Karnataka High Court
H P Rajesh vs S V Ramachandra on 8 June, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
ELECTION PETITION NO.6/2018
BETWEEN:
H.P.RAJESH
S/O.K.HANUMANTHAPPA
AGE 52 YEARS, OCC: AGRICULTURE
R/O BIDARAKERE VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT-577521
...PETITIONER
(BY DEEPAK S SHETTY, ADVOCATE)
AND:
1. S.V.RAMACHANDRA
S/O. VEERAPPA S
AGE: 60 YEARS,
OCC: BUSINESS
R/O. H.NO.54, NANDINI DIXIT ROAD,
1ST CROSS, K.B.EXTENSION,
DAVANAGERE-577 002
2. DEVENDRAPPA B
AGE: MAJOR
R/O. TUMATI EXTENSION,
II CROSS, JAGALURU TOWN,
DAVANAGERE DISTRICT-577 528
3. AJJAPPA T
AGE: MAJOR
2
R/O. RAMANAYAKAHALLI,
ARALA POST, KUDLIGI TALUK,
BALLERY DISTRICT 583 134
4. P. BASAVARAJ
AGE: MAJOR
R/O. P.B.ROAD, GOSHALE,
HAVARAGERE, DAVANAGERE TALUK,
DAVANAGERE DISTRICT - 577 003
5. B.H.SIDDAPPA
AGE: MAJOR,
#17, NEERAJ NILAYA,
2ND MAIN ROAD, SARVABHOUMA NAGAR,
CHIKKA KALLASANDRA,
BENGLAURU - 560 061
6. G.KENCHANAGOUDA
AGE: MAJOR,
R/O. BALENAHALLI VILLAGE,
TALAVAGALU POST,
HARAPPANAHALLI TALUK,
DAVANAGERE DISTRICT - 583 137
7. CHANDRANNA
AGE: MAJOR
R/O. RASTE MACHIKERE VILLAGE,
JAGALURU TALUK,
DAVANAGERE DISTRICT - 577 528
8. A. L. PUSPA LAKSHMANASWAMY
AGE: MAJOR,
R/O. NO.39, TIMMALAPUR VILLAGE,
BARAMASAMUDRA POST,
JAGALURU TALUK,
DAVANAGERE DISTRICT - 577 528
9. G.N. BHIMAPPA
AGE: MAJOR,
R/O. HIREBANNIHATTI VILLAGE,
3
JAGALURU TALUK,
DAVANAGERE DISTRICT - 577 528
10. MUDAKKAPLA NAGENDRAPPA
AGE: MAJOR,
R/O. KASAVANAHALLI VILLAGE,
KADABAGERE POST,
HARAPPANA HALLI TALUK,
DAVANAGERE DISTRICT - 583 125
11. M.B.HANUMANTHAPPA
AGE: MAJOR,
R/O. CHIKKAMANAHATTI VILLAGE,
KECCHENAHALLI POST,
JAGALURU TALUK,
DAVANAGERE DISTRICT - 577 528
...RESPONDENTS
(BY SRI.GURUMATH GANGADHAR RUDRAMUNI SHARMA
AND RAVIRAJ MALALI, ADVS. FOR R-1;
SMT. AKKAMAHADEVI HIREMATH, ADV. FOR R-1;
SRI.CLIFTON D'ROZARIO AND SRI. MATIREYI KRISHNAN,
ADV. FOR R-3;
SRI.SHIVANANDA.D.S., ADV. FOR R-2, R-4, R-6, R-7 AND R-
11;
SRI.SATHISH M. DODDAMANI, ADV. FOR R-8;
SMT. DHANALAKSHMI Y, ADV. FOR R-9;
SMT. K. DIVYA (VK NOT FILED);
SRI.PRAMOD N KATHAVI, ADV. FOR R-10;
V/O/DTD. 24.09.2018 R-5 - B.H.SIDDAPPA-H/S;
V/O/DTD. 20.08.2018 R-6G KENCHANAGOWDA-H/S;
V/O/DTD. 05.12.2018 SOMANATHA H;
GOVERNMENT ADVOCATE FOR STATE;)
THIS ELECTION PETITION IS FILED UNDER SECTION 81
OF THE REPRESENTATION OF PEOPLES ACT, 1951,
CHALLENGING THE ELECTION OF RESPONDENT NO.1,
RETURNED CANDIDATE S.V.RAMACHANDRA AND OTHERS TO
THE KARNATAKA LEGISLATIVE CONSTITUENCY, HELD IN THE
YEAR 2018 AND ETC.,
4
THIS ELECTION PETITION HAVING BEEN HEARD AND
RESERVED ON I.A.NO.2/2020, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THIS COURT MADE
THE FOLLOWING:
ORDER ON I.A.NO.2/2020
This application is filed by the first respondent for
dismissal of the Election Petition No.6/2018 on the
ground that prayer sought for in the election petition
has become infructuous, contending interalia that
election petition has been filed only on the ground that
first respondent does not belong to Nayaka-Scheduled
Tribe and said issue which was under consideration by
the District Caste Verification Committee, Davanagere
(for short 'DCVC'), has now confirmed that first
respondent belongs to Nayaka - Scheduled Tribe by
order dated 19.08.2019 after conducting a detailed
enquiry based on Civil Rights Enquiry (CRE) Cell report.
It is also contended that in terms of the judgment of the
Hon'ble Apex Court in the case of BHARATI REDDY VS.
STATE OF KARNATAKA AND OTHERS reported in
5
(2018) 6 SCC 162 prayer sought for in the election
petition has become infructuous and does not survive
for consideration and as such, election petition may be
dismissed.
2. Objections to said application came to be
filed by the Election Petitioner contending interalia that
election petitioner is not a party to the proceedings
before the DCVC and as such, order dated 19.08.2019
passed by the said committee would not have any
bearing on the right of the petitioner to question the
caste certificate of first respondent in an election
petition or in other words, said order would not be
binding on this Court or petitioner. It is also
contended that no opportunity was afforded by the
DCVC to the petitioner and as such, order passed by
said authority would not be binding on the petitioner
and his right to question the acceptance of 'nomination
paper' filed by returned candidate i.e., first respondent
6
still subsists to question the false caste certificate
notwithstanding the order of DCVC and said right
cannot be taken away by dismissing the election
petition. He would also contend that order passed by
the DCVC is inapplicable to the proceedings under the
Representation of People Act, 1950 and as such, a full
fledged trial will have to be held in this petition by
adjudicating the election petition and prays for
dismissal of I.A.No.2/2020.
3. I have heard the arguments of Sri
G.R.Gurumath, learned Senior Counsel appearing on
behalf of Smt.Akkamahadevi Hiremath for respondent
No.1 - returned candidate and applicant in
I.A.No.2/2020, Sri.Deepak.S.Shetty, learned Advocate
appearing for election petitioner, Smt.S Susheela,
learned Senior Counsel appearing on behalf of
Smt.Dhanakakshmi Y for respondent No.9, Sri Pramod
N Katavi, learned Advocate appearing for respondent
7
No.10 and Sri D.S.Shivananda, learned Advocate
appearing for respondents-2,4,6,7 & 11.
4. It is the contention of Sri.G.R.Gurumath,
learned Senior Counsel appearing for first respondent -
applicant that petitioner has relied upon in his election
petition the proceedings then pending before the Caste
Verification Committee for filing the election petition by
contending petitioner does not belong to Nayaka -
Scheduled Tribe community and receipt of nomination
paper filed by first respondent by enclosing caste
certificate issued by jurisdictional authority is improper
and petitioner cannot now wriggle out from the orders
passed in the said proceedings and averments made in
the election petition is based upon the allegation or
complaint made before DCVC, upon which a finding
has now been recorded by the competent authority i.e,
DCVC to the effect that petitioner belongs to "Nayaka
Caste" which is declared as 'Scheduled Tribe' and said
8
finding is equally binding on the petitioner also. He
would draw the attention of the Court to the verification
of the contents of election petition, whereunder
petitioner has admitted that statements made in
paragraph Nos.3 to 20 of the election petition is based
on the information, the sources of which had been
obtained by him from the complainant before the
District Caste Verification Committee and based on the
information so furnished by them, he has verified the
contents of election petition to be true, which petition is
also accompanied by a verifying affidavit and this would
clearly indicate that petitioner has rested his entire case
in the election petition on the basis of the proceedings
then pending before DCVC and his claim, if any, ought
to have been before the DCVC authority adjudicating
the said dispute and not in these proceedings and even
otherwise, by virtue of a finding on the community of
the petitioner having now been recorded by the
competent authority during pendency of this election
9
petition, same has to be taken note of by this court to
dismiss the petition as prayer sought for in the petition
has become infructuous. He would also contend that
caste certificate issued to the petitioner has been
scrutinized by the DCVC constituted under Section 4-C
of the Karnataka Scheduled Caste and Scheduled Tribe
and other Backward Class (Reservation, appointment
etc.) Act, 1990 (for short 'Act of 1990'), which is enacted
by the Government of Karnataka and competent
authority to adjudicate the genuineness of the caste
certificate has been vested with the DCVC and said
authority having examined the grievance of the
complainant therein, which was to the effect that first
respondent herein was not entitled to seek the 'tag' of
'Nayaka' has now clearly recorded a finding in favour of
the first respondent which cannot be re-examined by
this Court in an election petition. Hence, he prays for
dismissal of the election petition. In support of his
submission he has relied upon the following judgments:
10
(i) (2018)6 SCC 162
BHARATI REDDY VS. STATE OF
KARNATAKA AND OTHERS
(ii) (2004)11 SCC 168
SHIPPING CORPORATION OF INDIA LTD.,
vs. MACHADO BROTHERS AND OTHERS
(iii) (2007) 1 SCC 80
STATE OF MAHARASHTRA AND OTHERS
vs. RAVI PRAKASH BABULALSING PARMAR
AND ANOTHER
(iv) (2007)14 SCC 481
STATE OF MAHARASHTRA AND OTHERS
vs. SANJAY K.NIMJE
5. Smt.S.Susheela, learned Senior Counsel
appearing for respondent No.9 has supported the case
of the first respondent by contending that statement of
objections filed by respondent No.9 in the present
proceedings at paragraph Nos.7 -VIII and 7-IX it has
been specifically pleaded that first respondent was
issued with similar caste certificates in the years 1994,
2001, 2008, 2009, 2010 and 2013 declaring him as a
person belonging to 'Nayaka' community falling under
Scheduled Tribe which was never questioned by him at
11
earlier point of time and it is also pleaded that issue
relating to cancellation of the caste certificate issued
had been pending before the said DCVC in which
proceedings, petitioner could have got impleaded or
participated in the said proceedings and the prayer
sought for in the election petition is incidentally and
directly related to the caste of the first respondent and
as such, election petition itself was not maintainable
was a plea, well within the knowledge of the election
petitioner or in other words, petitioner was aware of the
said fact and he should have urged all his claims before
the said authority which he had failed to do and as
such he is precluded from agitating the said issue
before this Court. In support of her prayer she has
relied upon the following judgments:
(i) 2012(1) SCC 333
DAYARAM VS. SUDHIR BATHAM AND
OTHERS
12
(ii) 1994(6) SCC 241
KUMARI MADHURI PATIL AND OTHERS vs
ADDITIONAL COMMISSIONER, TRIBAL
DEVELOPMENT AND OTHERS.
6. It is the contention of Sri Deepak Shetty,
learned Advocate appearing for petitioner that
proceedings initiated by DCVC under the 1990 Act
would have no bearing on the lis involved in the election
petition, since said Act would be applicable for
adjudicating the certificates issued for the purposes of
education and appointment and not caste certificate
issued for the purposes of election. He would further
contend that RP Act is an independent Act, where
under, all disputes relating to the election including the
one relating to improper acceptance of nomination
paper, is required to be adjudicated and as such the
proceedings under the 1990 Act would not take away
the jurisdiction of this Court to adjudicate the election
petition. On facts he would contend that proceedings
relating to the caste certificate issued to the first
13
respondent, which was the subject matter of
adjudication by the statutory authority namely DCVC,
cannot be relied upon to dismiss the petition, since
election petitioner is not a party to the said proceedings
and he had appeared in the said proceedings to put-
forth his claim or demonstrate that petitioner did not
belong to Nayaka-Scheduled Caste. He would submit
that notwithstanding the finding recorded by the
statutory authority under the 1990 Act, this Court
adjudicating the election petition would still have
jurisdiction to examine the issue relating to improper
acceptance of nomination paper of first respondent,
which was based on illegal caste certificate and said
issue requires to be adjudicated in the election petition
and as such election petition cannot be dismissed at
the threshold.
7. He would also contend that issue relating to
caste if decided in earlier petition would not bar the
14
same to be questioned in the next election, since cause
of action in this election petition is different and distinct
from the cause of action pleaded in the earlier election
petition and each election is separate, which gives rise
for a fresh cause of action. He would contend that right
to challenge the election of a returned candidate is
protected under Article 15(3) of the Constitution of
India. By relying upon the following judgments, he
prays for dismissal I.A.No.2/2020.
(1) AIR 1998 ORISSA 359
RAMA CHANDRA KHUNTIA vs ASHOK
KUMAR DAS & OTHERS
(2) AIR 2000 DELHI 176
MANISHA COMMERCIAL LTD. Vs
N.R.DONGRE & ANOTHER
(3) (1984)2 SCC 656
A.C.JOSE vs SIVAN PILLAI & OTHERS
(4) (2016)14 SCC 49
SATYENDRA KUMAR & OTHERS vs
RAJ NATH DUBEY AND OTHERS
(5) AIR 1964 SC 497
MAJOR S.S.KHANNA vs
BRIG.F.J.DILLON
15
(6) (2009)5 SCC 155
KANHIYA SINGH SANTOK SINGH &
OTHERS vs KARTAR SINGH
(7) (2015)9 SCC 287
S.M.ASIF vs VIRENDER KUMAR
BAJAJ
(8) (2014)8 SCC 883
STATE OF PUNJAB AND OTHERS vs
RAFIQ MASIH (WHITEWASHER)
(9) (2006)5 SCC 72
INDIAN BANK vs ABS MARINE
PRODUCTS (P) LTD.
(10) (2017)14 SCC 809
GIRISH KUMAR SUNEJA vs CENTRAL
BUREAU OF INVESTIGATION
(11) (2006)1 SCC 667
STATE OF U.P. vs NEERAJ AWASTHI
AND OTHERS
(12) (2006)8 SCC 23
RAM PRAVESH SINGH AND OTHERS
vs STATE OF BIHAR AND OTHERS
8. Having heard the learned Advocates
appearing for the parties and on perusal of averments
made in the election petition, it would clearly emerge
16
from the pleadings that petitioner along with
respondent Nos.1 to 12 had filed their nomination
papers for the Election held in the year 2018 to the
Karnataka State Assembly namely, from 103-Jagalur
Assembly constituency, which is reserved for Scheduled
Tribe. The results of the elections came to be declared
on 15.05.2018 declaring first respondent herein to have
been duly elected after having secured 78948 votes as
against election petitioner who had secured 49727
votes.
9. Petitioner has called in question the
declaration of result of first respondent by filing the
E.P.No.6/2018 under Section 81 of the Representation
of People Act, 1950 contending interalia that
constituency to which petitioner and respondents 1 to
12 had contested i.e., 103 - Jagalur Assembly
constituency, had been reserved for Scheduled Tribe
and first respondent was not eligible and qualified to fill
17
the said seat since he does not belong to 'Scheduled
Tribe' 'Nayaka' community, to which he claimed to
belong and as a result, acceptance of his nomination
paper by the Returning Officer was improper and it had
materially affected the results of election on account of
improper reception of votes in favour of the first
respondent and consequentially declare the result of
first respondent to said constituency as null and void
and resultantly to declare petitioner as having been
duly elected. Following prayers has been sought for in
the election petition:
"A) Declare that on the date election
on 12-05-2018, and declaration
of the result on 15-05-2018, the
respondent No 1 was not
qualified to be chosen to be file
the seat reserved for the
Schedule Tribe 103 Jagalur
Assembly constituency under the
constitution R/w section 5 of the
representation of People Act
under section 100(1)(a) (d)(iv) of
the Representation of People's
Act.
18
B) Declare that the result of the
election so for it concerns
respondent no 1 has been
materially affected by the
improper acceptance of his
nomination and under section
100(1)(a)(d)(i) (iv) of the
Representation of People's Act
1951 is illegal and void.
C) Declare that the declaration of
the result of the first respondent
to the 103 Jagalur Assembly
constituency as null and void.
D) Declare that result of the election
has been materially affected by
the improper reception and
counting of the 78948 votes in
favour of respondent No 1 under
section 100(1)(a)(d)(i) (iv) of the
Representation of People's Act
1951.
E) Declare that reception of 78948
votes in favour of the First
respondent as improper
reception of votes and that they
are treated as void, wasted and
thrown away votes.
F) Declare that the petitioner is
duly elected to the 103 Jagalur
Assembly constituency under
section 101 of the Representation
of People's Act.
19
G) Impose penalty on the first
respondent under section 125-A
of Representation of People's Act.
H) Award costs of this petition And
I) Grant such other relief or
consequential relief as this
Honourable Court deems fit to
grant in the facts and
circumstances of the case may
kindly be granted in favour of the
petitioners along with the cost of
this petition in the ends of justice
and equity."
10. It would be pertinent and apt to note at this
juncture itself that petitioner in his election petition has
very heavily relied upon the complaint lodged by the
complainant namely Committee for conservation of
Myasa Beda (Myasa Nayaka) Tribal Culture to the
Returning Officer dated 24.4.2018 (Annexure 'AS')
wherein it has been contended that a false caste
certificate has been obtained by the first respondent.
The reply given thereto by the Returning Officer dated
25.4.2018 (Annexure 'AT') whereunder Returning
20
Officer has stated that he has no power to examine the
validity of the caste certificate issued in favour of the
first respondent and as such he cannot reject the
nomination paper filed by first respondent. It is also
contended in the election petition that said issue
pertaining to validity of caste certificate issued to the
first respondent was pending before the DCVC. At
paragraph 9(xiii) petitioner has clearly stated to the
following effect:
"xiii. Presently, the matter is
pertaining to validity of Caste
Certificate issued to respondent No.1 is
pending before the District Caste
Verification Committee."
Again at paragraph 19 of the election petition, petitioner
has specifically contended that two organizations
namely, (i) Karnataka Rajya Budakattu Janara
Hitarakshana Sangha; and (ii) Committee for
Conservation of Myasa Nayaka had held huge protests
and they had convened a press meet highlighting the
21
fact that false caste certificate had been obtained by
first respondent for the purposes of election. In other
words, petitioner has relied upon the proceedings
pending before DCVC as well as statements made by
the respective complainants before the said authority as
basis for contending in his election petition, that
Returning Officer ought not to have accepted the
nomination paper of the petitioner which was
accompanied by a caste certificate illegally obtained and
appended to the nomination paper and hence there has
been improper reception of nomination paper of first
respondent by the Returning Officer. It is not in
dispute that at the foot of the election petition petitioner
has verified the contents of election petition, which is a
condition precedent for adjudicating the election
petition. It has been clearly stated by the election
petitioner to the following effect:
22
"VERIFICATION
I, H.P.Rajesh, the petitioner herein do
hereby verify that statements made in para
No.1 to 2 are true to my knowledge. The
statement made in para 3 to 20 are based
on the information, the source of which
was obtained from complaint filed before
the District Caste Verification
Committee, Davangere and received
through the application right to information
Act and believe the same to be true. The
statement xx xx xx xx to my belief.
Sd/-
Petitioner"
(Emphasis supplied by me)
Said verification has been reiterated or affirmed by the
petitioner in the verifying affidavit filed along with the
election petition. Paragraph - 2 of the verifying affidavit
dated 27.06.2018 is replica of the verification made in
the election petition namely, election petitioner has
reiterated the contents of the election petition to be
true and has stated that said averments made in the
election petition is based on the information so
furnished in the complaint, which had been filed before
23
the DCVC. This would clearly indicate that petitioner
has very heavily relied upon the proceedings pending
before the DCVC in the election petition for setting
aside the election of the first respondent, which is the
main prayer sought for in the election petition.
11. It is no doubt true in the said proceedings
petitioner was not a party. However, fact remains that
complaints lodged by the third parties disputing the
caste of the first respondent had led the statutory
authorities to initiate proceedings against first
respondent under Section 4-C of Act of 1990 which had
culminated in an order being passed on 19.08.2019
rejecting the contentions of the complainants therein
and resultantly upholding the caste certificate issued in
favour of first respondent, which certificate declares
that first respondent belongs to Scheduled Tribe-
Nayaka community. It is also no doubt true that said
order is now pending in appeal before the appellate
24
authority and there is no stay of the operation of order
dated 19.08.2019 passed by DCVC.
12. It is also pertinent to note, that in the
written statement filed by the first respondent to
election petition, he has specifically contended that
averments made in paragraph 19 of the election petition
are false. Further, first respondent has also contended
that caste status of the first respondent was the subject
matter of public interest litigation in
W.P.No.20979/2012, based on the very same records
on which the election petitioner is now relying upon in
the election petition and these aspects were well within
the knowledge of the petitioner and as such, instead of
challenging and/or complaining to the statutory
authorities about the caste certificate who are vested
with the powers to examine the validity of the caste
certificate issued under Section 4-C of Act of 1990,
present election petition has been filed by the petitioner
25
resting his oars on the complaint filed by third parties
and relying upon the same and as such, petitioner
cannot be heard to contend that notwithstanding
parallel proceedings on same issue regarding the caste
certificate having been laid to rest, yet, same issue has
to be adjudicated in this election petition, that too, by
ignoring the findings already recorded by the
Competent Statutory Authority under the 1990 Act.
13. Learned Advocates appearing for parties
have relied upon the judgments of the Hon'ble Apex
Court in the matters of KUMARI MADHURI PATIL AND
ANOTHER vs. ADDL. COMMISSIONER, TRIBAL
DEVELOPMENT AND OTHERS reported in (1994) 6
SCC 241, DAYARAM vs. SUDHIR BATHAM AND
OTHERS reported in (2012) 1 SCC 333, AYAAUBKHAN
NOORKHAN PATHAN vs. STATE OF MAHARASHTRA
AND OTHERS reported in (2013) 4 SCC 465 and
BHARATI REDDY vs. STATE OF KARNATAKA AND
OTHERS reported in (2018) 6 SCC 162, amongst
26
others. Hence, it would be necessary to refer to the
authoritative pronouncement of the Apex Court in the
case of MADHURI PATIL1 wherein Apex Court having
found that spurious tribes and persons not belonging to
Scheduled Tribes were snatching away the reservation
benefits given to genuine tribals by claiming to belong
to Scheduled Tribes. Hence, for stream lining the
procedure for issuance of social status certificates, their
scrutiny and their approval, 15 directions came to be
issued, after having found there was no statutory
backing or law laid down in the matter of issuance of
caste certificate or income and caste certificate. It was
held therein that application for verification of caste
certificate should be scrutinized by the "Scrutiny
Committee" and Apex Court had directed all the State
Governments to constitute a committee of three (3)
officers as indicated in direction No.4 therein. Suffice
1
(1994)6 SCC 241
27
to note direction No.14 issued in Madhuri Patil's case
for the purposes of present petition and it reads:
"14. In case, the certificate
obtained or social status claimed is
found to be false, the
parent/guardian/the candidate should
be prosecuted for making false claim.
If the prosecution ends in a conviction
and sentence of the accused, it could
be regarded as an offence involving
moral turpitude, disqualification for
elective posts of officer under State or
the Union or elections to any local
body, legislature or Parliament."
14. A two (2) Judge Bench doubting the legality
and validity of directions issued in Madhuri Patil's
case, referred the matter to the larger bench. The larger
bench in the matter of DAYARAM2 while examining the
question as to whether directions 1 to 15 in Madhuri
Patil's case are impermissible or being legislative in
nature, held that it is not so. It was also held Court was
not taking over the functions of the legislature but
2
(2012)1 SCC 333
28
merely filling-up the vacuum till the legislature chose to
make an appropriate law. It was held as under:
"22. Therefore, we are of the view,
that Directions 1 to 15 issued in
exercise of power under Articles 142
and 32 of the Constitution, are valid
and laudable, as they were made to fill
the vacuum in the absence of any
legislation, to ensure that only genuine
Scheduled Caste and Scheduled Tribe
candidates secured the benefits of
reservation ad the bogus candidates
were kept out. By issuing such
directions, this Court was not taking
over the functions of the legislature
but merely filling up the vacuum till
the legislature chose to make an
appropriate law."
15. Whereas Karnataka State Legislature had
already enacted Act 7 of 1991 namely Act-1990 for
providing a mechanism for reservation of appointment
or posts in favour of members of Scheduled Castes,
Scheduled Tribes and Other Backward Classes in the
State civil services and establishments, public sector
and in admission to universities and to the educational
institutions established or maintained or added by the
29
State Government. Section 4-A of the said Act enables
an applicant to make an application to the Tahsildar in
the form prescribed for issue of a caste certificate or
income and caste certificate. Section 4-B provides for
appeal against an order passed under Section 4-A by
any person, if aggrieved by the order of the Tahsildar
passed under Section 4-A. Section 4-C provides for
verification of caste certificate and income and caste
certificate by a committee constituted by the State for
verification of such certificates. Section 4-C reads:
"4-C. Verification of Caste
Certificate and Income and Caste
Certificate-(1) The State Government
shall constituted one or more
verification committees for each district
consisting of such person or persons
as may be prescribed for verification of
caste certificate and income and caste
certificate issued under Section 4-A or
Section 4-B.
(2) Any person who has obtained a
caste certificate or an income and caste
certificate under Section 4-A or A-B or
the Appointing Authority or any
authority making admission to a
course of study in the University or any
30
Educational Institution may make an
application to the verification
committee in such form and in such
manner as may be prescribed for issue
of a validity certificate.
(3)The verification committee may after
holding such enquiry as it deems fit
within thirty days from the date of the
application either grant validity
certificate in a prescribed form or reject
the application."
A plain reading of above provision would indicate that
State Government is required to constitute one or more
verification committees for each district for verification
of caste certificate or income and caste certificate
issued under Section 4-A or 4-B. Any person who has
obtained caste certificate or income and caste certificate
or any authority admitting such person to study or
educational institution, is entitled or empowered to
make an application to the DCVC for issue of a validity
certificate of a certificate issued under Section 4-A or
4-B. If in the opinion of the DCVC, a person has
obtained false caste certificate or income and caste
31
certificate it may after holding such enquiry as it deems
fit, either grant a validity certificate in a prescribed form
or reject the application within 30 days from receipt of
such application. In other words, the validity or
otherwise of a caste certificate issued under the Act can
be declared by the said committee and none.
16. The Hon'ble Apex Court in the matter of
AYAAUBKHAN NOORKHAN PATHAN3 has held when
caste certificate has been issued by holding proper
enquiry in accordance with duly prescribed procedure,
it would not require any further verification by Scrutiny
Committee vide paragraph 39.
17. In fact, Hon'ble Apex Court in the matter of
BHARATI REDDY4 while examining the correctness or
otherwise of the judgment passed by the Division Bench
of this Court whereunder a writ of quo-warranto
3
(2013)4 SCC 465
4
(2018)6 SCC 162
32
directing sixth respondent therein to vacate the office of
the Adhyaksha, Zilla Panchayat, Bellary came to be
issued. It has been held, there will be a presumption
that caste or income and caste certificate issued by the
Tahsildar is valid unless a decision is taken by the
competent authority. It was further held that enquiry
into the question of validity of the caste or income and
caste certificate would be in the domain of the authority
prescribed under the 1990 Act. It was further held:
"33. We agree this exposition. It
applies xxxx relevant period in any
manner. As noted earlier, these are
matters to be considered by the
caste verification committee and
only if rejected, the caste certificate
in question could be invalidated.
Until a final decision is taken by the
caste verification committee, in law,
it will have to be presumed that
subject certificate is valid and in
force in view of the statutory
provision making it explicit to that
effect."
In the facts obtained in the said case, Hon'ble Apex
Court has held that validity of the caste certificate was
33
required to be examined by the caste verification
committee. It came to be held:
"42. In a matter of this nature, the
High Court, having kept open the issue
regarding the validity of the income
and caste certificate to be decided by
the jurisdictional Caste Verification
Committee and finding no legal basis
to declare the certificate as void ab
initio or choosing to do so, ought to
have instead directed the Caste
Verification Committee to expedite the
enquiry and conclude the same in a
time-bound manner. The course
adopted by the High Court has only
prolonged the consideration of that
issue by the competent authority and
embroiled the parties in avoidable
proceedings."
18. In the instant case, caste certificate which
came to be issued to the first respondent by the
jurisdictional Tahsildar, was in exercise of the power
vested under Section 4-A and same was challenged by
certain persons, which resulted in proceedings being
initiated by the DCVC and after enquiry, an order came
34
to be passed on 19.08.2019. It was ordered therein as
follows:
"As explained in the preamble, District
Caste Verification Committee, Davanagere,
unanimously decided that
Sri.S.V.Ramachandra, Legislator, Jagalur
Vidhana Sabha Constituency, presiding at
No.354 xxxx Davangere, belongs to
"Scheduled Tribe-Nayaka" caste, which
falls under Sl.No.38 of the Karnataka
Government Scheduled Tribes list."
Thus, competent statutory body which has power to
declare about the validity of a Caste Certificate has
examined the issue based on several inputs received as
discussed therein and then opined that first respondent
belongs to Scheduled Tribe - Nayaka community.
19. Hon'ble Apex Court in the case of
AYAAUBKHAN NOORKHAN PATHAN5 has held that
scrutiny committee is not an adjudicating authority like
a Court or a Tribunal, but an administrative body which
verifies the fact, investigates into specific claim (of caste
5
(2013)4 SCC 465
35
status) and ascertain whether the caste/tribal status
claimed is correct or not. The background in which the
principles laid down in the matter of MADHURI PATIL6
came to be examined in the matter of AYAAUBKHAN
NOORKHAN PATHAN7 and held that directions had
been issued in Madhuri Patil's case to all the States to
the effect that directions issued thereunder is to be
given effect to for ensuring advancement of
constitutional objectives. It is further held correctness
of the said judgment in Madhuri Patil, which was
doubted, resulted in referring the said issue to be
decided by a larger Bench and in the matter of
DAYARAM8 it was held therein that "If there were to be
a legislation governing or regulating grant of caste
certificates, and if caste certificates are issued after due
and proper inquiry, such caste certificates will not call for
verification by the Scrutiny Committees. Madhuri Patil
6
(1994)6 SCC 241
7
(2013)4 SCC 465
8
(2012)1 SCC 333
36
provides for verification only to avoid false and bogus
claims." In this background Hon'ble Apex Court held in
AYAAUBKHAN NOORKHAN PATHAN9 that it was
evident from the judgment of Dayaram's case that
purpose of issuing directions in Madhuri Patil was only
to examine those cases where caste certificates had
been issued without conducting any prior inquiry, on
the basis of self-affidavits regarding ones case alone and
that said directions were not at all applicable where a
legislation governing or regulating the grant of caste
certificate exists, and where caste certificates are issued
after due and proper inquiry. It was further held that
caste certificates issued by holding proper inquiry, in
accordance with duly prescribed procedure, would not
require any further verification by the Scrutiny
Committee vide paragraph 39.
9
(2013)4 SCC 465
37
20. Hon'ble Apex Court in Civil Appeal
No.4533/3018 in the matter of G.MANJUNATHA vs. N.
MUNIANJAPPA & ORS. while examining the issue as to
whether appellant therein belongs to Scheduled Caste
in the State of Karnataka or Other Backward Classes
has referred said issue to the Committee to conduct the
enquiry and Hon'ble Apex Court has specifically
directed that enquiry should be conducted by the
Committee according to Karnataka SC/ST & Other BC
(Reservation of Appointments, Etc.) Act, 1990. In this
background, contention of Sri.Deepak Shetty, which is
to the effect that issue relating to Caste Certificate for
purpose of election, cannot be gone into by DCVC,
cannot accepted. In fact, caste certificate issued by the
jurisdictional Tahsildar came to be scrutinized by the
competent statutory authority under Section 4-C in the
instant case has found that certificate issued to the
petitioner certifying that he belongs to "Scheduled
Tribe-Nayaka" community is correct. This would lay to
38
rest all the issues arising with regard to validity of the
caste certificate issued in favour of first respondent.
In the said proceedings, the competent statutory
authority namely, DCVC has examined the said issue
and has formed an opinion to the effect that caste
certificate issued in favour of first respondent, certifying
that he belongs to "Scheduled Tribe-Nayaka" is a valid
certificate.
21. Petitioner was fully aware of the proceedings
then pending before the DCVC and in fact, as already
noticed hereinabove, he has relied upon said
proceedings by not only referring to it in the election
petition vide paragraph 9(xii) and 19 but has also relied
upon to substantiate his claim. In fact petitioner has
verified the contents of the election petition to be true
and correct at the foot of the petition and has reiterated
the same in his verifying affidavit. In other words,
petitioner was aware of the fact that caste certificate
39
issued in favour of first respondent was the subject
matter of the proceedings pending before DCVC and
any grievance in that regard was required to be agitated
by the petitioner before the said authority only.
22. In fact, petitioner has nowhere contended
that caste certificate (Annexure-'AQ') dated 20.11.2010
submitted by the first respondent along with his
nomination paper (Annexure-'AP') has been issued by
an incompetent authority or caste certificate so
produced was required to be issued by any other
authority. Hence, contention of the petitioner that
caste certificate produced by first respondent along with
his nomination paper is to be construed as limited for
admissions to the educational institutions or for
appointment cannot be accepted. It is also not the case
of petitioner that a different authority other than the
one who issued the caste certificate (Annexure-AQ) to
first respondent was required to issue the caste
40
certificate for the purposes of election and same having
not been obtained and furnished by first respondent,
the correctness of caste certificate produced along with
nomination paper requires to be examined in the
election petition. In that view of the matter, contention
raised by Sri Deepak Shetty, learned Advocate
appearing for election petitioner that order dated
19.08.2019 passed by DCVC would have no bearing to
the election proceedings cannot be accepted and it
stands rejected.
23. The issue relating to the caste of the first
respondent was based on the caste certificate which
came to be produced by him along with the nomination
papers filed for the elections to 103 - Jagalur
constituency held on 12.05.2018 and issue relating to
caste of first respondent having been laid to rest by the
competent statutory authority or in other words said
issue as on date having attained finality before the
41
DCVC, whereunder the caste certificate issued to
petitioner certifying his caste as "Scheduled Tribe-
Nayaka" is valid, same issue cannot be gone into in
these proceedings or in other words, correctness of
caste certificate issued in favour of first respondent
cannot be gone into in an election petition. Hence,
question of re-examining said issue in these
proceedings would be outside the scope of the election
proceedings, particularly, when said issue having
received the attention of the Competent Statutory
Authority which is duly constituted under the Act, 1990
and there being no other independent authority to
verify the correctness or otherwise of the caste
certificate, the judgments of Hon'ble Apex Court in the
cases of AYAAUBKHAN NOORKHAN PATHAN10,
BHARATI REDDY11 and G MANJUNATHA12 referred to
supra, would be squarely applicable to the facts on
10
(2013)4 SCC 465
11
(2018)6 SCC 162
12
C.A.No.4533/2018
42
hand. Thus, nothing further remains to be adjudicated
in the election petition.
For the reasons aforestated, I proceed to pass the
following:
ORDER
(i) I.A.No.2/2020 is allowed.
(ii) Consequently, Election Petition No.6/2018 filed by petitioner for setting aside the election of first respondent from 103-Jagalur Assembly Constituency is dismissed.
(iii) No order as to costs.
SD/-
JUDGE *bkp/DR/sp