Bombay High Court
Kashinath S/O Kodambarao Katake vs The Additional District Judge, Pusad ... on 17 August, 1995
Equivalent citations: 1996(2)BOMCR273, (1996)98BOMLR677
JUDGMENT M.B. Ghodeswar, J.
1. The petitioner, an elected Zilla Parishad member from Vidul Constituency (reserved for Scheduled Caste) of Zilla Parishad, Yavatmal, had impugned the order dated 3-2-1994 passed by the learned Additional District Judge, Pusad in Election Petition No. 1 of 1992 rejecting the application of the petitioner to lead oral evidence.
2. Shortly stated, the facts of the case are as under:
The petitioner claims to be belonging to Lingader caste which is included in the Scheduled Caste. On the basis of the certificate issued by the Naib Tahsildar, the petitioner contested the election in the month of February, 1992 for Zilla Parishad member from Vidul Constituency (reserved for Scheduled Caste). The petitioner got elected. The respondent No. 2 filed the Election Petition on 7-3-1992 challenging the election of the petitioner on the ground that the petitioner does not belong to the Scheduled Caste. It is averred in the petition that the petitioner belongs to Lingayat Wani caste and the petitioner has shown his caste as Wani. At the time of the admission of his of son Shri. Ravindra Katke to the school, the petitioner has shown his caste as Wani. It is also averred in the petition that the petitioner is professing "Shaiva" sect and that, during marriage, there is a custom of 'Saptapadi" and Homa in the caste of the petitioner. It is further averred that in order to obtain the facilities of Scheduled Caste, the petitioner is claiming to be belonging to Lingder for the last so many years and thus, the petitioner has given false declaration as belonging to Lingder Scheduled Caste. The petitioner has filed his written statement denying the adverse allegations. He has stated that Wani is not a caste, but is an occupation. He has asserted that he belongs to Lingder Scheduled Caste. About the custom and traditions, it is stated that the people professing "Shaiva" sect practise such customs/traditions. The petitioner filed an application for permission to lead oral evidence. It is stated in the application that the initial burden to prove that the petitioner does not belong to Lingder scheduled caste is on the respondent No. 2 and therefore, the evidence of the respondent No. 2 is necessary. If the respondent No. 2 does not enter into the witness box, then the petitioner may be allowed to lead evidence. The application was resisted by the respondent No. 1. The learned Additional District Judge has observed that there is sufficient documentary evidence to prove the fact for which the petitioner has prayed for leading oral evidence and observed that the Collector, by order dated 21-10-1992, has decided that the petitioner has produced false caste certificate. There is mention that the petitioner has preferred appeal against the order of Collector to the Additional Commissioner and now, the learned Counsel for the respondent No. 2 has stated that the Additional Commissioner, Amravati Division, Amravati, by an order dated 1-4-1994, has dismissed the appeal of the petitioner. The learned Judge has further observed that it is not necessary to have the oral evidence and to permit the parties to produce such evidence. He has also referred to the decision , Laxman Siddappa Naik v. Kattimani Chandappa Jampanna and others, but observed that this authority does not specifically speak that to prove the facts, oral evidence is necessary and therefore, rejected the application.
3. Shri Gordey, the learned Counsel appearing for the petitioner, has submitted that the District Judge, in such election petition, is exercising the powers of a Civil Court and in view of the provisions of section 27 of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (for short "the Act"), the Court cannot shut out the parties from leading oral or documentary evidence. He has placed reliance on the decision , Laxman Siddappa Naik v. Kattimani Chandappa Jampanna and others, and the decision reported in A.I.R. 1983 Andhra Pradesh 298, Soma Venkatareddy v. Nakka Velandari Ramulu. He has also submitted that by denying the opportunity to lead oral evidence, the impugned order is passed without jurisdiction.
4. Shri Marpakwar the learned Counsel for the respondent No. 2, has submitted that the very basis i.e. a certificate issued by the Naib Tahsildar showing the petitioner as belonging to Lingder Scheduled Caste, is lost as the certificate itself is cancelled by the District Collector and the order is confirmed by the Additional Commissioner. The documentary evidence is sufficient to prove that the petitioner does not belong to Lingder Scheduled Caste and he has supported the order passed by the learned Additional District Judge. Section 27 of the Act lays down the procedure for determination of the validity of elections; enquiry by judge. Relevant provisions of sub-sections (1), (2), (3), (4) and (5) are reproduced as under :
"27(1). If the validity of any election of a Councillor or the legality of any order made or proceedings held under section 26 is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers such candidate or person may, at any time within fifteen days after the date of the declaration of the result of the election or the date of the order or proceeding apply to the District Judge of the district within which the election has been held, for the determination of such question.
(2) An enquiry shall thereupon be held by a Judge, not below the rank of an Assistant Judge, appointed by the State Government either specially for the case, or for such cases generally; and such Judge may, after such enquiry as he deems necessary, pass an order confirming or amending the declared result of the election or the order of the officer empowered by the State Election Commission in that behalf under section 26, or setting the election aside. For the purposes of the said enquiry, the Judge may exercise any of the powers of a Civil Court, and his decision shall be conclusive. If the election is set aside, a date for holding a fresh election shall forthwith be fixed under section 14.
(3) All applications received under sub-section (1) -
(a) in which the validity of the Election of Councillor to represent the same electoral division is in question, shall be heard by the same Judge; and
(b) in which the validity of the election of the same Councillor elected to represent the same electoral division is in question shall be heard together;
(4) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Judge shall not permit -
(a) any application to be compromised or withdrawn, or
(b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or application for such alteration or amendment is bona-fide, and not collusive.
(5) (a) If on holding such enquiry, the Judge finds that a candidate has, for the purpose of election, committed a corrupt practice within the meaning of sub-section (6), he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under sub-section (2) and shall set aside the election of such candidate if he has been elected.
(b) If in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge, after a scrutiny and computation of the votes recorded in favour of each candidate, is of opinion that in fact any candidate in whose favour the declaration is sought has received the highest number of the valid votes, the Judge shall after declaring the election of the returned candidate to be void declare the candidate in whose favour the declaration is sought, to have been duly elected;
Provided that, for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person, known or unknown, in giving or obtaining it :
Provided further that, after such computation if any quality of votes is found to exist between any candidates and the addition of one vote will entitle any candidate to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidates selected by lot drawn in the presence of the Judge in such manner as he may determine.".....
As per sub-section (2) of section 27, the Judge has to conduct enquiry and he may exercise any of the powers of the Civil Court and that his decision shall be conclusive. Sub-section (4) of section 27 has imposed some limitation on the powers of the Judge that he shall not permit the application to be compromised or withdrawn or any person to alter or amend any pleading unless he is satisfied. In the decision of Laxman Siddappa Naik v. Kattimani Chandappa Jampanna and others, , the Apex Court has held that the question of a person belonging to a certain caste is a question of fact. In paragraph 4 of the said decision, it is observed:
"..... To establish the fact evidence was required to show the characteristics, such as customs of marriages, births, deaths, worship, dress, occupation and the like which distinguish a Bedar from a Nayaka. Evidence was also possible to show that the petitioner was received in the Bedar community. This was capable of being proved by showing inter-marriage, inter-dining, community of worship, residence in a particular place and the like. Such facts would have led to the drawing of an inference one way or the other. A bare assertion that the appellant is a Bedar does not suffice to displace the acceptance of the nomination paper or the claim of the appellant that he is a Nayaka."
In the decision of Soma Venkatareddy v. Nakka Veladari Ramulu, reported in A.I.R. 1984 Andhra Pradesh 298, similar provision as regards conduct of election of Sarpanchs and Upa-Sarpanchas of Gram Panchayat under the Andhra Pradesh Gram Panchayat (Conduct of Elections ) Rules, 1978 is construed and it is held in para 15 that in accordance with Rule 55 of the Andhra Pradesh Gram Panchayat (Conduct of Elections) Rules, 1978, relating to the conduct of election of members, Sarpanchs and Upa-Sarpanchas of Gram Panchayats, the election petition has to be enquired into by the Election Court as nearly as may be in accordance with the procedure laid down in the Civil Procedure Code 1908 to the trial of suits.
4. It is pertinent to note that the question whether the petitioner belongs to Lingder Scheduled Caste cannot be decided on the basis of the certificate issued by the authority, i.e. the Naib Tahsildar, District Collector or Additional Commissioner because such certificate issued by the authority cannot be the conclusive proof of the fact. The controversy has to be decided only on the basis of the oral and documentary evidence. In the instant case, this controversy cannot be decided on the basis of the documentary evidence available on the record. The oral evidence is a must and therefore, the impugned order dated 3-2-1994 passed by the Additional District Judge Pusad passed in Election Petition No. 1 of 1992 cannot be sustained. The order is without jurisdiction and it requires to be quashed and set aside. It is accordingly quashed and set aside.
In the result, the instant writ petition is allowed. The impugned order dated 3-2-1994 passed by the respondent No. 1 is quashed and set aside. The learned Additional District Judge is directed to allow the parties to lead oral and documentary evidence and decide the case in accordance with law. As the election was held in February, 1992 and the term of office is of six years, the matter should be decided at the earliest. Therefore, the parties are directed to appear before the learned Additional District Judge on 11-9-1995 and thereafter, the learned Additional District Judge shall decide the election petition, as far as possible, within a period of three months after the appearance of parties. The rule is made absolute in the above terms. No costs.