Karnataka High Court
Smt. Jyothi vs The Assistance Commissioner on 18 July, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18th DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO. OF 40323 OF 2011 (LB,ELE)
BETWEEN:
Smt Jyothi
W/o Chandramouly
Aged about 31 years
Kodur Village
Humcha hobli
Hosanagar Taluk
Shimoga.
...PETITIONER
(BY Sri. Jayakumar S.Patil for M/s Jayakumar.s.Patil Asso.,
Advocate)
AND:
1.The Assistance Commissioner
Sagar Talukl
Shimoga.
2. The Tahasildar
Hosanagar Taluk
Hosanagar.
3. Smt Vajravathi
W/o B.Yuvarak
Age major
Chikkamanathhi Punaji Village
Shimoga.
2
...RESPONDENTS
(BY Smt Manjula R. Kannadolli Advocate - for R1&R2
Smt Pramila Nesargi for M/s Pramila Asso. Advocate - for R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ORDER DATED 20.10.2011 PASSED BY THE FIRST RESPONDENT
IN DISPUTE NO. ELECTION VIVA 62/2010-11 VIDE ANNEXURE
B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The order passed by the Assistant Commissioner, Sagar Sub-Division in No.Election VIVA.62/2010-11 dated 20.10.2011 has been challenged and sought for quashing the same in the present writ petition.
2. The facts of the case to be stated in brief are as under:
The petitioner was got elected under BC-B category by producing the caste certificate issued by the competent authority, Tahsildar, Hosanagar Taluk by his order dated 13.12.2010 wherein the petitioner has been declared as she 3 comes under BC-B category for the purpose of reservation to contest the election under Karnataka Panchayat Raj Act, 1993.
3. The third respondent raised a dispute as to the certificate issued to the petitioner by way of an appeal before the Assistant Commissioner filed under Section 49 of the Karnataka Land Revenue Act, 1964.
4. The Assistant Commissioner by the impugned order on the ground that husband of the petitioner has an income which disqualifies the petitioner from claiming reservation under BC-B category, the said aspect has not been considered and therefore remanded the matter to the Tahsildar after setting aside the certificate issued in favour of the petitioner.
5. Being aggrieved of the order dated 20.10.2011 passed by the Assistant Commissioner the present writ petition is filed.
4
6. The learned senior counsel for the petitioner submits that the ground on which the Assistant Commissioner set aside the certificate, that husband's income has to be taken into consideration for computation of the income of the petitioner, is not sustainable because under the provisions of Section 2(2) of Karnataka Panchayat Raj Act, 1993, it expressly excludes income of the spouse for the purpose of classification. The requirements for classification between the Karnataka SC/ST and other Backward Classes (Reservation on Appointments, etc.,) Act, 1990 and the Karnataka Panchayat Raj Act, 1993, hereinafter referred to as `the Act' are different, statutes being different. The income of the spouse is very much included in case of certificate under the Act but whereas it is excluded for the certificate under the Karnataka Panchayat Raj Act 1993. Further the Assistant Commissioner had no competence and jurisdiction to entertain an appeal preferred under Section 49 of the Karnataka Land Revenue Act, 1964 to decide the 5 controversy involved in the case, because specific provision is provided under Section 4-B of the Act.
7. On the other hand, the learned senior counsel for third respondent submits that since the Tahsildar is the common authority to issue certificate under the provisions of the At as well as the Karnataka Panchayat Raj Act, 1993, he has to look into the income which is a condition to issue the certificate to contest for Zilla Panchayat, Taluk Panchayat or Gram Panchayat. It is submitted, for the said purpose, an amendment dated 7.2.2004 was brought in which Rule 8A in which the Tahsildar of the Taluk in which the candidate resides, has got power to issue certificate both for the purpose of the Act and also for the purpose of Karnataka Panchayat Raj Act for the purpose of election. When such being the express amendment made by amendment dated 7.2.2004, the grounds urged by the petitioner cannot be considered. It is further submitted that instructions issued for the purpose of Panchayat Raj 6 elections also say about the competence of the Tahsildar to issue the caste certificate.
8. I have heard the learned counsels for the parties and perused the records.
9. The certificate issued in favour of the petitioner is as per the Government notification issued in No.RDP 5 ZPS 95 dated 13.1.1995. The said notification was issued in terms of sub-section (2) of Section 2 of Karnataka Panchayat Raj Act, 1993. The term "backward class" as per sub-section (2) of Section 2 of Karnataka Panchayatraj Act 1993 means, such class or class of citizens as may be classified as Category-A or B and notified by the Government from time to time, for the purpose of reservation of seats and to hold office of Chair Person in Zilla Panchayat, Taluk Panchayat and Gram Panchayat. By virtue of this provision, the Government has issued notification from time to time as and when it is required for the purpose of only election to the said posts. In the 7 instant case, the certificate relates to Category-B. Note provided for the said category-B and the requirements to issue caste certificate will have to be looked into. While issuing the certificate to a person classified him or her as Category-B what is required by the competent authority as per clause (iii) of the notification is as follows:
"(iii) He/She or either of his or her parents or guardian is an incometax assessee/wealth tax assessee"
Such person is not entitled to contest the election.
10. When the notification is plain and unambiguous, it is not required by this Court to interpret what is stated in the notification dated 13.1.1995. No doubt in Form-F provided under Rule 3A(2) & 3 of the Reservation Rules, it requires to take into account income of the spouse for the purpose of certificate.
11. It is to be mentioned here that these are the two sets of statutes which enable the Tahsildar to issue caste certificate. The caste certificate issued under the Act or 8 Rules it is for the purpose of education and employment. Though by amendment brought on 7.2.2004, under Rule 8A, the Tahsildar of a jurisdictional Taluk is a competent authority to issue certificate even for election also that itself does not take away the requirement of altogether different and independent statute i.e., the Panchayat Raj Act. The provisions of Panchayat Raj Act and the note therein, it expressly ousts or excludes for computing the income of the spouse for the purpose of issuing the caste certificate to contest the election.
12. Hence I hold that the certificate issued by the Tahslldar dated 13.12.2010 in favour of the petitioner under the provisions of the Government Notification issued on 13.1.1995 is perfectly in order. It is to be noted that though the Tahsildar is a common authority to issue caste certificate under the Act and Rules and also under the Panchayat Raj Act, but these are the two statutes vested common power in the Tahsildar. The Tahsildar while issuing the certificate, he has to mention for the purpose for 9 which the certificate is sought and issued. If the certificate is sought under the provisions of Panchayat Raj Act he shall look into requirements under that statute only and he is not entitled to borrow anything which is not mentioned either in the Rules or under the Act.
13. The Assistant Commissioner before whom appeal was preferred by the third respondent was under Section 49 of the Karnataka Land Revenue Act is not maintainable. Though mentioning of wrong provision is not a ground to reject but the Assistant Commissioner should have examined the purpose for which the appeal has been filed. Democratically elected persons if the election is challenged, a specific provision meant under the special enactment should be invoked. The ignorance of law or mentioning wrong provision is not a ground to assume the power by the competent authority i.e., the Assistant Commissioner herein. Though the Assistant Commissioner has stated in his order that the third respondent has referred a wrong provision but he rectified the mistake and invoked provision 10 under Section 4-B of the Act. The Assistant Commissioner has committed an error in entertaining the appeal to annul the certificate issued in favour of the petitioner under the provisions of notification issued u/s 2(2) of the Karnataka Panchayatraj Act. Therefore, the impugned order is liable to be quashed, also on the ground of Assistant Commissioner not having jurisdiction to annul the certificate in an appeal filed u/s 49 of the Karnataka Land Revenue Act. Therefore, the order is a nullity.
In the result, this writ petition is allowed. The impugned order passed by the Assistant Commissioner is hereby quashed. Rule issued and made absolute accordingly.
Sd/-
JUDGE AKD