Karnataka High Court
Laxmibai W/O Sangabasappa vs The State Of Karnataka Ors on 27 November, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 27TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
W.P.No.80422/2012 (LB-RES)
BETWEEN:
LAXMIBAI
W/O SANGABASAPPA
AGE:50 YEARS
OCC: HOUSEHOLD
R/O VILLAGE KOUTHA-B
TQ. AURAD-B
DIST. BIDAR
... PETITIONER
(By Sri M. ASHOK KUMAR, ADV.,)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
RURAL DEVELOPMENT AND
PANCHAYAT RAJ DEPARTMENT
M S BUILDING
BANGALORE-1
2. STATE ELECTION COMMISSION
KSLMF BUILDING, ANNEX#
8TH CUNNINGHAM ROAD
BANGALORE-52
3. THE DEPUTY COMMISSIONER
BIDAR
2
4. THE ASSISTANT COMMISSIONER
BIDAR
5. THE TAHSILDAR
BIDAR
6. THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT
BIDAR
7. PANCHAYAT DEVELOPMENT OFFICER
GRAM PANCHAYAT KOUTHA-B
TQ. AURAD-B
DIST. BIDAR
8. RAJMATI W/O EKNATH BALODE
AGE: 49 YEARS
OCC: HOUSEHOLD
R/O KOUTHA-B
TQ. AURAD-B
DIST. BIDAR
... RESPONDENTS
(By Sri. SHARANABASAPPA K. BABSHETTY, HCGP
FOR R1 TO R5; SRI. S.S. KUMMAN, ADV., FOR R6 & R7;
R8 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN
ORDER AND DIRECTION WRIT OF QUO-WARRANTO AND OUST
RESPONDENTS NO.8, HER FROM KOUTHA-B GRAM PANCHAYAT
TQ. AURAD-B, DIST. BIDAR AND ETC.
.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP, ON THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
Petitioner a resident of Koutha-B Village in Aurad- B Taluk and District Bidar has presented this petition invoking Article 226 of the Constitution of India for a writ of quo warranto to oust respondent No.8 from the post of Member of the 7th respondent - Grama Panchayat of Koutha-B.
2. In the election to the membership of the 7th respondent - Grama Panchayat, petitioner and the 8th respondent contested the seat reserved for BCM 'B' [Women] during May of 2010 by submitting the nomination form enclosing the certificate declaring their social status as belonging to BCM 'B' category. In the said election, the 8th respondent having garnered votes in excess of votes secured by the petitioner, was declared elected, during May 2010 and sequentially petitioner lost the election.
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3. The Tahsildar by name Shivakumar Sheelvanth who issued the caste and income certificate, certifying the social status of the 8th respondent as belonging to BCM 'B' category, withdrew and cancelled the said certificate subsequent to the elections and the declaration of the results on the premise that 8th respondent and her family members own more than eight hectares of agricultural land. Armed with the order of the Tahsildar, petitioner brought to the knowledge of all concerned that the 8th respondent was disentitled and disqualified to continue to hold the post of membership of the Grama Panchayat reserved for BCM 'B' category, which fell on deaf ears and when the Election Commission of Karnataka informed the petitioner to institute an election petition, regard being had to the fraud played on the Constitution, has invoked the writ jurisdiction.
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4. Petition is not opposed by filing statement of objections of the respondents. In fact, 8th respondent though served with notice, has remained absent and is unrepresented.
5. Learned counsel for the petitioner submits that in the light of the admitted fact of cancellation of the caste certificate issued by Shivakumar Sheelvanth - Tahsildar
- 5th respondent by order dated 20.10.2011 - Annexure-D, 8th respondent is disentitled to hold the office reserved for membership of the Grama Panchayat and places reliance upon the decision of this court in 'YAMANAPPA SATYAPPA BANDIWADAR AND OTHERS v. AMINGAD GRAMA PANCHAYAT AND OTHERS'1.
6. Learned counsel for Zilla Panchayat submits in the absence of specific statutory provision under the Karnataka Panchayatraj Act, 1993 [for short 'the Act'] to remove a person holding the post of membership in the 1 ILR 2008 KAR 3854 6 Grama Panchayat reserved for a particular category even after withdrawal of the certificate issued to cancel stating that he/she belonged to a particular category, petitioner must be relegated to filing an election petition and not by invoking the writ jurisdiction.
7. Petitioner, indisputably is a resident of the very same village in which the 8th respondent also resides and their names are found in the voters list, entitled to exercise their franchise in the election to the membership of the 8th respondent - Grama Panchayat. Petitioner having lost in the election to the 8th respondent cannot but be said to be aggrieved.
8. The question as to whether the 8th respondent belongs to BCM 'B' category, is no more in controversy since the Tahsildar cancelled the caste cum income certificate issued to the 8th respondent declaring her to belonging to BCM 'B' category by the order Annexure-D. This order, it is not shown to be a subject matter of any 7 proceeding in the form of an appeal before a competent authority and therefore is final and binding.
9. Article 16 of the Constitution of India recognizes the economic, social, backwardness of Scheduled Caste & Scheduled Tribe and other weaker classes leading to specific provisions for reservation of seats for the said classes. In a catena of decision of the Apex Court, it is held that the Constitutional mandate is to provide preferential rights by way of protection of members of the Scheduled Caste & Scheduled Tribe having regard to the economic condition and backwardness from which they suffer.
10. Section 5 of the Act provides for constitution of Grama Panchayat and empowers the State Election Commission to reserve seats for Scheduled Caste and Scheduled Tribe persons belonging to backward classes falling under categories 'A' and 'B'. Reservation, is therefore a part of the Constitutional scheme with the 8 object of betterment of backward classes. Therefore, if a person who does not belong to a particular backward class for which an elective office is reserved and gets elected to the reserved office, it cannot but be said that such an act not only violates Constitutional provisions but also is a fraud on the Constitution.
11. In the circumstances, 8th respondent played a fraud by making a false claim of belonging to BCM 'B' category and got elected to the Membership of the 7th respondent - Grama Panchayat, reserved for BCM 'B' category.
12. Article 243ZG[b] of the Constitution of India prohibits calling in question an election to the Municipality except by an election petition as prescribed under the law made by the Legislature of the State as in the instant case, by filing a petition under section 15 of the Act. Therefore, the petition filed for writ of quo 9 warranto to oust the 8th respondent is not barred by Article 243ZG of the Constitution of India.
13. The 8th respondent having usurped the elective office of membership to the Grama Panchayat by using a false caste certificate, which on coming to light, after enquiry was cancelled by order - Annexure-D, the election dispute under section 15 of the Act on the grounds set out in section 19 of the Act cannot be said to be an effective alternative remedy to the Constitutional remedy of writ of quo warranto which, could be issued only by superior courts.
14. In almost identical circumstances, this court in YAMANAPPA's case [supra], allowed the petition, issued a writ of quo warranto to oust the 2nd respondent therein from the office of membership reserved for BCM 'B' category in the Grama Panchayat concerned. The reasons, findings and consequences arrived at therein apply on all fours to the facts of this case. 10
15. The observation of the Apex Court in 'GEETA v. STATE OF M.P. AND OTHERS'2 at paragraph-22 is apposite.
"22. xxxxx xxxxx xxxxx Secondly, here is a case where an underserved candidate occupies the post of deserving candidate in the reserved quota meant for them. In such a situation, the deserving candidate is pushed out of the queue and the constitutional guarantee reserving the post for the deserving candidate is frustrated. This must be stopped with a strong hand."
[Emphasis supplied]
16. In 'BANK OF INDIA AND ANOTHER v. AVINASH D. MANDIVIKAR AND OTHERS.'3 the Apex Court observed that when a person secures appointment on the basis of false certificate, he cannot be allowed to 2 2007 AIR SCW 3872 3 2005 [7] SCC 690 11 retain the benefit of the wrong committed by him and service is liable to be terminated.
17. This Judgment though was in relation to securing an appointment, nevertheless, applies to the facts of this case since the 8th respondent cannot be permitted to retain the elective post of membership reserved for BCM 'B' category though committed a wrong and therefore she needs to be ousted from the said post.
In the result, this petition is allowed. A writ of quo warranto shall ensue to oust the 8th respondent from the office of the membership reserved for BCM 'B' category in the 7th respondent - Grama Panchayat.
Sd/-
JUDGE AN/-