Karnataka High Court
Surekha W/O Gurudatta vs The State Of Karnataka And Ors on 17 February, 2017
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
WRIT PETITION NO.204786/2016 (GM-CC)
C/w 204689/2016 (LB-ELE)
IN W.P.NO.204786/2016
Between:
Surekha W/o Gurudath,
Age: 33 years, Occ: Household And Member
Town Municipal Council,
Humanabad-585330,
Dist. Bidar. ... Petitioner
(By Sri P Vilaskumar, Adv.)
And:
1. The State of Karnataka
Through its Secretary,
Department of Municipal administration,
Vidhan Soudha, Bengalore-08.
2. The Deputy Commissioner,
Bidar-585 401.
3. The Asst. Commissioner,
Basava Kalyan-585 327,
Dist. Bidar.
4. The Tahasildar & Election Officer,
Town Municipal Council,
Humanabad-585 330, Tq. Bidar.
2
5. Smt. Radha W/o Malappa,
Age: 42 years, Occ: TMC, Member
Humanabad-585 330,
Tq. Humanabad, Dist. Bidar.
6. Town Municipal Council,
Humanabad-585 330
Through its Chief Officer.
7. The Tahasildar,
Humanabad-585330
Dist. Bidar. ... Respondents
(By Sri A. Syed Habeeb, AGA for R1 to R4 & R7;)
Sri Ravi B.Patil, Adv. for R5;
Sri Gourish Kashampur, Adv. for R6)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ of certiorari for
quashing the Scheduled Tribe Gonda community caste
certificate issued to respondent No.5 alleged dated 09-09-2016
by respondent No.7 which is at Annexure-A and consequently
direct the respondent No.4 to proceed with the remaining
process as per Notification dated 03-09-2016 in the interest of
justice and etc.
WP NO. 204689/2016
BETWEEN
Surekha W/o Gurudath
Age: 33 years, Occ: Household
And Member TMC Humnabad,
R/o Humnabad, Tq: Humnabad,
Dist: Bidar. ... Petitioner
(By Sri P Vilaskumar, Adv.)
3
And:
1. The State of Karnataka,
Represented through its
Secretary department of
Municipal Administration
Vidhanasoudha Bangalore-560001.
2. The Assistant Commissioner
Basavakalyan-585 331.
3. The Tahasildar and Election
Officer, Town Municipal Council
Humnabad, Tq: Humnabad,
Dist: Bidar-585 330.
4. Radha W/o Mallappa,
Age: 42 years, Occ: Member
TMC Humnabad,
R/o Humnabad,
Tq: Humnabad, Dist: Bidar-585 330.
5. Town Municipal Council, Humnabad
Through its Chief Officer,
Humnabad-585 330. ... Respondents
(By Sri A. Syed Habeeb, AGA for R1 to R3;
Sri Ravi B.Patil, Adv. for R4;
Sri Gourish Kashampur, Adv. for R5)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to issue a writ in the nature of
mandamus or any other appropriate writ or direction, directing
the respondent No.3 returning officer to receive the nomination
of the petitioner on 16-09-2016 at Annexure-C for the post of
president of respondent No.3 TMC and declare as elected, in the
interest of justice.
4
These petitions having been heard and reserved for Orders
on 13.2.2017 and coming on for pronouncement of orders this
day, the Court made the following:
ORDER
For the purpose of convenience, Smt.Radha, who is arrayed as 5th respondent in W.P.No.204786/2016 and 4th respondent in W.P.No.204689/2016, will be hereinafter referred to as 5th respondent.
The petitioner, who is an elected member of Town Municipal Council, Humnabad, is seeking for a writ of certiorari quashing the Scheduled Tribe Gonda Community Caste Certificate dated 9.9.2016/Annexure-A issued by the 7th respondent/Tahsildar to respondent No.5 and for a direction to the fourth respondent/Election Officer to proceed with the process of selection of the President.
2. Sri.P.Vilaskumar, learned Counsel for the petitioner submits that the petitioner belongs to Scheduled Tribe Raj Gonda community, which is categorized as Scheduled Tribe. She contested to the Town Municipal 5 Council Election from Ward No.17, which was reserved for Scheduled Tribe (Women) category and was elected on 11.3.2013. Similarly, fifth respondent contested for the Council in General category and was elected. Except the petitioner, none other was elected from the Reserved category of Scheduled Tribe. Neither the husband of 5th respondent nor she herself belong to any community or caste categorized as Scheduled Tribe. Consequent upon the notification by the Government of Karnataka reserving the post of President of the Town Municipal Council, Humnabad, to Scheduled Tribe community, the Election Officer issued a notification dated 3.9.2016 for the election of the President and the Vice-President post of the Municipal Council. It is categorically notified that, the post of President is reserved for Scheduled Tribe category 'women'. Since there were no other women candidate belonging to Scheduled Tribe community, the petitioner alone was eligible to be declared as President of the Municipal Council. The 5th respondent made an attempt 6 at that juncture to obtain a Scheduled Tribe caste certificate from the concerned Tahsildar/4th respondent. Twice her applications were rejected vide Annexures-F and G. Thereafter, on a complaint by a third party that the fifth respondent and her husband are trying to obtain Scheduled Tribe caste certificate by pressurizing the Tahsildar, Humnabad/7th respondent, directed the Tahsildar to take appropriate action against the 5th respondent and her husband in inter-office communication dated 6.9.2016/Annexure-J. But the 7th respondent/ Tahsildar proceeded to issue Scheduled Tribe caste certificate to the 5th respondent despite the fact that on two earlier occasions had rejected her application. Under such circumstance, the petitioner apprehending that 5th respondent on the basis of Scheduled Tribe caste certificate will be contesting for the post of President to the Municipal Council approached this Court by filing W.P.No.204689/2016 and interim stay of election was ordered in the said writ petition, subject to 5th respondent 7 producing her Scheduled Tribe caste certificate and contesting for the post of President of Town Municipal Council, Humnabad. The petitioner was granted one week's time to challenge such proposed ST Caste Certificate. Now the fifth respondent has produced the ST Caste Certificate and has filed her nomination to the post of President. The caste certificate issued is without jurisdiction and by way of fraud and cheating. The caste certificate as at Annexure-A is not based upon any material on record showing that the 5th respondent belongs to ST Gonda community. Hence, the same is liable to be quashed. Consequently, the petitioner being the sole eligible candidate for the post of President reserved for women S.T. category shall be declared as elected.
3. In reply, Sri.Ravi B.Patil, learned Counsel appearing for respondent No.5 questions the very maintainability of the petition and submits that the petition is speculative and liable to be dismissed in limine. 8 His submission is, rejection of the caste certificate on the earlier two occasions will not amount to refusal. For want of necessary materials, the applications were rejected. However, after an enquiry, the caste certificate is issued to the effect that 5th respondent belongs to Scheduled Tribe community and the same is is proper. In fact, the Tahsildar has perused the caste certificate pertaining to the brother of 5th respondent issued in the year 1995. Caste certificate pertaining to her mother is produced before this Court for perusal, which also reveals that, her mother belongs to Scheduled Tribe Gonda community. Contrarily the petitioner, who is seeking to quash the caste certificate of the fifth respondent, is a Hindu Kuruba. When an appellate forum is made available to question the caste certificate, this petition filed without exhausting the alternate remedy is not maintainable. She had further remedy by way of a revision and thereupon before the Caste Verification Committee. Of course, the 5th respondent was selected in general category and there was 9 no occasion at that point of time for her to produce her caste certificate, because she contested from the unreserved Ward. When the election process for the post of President was notified on 3.9.2016 and the election was scheduled to 16.9.2016, the appropriate forum for the petitioner was before the Election Tribunal i.e., the District Court. Hence, the petitions are not maintainable before this Court.
4. Adding to his submission already made on behalf of petitioner, Sri.P.Vilaskumar, learned Counsel for the petitioner submits, for the peculiar circumstances as shown above, the petitioner was compelled to approach this Court. The alternate remedy i.e., challenging the caste certificate either before the Civil Court or before the Revenue Officers is not feasible since the caste certificate, which is under consideration in this case, is issued for the purpose of election. The principles enunciated in the judgment of the Apex Court in Punit Rai -vs- Dinesh 10 Chaudhary reported in AIR 2003 SC 4355 coupled with the procedure contemplated in the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, Etc.) Act, 1990, contemplate that the Tahsildar while issuing the Caste Certificate shall take into account the anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies and such other matters. He has to make an enquiry at the place where the incumbent hails from and record the statements of the parents, if they are not alive, elderly members in the locality. On a perusal of the file of the Tahsildar, no such enquiry is gone through and he has simply relied on the documents and there was no reason for him to budge to the request of the petitioner to issue caste certificate having denied the same twice few days earlier.
5. In the light of the above submission, it has to be reminded that, the above Karnataka SC, ST and other 11 Backward Classes (Reservation of Appointments) Act, 1990 was enacted to provide for the reservation of appointments or posts in favour of the members of the Scheduled Castes, Scheduled Tribes and other backward classes in the State Civil Services and establishments in the public sector and in admission to Universities and to the educational institutions established or maintained or aided by the State Government. The Caste Certificate under challenge was not for any of the above mentioned purpose.
6. The Apex Court in the case of Nanhoo Mal and Others -vs- Hira Mal and Others [(1976) 3 SCC 211], held that the High Court cannot interfere in election process in exercise of its power under Article 226 of the Constitution of India. For, the elections must be completed as soon as possible in order to keep democracy alive. The above case relates to election to the post of President of the Municipal Board. While High Court in exercise of its jurisdiction under Article 226 and 329 of the Constitution of India on 12 the ground of procedural irregularity in the Election process, the Constitutional Bench of the Apex Court set aside the finding by observing that the matter was within the exclusive jurisdiction of the District Judge under U.P.Municipalities Act, 1916. The principle laid down in the Judgment of Election Commission of India through Secretary -vs- Ashok Kumar and Others [(2000) 8 SCC 216], is to the effect that court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. It was so held while dealing with the interim order passed by High Court in exercise of its jurisdiction under Article 226 of the Constitution during the currency of election petition.
7. In the present case, the election was scheduled to 16.9.2016. In W.P.No.204689/2016, ad-interim stay of election was granted with the following observation:
"It is directed that the elections of the said post of President for Town Municipal Council, Humnabad shall not be held by the respondents No.1 to 3 and 5, if the Respondent No.4 Radha Mallappa 13 produces a caste certificate of her allegedly belonging to Scheduled Tribe category and contests the said election for the said post of President of the Town Municipal Council, Humnabad.
A period of one week shall be allowed to the present petitioner to challenge that Scheduled Tribe caste certificate, if any, produced by the Respondent No.4 Radha Mallappa and the said election shall stand over for a period of said one week from 16.9.2016 to 24.9.2016."
After the fifth respondent filed her nomination with her caste certificate, present petition is filed. Said act of the petitioner smacks that she has understood that the 5th respondent, who is elected under the category of General (Lady), is not barred to contest for the post of President if she is able to demonstrate before the Election Officer with necessary testimonials that she is a member of Scheduled Tribe community, consequent upon the notification of the Government dated 24.2.2016 in UDD/25/MLR/2016 reserving the post of President of Humnabad Town Municipal Council for Scheduled Tribe. If there was no candidate claiming to be a Scheduled Tribe woman, 14 naturally the petitioner would have been the sole candidate for the said post and without election, she would have occupied the seat. Probably she apprehends that the 5th respondent belonging to the majority party will be elected in the event of election. Though her apprehension however logical, there are chances, it may turn out mere speculation. This is not the forum to assess the veracity of documents on which caste certificate is issued and to weigh sufficiency or otherwise of the evidence for the Tahsildar to issue the Caste Certificate.
8. In Punit Rai's case (supra) relied by the petitioner, the Apex Court had the benefit of evidentiary material collected by the High Court in a full-fledged trial pursuant to an Election petition. That is not the case here. Rule 15 of the Karnataka Municipalities (President and Vice President) Election Rules, 1965 framed under Karnataka Municipalities Act, 1964, provide forum before the District Judge by way of election petition, if 5th respondent takes 15 the benefit of a incorrect or a false caste certificate. The petition brought even before the caste certificate is put to use is premature and speculative and definitely fails to attract constitutional remedy.
Writ Petition No.204786/2016 is rejected. In view of disposal of W.P.No.204786/2016, W.P.No.204689/2016 stands disposed of.
In view of the disposal of the writ petitions, I.A.Nos.1/2016, 2/2016 and 1/2017 do not survive for consideration. Hence, they are disposed of.
Sd/-
JUDGE KNM/-