AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF SOCIAL WELFARE,
M.S.BUILDING,
BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER
KOLAR DISTRICT,
KOLAR-563 101.
3. THE RETURNING OFFICER
OFFICE OF THE ELECTION COMMISSION,
MULBAGAL TALUK,
KOLAR DISTRICT,
KOLAR-563 101.
4. THE TAHSILDAR
MULBAGAL TALUK,
KOLAR DISTRICT.
KOLAR-563 101.
5. G.MANJUNATH
S/O GOVINDU,
AGED ABOUT 34 YEARS,
MAHAHERU KOTHUR AMBLKIKAL
POST, MULBAGAL TALUK,
KOLAR DISTRICT.
KOLAR-563 101.
6. SRI MURULIDHAR
S/O GANGAPPA
AGED ABOUT 47 YEARS
R/AT TEACHERS COLONY
MUTHYAL PET
MULABAGAL TOWN
KOLAR DISTRICT. ... RESPONDENTS
(BY SRI C JAGADISH, SPL. GA FOR R1 2 & 4
SRI ASHOK HARANAHALLI, SR. COUNSEL FOR
SRI K RAGHUPATHY, ADV. FOR R5
SRI V LAKSHMINARAYAN, ADV. FOR R.6
SRI KRISHNA DIXIT, ADV. FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO;
DIRECT THE R1 TO 4 TO INITIATE ACTION AGAINST THE R5
FOR THE ACTS OF MISUSE AND ABUSE CLAIMING TO BE A
11
PERSON BELONGING TO SCHEDULE CASTE AND CONTESTING
FROM 145 MULBAGAL ASSEMBLY [SC] CONSTITUENCY IN
KOLAR DISTRICT ON THE BASIS OF A SPURIOUS CERTIFICATE
DATED 3.4.12 VIDE ANNX-G & DECLARE THAT THE R5 IS
INCOMPETENT TO CONTEST FROM NO.145 MULBAGAL
ASSEMBLY [SC] CONSTITUENCY IN KOAR KIST A RESERVED
CONSTITUENCY AND CONSEQUENTLY QUASH THE ORDER OF
ACCEPTANCE DATED 18.4.13 ACCEPTING THE NOMINATIONOF
THE R5 BY THE R3 VIDE ANNX-L.
W.P. No.24119/2013
BETWEEN:
M. VENKATARAMANA
S/O MUNISWAMY
AGED ABOUT 53 YEARS
R/AT NO 306, TYAGARAJA COLONY
NEAR GENERAL BOY'S HOSTEL
MULBAGAL TOWN
KOLAR DISTRICT 563 131 ... PETITIONER
(BY SMT. PRAMILA M NESARGI, SR. COUNSEL FOR
M/S. PRAMILA ASSTS. ASSOCIATES)
AND:
1. G. MANJUNATHA
S/O LATE GOVINDU
AGED ABOUT 34 YEARS
MARAHERU KOTHURU VILLAGE
MULBAGAL TALUK
KOLAR DISTRICT PIN 563 131
2. KARNATAKA LEGISLATIVE ASSEMBLY
VIDHANA SOUDHA
BANGALORE 560 001
BY ITS SECRETARY
3. TAHASILDAR
MULBAGAL
KOLAR DISTRICT 563 131 ... RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SR.COUNSEL FOR
SRI K RAGHUPATHY, ADV. FOR R1
SRI C JAGADISH, SPL. GA. FOR R3
W.P. insofar as R.2 not pressed)
12
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO; QUO WARRANTO
AGAINST THE FIRST RESPONDENT FROM FUNCTIONING AS A
LEGISLATOR FROM 145[SC] MULABAGAL LEGISLATIVE
ASSEMBLY & DIRECT THE RESPONDENT NO.2 NOT TO
DISBURSE THE SALARY, SITTING FEE, ALLOWANCES AND
OTHER PERKS TO THE RESPONDENT NO.1.
THESE WRIT PETITIONS ARE HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
The petitioner (Sri G.Manjunath) in W.P.No.17122/2013 is assailing the endorsement dated 14.03.2013 issued by the fourth respondent (Tahsildar) wherein it is stated that the caste certificate dated 03.04.2012 indicating the petitioner as belonging to "Budaga Jangama" caste is not valid. The petitioner is also seeking to declare that the certificate dated 03.04.2012 is valid and legal.
2. The petitioner (Sri G.Alanguru Ramanna) in W.P.Nos.20025-20026/2013 is seeking for issue of mandamus to direct respondents No.1 and 4 to initiate action against the fifth respondent (Sri G.Manjunath) for misuse and abuse claiming to be a person belonging 13 to scheduled Caste ('SC' for short) and contesting from No.145 Mulbagal Assembly (SC) Constituency in Kolar District on the basis of a spurious certificate dated 03.04.2012. A direction is also sought to declare that fifth respondent (Sri G.Manjunath) is incompetent to contest for the reserved constituency and consequently quash the order of acceptance of nomination dated 18.04.2013.
3. The petitioner (Sri M.Venkataramana) in W.P.No.24119/2013 is seeking for issue of writ in the nature of Quo-warranto against the first respondent (Sri G.Manjunath) from functioning as a Legislator from 145(SC) Mulbagal Legislative Assembly and to direct the respondent No.2 not to disburse the salary, sitting fee, allowances and other perks to the respondent No.1.
4. Since in all the above petitions the validity of the caste certificate and the continuance of Sri G.Manjunath as a Legislator is in issue, they are taken up together, common arguments are heard and are being decided by this common order.
14
5. Since the parties are arraigned differently in these petitions, they are referred to by their names for the purpose of convenience and clarity during the course of the order.
6. The concise facts which are relatable to all these petitions and would arise for consideration herein is that the 145 Mulbagal Legislative Assembly Constituency is reserved for persons belonging to Scheduled Caste (the SC for short). Sri G.Manjunath claiming to be a person belonging to SC as according to him, his caste is "Budaga Jangama" has relied on a caste certificate dated 03.04.2012 said to have been issued by the Tahsildar, Mulbagal Taluk (Annexure-P to his petition). Just prior to the elections to the State Legislative Assembly, one Sri G.Muralidhar (who has subsequently filed the impleading application in W.P.No.17122/2013) had approached the Tahsildar to seek confirmation or otherwise of the caste certificate said to have been issued to Sri G.Manjunath as claimed by him. In response, the Tahsildar had issued the 15 endorsement dated 14.03.2013 wherein the Tahsildar had indicated that the caste certificate dated 03.04.2012 claimed by Sri G.Manjunath is not a genuine document but has been fabricated and that an endorsement dated 15.09.2012 has been issued against use of such certificate. It is in that circumstance, Sri G.Manjunath assailed the said endorsement in his petition. This Court by the order dated 17.04.2013 in W.P.No.17122/2013 had stayed the said endorsement which enabled Sri G.Manjunath to file his nomination and participate in the election process.
7. Since the nomination of Sri G.Manjunath was accepted, Sri Alanguru Ramanna who was also a candidate to the said Assembly Constituency has filed the Writ petition in W.P.No.20025-26/2013 on 02.05.2013 prior to the scheduled date of the elections on 05.05.2013. This Court by the order dated 03.05.2013 had made the results of the election subject to the result of the petition without interfering with the acceptance of the nomination. In the concluded 16 elections, Sri G.Manjunath is declared elected. In that circumstance, Sri M.Venkataramana who is a voter of Mulbagal Constituency and who had held certain political positions in that Constituency has filed W.P.No.24119/2013 seeking for writ of quo-warranto since according to him Sri G.Manjunath who belongs to "Bairagi" caste cannot usurp a post which is reserved for Scheduled Caste and as such he is required to vacate the same. These aspects would indicate that the issue urged for consideration before this Court is with regard to the validity or otherwise of the caste certificate relied upon by Sri G.Manjunath and in the background of the contention that it is an invalid document, whether the acceptance of nomination would be justified. In that circumstance, it is the case of the persons challenging the claim of Sri G.Manjunath that he belongs to SC, that when the caste certificate claimed by them is not a valid one, he cannot continue to represent the constituency.
17
8. I have heard Sri Ashok Haranahalli, learned senior counsel along with Sri K.Raghupathy, learned counsel for Sri G.Manjunath, Smt.Nalini Chidambaram, learned senior counsel along with Sri N.R.Bhaskar, for Sri Alanguru Ramanna. Smt.Pramila Nesargi, learned senior counsel along with Sri Hemanth Kumar, learned counsel for Sri M.Venkataramana , Sri C.Jagadish, learned Special Government Advocate, Sri Krishna Dixit, learned counsel for the returning Officer and Sri V.Lakshminarayana, learned counsel for impleading applicants and perused the petition papers.
9. Though Sri G.Manjunath relies on the caste Certificate dated 03.04.2012 to claim that he belongs to 'Budaga Jangama' and therefore a Scheduled caste, the respondents seriously dispute the same. Apart from relying on the impugned endorsement dated 14.03.2013 (Annexure-A) issued by the Tahsildar, it is vehemently contended that the extract of the caste certificate has been fraudulently generated from the computer of the Department though the register maintained by the 18 Tahsildar's Office does not contain the entry. In that regard, it is contended that no right whatsoever would accrue to Sri G. Manjunath. Since fraud has been perpetrated to take benefit of a right which belonged to an SC, he should be non-suited without any further consideration of his case is the contention.
10. The learned senior counsel and the learned counsel opposing the case of Sri G.Manjunath, on that aspect of the matter have relied on the following decisions:
i) The case of S.P.Changalvaraya Naidu vs. Jagannath (dead) by LRs [(1994)1 SCC 1], wherein it is held that fraud avoids all judicial acts, ecclesiastical or temporal. The question was whether the preliminary decree was obtained by playing fraud on the Court.
Principle of finality of litigation cannot be pressed to an extent of such absurdity that it become engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties and 19 person whose case is based on falsehood has no right to approach the Court.
ii) The case of Bhaurao Dagdu Paralkar vs. State of Maharashtra and others [(2005)7 SCC 605] wherein it is held that fraud is an act of deliberate deception with design for securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss and it is cheating intended to get an advantage. No judgment of Court, no order of minister can be allowed to stand if it has been obtained by fraud.
11. The learned senior counsel appearing for Sri G.Manjunath on that aspect relied on the following decisions:
i) The case of A.C.Ananthaswamy and others vs. Boraiah (dead) by LRs [(2004)8 SCC 588] wherein it is held that fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no 20 reasonable belief that it was not true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representator guilty of fraud. It should be proved that it was made falsely to the knowledge.
ii) The case of Svenska Handelsbanken vs. M/s.Indian Charge Chrome and others [(1994)1 SCC 502] wherein it is held that the pleadings make only allegations and averments of facts. Mere pleadings do not make a strong case of prima facie fraud. The material and evidence has to show it. Fraud should be established beyond reasonable doubt.
12. From the proposition of law noticed above, there can be no doubt that fraud committed by parties concerned cannot be countenanced by the Court. At the same time, it is clear that mere allegation of fraud is also not sufficient. In the instant case, with regard to the fact as to whether Sri G. Manjunath has rightly claimed to be a scheduled caste or not, needs to be considered in detail. To consider the issue of fraud, the 21 question is as to whether the allegation that the caste certificate is generated from the computer could alone be accepted as conclusive so as to shut out the petition of Sri G. Manjunath on that ground alone. As noticed, that is the contention in the objection statement and the learned counsel appearing for the Tahsildar sought to rely on the register to show that the entry is not contained therein to evidence that certificate has been issued. However the order dated 27.03.2012 relied on by Sri G. Manjunath as passed by the Tahsildar, is not denied but it is explained that nothing beyond that has been done. On the other hand in the writ petition, the Tahsildar has been impleaded by name and allegation has been made against him for his acts due to political dictates. The entire sequence about the certificate being issued on 26.11.2010 at the earlier instance and thereafter the Tahsildar having removed the records is pleaded by Sri G. Manjunath and it is alleged that there have been vested interest acting against him for political reasons. The letter dated 02.01.2013 is referred to contend that based on the same, the name has been 22 removed from the computer. These aspects would indicate that there are rival pleadings, one alleging that the certificate has been obtained without due procedure being followed, while in the petition itself there is an allegation against the Tahsildar that at an earlier instance itself, it was made known to the dismay of Sri G. Manjunath that the file pertaining to the issue of certificate was missing. In such circumstance, mere perusal of the register and the issue of certificate not being indicated therein cannot be held as conclusive to arrive at the finding that Sri G. Manjunath has committed fraud and to non-suit him on that ground as it would require a deeper consideration. The decisions relied upon by the learned senior counsel on his behalf noticed supra has held that it should be established beyond reasonable doubt. Hence, a word against word would not be sufficient to conclusively hold that fraud has been committed, that too while deciding a writ petition, unless it is established either by way of trustworthy evidence in appropriate proceedings and as per law.
23
13. Further the learned Special Government Advocate would contend that Sri G Manjunath had earlier submitted an application seeking for issue of caste certificate claiming as 'Budaga Jangama' but the same was rejected by an endorsement dated 04.04.2008. Being aggrieved by the same, he was before this Court in W.P.No.5932/2008. This Court by the order dated 12.09.2008 had disposed of the petition reserving liberty to him to prefer an appeal as provided under the Scheduled Caste, Scheduled Tribe & Other Backward Classes (Reservation & Appointment etc.) Act, 1990. The appeal was rejected by order of the Assistant Commissioner which has not been disclosed. Since there were several proceedings, the fact that about the same time on 10.04.2008, there was a report submitted by the Tahsildar is also an issue which has been referred. Hence, even if not disclosed and Tahsildar has referred in the application for vacating the interim order, the question is as to whether the earlier rejection would bar Sri G Manjunath from seeking for caste 24 certificate once over again in view of several other intervening circumstances.
14. The learned senior counsel for Sri. G Manjunath on the other hand has relied on the decision in the case of C.M. Armugam -vs- S Rajgopal and Others. [(1976) 1 SCC 863] wherein the Hon'ble Supreme Court in a matter relating to consideration of the caste status of a person, as to whether on conversion to Christianity, the first respondent therein ceased to be an Adi Dravida caste considered it as a mixed question of law and fact. It was therefore held that the question decided therein on the materials placed relating to 1961 General Elections will not operate as Res-judicate when fresh evidence is adduced in respect of 1972 elections. No doubt the fact situation would depend in each case and though the same party is involved herein, he is seeking to rely on certain other materials which is subsequent to the earlier order and at this point, the election is also concluded. In that regard, the Tahsildar who is the issuing authority has 25 addressed letters dated 16.04.2010 and 01.06.2010. The Additional Deputy Commissioner, Kolar District has thereafter issued a clarification dated 01.07.2010 to take action. Further, the circular dated 17.07.2010 is relied upon. In that light, report dated 10.04.2008 and the earlier certificate dated 26.11.2010 are relied and it is alleged that the records in the Tahsildar's office was removed, which necessitated the fresh application to be made. These developments will disclose that he is relying on the action of authorities themselves which are factual aspects to be noticed in the instant case and would have to be taken into consideration in an appropriate proceeding and in an appropriate manner.
15. The learned senior counsel for the respondents and the learned Special Government Counsel would further contend that no alteration or modification can be made to the presidential notification, even if evidence is tendered in any other proceeding. Decision in the case of Bhaiya Lal -vs- Harikishan Singh (AIR 1965 SC 1557) wherein it is 26 held that enquiry of the nature to include a sub-caste is not permissible in view of Article 341 of the Constitution; in the case of State of Maharashtra -vs- Milind and others (AIR 2001 SC 393) wherein it is held that it is not permissible to hold enquiry or let in any evidence to show that the caste was included though not specifically mentioned in the entry. The Scheduled Tribe order must be read as it is where it is not permissible to say that synonyms are to be included, are relied upon. While taking note of the above said decisions, it is to be seen that in the former case, such conclusion was reached in a matter arising out of an election petition wherein an issue had been framed and that was considered. In the latter case, it was a situation where the caste certificate relied upon was held as invalid by the Scrutiny Committee after considering the evidence and that decision was upheld by the Appellate Authority, but the High Court had set aside the same by holding that it was permissible to enquire whether any sub-division of a tribe was a part and parcel of the tribe.
27
16. Though there can be no quarrel with regard to the proposition of law laid down by the above referred decisions and the legal position that presidential notification would be the ultimate guiding factor; in the instant case, the parties are at a stage when Sri G Manjunath contends that he belongs to 'Budaga Jangama' which is notified as scheduled caste and that it has been wrongly shown as 'Bairagi' in his school records. The caste certificate dated 26.11.2010 and 03.04.2012 said to have been issued by the Tahsildar is relied upon wherein he is stated to be belonging to 'Budaga Jangama' and it is not the case putforth by him that 'Bairagi' is to be considered as SC. Though the Tahsildar at this point contends that such certificate has been fabricated and an endorsement dated 14.03.2013 has been issued to Sri G Muralidhar, no further action seems to have been taken despite relying on an endorsement dated 15.09.2012 and that too with reference to the certificate dated 26.11.2010 and not to the certificate dated 03.04.2012. Further, as a 28 background material, the petitioner has been relying on the correspondence between the Tahsildar and Deputy Commissioner. Therefore, the position is very much volatile where the stand of the authorities itself is oscillating and it is not an open and shut case where the said decision could be applied and held that Sri G Manjunath based only on a synonym is claiming the benefit. On the other hand, the Hon'ble Supreme Court in the case of Anand -vs- Committee for Scrutiny and Verification of Tribe claims & Others [(2012)1 SCC 113] has held that it is to be considered not only on thorough examination of the documents in support of the claim, but also on the affinity test and it is not feasible to lay-down an absolute rule which could be applied mechanically.
17. That apart what cannot be ignored in the instant case is that a decision of far reaching consequence cannot be taken based only on rival pleadings and two contradicting sets of documents relied on by the parties without the same being proved 29 as per law, more particularly due to the subsequent developments where the will of the electorate cannot be lightly dealt with. Sri G Manjunath had been granted the interim order by this Court staying the impugned endorsement dated 14.03.2013 which enabled him to file his nomination and he has been elected to the Legislative Assembly. The learned senior counsel for Sri G Manjunath has relied on the decision in the case of M Chandra -vs- M Thangamuthu and another [(2010) 9 SCC 712] wherein it is held that an election result, where the people elect their representative cannot be taken lightly and for an election result to be annulled, there must be positive evidence to prove illegality of an election. The natural corollary is that the person who files an election petition, must have a clear and definite case to prove that the election was illegal. Such observation was in fact made in an election petition which is an appropriate proceeding, while at this juncture, this Court is considering such a serious issue in writ petitions under Article 226 of the Constitution, as such this Court should be more circumspect and 30 cannot jump to conclusion. Certainly, the dispute relating to the caste of Sri G Manjunath and the alleged misrepresentation also would have been one of the election issues more particularly when Sri G Alanguru Ramanna, the petitioner in W.P. No. 20025-26/2013 was another rival candidate and had already approached this Court assailing the acceptance of nomination and yet when Sri G.Manjunath has been returned by the electorate, the allegation of misrepresentation etc. will require deeper consideration and his claim cannot be brushed aside based only on the endorsement of the Tahsildar and the contention being put forth in writ proceedings, though this Court had made the election subject to result of the petition.
18. The learned senior counsel for Sri M Venkataramana in that regard would contend that the Returning officer had a duty cast on him to verify the genuineness of the caste certificate relied upon by Sri G Manjunath and the nomination should have been rejected and no benefit of the wrong acceptance of the 31 nomination should be available. In the petition filed by Sri G Alanguru Ramanna, though quashing of the order dated 18.04.2013 i.e., the acceptance of nomination is sought since the petition was filed prior to election and such prayer is made but presently since the election process is complete, the learned senior counsel appearing for him would fairly concede that the result of the election cannot be set aside, but a declaration about the invalidity of the certificate and its acceptance along with the nomination be made in the instant petition so that the consequence will flow in the appropriate proceedings.
19. The learned senior counsel for Sri M Venkatarama would however rely on the decision in the case of Punit Rai -vs- Dinesh Chaudhary [(2003) 8 SCC 204] wherein it is observed that going by normal conduct no prudent person would accept such nomination paper in respect of which there is an information that caste certificate is suspected to be forged and fabricated and it was held therein that the 32 nomination paper of returned candidate was improperly accepted by the Returning officer. In the said case, the decision was rendered in the election petition where issue No. (iii) was framed and where the finding was that despite the caste certificate being under cloud and there being criminal proceedings against the candidate, the Returning Officer had accepted the nomination papers. The learned counsel for the Returning Officer on the other hand has relied on the decision of a Division Bench of Punjab High Court in the case of Pritam Singh -vs- S Ranjit Singh and others (AIR 1965 Punjab 39) wherein the duties of the Returning Officer to be performed with detachment and impartiality are underlined. Reliance is also placed on the decision in the case of Jyoti Basu and others -vs- Debi Ghosal and others. [(1982) 1 SCC 691] wherein it is held that right to elect, to be elected or to dispute election are neither fundamental rights nor common law rights but are statutory rights and the remedies should be availed as provided therein and it is contended that the performance of duty by the Returning Officer can 33 only be examined in such proceedings. Further, it is contended that the nomination has been accepted based on the interim order while the nomination of one Sri Gangi Reddy was rejected based on the endorsement which had not been assailed in a Court or stayed.
20. In the light of the aforesaid contention, in order to examine whether it was a normal human conduct, a perusal of the order dated 18.04.2013 will show that the Returning Officer has referred to the caste certificate dated 03.04.2012, the endorsement dated 14.03.2013 issued to Sri Muralidhar and the interim order dated 17.04.2013 passed in W.P.No.17122/2013 whereby the endorsement had been stayed. It was also noticed that the caste certificate has not been cancelled. On the other hand, insofar as the nomination of Sri Gangi Reddy, the endorsement cancelling the nomination is taken into consideration and the nomination is rejected. Certainly, the Returning Officer was bound by the interim order granted by this Court and did not have the option to interpret the same at 34 that stage though this Court in the appropriate proceedings on evidence being recorded can come to a conclusion that nomination was not accompanied by a valid certificate, if such evidence is placed on record. What is also necessary to be kept in view is that as against the order of acceptance of nomination on 18.04.2013, Sri G Alanguru Ramanna filed the writ petition on 02.05.2013 and this Court merely made it subject to result of the writ petition by order dated 03.05.2013, but did not choose to stay the order of acceptance of nomination. Hence, to impute any wrong doing to the Returning Officer by alleging improper conduct in the present proceedings, in my opinion, would not be justified. But, if the caste certificate is ultimately found to be invalid and if the consequences were to flow, all subsequent actions including the act of acceptance of nomination also will yield to it.
21. The question therefore for consideration is as to whether the validity or otherwise of the caste certificate could be considered and decided in a writ petition of the present nature under Article 226 of the 35 Constitution or should it be in a properly constituted election petition since elaborate arguments have been addressed. The learned senior counsel for Sri M. Venkataramana would however contend that since a false caste certificate has been used and a reserved post has been usurped, a writ of Quo warranto is to be issued and such proceeding would give wider power to this Court. Since several decisions have been cited on behalf of all parties on all these aspects, it would be appropriate to notice all of them and collate the legal position enunciated.
22. The learned senior counsel for Sri G Manjunath has relied on the following decisions:
(i) The case of Sau Kusum -vs- State of Maharastra and others [(2009) 2 SCC 109] wherein, in relation to the election to a reserve constituency, it is held that if the appellant is aggrieved by the finding of caste scrutiny committee in regard to her parentage, she would undoubtedly be entitled to file a suit for an appropriate declaration.36
(ii) The case of Madan Mohan Singh and others
-vs- Rajanikant and another [(2010) 9 SCC 209] wherein, it is held that insofar as the entries made in the official record, they may be admissible under Section 35 of the Evidence Act but Court has right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. Entries in school records require to be proved.
(iii) The case of Jabar Singh -vs- Dinesh and another [(2010) 3 SCC 757] wherein, it is held that the entries in school records i.e. date of birth in school records and transfer certificates did not satisfy the conditions laid down in Section 35 inasmuch as the entry was not made by a public servant in discharge of his official duty or by a person in performance of duty enjoined by law.
(iv) The case of Birad Mal Singhvi -vs- Anand Purohit [(1988) supp SCC 604] wherein, it is held that the decision of a Returning Officer is not final. In an 37 election petition, it is open for the election petitioner to place cogent evidence to show that the candidate whose nomination paper was rejected in fact had attained 25 years of age. High Court in an election petition can take decision notwithstanding the decision of the Returning Officer. If on the basis of the material placed before the High Court, it is proved that the candidate whose nomination paper had been rejected was qualified to contest, election can be set aside. It is open for a party to place fresh material before the High Court to show that rejection of nomination was improper.
(v) The case of Manda Jaganath -vs- K.S. Rathnam and others [(2004) 7 SCC 492] wherein, it is held that Article 329 (b) of the Constitution has specific prohibition against any challenge to an election either to Parliament or Assembly except by an election petition presented to such authority. No forum other than such forum can entertain a complaint against any election.
Of course, the Returning Officers' possible erroneous actions are amenable to correction in writ jurisdiction 38 but such errors should have the effect of interfering with the free flow of elections. If by an erroneous order, the conduct of an election is not hindered, then Courts under Article 226 of Constitution should not interfere with the orders of Returning Officer, remedy for which lies only in an election petition.
(vi) The case of Kurapati Maria Das -vs- Dr. Ambedkar Seva Samajam and others [(2009) 7 SCC 387] wherein, the rule providing to challenge the election of the Councillor or Chairman was noticed and the arguments that the petition was for seeking Quo warranto and not for challenging the election was referred. It was further noticed that the continuance of the petition would depend directly on the election, though indirectly worded what was in challenge in reality was the validity of the election. The argument that in a case where a person renounces his caste after election, the challenge would not be to the election but to his subsequently continuing in his capacity as a person belonging to a particular caste was referred and 39 it was held that the question of caste and election are so inextricably connected that they cannot be separated. Therefore, when writ petitions challenge continuation of appellant on the ground of his not belonging to a particular caste, what is challenged in fact is the validity of the election, though apparently the petition is for quo warranto. It was also held that when the caste is entered in service records and when it is not known who gave the details, it is not for the High Court to enter into disputed questions of fact.
vii) The case of Sobha Hymavathi Devi vs. Setti Gangadhara Swamy and Others [(2005) 2 SCC 244] wherein the High Court had not accepted the community certificate as binding for the reason that the certificates were issued based on influence exercised by the authority as a member of the legislative assembly was approved by the Supreme Court and it was held that the High Court exercising jurisdiction under the RP Act in an election Petition is not precluded from going into the question of status of a candidate or proceeding to make an independent inquiry into that question in 40 spite of the production of certificate under the Act. At best, such a certificate could be used in evidence and its evidentiary value will have to be assessed in the light of the other evidence let in, in an election petition. Therefore, nothing turns on the factum of a certificate being issued by the authority concerned under the Act of 1993.
viii) The case of Mohinder Singh Gill and Another
-vs- The Chief Election Commissioner and Others [(1978) 1 SCC 405] wherein it is held that Article 329(b) of the Constitution rules out maintainability of writ application. It should be election petition only. It will be within the power of the High Court as election Court to give all appropriate reliefs to do complete justice between the parties. Writ petition is therefore barred under Section 329(b) of the Constitution. Hence, High Court could not have examined the question as to whether the impugned order was made by the Election Commission in breach of rule of natural justice. Evidence should be produced in Election Petition. 41
ix) The case of P. Manjula -vs- State of Andhra Pradesh and Others [(2007) 15 SCC 766] wherein it is held that it is settled law that election dispute could not have been raised in a petition under Article 226 of the Constitution. High Court is not right in giving directions not to declare the result of election or to conduct fresh poll.
x) The case of New Okhla Industrial Development Authority -vs- Kendriya Karamchari Sahkari Grih Nirman Samithi [(2006) 9 SCC 524] wherein it is held that the High Court is not deprived of jurisdiction to decide the law and fact under Article 226 of the Constitution. But when a petition raises complex questions of fact, the Court should not entertain the petition. Thus if there is a question of serious dispute which cannot satisfactorily be decided without taking evidence, it should not be decided in writ proceeding. High Court has jurisdiction to refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit.
42
xi) The case of City and Industrial Development Corporation -vs- Dosu Aardeshir
Bhiwandiwala and Others [(2009) 1 SCC 168] wherein it is held that the Court while exercising its jurisdiction under Article 226 is duty-bound to consider as to whether;
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for resolution of dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches
(e) exfacie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
xii) The case of Krishna Ballabh Prasad Singh
-vs- Sub-Divisional Officer, Hilsa-cum-Returning Officer and Others [(1985) 4 SCC 194] wherein it is 43 held that the process of election came to an end after the declaration in Form 21-C was made and the consequential formalities were completed. The bar of Clause (b) to Article 329 of the Constitution comes into operation thereafter and an election petition alone was maintainable. The writ petition cannot be entertained.
xiii) The case of Election Commission of India - vs- Shivaji and Others [(1988) 1 SCC 277] wherein it was held that the disputes regarding the elections have to be settled in accordance with the provision contained in Part VI. Section 80 states that no election can be called in question except by election petition. In view of the non-obstante clause contained in Article 329 of the Constitution, the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away.
23. Learned senior counsel and the counsel for the respondents on the other hand relied on the following decisions;
44
(i) The case of Shri Kumar Padma Prasad -vs- Union of India and Others [(1992) 2 SCC 428] wherein the validity of appointment of a High Court Judge was questioned and it was held that ordinarily matter pertaining to the constitutional authorities under Article 217 will not be entertained, but Court can interfere where challenge is on the ground of non- fulfillment of qualification required under Article 217(2).
ii) The case of Ritesh Tewari and Another
-vs- State of Uttar Pradesh and Others [(2010) 10 SCC 677] wherein it is held that the power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power does not exist to set right mere errors of law which do not occasion any substantial injustice. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. The Court has to balance competing interest keeping in mind the interests of justice and public interest coalesce generally. A Court of equity, 45 when exercising its equitable jurisdiction must prevent perpetration of legal fraud and promote good faith. An order in equity is one which is equitable. The petition can be entertained only after being fully satisfied. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception for the reason that illegality strikes at the root.
24. The cumulative perusal and analysis of all the decisions noticed above would indicate that the overwhelming opinion of the Hon'ble Supreme Court is that in matters relating to elections, the appropriate course is to decide all issues in an election petition in view of the provision contained in Article 329 of the Constitution and as such a writ petition under Article 226 of the Constitution is not the remedy. In the instant case, it is contended that the matter relates to the Caste Certificate being obtained fraudulently and in such circumstance, when the acceptance of nomination 46 itself being wrong and if such person occupies a post lawfully belonging to a Scheduled Caste and a petition is filed seeking writ of Quo-warranto, such petition is maintainable. The answer to such contention is available in the case of Kurapati Maria Das (supra) wherein the Hon'ble Supreme Court has negatived such contention and has held that the question of caste and election are so inextricably connected that they cannot be separated and challenge to the continuation on the ground of not belonging to a particular caste is in fact challenging the validity of election itself which is to be decided in election petition. Further in the case of Sobha Hymavathi Devi, the Hon'ble Supreme Court has held that in an election petition, the High Court is entitled to make independent inquiry into caste status in spite of the certificate. This in fact will indicate, irrespective of the validity or otherwise of the certificate, once the election is held and concluded, even if the result is to be set aside, based on the ground that he could not have contested to a reserved seat as a person not belonging to the reserved category, it would have to 47 be done in an election petition and not in a writ petition under Article 226 of Constitution, even if it is a pettion seeking for issue of Quo-warranto. Hence, in so far as the petitions filed by Sri G Alanguru Ramanna and Sri M.Venkataramana, one seeking for declaration of the acceptance of nomination as invalid and the other seeking to unseat Sri G. Manjunath, the relief would not be available in the writ petitions. In any event, there is no dispute to the fact that one other candidate who secured the second highest votes and lost to Sri G. Manjunath has already filed an election petition in E.P.No.4/2013 wherein the caste status is also in challenge and is pending.
25. The question that would remain for consideration is also about the petition filed by Sri G Manjunath. In that regard, as already noticed, the said writ petition is filed assailing the endorsement dated 14.03.2013 issued to a third party namely Sri G Muralidhar, who has filed the impleading application in this petition. Through the said endorsement, Sri G 48 Muralidhar has been informed that the caste certificate relied on by Sri G Manjunath is not genuine. As noticed, the endorsement had been stayed by this Court which enabled Sri G Manjunath to file his nomination papers and he has thereafter been declared elected, however making it subject to result of this petition. The learned counsel for Sri G Manjunath had no doubt filed a memo dated 11.06.2013 seeking leave to withdraw the petition with liberty to approach this Court if any adverse orders are passed by the authorities. In that circumstance, since Sri G Manjunath had taken benefit of the interim order and was thereafter seeking to withdraw the petition, the learned counsel for Sri G Muralidhar has relied on the decisions in the case of Prestige Lights Ltd. -vs- State Bank of India [(2007) 8 SCC 449]; in the case of Dalip Singh -vs- State of Uttar Pradesh [(2010) 2 SCC 114]; in the case of Kanoria Chemicals & Industries Ltd. & Ors. -vs- Uttar Pradesh State Electricity Board & Ors. [(1997) 5 SCC 772)]; in the case of Kalabharathi Advertising
-vs- Hemant Vimalnath Narichania & Ors. [(2010) 9 49 SCC 437] and in the case of Manohar Lal (D) by LRs.
-vs- Ugrasen (D) by LRs. & Ors. (AIR 2010 SC 2210) to contend that when the order whether interim or final is granted, it is to be obeyed and if interim order is not obeyed, the final benefit should not be granted; that while exercising jurisdiction under Article 226, the Court should keep in view the conduct of the party; that if interim order is granted and if the substantive proceedings comes to an end with dismissal, it is the duty of the Court to put back the parties in the same position they would have been but for the interim orders; that the Court cannot be used only for interim relief. If relegated to alternate forum, should not grant interim relief in favour of such person. It is not permissible for a party to obtain certain orders and thereafter withdraw without getting proper adjudication. The benefit of interim order would automatically get withdrawn and the Court should expressly neutralise; that the petitioner should approach with clean hands, clean mind, clean heart and clean objective. 50
26. Having noticed the above decisions, there can be no dispute whatsoever about the proposition of law enunciated, but the same would not be relevant to be applied herein. Firstly, it is for the reason that the memo for withdrawal has neither been pressed thereafter nor has it be accepted. Secondly, the instant petition has been considered along with the other two petitions and in the said process, I have already opined that the entire issue relating to the caste requires to be considered in an Election Petition. Since the determination is to be made therein, the decisions in the case of R Palanimuthu -vs- Returning Officer & Ors. [1984 (Supp.) SCC 77)]; in the case of Director of Tribal Welfare, Government of A.P. -vs- Laveti Giri & Anr. [(1995) 4 SCC 32] and in the case of Raju Ramsing Vasave -vs- Mahesh Deo Rao Bhivapurkar and Others [(2008) 9 SCC 54], wherein it is held that attempts by non-Scheduled Tribe should be stopped and strict scrutiny has to be made to stop misuse by taking appropriate steps; that it is not uncommon to corner benefits because of connivance of officers and steps 51 should be taken and that when a person takes undue advantage of the beneficent provision, he not only plays fraud on the society, but in effect and substance, plays fraud on the Constitution etc., would not be available to be applied at this juncture, since all the said observations were made by the Hon'ble Supreme Court after there were conclusive negative finding with regard to the caste status which was claimed in those cases.
27. From the discussions made with reference to all the three writ petitions, it is clear that this Court in these proceedings cannot come to a definite conclusion with regard to the caste status of Sri G Manjunath in a circumstance that it would have to be decided in the appropriate proceedings viz., an Election Petition. Such decision is due to the fact that the electorate have elected Sri G Manjunath and if at all it is to be nullified, even if it be on the ground that he does not belong to scheduled caste, it can only be done in such proceedings which is permissible in law as in the instant proceedings the validity of caste certificate 52 cannot be extricated from the challenge to the election. Therefore, though at this juncture, I see no reason to declare the endorsement dated 14.03.2013 as unsustainable, neither do I see reason to declare the claim of Sri G Manjunth in placing reliance on the caste certificate dated 03.04.2012 as valid, but it is made subject to proof in the Election Petition wherein a challenge is raised in that regard.
28. For all the reasons aforesaid, I pass the following:
ORDER
i) The writ petitions in W.P.No.17122/2013, W.P.Nos.20025-26/2013 and W.P.No.24119/2013 are all disposed of leaving all issues open for consideration in the election petition.
ii) The parties to bear their own costs.
Sd/-
JUDGE akc/bms