Karnataka High Court
Sri Gurulingappagouda vs The State Of Karnataka on 10 November, 2017
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
KALABURGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
W.P. No.20433/2017 (LB-ELE)
C/w.
W.P. No.201935/2017
W.P. No.20433/2017 :
BETWEEN:
SRI GURULINGAPPAGOUDA
S/O. NANGOUDA PATIL,
AGED ABOUT 40 YEARS,
R/O. MADIKESHWAR VILLAGE AND POST,
MUDDEBIHAL TALUK,
VIJAYAPUR DISTRICT-586116. ... PETITIONER
(BY SRI I. R. BIRADAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
RURAL DEVELOPMENT &
PANCHAYAT RAJ DEPARTMENT,
M.S. BUILDING,
BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER
VIJAYAPUR DISTRICT,
VIJAYAPUR-586116.
3. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYAT,
VIJAYAPUR DISTRICT,
VIJAYAPUR-586116.
2
4. TAHASILDAR
VIJAYAPUR TALUK
VIJAYAPUR-586116.
5. PRABHU @ PRABHUGOUDA
S/O. CHANNA DESAI
AGED ABOUT 46 YEARS,
R/O.MADIKESHWAR
MUDDEBIHAL TALUK
VIJAYPUR DISTRICT-586212. ...RESPONDENTS
(BY SMT. SHIVAYOGIMATH ASSOCIATES FOR R3;
SRI RAVI VARMA KUMAR, SENIOR COUNSEL FOR
SRI AMEET KUMAR DESHPANDE, ADVOCATE FOR R5;
NOTICE TO R1, R2 & R4 IS DISPENSED WITH)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE CASTE
CERTIFICATE DATED 05.02.2016 ISSED BY RESPONDENT NO.4 IN
FAVOUR OF RESPONDENT NO.5 PRODUCED AT ANNEXURE-A.
W.P. No.201935/2017 :
BETWEEN :
PRABHU @ PRABHUGOUDA
W/O. CHANNANNA DESAI
AGE. 46 YEARS,
OCC.AGRICULTURE,
R/O.MADIKESHWAR,
TQ. MUDDEBIHAL,
DIST. VIJAYPUR-586212. ... PETITIONER
(BY SRI RAVI VARMA KUMAR, SENIOR COUNSEL FOR
SRI AMEET KUMAR DESHPANDE, ADVOCATE)
AND :
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRL. SECRETARY
R.T.P.R., M.S. BUILDING,
BENGALURU-1.
2. THE KARNATAKA
3
STATE ELECTION COMMISSIONER
NO.8, 1ST FLOOR,
K.S.C.M.F. BUILDING (ANNEXED)
CUNNINGHAM ROAD,
BENGALURU-52.
3. THE DEPUTY COMMISSIONER
VIJAYPUR DISTRICT,
VIJAYPUR-586101.
4. THE ASSISTANT COMMISSIONER
VIJAYPUR DISTRICT
VIJAYPUR-586101.
5. THE TAHSILDAR
VIJAYPUR TALUKA,
VIJAYPUR-586101.
6. GURUNATH
S/O.YAMANAPPA BIRADAR
AGE. 61 YEARS, OCC. AGRI.,
R/O. BASARKOD,
TQ. MUDDEBIHAL,
DIST.VIJAYPUR-586209.
7. SANGANGOUDA
S/O. GANDAPPA BIRADAR
AGED ABOUT 55 YEARS, OCC.AGRI.,
R/O. POST BASARAKOD VILLAGE,
TQ. MUDDEBIHAL,
DIST. VIJAYAPUR-586209.
8. SHIVASHANKARAPPA
S/O. YAMANAPPA BIRADAR
AGED ABOUT 42 YEARS, OCC.AGRI.,
R/O. POST BASARAKOD VILLAGE,
TQ. MUDDEBIHAL,
DIST. VIJAYAPUR-586209.
9. YAMANAPPA
S/O. KARNANDEPPA BIRADAR
AGED ABOUT 30 YEARS, OCC.AGRI.,
R/O. POST BASARAKOD VILLAGE,
TQ. MUDDEBIHAL,
4
DIST. VIJAYAPUR-586209. ... RESPONDENTS
(BY SRI A. SYED HABEEB, A.G.A. FOR R1 - R5;
SRI SHIVANAND PATIL, ADVOCATE FOR C/R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 19.04.2017 IN
FILE NO.ELECTION/CR-17/2016-17 PASSED BY R-4 A COPY OF WHICH IS AT
ANNEXURE-D, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS
ON 17.10.2017 COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT
MADE THE FOLLOWING:
ORDER
Since common issue is involved in these matters, the same are heard together and disposed of by this common order.
2. It is advantageous first to consider W.P.No.201935/2017 filed by the candidate/elected Upadhyaksha of Vijayapura Zilla Panchayath.
3. In W.P. No.201935/2017, the petitioner belongs to Hindu 'Reddy' caste. A certificate was issued by Tahsildar, Muddebihal, certifying that he belongs to backward class 'Category-B', in terms of the Notification No.RDP-5/ZPS/95
(i) dated 13.01.1995 issued by the Government of Karnataka. The elections to the post of membership of Zill Panchayath, Vijayapura, were declared in February, 2016. The petitioner herein, filed his 5 nomination papers and was elected as the member of Zilla Panchayat and later got elected as Upadyaksha of the Zilla Panchayat, Vijayapura. A complaint before Karnataka State Election Commission requesting the said authority to disqualify the petitioner as Upadyaksha was filed by respondent Nos.6 to 9 herein, pursuant to which, Karnataka State Election Commission directed the Deputy Commissioner to hold an enquiry. The Deputy Commissioner in turn, directed the Assistant Commissioner to take appropriate action in that regard. The Assistant Commissioner, Vijayapura, after obtaining the objections from the petitioner exercising the powers under Section 4-B of the Karnataka Scheduled Caste, Scheduled Tribe and other Backward Classes (Reservation of Appointments, etc.,) Act, 1990 (for short 'the Act') submitted a report to the Deputy Commissioner recommending to set aside the certificate dated 05.02.2016 issued by the Tahsildar.
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It is the grievance of the petitioner that the Assistant Commissioner sans communicating the report to the petitioner herein, has passed an order without jurisdiction and thereby has set aside the caste certificate dated 05.02.2016 issued in favour of the petitioner. Hence, this writ petition.
4. The learned Senior Counsel, Sri Ravi Varma Kumar, representing the learned counsel Sri Ameet Kumar Deshpande, appearing for the petitioner submitted that Section 166 (2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('PR Act' for short) contemplates that a person shall not be qualified to be chosen from a territorial constituency to fill a seat in a Zilla Panchayat unless in the case of a seat reserved for the Scheduled Castes or Scheduled Tribes or Backward Classes or women such person is a member of those castes or tribes or classes or is a woman. Thus, backward classes, as defined under Section 2 (2) of the PR Act means such 7 class or classes of citizens as may be classified as category in "A" and "B" and notified by the Government from time to time for the purposes of reservation of seats and offices of Chairperson in Zilla Panchayat, Taluk Panchayat and Gram Panchayat. Notification dated 13.01.1995 issued by the Government of Karnataka classifies and notifies the classes of citizens specified in the Annexure therein as backward classes for the purpose of reservation of seats and offices of chairpersons in Zilla Panchayat, Taluk Panchayat and Gram Panchayat, namely, Category "A" and Category "B". In Category-B clause (1) (j), 'Reddy' is the notified caste. Thus, it is not in dispute that the petitioner belongs to 'Reddy' caste as specified in Category-B of the Notification dated 13.01.1995 issued by the Government of Karnataka. However, the note appended to the said Notification provides that no person falling under Category 'B' shall be entitled to the benefit of reservation in the seats and offices of Adhyaksha and Upadhyaksha of Zilla Panchayat, Taluk Panchayat and the 8 Gram Panchayat if i) he/she or either of his/her parents/guardian or both together owns more than 8 hectares of rainfed or dry land or its equivalent. It was contended that Article 243D (6) of the Constitution of India provides for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens. There cannot be exclusion of 'creamy layer' in the context of political representation. Referring to Section 168 (2) of P.R. Act it was argued that the State Election Commission on a report made to it and after giving a reasonable opportunity to the person concerned of being heard shall declare whether the seat of the person concerned is or has becomes vacant. This power can be exercised by the State Election Commission pursuant to the vacancy of seat created in terms of Section 168(1) of the Act. No other power is vested with the State Election Commission. Entertaining of the complaints regarding the 'B' category status of the petitioner was basically erroneous decision 9 which culminated in the order impugned herein. It was argued that in terms of Section 171 of the PR Act, the provisions of Sections 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 shall apply mutatis mutandis in respect of election to Zilla Panchayat, the application being to the designated Court having jurisdiction. Placing reliance on Section 15 of the PR Act, it was contended that no election to fill a seat or seats in a Grama Panchayat shall be called in question except by an election petition presented on one or more grounds specified in sub-section (1) of Section 19 and Section 20 to the Designated Court. In terms of Section 19, grounds for declaring election to be void are specified. Referring to these Sections as well as Article 243-O of the Constitution of India, learned Senior Counsel submitted that no writ petition is maintainable challenging the election of the petitioner to the office of the Upadhyaksha/income cum caste certificate issued to a candidate under a Notification dated 13.01.1995 by the Tahsildar.
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Nextly, relying on Section 4-B of the Act, it was argued that the said Act is applicable only in reservation of seats for appointment of posts in the services or seats in Universities and educational institutions established or maintained or aided by the State Government, in the present case, caste-cum-income certificate issued by the Tahsildar is not to secure an appointment or post in State Civil Services or any of the admission to Universities or Educational institutions but for election purposes, thus invoking of the said provision is not maintainable in law, State Election Commission entertaining the complaint and referring to the Deputy Commissioner who in turn directing the Assistant Commissioner to consider the same are contrary to the provisions of the Act. No such power is vested with the State Election Commission to consider the complaint and then to forward to the Deputy Commissioner. The Assistant Commissioner wrongly invoked the powers of Section 4-B of the Act in considering the complaint as an appeal and setting aside 11 the order of Tahsildar issued under the Notification dated 13.01.1995. The further contention advanced was that the impugned order dated 19.04.2017 is in utter violation of the principles of natural justice. No notice was issued nor any opportunity of hearing was given with reference to the proceedings that culminated in the order impugned. Even the reports referred in the order impugned are not furnished to the petitioner before passing the order. The Assistant Commissioner interpolated the notification dated 13.01.1995 observing that the said notification specifies to consider the income of the spouse while determining the income of the candidate in clause (iv) of the said notification whereas the said clause in the notification does not provide so. No income of the spouse can be taken for consideration to decide the land owned by the person falling under category-B. Much emphasis was placed on the compromise decree passed by the competent Court to contend that the petitioner owns 17 acres 20 guntas of land only, which is less than 8 12 hectares. The Assistant Commissioner giving a go by to this compromise decree wrongly added the properties owned by the wife of the petitioner to compute the extent of land owned by the petitioner. According to the mathematical calculations, the petitioner do not possess more than 8 hectares of land in terms of the notification dated 13.01.1995. It was submitted that Election Petition No.01/2017 is instituted by the unsuccessful candidate and the matter is pending consideration before the Election Tribunal. Based on these arguments advanced, the learned counsel seeks for setting aside the order impugned allowing this writ petition.
The relevant judgments cited by the learned senior counsel are as under:
i) Smt.Jyothi Vs. The Assistant Commissioner (DD 18.07.2013),
ii) K.Krishnamurthy Vs. Union of India reported in [(2010) 7 SCC 202], 13
iii) Govindappa Vs. Somasekhar Ishwarappa and Others [(1979) 1 KLJ 124],
iv) Kurapathi Maria Das Vs. Dr.Ambedkar Seva Samajan and others [(2009) 7 SCC 387],
v) G.Manjunath Vs. State of Karnaka (W.P.Nos.17122/2013 and connected matters DD 18.09.2013),
vi) Suryakantha Rao Vs. State of Karnataka and others (2002 (3) KLJ 498),
vii) Smt.Bharthi Reddy Vs. State of Karnataka (W.P.No.108700/2017 - DD 01.09.2017),
viii) T.K.Purushotham Vs. The Assistant Commissioner (W.P.No.47048/2011 DD 15.07.2014).
5. The learned counsel, Sri Shivanand Patil appearing for the respondent No.6, argued that this writ petition is not maintainable in view of the alternative and efficacious remedy of statutory appeal available under Section 4-C (3) 14 of the Act before the Caste Verification Committee. A reference was made to Rule 2(8-A) of the Karnataka Panchayathraj (Conduct of Election) Rules, 1993 ('Rules' for short) to contend that the certificate issued by the Tahsildar under the provisions of the Act shall be made applicable for election purposes. As such it cannot be interpreted that the certificate issued by the Tahsildar under the provisions of the Act is only for the purposes of appointment or for admission to Universities and to the Educational Institutions and the same can be used for the purpose of elections also. In view of the said Rule 2(8-A) of the Rules inserted as aforesaid - against the order of Tahsildar, an appeal lies before the Assistant Commissioner under Section 4-(B) of the Act. Considering these aspects, State Election Commission forwarded the complaint lodged by the voters to the Deputy Commissioner, the Assistant Commissioner being the Appellate Authority, Deputy Commissioner forwarded the same to consider the validity of the caste-cum-income 15 certificate issued by the Tahsildar which cannot be found fault with. Sufficient opportunity was provided to the petitioner to putforth his contentions, petitioner participated in the proceedings before the Assistant Commissioner and now neither he can complain that no opportunity was provided nor he can challenge the jurisdiction of the Assistant Commissioner in setting aside the order of the Tahsildar as invalid.
6. It was argued that the voter has no right to prefer an election petition challenging the elections of the petitioner based on the caste-cum-income certificate issued by the Tahsildar. As such, writ petition is maintainable. Reliance was placed on the judgment of the Hon'ble Apex Court in the case of SMT.BHARATI REDDY VS. THE STATE OF KARNATAKA AND OTHERS in Civil Appeal No.10587/2017 (DD 17.08.2017). Further, referring to the Division Bench judgment of this Court in VEERESH AND ANOTHER VS. THE STATE OF KARNATAKA AND 16 OTHERS in W.A.Nos.101469-470/2016 (DD 04.04.2017), it was argued that caste-cum-income certificate issued under the Act can be used for different purposes. Incidentally, the same certificate could also be used as proof of caste and income for contesting the election to Zilla Panchayath also. Therefore, challenging the said document, though it may have an impact in the process of adjudication of the election petition, by that itself cannot be called that such challenge has to be only through an election petition and not otherwise. The word 'etc.,' employed in the Act makes it clear that it is not restricted only to the cases of appointments or admission to University or educational institutions but applicable even in cases of election matters. The petitioner has not challenged the notification dated 13.01.1995. Any argument advanced by the learned senior counsel that no exclusion of creamy layer is permitted in the reservation clause in view of the judgment rendered by the Hon'ble Apex Court in K.KRISHNAMURTHY's supra is not 17 applicable to the facts of the present case. The learned counsel points out the relevant factors namely, O.S.No.387/2015 filed by petitioner's sister claiming partition on 14.12.2015 and the said suit being compromised before the Lok Adalath on 16.12.2015 to enable the petitioner to show that he possesses less than 8 hectares of land in terms of said notification dated 13.01.1995. Thus, it was submitted that no weightage can be given to the said compromise decree. Accordingly, prays for dismissal of the writ petition confirming the order impugned herein.
7. Learned Additional Government Advocate appearing for the respondents 1 to 5 supporting the arguments advanced at the hands of the learned counsel for respondent No.6 justifies the order impugned herein.
8. I have given my thoughtful consideration to the rival submissions made at the bar and perused the material on record.
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9. It is trite law that alternative remedy of statutory appeal is no bar to entertain writ petition when the order impugned is passed without jurisdiction. The moot question that arises for consideration in this writ petition is regarding the jurisdiction of the Assistant Commissioner, exercising the power under Section 4-B of the Act to decide the issue as an appeal. In order to answer this question, first it has to be analyzed whether the caste-cum-income certificate issued by the Tahsildar in terms of the notification dated 13.01.1995 falls within the ambit of the Act. The source of power of the Tahsildar to issue such caste cum income certificate is traceable to Rule 2 (8-A) of the Rules. Rule 2(8-A) of the Rules inserted w.e.f. 07.02.2004 reads thus :
"[(8-J) "eÁw ¥ÀæªÀiÁt ¥ÀvÀ"æ JAzÀgÉ PÀ£ÁðlPÀ ¥ÀAZÁAiÀÄvï gÁeï ¸ÀA¸ÉÜUÀ¼À ZÀÄ£ÁªÀuÉUÉ ¸Àà¢üð¸ÀĪÀ C¨sÀåyðAiÀÄÄ AiÀiÁªÀ vÁ®ÆèQ£À ªÁå¦ÛUÉ M¼À¥ÀnÖgÀÄvÁÛ£ÉÆÃ, CzÉà vÁ®ÆèQ£À vÀº¹ À ïÁÝgÀgÀªÀgÀÄ C¨sÀåyðAiÀÄÄ AiÀiÁªÀ eÁwUÉ ¸ÉÃjgÀÄvÁÛ£É JA§ÄzÀgÀ §UÉÎ ¤ÃrzÀ eÁw ¥ÀæªÀiÁt ¥ÀvÀæ M¼ÀUÉƼÀÄîvÀÛzÉ. ¸ÀA§A¢ü¹zÀ vÁ®ÆèQ£À ªÁå¦ÛUÉ ¸ÉÃjzÀ vÀº¹ À ïÁÝgÀgÀÄ ¸ÀzÀj eÁw ¥ÀæªÀiÁt ¥ÀvÀæ ¤ÃqÀ®Ä ¸ÀPª Àë ÀÄ ¥Áæ¢üPÁjAiÀiÁVgÀÄvÁÛg.É EzÀÄ PÀ£ÁðlPÀ ¥Àj²µÀÖ eÁw ºÁUÀÆ ¥Àj²µÀÖ ¥ÀAUÀqÀ ªÀÄvÀÄÛ EvÀgÉ »AzÀĽzÀ ªÀUÀðzÀ («ÄøÀ¯Áw EvÀg)É C¢ü¤AiÀĪÀÄ, 19 1999gÀ°è ¤ÃqÀ¯ÁzÀ eÁw ¥Àª æ ÀiÁt ¥ÀvÀæªÀ£ÀÄß ZÀÄ£ÁªÀuÉAiÀÄ ¸ÀAzÀ¨sÀðPÀÆÌ ¸ÀºÀ M¼ÀUÉƼÀÄîvz ÀÛ ]É ."
In terms of the said Rule, Tahsildar of the concerned Taluk is the competent authority to issue caste certificate under the provision of the Rules, the certificate issued by the Tahsildar under the provisions of the Act can be used for election purposes also. Though, the learned Senior Counsel submitted that this provision is only an enabling provision, not adopted, the said Rules cannot be ignored while deciding the competency of the Tahsildar, to issue caste certificate. If so, the provisions of the Act are attracted. Be that as it may be, deciding the issue regarding the applicability of the Act to challenge the caste-cum-income certificate issued under the notification dated 13.01.1995 would be academic in the present case since at the outset, the State Election Commission acted without jurisdiction. Even assuming that the caste-cum- income certificate issued by the Tahsildar is in exercise of powers vested under the Act, the same would have been 20 challenged by filing an appeal before the appropriate authority provided under the Act. That having not been done, the respondents 6 to 9 filing a complaint before the State Election Commission challenging the caste-cum- income certificate issued by the Tahsildar is not in accordance with law. State Election Commission can exercise the power under Section 168 of the PR Act, only in case of vacancy of seat arising subject to any of the disqualifications specified in Section 167 or in any of the clauses mentioned in sub section (1) of Section 168. In such case, in terms of sub section (2) of Section 168, the State Election Commission on a report made to it and after hearing the person concerned shall declare whether the seat of the person concerned is or has become vacant. Thus, it is clear that State Election Commission has no powers to examine the validity of the caste-cum-income certificate issued by the Tahsildar under any score. Firstly, initiating the proceedings before the State Election Commission is erroneous and further, the State Election 21 Commission entertaining the said complaint is without jurisdiction. The State Election Commission has not directed the appellate authority under the Act to consider the issue as an appeal. But, directed the Deputy Commissioner to enquire who in turn directed the Assistant Commissioner to adjudicate the matter. In the absence of any appeal filed by the aggrieved person challenging the order of Tahsildar, invoking the powers under Section 4-B of the Act by the Assistant Commissioner on the directions of the Deputy Commissioner based on the directions of the State Election Commission is wholly unsustainable. It is not an appeal filed invoking the provisions of Section 4-B of the Act. On the directions/dictation issued by the State Election Commission, the complaint cannot be construed as an appeal under Section 4-B of the Act. The State Election Commission ought to have returned the complaint for want of jurisdiction. The complaint instituted under the provisions of the PR Act could not 22 have been culminated with an order passed under Section 4-B (2) of the Act.
10. It would be profitable to refer to the judgments cited by the learned counsel for the parties to collate the legal principles enunciated.
11. In the recent judgment of the Hon'ble Apex Court in the case of SMT. BHARTI REDDY's case supra, it is held thus :
"15. As noticed above, though respondent Nos.6 to 9 are the voters are not the members of the Zilla Panchayat. They are aggrieved by the election of the appellant to the office of the Adhyaksha. They cannot challenge the election of the appellant to the office of Adhyaksha by filing an election petition as they are not the members of the Zilla Panchayat in question. In our view, a voter of the Zilla Panchayat who is not a member cannot be denied an opportunity to challenge the election to the office of Adhyaksha under Articles 226/227 of the Constitution. Therefore, we hold that the writ petition filed by respondent Nos.6 to 9 before the High Court is maintainable."
12. The Division Bench of this Court in the case of VEERESH supra, considering the maintainability of writ petition in challenging the caste-cum-income certificate 23 issued by the Tahsildar, held that the said certificate can be issued for different purposes, incidentally the same certificate can also be used as a proof of caste-cum- income certificate for contesting the election of Zilla Panchayat also. Thus, it cannot be taken that the income- cum-caste certificate is exclusively a document for the electoral process only. Therefore, it was held that challenge to income-cum-caste certificate cannot be held to be only through an election petition and not otherwise.
13. In KRISHNAMURTHY's case supra, the Hon'ble Apex Court while considering the reservation in Local Self Government Institutions and Bodies held that, for creating a level playing field in elections to local bodies, backwardness in social and economic sense is a criterion for conferring reservation benefits and also reservations in local self-government are intended to directly benefit the community as a whole and not just to elected representatives. Hence, there cannot be exclusion of 24 "creamy layer" in the context of political representation. In the absence of any challenge to the notification dated 13.01.1995, the said judgment of the Hon'ble Apex Court is not applicable to the facts of the present case.
14. In the case of SMT.JYOTHI VS. THE ASSISTANT COMMISSIONER (DD 18.07.2013), the co-ordinate bench of this Court has held that Assistant Commissioner exercising the power under the Act has no jurisdiction to annul the certificate in an appeal filed under Section 49 of the Karnataka Land Revenue Act, 1964. Thus, it can be held that the annulment of the caste-cum-income certificate by the Assistant Commissioner on the complaint filed before the state Chief Election Commission is not justifiable.
15. In the case of SURYAKANTHA RAO supra, the petitioner therein had challenged the order passed by the Assistant Commissioner setting aside the order of the Tahsildar under which the Tahsildar rejected the 25 complaint filed by respondent No.4 therein by refusing to recall the caste certificate issued earlier to the petitioner. In that context, considering the object of the enactment i.e., the Act herein, it was held that it has to provide for reservation of appointment of posts in favour of the members of the Scheduled Castes, Scheduled Tribes and other backward classes in the State Civil Services and Establishment in the Public Sector and any admission to Universities and to educational institutions established or maintained or aided by the State Government in the case where caste certificate was issued by the Tahsildar not to secure appointment in any Government/Local Bodies/Boards or Universities and the same being issued for the purpose of contesting in the election, it was held that the order of the Assistant Commissioner in setting aside the order of the Tahsildar issuing the caste certificate is without jurisdiction. This judgment was rendered on 28.01.2002. There was no occasion for the 26 Hon'ble Court to consider the effect of Rule 2(8-a) inserted with effect from 07.02.2004 to the Rules.
16. In the case of SRI T. K. PURUSHOTHAM supra, following the legal principle enunciated in the orders passed by this Court in W.P. No.694/2012 and connected matters, ruling that the appeal presented to the Assistant Commissioner against the order of the Tahsildar invoking Section 4-B of the said Act is not maintainable in respect of the reservation availed of, for the purpose of seeking election to Zilla Panchayat decision was rendered. Even in this case, the amendment to the Rule, as aforesaid, was not considered.
17. In the case of SRI G. MANJUNATH supra, a voter of the constituency had filed writ petition seeking for writ of quo warranto, according to him, the petitioner therein who belongs to "Bairagi" caste cannot usurp a post which was reserved for Scheduled Caste and in that context this 27 Court after elaborately considering the judgments holding the field at the relevant point of time held that this Court in the writ petition proceedings cannot come to a definite conclusion with regard to the status of Sri G. Manjunath, the petitioner therein, in the circumstances, it has to be decided in the appropriate proceedings, viz., an election petition. However, in view of the latest judgment of the Hon'ble Apex Court in SMT. BHARTI REDDY's case supra, this judgment of SRI G. MANJUNATH supra would not come to the assistance of the petitioner.
18. In the case of KURAPATI MARIA DAS v. Dr. AMBEDKAR SEVA SAMAJAN AND OTHERS, reported in (2009) 7 SCC 387, which is referred to by the learned Senior Counsel, it was held that the High Court erred in entertaining the writ petition; secondly, in going into the disputed question of fact regarding the case status; thirdly, in holding that the appellant did not belong to Scheduled Caste; and fourthly, in allowing the writ 28 petition, wherein, the High Court has relied on the xerox copies of the service records of the appellants therein and then at the appellate stage, in calling the files of the Electricity Board, where the appellant was working, it was held to be a roving enquiry into the case of the appellant therein, which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of the 1993 Act. That was a case wherein an application was made under Section 5 of the 1993 Act to the proper authority which was bound to be enquired into. However, the same not being decided for four months, the petitioners therein rushed with a writ petition. The same would not be applicable in view of the voter challenging the caste certificate in terms of SMT. BHARTI REDDY's case supra.
19. In SRI GOVINDAPPA's case supra, the declaration of an election to the managing committee of a Co-operative Society was challenged on the ground that the elected candidate, the appellant therein was disqualified to be 29 chosen, as a member under Section 29C of the Karnataka Co-operative Societies Act, 1959. In such circumstances, it was enunciated that notwithstanding such a disqualification being there, the election was held and the candidate was selected, in such circumstances, his selection can be challenged in an election petition under Section 70 of the Karnataka Co-operative Societies Act, 1959, within the period of limitation prescribed under Section 72 of the Karnataka Co-operative Societies Act, 1959, there is no quarrel with the said legal proposition, but the same would not be of any help to the petitioners in the present case in view of the Hon'ble Apex Court in SMT. BHARATI REDDY's case supra, as aforesaid.
20. Article 243-O of the Constitution of India reads as under :
"243-O: Bar to interference by courts in electoral matters - Notwithstanding anything in this Constitution, -
(a) the validity of any law relating to the delimitation of constituencies or the allotment 30 of seats to such constituencies, made or purporting to be made under Article 243-K, 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.]"
As regards the constitutional bar of the Courts to entertain the electoral matters, it is now well settled that the voter is entitled to challenge the election to the office of Adhyaksha/Upadhyaksha on the ground that the candidate did not belong to backward class under the writ jurisdiction since a voter is not a member of the Zilla Panchayath and is not qualified to file an election petition. A voter of the Zilla Panchayath who was not a member could not be denied an opportunity to challenge the election to the office of Adhyaksha/Upadhyaksha.
There is no bar to the voter to file a writ
petition before the High Court challenging the
election of the member as Adhyaksha / Upadhyaksha
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mainly on the ground that such person did not belong to category-B in terms of the notification dated 13.01.1995. Hence, it cannot be held that a voter has no right to challenge the election of Adhyaksha/Upadhyaksha other than by way of an election petition. In the instant case, the respondents 6 to 9 approached a wrong forum challenging the caste-cum-income certificate issued by the Tahsildar. An order passed by Assistant Commissioner annulling the caste-cum-income certificate on the dictation of Deputy Commissioner/State Election Commission is without jurisdiction.
21. As regards merits of the case, there is no dispute that the petitioner belongs to 'Reddy' community in terms of the notification dated 13.01.1995. The dispute is relating to clause (iv) of the note appended to the notification. Clause (iv) of the note reads thus:
"(iv) He/She or either of his/her parents/guardian or both together owns more than 8 hectares of rained or dry land or its equivalent." 32
22. Contention of the respondent No.6 is that the petitioner owns more than 8 hectares of land and that he is not a person falling under category-B of the notification. To consider this argument of the learned counsel for the respondent No.6, it is apt to refer to the compromise decree entered into between the parties in O.S.No.387/2015. It is true that the suit was instituted on 14.12.2015 and was disposed of on 16.12.2015 before the Lok Adalath, in the Court of Civil Judge at Muddebihal, in terms of the compromise entered into between the parties therein. In terms of the said compromise decree, the share of the petitioner has been reduced which would be less than 8 hectares. There is no prohibition in law to enter into a compromise decree agreeing to reduce/relinquish the share of a person in a joint family property may be with an intention to qualify for a specific post. The effect of compromise decree cannot be nullified unless and until it is set aside by a competent 33 court of law. The Assistant Commissioner while considering the aspect regarding the lands possessed by the petitioner has misinterpreted the notification interpolating it as he/she or his/her 'spouse' or either of his or her parents or guardian or both together owns more than 8 hectares of rainfed or dry land or its equivalent. The phrase 'spouse' has been interpolated by Assistant Commissioner which is admittedly not found in the notification dated 13.01.1995. Considering this aspect, the mathematical calculations made by the Assistant Commissioner appears to be prima facie wrong. Moreover, Election Petition No.1/2017 is pending adjudication before the Election Tribunal.
23. For the foregoing reasons, the impugned order dated 19.04.2017 at Annexure-D is liable to be quashed and is accordingly quashed. Writ petition No.201935/2017 is allowed.
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24. In W. P. No. 20433/2017, the petitioner a voter of Basakod constituency of Vijaypura, Zilla Panchayat, has questioned the legality and validity of the caste-cum- income certificate of respondent No.6 issued by the respondent No.4 certifying that the petitioner belongs to backward class category-B, in terms of the notification dated 13.01.1995. In view of the said order of the Tahsildar dated 05.02.2016 having been set aside by the Assistant Commissioner by order dated 19.04.2017 and no challenge being made to the said order in this writ petition, moreover, the same having been challenged in W.P.No.201935/2017 and being quashed for the reasons aforesaid, this Writ Petition do not survive for consideration. Accordingly, stands dismissed.
Sd/-
JUDGE hnm/Jm/-