Karnataka High Court
D Siddayya, vs The State Of Karnataka on 5 June, 2017
Bench: Ashok B Hinchigeri, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE 2017
PRESENT
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
AND
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT APPEAL No.101459 OF 2016
IN
WRIT PETITION No.106417 OF 2016 [LB-RES]
BETWEEN:
1. D.Siddayya,
S/o.Thimmappa,
Age: 61 years, Occ: Agriculture,
R/o No.38, Ashraya Colony, Moka
Ballari, Tq. and Dist.
Ballari - 583 117.
2. Raghvendra
S/o Late Venkateshwara,
Age 32 years, Occ: Business,
R/o.No.13/6, Municipal Office Road,
Ballari - 583 101, Tq. and Dist. Ballari.
3. Asundi B.Nagarajgowda,
S/o.B.Siddangowda,
Age: 45 years, Occ: Business,
R/o.No.2, Eshwar Temple,
Asundi Village - 583 101,
Ballari Tq. and Dist.
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4. Satish Reddy,
S/o.Shivaram Reddy,
Age: 27 years, Occ: Business,
R/o.Harijan Kere, Near Ballari Road,
Kollagallu, Ballari - 583 101,
Ballari Tq. And Dist. ... Appellants
(By: Sri Dhyan Chinnappa, Senior Advocate
for Sri Rajashekhar Bhurji, Advocate)
AND:
1. The State of Karnataka,
Department of Rural Development
and Panchayat Raj, M.S.Building,
Ambedkar Veedhi, Bengaluru - 560 001,
Represented by its Principal Secretary.
2. State Election Commission,
KSLMF Building, Annex #8th,
Cunningham Road, Bengaluru - 560 052,
Represented by its Secretary.
3. The Deputy Commissioner,
Ballari District, Ballari - 583 101.
4. The Assistant Commissioner,
Ballari - 583 101.
5. The Tahasildar,
Kurugodu, Ballari - 583 116.
6. Smt.Bharati Reddy,
W/o. Sri Thimmareddy,
Adhyaksha, Zilla Panchayat Ballari,
Aged about 45 years,
R/at Badanahatti Village 583116
Ballari Tq and District. ...Respondents.
(By: Sri C.S.Patil, A.G.A. for R1, R3 to R5;
Sri K.N.Phanindra, Advocate for R2;
Sri Jayakumar S. Patil, Senior Advocate
for Sri B.Sharanabasava, Advocate for R6)
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This writ appeal is filed under Section 4 of Karnataka High Court
Act, 1961 praying to set aside the order of the learned Single Judge dated
21.10.2016 passed in W.P.No.106417/2016 (LB-RES) by the learned
Single Judge and allow the W.P.No.106417/2016 (LB-RES) as prayed
for.
This writ appeal having been heard and reserved for judgment on
18.11.2016 at Dharwad and subsequently heard at Principal Bench,
Bengaluru and reserved on 2.3.2017, coming on for pronouncement this
day at Bengaluru, Ashok B.Hinchigeri J, delivered the following:
JUDGMENT
This appeal is preferred against the order, dated 21.10.2016 passed by the learned Single Judge in W.P.No.106417/2016.
2. The facts of the case in brief are that the respondent No.6 was elected as a member of Zilla Panchayat from 13-Badanahatti Constituency, which was reserved for General (Woman) category in the election held on 20.2.2016. The respondent No.1 issued the notification, dated 15.4.2016 reserving the post of Adhyaksha of Zilla Panchayat, Bellary for Backward Class-B(Woman). The respondent No.6 contested for the said Office and was also declared as elected. It is the case of the appellants that she does not belong to Backward Class 'B'. The learned Single Judge dismissed the writ petition on the short ground of maintainability in view of 4 the express bar contained in clause (b) of Article 243-O of the Constitution of India. The learned Single Judge's order refers to Rule 7 of the Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 1994 providing for the filing of an election petition before the jurisdictional District Judge by an aggrieved party.
3. Sri M. Dhyan Chinnappa, the learned Senior Counsel appearing for Sri Rajashekar Bhurji for the appellants submits that the learned Single Judge has erred in dismissing the writ petition without even the contesting respondent denying the allegation that the Backward Class 'B' certificate is obtained fraudulently. He submits that the respondent No.6 herself has stated in her affidavit, dated 6.2.2016 (Annexure-E) that she is an income tax assessee; she has even furnished the PAN number therein. She suppresses the filing of her income tax returns in the subsequent affidavit (Annexure-F) filed on 26.4.2016 before the fifth respondent Tahsildar in support of her application for Backward Class 'B' certificate.
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4. Sri Dhyan Chinnappa submits that for claiming backward class-B, the applicant and his/her parents/guardians should not be an income tax assessee/wealth tax assessees as per the notification, dated 13.1.1995. He submits that as per the said Government Order and in the light of the contents of her affidavit, dated 6.2.2016, it cannot be disputed that she is an income tax assessee. Therefore the issuance of Backward Class - B certificate is per se illegal.
5. He submits that this Court can exercise the jurisdiction under Article 226 of the Constitution of India and declare that the election of the sixth respondent is illegal, as she does not meet the basic, prescribed eligibility criteria for obtaining the caste-cum- income certificate in question. In view of the respondent No.6 furnishing the material particulars regarding her income status, there is no necessity of any further proof or evidence. In support of his submission, he read out paragraph No.26 from the Hon'ble Supreme Court's decision in the case of K.VENKATACHALAM v. 6 A.SWAMICKAN AND ANOTHER reported in AIR 1999 SC 1723. The same is extracted hereinbelow:-
"26. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as Venkatachalam s/o Pethu, taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the Constitution."
6. He relies on the Apex Court's judgment in the case of B.R.KAPUR v. STATE OF TAMIL NADU AND ANOTHER reported in (2001) 7 SCC 231 wherein it is held that the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. He brings to our notice the Apex Court's judgment in the case of I.R.COELHO (dead) by L.Rs. v. STATE OF TAMIL NADU reported in AIR 2007 SC 861 wherein it is held that the power of judicial review is a part of the basic structure of 7 the Constitution. The power to amend cannot be equated with the power to frame the Constitution.
7. He complains of the mortal hurry in issuing backward class 'B certificate. The respondent No.6 purchased the e-stamp paper at 5.27 p.m. on 26.4.2016 and on the same day she files the affidavit on the said e-stamp paper. The same are evident from Annexure-F. On the same day, the backward class 'B' certificate is issued by the Tahsildar. The date on the said certificate is also overwritten. He further submits that the Tahsildar, who has issued the said caste certificate is already suspended from service and he is facing the enquiry in the matter.
8. Sri Jayakumar S. Patil, the learned Senior Counsel appearing for Sri B.Sharanabasava for the respondent No.6 would contend that the learned Single Judge's order is perfectly justifiable in view of the bar contained in Article 243-O of the Constitution of India. The Apex Court in the case of KURAPATI MARIA DAS v. M/s. DR. AMBEDKAR SEVA SAMAJAN AND OTHERS 8 reported in (2009) 7 SCC 387 has held that the High Court has erred by interfering in the electoral matter in exercise of its jurisdiction under Article 226 of the Constitution of India. The relevant paragraphs of the said decision read out by him are extracted hereinbelow:
"19. xxxxxxxxxx At least from the language of clause (b), it is clear that the bar is absolute. Normally, where such a bar is expressed in a negative language as is the case here, it has to be held that the tone of clause (b) is mandatory and the bar created therein is absolute.
20. This Court in its recent decisions has held the bar to be absolute. First such decision is Jaspal Singh Arora v.. State of M.P. & Ors., [1998 (9) SCC 594]. In this case the election of the petitioner as the President of the Municipal Council was challenged by a writ petition under Article 226, which was allowed setting aside the election of the petitioner. In paragraph 3 of this judgment, the Court observed (Jaspal Singh case, SCC p.595)::
"3.......it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by Courts in electoral matters contained under Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 9 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition........."
22. There is no dispute that Rule 1 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967, specifically provides for challenging the election of Councillor or Chairman. It was tried to be feebly argued that this was a petition for quo warranto and not only for challenging the election of the appellant herein. This contention is clearly incorrect. When we see the writ petition filed before the High Court, it clearly suggests that what is challenged is the election. In fact the Prayer clauses (b) and (c) are very clear to suggest that it is the election of the appellant which is in challenge.
23. Even when we see the affidavit in support of the petition in Para 8, it specifically suggested that the Ward No.8 was reserved for the persons belonging to the Scheduled Castes from where the appellant contested the election representing himself to be a person belonging to the Scheduled Caste. Para 9 speaks about the election of the appellant as the Chairperson. Para 30 also suggests that the complaint has been made against the appellant that he had usurped the public office by falsely claiming himself to be a person belonging to the Scheduled Caste. In para 33, it is contended that the first petitioner had no remedy to question the election of the ninth respondent by way of an election petition. Therefore, though apparently it is suggested in the writ petition was only for the writ of quo warranto, what is prayed for is the setting 10 aside of the election of the appellant herein on the ground that he did not belong to the Scheduled Caste.
24. It is further clear from the writ petition that the writ petitioners were themselves aware of the situation that the writ of quo warranto could have been prayed for only on invalidation or quashing of the election of the appellant, firstly as a Councillor and secondly, as a Chairman and that was possible only by an election petition. The two decisions quoted above, in our opinion, are sufficient to hold that a writ petition of the nature was not tenable though apparently the writ petition has been couched in a safe language and it has been represented as if it is for the purpose of a writ of quo warranto."
9. The learned Senior Counsel has also relied on the Division Bench's decision of this Court in the case of SMT.RANIYAMMA v. M.HEMALA NAYAKA AND OTHERS reported in ILR 1997 KAR 2518 to contend that by issuing the writ of quo warranto, the elected Adyaksha of Zilla Panchayat and Adyaksha of Gram Panchayat cannot be restrained from functioning, because under Rule 7 of the Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 1994, the election petition has to be filed by the aggrieved party. He submits that the respondent No.6 is elected by a 11 democratic process. He submits that the respondent No.6 belongs to Kapu Caste, which falls under Backward Class 'B' category. He asserts that the Backward Class 'B' category certificate is issued by the Tahsildar after making due verification and in accordance with law. To contend that the said certificate is not valid, the appellants have to approach appropriate forum, as the adjudication of disputed questions of facts cannot be sought in the proceedings under Article 226 of the Constitution of India. The dispute regarding the caste status of the respondent No.6 is pending consideration before the concerned authority. He submits that Section 175 of the Panchayath Raj Act, 1993 provides for the removal of members of Zilla Panchayat. Section 179(4) provides for the removal of Adyaksha and Upadyaksha of Zilla Panchayath by the Government for the misconduct in the discharge of his duties, etc. He submits that the income tax returns filed pertain to the year 2013-2014. The respondent No.6 is not an assessee for the 2015- 2016 financial year.
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10. Sri K.N.Phanindra, the learned counsel appearing for the second respondent State Election Commission submits that the writ petition for unseating or dislodging the Adyaksha of Zilla Panchayath is not maintainable in view of the unequivocal reiteration of the judicial view in para 40 of the Apex Court's judgment in the case of Kurapati Maria Das (supra), which reads as follows:-
"40. In our opinion, it is necessary to get examined the caste certificates of all the elected persons from reserved constituencies within a time-frame to avoid such controversies. Be that as it may, in our opinion, the High Court clearly erred firstly, in entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition.
11. In the course of rejoinder, Sri Dhyan Chinnappa, the learned Senior Counsel submits that the Supreme Court's decision in the case of Kurapati Maria Das (supra) is not applicable to the present situation. In the said reported case, there was a disputed question of fact regarding the caste status of the person. He submits that while issuing Backward Class-B certificate, the 13 Tahsildar has to examine whether the applicant meets the conditions prescribed in the notification, dated 13.1.1995. The Tahsildar has to only consider the matter under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and the Rules framed thereunder and the notification, dated 13.1.1995. In support of his submissions, he relies on this Court's unreported decision in the case of SMT.JYOTHI v. THE ASSISTANT COMMISSIONER AND OTHERS in Writ Petition No.40323/2011 disposed of on 18.7.2013. He has also relied upon an unreported decision of this Court in the case of SRI CHIKKANNA v. DISTRICT SOCIAL WELFARE OFFICER AND MEMBER SECRETARY AND ANOTHER in Writ Petition No.13173/2008, disposed of on 23.1.2009, for advancing the submission that the reservation certificate issued under the Karnataka Scheduled Caste and Scheduled Tribes and other Backward Classes [Reservation of Appointments, etc.] Act 1990 and the Rules framed thereunder in 1992 is only for seeking the appointment or for getting admission to an educational institution. He relies on this decision to plead the 14 appellants' difficulties in filing the appeal against the Tahsildar's order under the said Act and Rules.
12. The submissions of the learned counsel have received our thoughtful consideration. The short question that arises for our consideration is whether the learned Single Judge is justified in dismissing the writ petition even without filing of the statement of objections by the respondent Nos.5 and 6. The judgments relied upon by the sixth respondent's side are in the context of disputed caste status of a person. In the instant case, there is no dispute as to the caste status of the sixth respondent; that she belongs to Kapu Caste is not at all in dispute.
13. The dispute is only over the income of the sixth respondent. The appellants have produced the sixth respondent's affidavit, dated 6.2.2016 (Annexure-E), which is reflective of her filing the income tax returns. The said affidavit also contains the income particulars of the sixth respondent's family. 15
14. In an exceptional case, where prima facie the person is not eligible and qualified to be elected to an office, this Court's jurisdiction to look into the matter is not ousted. If the eligibility has to be established by a long drawn process of adducing evidence on a disputed question of fact, the bar in Article 243-O would be attracted. But when one party produces the documents that the elected person does not have the bare eligibility to hold the office and the documents so produced have remained uncontroverted, we are afraid that the writ petition cannot be thrown out in limine. In saying so, we are fortified by the Apex Court's judgment in the case of K.Venkatachalam (supra). For instance, when somebody, who is not even a citizen of India wrongfully gets elected to a representative body, the aggrieved voters cannot be driven to file an election petition.
15. The sixth respondent has not filed any statement of objections or affidavit throwing any light on the first affidavit, dated 6.2.2016 (Annexure-E). It is also not known how the fifth respondent Tahsildar has issued the caste-cum-income certificate, 16 dated 26.4.2016 (Annexure-G). Whether the Tahsildar has held the local enquiry for ascertaining the income of the respondent No.6, whether any panchanama or mahazar was drawn in that regard are not fathomable in the absence of any statement of objections from the fifth respondent Tahsildar. It is also not known whether the Tahsildar has called for any report from the Village Accountant or Revenue Inspector. Prima facie, the impugned caste-cum-income certificate appears to have been issued in a rote manner. Such a certificate cannot be issued mechanically based only on the self- declaration of the applicant. Further, what cannot be lost sight of is that the e-stamp paper itself was purchased in the evening of 26.4.2016 and the caste-cum-income certificate is issued on the same day. The court has to be satisfied that the decision-making process was fair, transparent and normal.
16. We have no hesitation in holding that the writ of certiorari is maintainable for quashing the impugned certificate, even if the writ of quo warranto is not maintainable. The appellants' prayers are not in sequential order. They ought to have 17 first sought the writ of certiorari for quashing the impugned caste- cum-income certificate. On the other hand, they have made the quashing of the said certificate a consequential prayer. But on that ground also, the writ petition itself cannot be thrown out at the threshold. In a case of this nature, the technicalities cannot come in the way of doing substantial justice to the parties.
17. Yet another aspect of the matter cannot be overlooked. Rule 7 of the Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 1994 provide for the filing of the election petition only by the members of Zilla Panchayat. A non-member of the Zilla Panchayat cannot maintain an election petition. A voter in a particular Zilla Panchayat, who is not a member of the Zilla Panchayat cannot be rendered remediless. The said Rule reads as follows:-
"7. ZÀÄ£ÁªÀuÁ vÀPÀgÁgÀÄ Cfð.-(1) f Áè ¥ÀAZÁ¬ÄwAiÀÄ AiÀiÁgÉà ¸ÀzÀ¸ÀågÀÄ, AiÀiÁgÀ ¥ÁæzÉòPÀ C¢üPÁgÀ ªÁå¦ÛAiÉƼÀUÉ f Áè ¥ÀAZÁ¬ÄwAiÀÄÄ EgÀĪÀÅzÉÆà D f Áè £ÁåAiÀiÁ¢üñÀgÀ ªÀÄÄAzÉ 3£Éà ¤AiÀĪÀÄzÀ CrAiÀÄ°è ZÀÄ£ÁªÀuÉAiÀÄ ¥sÀ°vÁA±ÀzÀ WÉÆõÀuÉAiÀÄ ¢£ÁAPÀ¢AzÀ [ºÀ¢£ÉÊzÀÄ ¢ªÀ¸ÀUÀ¼ÉƼÀUÉ], ªÉZÀÑUÀ½UÁV JgÀqÀÄ 18 ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À ¨sÀzÀævÉAiÀÄ oÉêÀuÉAiÀÄ eÉÆvÉUÉ ZÀÄ£ÁªÀuÁ vÀPÀgÁgÀÄ CfðAiÀÄ£ÀÄß ¥sÉ樀 ªÀiÁqÀĪÀ ªÀÄÆ®PÀ CzsÀåPÀëgÀ CxÀªÁ ¸ÀAzÀ¨sÁð£ÀĸÁgÀ G¥ÁzsÀåPÀëgÀ ZÀÄ£ÁªÀuÉAiÀÄ ¹AzsÀÄvÀéªÀ£ÀÄß ¥Àæ²ß¸À§ºÀÄzÀÄ."
18. There has to be uniformity and consistency in the court orders. A Co-ordinate Bench of this Court in the case of VEERESH v. THE STATE OF KARNATAKA in Writ Appeal Nos.101469-470/2016 (GM-CC) and connected matters, disposed of on 4.4.2017 has quashed the income-cum-caste certificate issued by the Tahsildar for the purpose of contesting in the elections to the Zilla Panchayat. The relevant paragraph of the said decision is extracted hereinbelow:
"30. The above facts clearly demonstrate, how a public servant adoring a responsible post like Tahasildar of a Taluka, can misuse his office and make the public to lose their confidence and trust in a government machinery. In the instant case, the petitioners being an elected member of the same constituency and a voter, in order to ensure that the person, holding a position to serve public, should be of clean hand and image, and a government machinery should function with transparency and clean hands, have invoked writ jurisdiction and have been able to establish the wrong and mal-functioning by the respondent No.4- Tahasildar. As such, in the present circumstance of the case, justice 19 demands us to hold that the Income-cum-Caste Certificate issued by the respondent No.4, vide No.MSC/CR/145/2015-16 dated 20.01.2016 cannot be sustained. As such, it deserves to be quashed......"
19. For all the aforesaid reasons, we allow this writ appeal by setting aside the learned Single Judge's order, dated 21.10.2016 passed in Writ Petition No.106417/2016 (LB-RES). But we hasten to add that we have not acceded to the prayers of the writ petitioners/appellants. We are remanding the matter to the learned Single Judge. The respondents shall file the objections, if any, within two weeks from the date of the issuance of the certified copy of today's order. Thereafter the matter may be taken up for final disposal. If the learned Single Judge finds that the writ petition involves disputed questions of facts, he may refuse to interfere in the matter. If there are no disputed questions of facts, it is for him to dispose of the writ petition on merits. The observations made hereinabove are restricted to the disposal of this writ appeal. It is made clear that no opinion whatsoever is expressed on the merits 20 or otherwise of the writ petition. All the issues are kept open to be urged before the learned Single Judge.
20. The interim order, dated 5.11.2016 restraining the respondent No.6 from officiating as Adhyaksha of the Zilla Panchayat, Ballari shall continue till the disposal of the writ petition. We request the learned Single Judge to dispose of the remanded matter within two months subject to the arrangement of his board.
21. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE MD/VGR