Karnataka High Court
G.P. Srinivas vs K. Halappa And Ors. on 27 August, 2003
Equivalent citations: 2003(6)KARLJ347, 2004 AIR - KANT. H. C. R. 159, 2004 AIHC 915 (2003) 6 KANT LJ 347, (2003) 6 KANT LJ 347
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER
1. In W.P. No. 6759 of 2002, the petitioner-G.P. Srinivas who is the elected member of the Zilla Panchayat, Davangere prays for quashing of the orders passed by the learned District Judge, Davangere in M.A. No. 44 of 2001 affirming the order passed by the learned Principal Civil Judge (Senior Division), Davangere in Election Misc. No. 1 of 2000.
W.P. No. 37758 of 2000 is also by Nataraj praying to quash the order (Annexure-G) dated 17-11-2000 in No. 6/2000-01 passed by respondent 1.
W.P. No. 7221 of 2002 is by a contestant in the Zilla Panchayat election to the Kundur Constituency. He is aggrieved by the order passed by the District Judge, Davangere in M.A. No. 44 of 2000 setting aside the declaration made by the Principal Civil Judge, Davanagere in Election Misc. No. 1 of 2000 declaring the petitioner as duly elected candidate from Kundur Constituency to the Zilla Panchayat, Davangere.
W.P. No. 30354 of 2000 is filed by the petitioner challenging the order or direction quashing the order (Annexure-B) dated 5-9-2000 in No. DBCM Sim. Pra. Pathra Vi.Ni. 13/2000-01 passed by respondent 1 and Annexure-C, dated 8-9-2000 in No. GPIC CR 1/2000-01 passed by respondent 2.
All these petitions are taken up together for disposal as they involve common questions of fact and law.
2. Elections were held to the Zilla Panchayats of the various Districts in the State of Karnataka as per Gazette notification dated 20-4-2000. Reservations were made for certain classes under the provisions of the Karnataka Panchayat Raj Act (for short 'the Act') by notification issued in that regard on 13-1-1995 under Section 2(2) of the Act specifying the castes/communities coming under Backward Class A/B groups. Namadhari caste is brought under Backward Class 'A' Group as per the said notification. Several persons contested the elections claiming to be belonging to Namadhari caste and to support their claim they also produced the certificate from Tahsildar concerned. The claim by some of the contestants that they belong to Namadhari caste was objected to at the time of filing nomination papers by the other contestants. The objections were overruled by the Returning Officers concerned on the ground that they have no competence to dispute the correctness of the certificates issued by the Tahsildars. Some of the candidates whose caste had been disputed before the Returning Officers were successful in the elections. Their election was challenged by other contestants by filing election miscellaneous petitions. Besides filing election miscellaneous petitions, some of the contestants also got initiated proceedings for cancellation of the caste certificates issued by the Tahsildars, before the Deputy Commissioner, Caste Verification Committee under the provisions of Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments etc.) Act, 1990 ('S.C. and S.T. Act' for short). The orders passed by the Court in the election miscellaneous petitions and the orders of the Deputy Commissioner passed under the provisions of the S.C. and S.T. Act recalling the caste certificates issued are impugned herein in these petitions.
3. In the light of the pleadings and the relief sought for in these petitions the points that arise for my consideration are:
(i) Whether the caste certificate issued by the Tahsildar could be made use of by the contesting candidates for the purpose of contesting the elections to the Village, Taluk or Zilla Panchayats or Parishads?
(ii) What would be the fall out if it is to be found that Tahsildar was not competent to issue the caste certificate for the purposes of the Act?
(iii) Whether Namadhari Kunchitiga community is a sub-caste of Namadhari caste and whether the persons belonging to the said community could contest the elections to the Zilla Panchayat under BCM 'A' Group, by claiming that they belong to Namadhari Community?
Since all the points are inter-related, they are taken up together for consideration.
4. I have heard the learned Counsels appearing for the parties.
5. Learned Counsel Mr. Jayakumar S. Patil submitted that where it is brought to the notice of the Court that the certificate issued by the Tahsildar is without authority, the Court should declare so. Even assuming for a moment that the certificate is illegal even to the extent of being void, still, it has to be challenged by a person who is aggrieved in an appropriate forum and a declaration has to be obtained from the said forum. In fact, such an effort was made by respondent 3 by filing a revision or appeal before the Caste Verification Committee. He submitted that is not the proper forum. If the certificate could be said to be void, it can be ignored. The Tahsildar has the authority to issue a caste certificate under Act 7 of 1991 of the S.C. and S.T. Act. Reservation is provided under Act 7 of 1991 in pursuance of and in order to advance the object of Articles 15 and 16 of the Constitution of India whereas, the reservation provided to the Backward Classes for being elected in the local bodies does not come under Articles 15 and 16 of the Constitution. It is therefore his submission that the petitioner's election could not have been set aside by the election Tribunal and the order setting aside the election has to be quashed.
6. Learned Counsel Mr. Ashok Haranahalli submitted that the main issue in this case is, whether the findings arrived at by the election Tribunal calls for any interference by this Court. No doubt, at the time of filing the nomination papers the caste certificate issued by the Tahsildar is produced by the contesting candidate. That certificate issued by the Tahsildar even assuming that he is not an appropriate authority, is not a relevant issue to decide the main issue of the actual caste of the returned candidate. Independent of the certificate if there is reason to believe that the conclusion arrived at by the Tribunal is reasonable and it is not one that no reasonable man could have arrived at, in the given facts and circumstances, interference with such an order is uncalled for. He therefore submits that the order recalling the caste certificate, impugned in these petitions does not call for any interference and so also the impugned order declaring the election of the returned candidate as null and void.
7. In the background of these facts and submissions made at the Bar, I proceed to decide the issues arising for consideration in these petitions. The term 'Backward Classes' is defined under Section 2(2) of the Karnataka Panchayat Raj Act, 1993 as:
"'Backward Classes' means such class or classes of citizens as may be classified as Categories 'A' and 'B' and notified by the Government from time to time for the purposes of reservation of seats and offices of Chairperson in Zilla Panchayat, Taluk Panchayat and Gram Panchayat".
(emphasis supplied) The seats involved in these petitions were reserved for BCM 'A' group. It cannot be disputed that Namadhari Kunchitiga is not notified as one of the castes forming part of BCM 'A' group. Kunchitiga is notified as one on the castes falling under BCM 'B' group. In fact the caste 'Namadhari Kunchitiga' does not figure in any of the groups described as Backward Classes. The contention of learned Counsel Mr. Jayakumar Patil is that Kunchitiga is a sub-caste of Namadhari caste and in colloquial language this sub-group is also called as 'Bedagu', The power of the State to make laws in respect of matters relating to or connected with Panchayats is derived from Article 243-K(4) of the Constitution. The said Article reads:
"(1)....... ........ ....... (2)..... ......... ....... (3)....... ....... ....... (4) Subject to the provisions of this Constitution,
the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, election to the Panchayats".
Article 243-0(a) of the Constitution Bars interference by Courts in electoral matters and the matters covered by this Article are:
"Article 243-O.--Notwithstanding anything in this Constitution.--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-K, shall not be called in question in any Court;
(b) ........ ........ ........" (emphasis supplied)
Allotment of seats to a specific group of castes is also a matter relating to or connected with the elections to Panchayat and, therefore, the constitutional Bar would operate against a challenge to such grouping of castes for proposes of reservation. If the Legislature had chosen not to specify 'Namadhari Kunchitigar' as one of the castes falling under Backward Class 'A' group for purposes of reservation of seats to them, it is to be seen whether any one can be permitted to persuade the Court to accept that "Namadhari Kunchitigar" is no other than "Namadhari" caste. A lot of deliberation takes place before the Legislature decides about the castes that should go under the different groups classified as BCM and this decision once taken by the Legislature is without doubt, immune from challenge under Article 243-O(a) of the Constitution. Now, when the petitioners submit before the Court that they belong to Namadhari Kunchitiga which is not classified as one of the castes coming under Group 'A' and still claim that they are entitled to contest the seat reserved for Group 'A' on the ground that Namadhari Kunchitiga caste and Namadhari caste are one and the same, it tantamounts to challenging the very classification made by the Legislature in exercise of its powers under Article 243-K of the Constitution as Kunchitiga Namadhari caste is not equated with Namadhari caste by the Legislature while issuing the notification. Something that cannot be done in law directly is not permitted to be done indirectly too. 'Backward Classes' as defined by the Act means such class or classes of citizens as may be classified as categories 'A' and 'B' and notified by the Government from time to time for the purpose of reservation of seats and offices of Chairperson in Zilla Panchayat, Taluk Panchayat and Gram Panchayat. Therefore, the contention urged by Mr. Jayakumar S. Patil that the Namadhari Kunchitiga is a sub-caste of Namadhari caste cannot be accepted in the light of the definition contained in the Act as also the Bar envisaged by Article 243-O.
8. Both the learned Counsels concede that the caste certificate as issued by the Tahsildar is issued under the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments etc.) Act, 1990 (Act 7 of 1991), and it is not one issued for the purposes of Articles 15(4) and 16(4) of the Constitution. The question, therefore, arises whether the certificate issued by the Tahsildar under Act 7 of 1991 could be made use of by a candidate in proof of his claim to belong to a certain caste. The assent to the nomination to be given by a contestant is in the form of a self-declaration. This self-declaration has to be accompanied by a caste certificate issued by the Tahsildar in his favour. The Karnataka Panchayat Raj (Conduct of Election) Rules, 1993 does not prescribe the authority who is competent to issue the caste certificate. When the attention of Government Advocate was drawn to this omission in the provisions of the Act in naming the Competent Authority and he was directed to ascertain from the Government as to whether any notification was issued validating the certificate issued by the Tahsildar under Act 7 of 1991 for purposes of the present Act, he filed the affidavit of the Director (PR) and Election Officer, Deputy Secretary to Government Department of Rural Development and Panchayat Raj. In para 5 of the affidavit it is stated by him as under:
"5. I submit that the Tahsildar is the Competent Authority to issue the caste certificates under Rule 3(a) of the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments etc.) Rules, 2000. In the absence of any other relevant rules, the certificates so issued by the Tahsildar is also valid for the purpose of elections conducted under the Karnataka Panchayat Raj Act".
The Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments etc.) Rules, 1992 has been further amended by Notification No. SWD 132 SAD 97, dated 8-2-2000 by inserting Rule 5-A after Rule 5 to the following effect:
"5-A. The validity of certificate issued by the Caste Verification Committee.--(1) The validity certificate issued by the Caste Verification Committee in favour of a person belonging to the Scheduled Caste or Scheduled Tribe shall remain valid for the purpose of education and employment until it is cancelled or until the date on which the candidate changes his religious faith whichever is earlier.
(2) The validity certificate issued by the Caste and Income Verification Committee in favour of a person belonging to Category I of the Backward Classes shall remain valid for the purpose of education and employment as long as his caste enjoys reservation without applying creamy layer criteria or until it is cancelled, whichever is earlier".
(emphasis supplied) Scrutiny of the relevant provisions of the S.C. and S.T. Act show that the power to issue a caste certificate that is vested in the Tahsildar is exercisable only in relation to the said Act and not in respect of any other Act. There is no provision in the Act vesting the said power of issuing the caste certificate in the Tahsildar for the purposes of the present Act. The Government can make rules only for carrying out the purposes of the Act and if the provisions of the Act do not empower the Tahsildar to issue a caste certificate for the purposes of the Act, then any certificate issued to him and produced by a contestant for purpose of contesting the election cannot be construed in law as meeting the requirement of Rule 14 for Rule 14 mandates presentation of a nomination paper duly completed in Form 4. Rule 14(1) reads:
"Presentation of nomination papers.--(1) On or before the date appointed under Rule 12 for making nominations, each candidate shall either in person or by his proposer, between the hours of eleven O' clock in the forenoon and three O' clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the public notice issued under Rule 12, a nomination paper completed in Form 4 or Form 5 as may be appropriately singed by the candidate and by an elector of the Gram Panchayat as proposer:
(2)..... ......... ............
(3)......... ......... ............ (4)........ ......... ....... (emphasis supplied)
Form 4 to be complete must be accompanied by a certificate issued by the Competent Authority. It is required under Clause (c) of the assent to the nomination to be given by the contestant in a declaratory form. The said Clause (c) reads:
"(c) That I am a member of ......... Caste/Tribe/Class which is a Scheduled Caste/Scheduled Tribe/Backward Class of the State of Karnataka. A copy of the Scheduled Caste / Scheduled Tribe/Backward Class certificate issued in my favour by the Competent Authority is enclosed".
(emphasis supplied) The statutory provisions of the Act do not prescribe the Competent Authority to issue the certificate and, therefore, the presentation of the certificate issued by the Tahsildar along with the assent to the nomination by the candidate would not render the nomination paper complete and it would be for purposes of the Act an incomplete nomination form. As the nomination of the petitioner himself was incomplete his election to the Zilla Panchayat becomes void and has to be struck down on that ground also. That every contestant in these elections also produced the certificate issued by the Tahsildar is not a factor that should detain this Court from taking a different view in the matter. Though this conclusion would have far-reaching consequences this Court has no other option other than to declare the election void as without a proper certification by the Competent Authority the contestant does not derive the eligibility to contest the election. Such a conclusion is inescapable considering the fact that "Competent Authority" is not defined in the Act. It is all the more relevant that in the important matter of elections to the local bodies, the Legislature ought to have been more circumspect in avoiding an incongruous or anomalous situation such as this cropping up which can vitiate the whole process of election.
9. Back to the facts, G.P. Srinivas, the petitioner in W.P. No. 6759 of 2002, contested the election on the claim of belonging to Namadhari caste. The Principal Civil Judge (Senior Division), Davangere has found that the petitioner does not belong to Namadhari caste but he is a Kunchitiga by caste. The Principal, Civil Judge (Senior Division) relied on the school certificate of G.P. Sathisha, the son of the petitioner, which discloses the caste as 'Hindu Kunchitiga' and the school admission extract of the petitioner which disclosed his caste as 'Namadhari Kunchitiga'. The school admission register extract produced as Ex. P. 7 in the election petition shows the caste of the petitioner as Namadhari Kunchitiga. The endorsement found in the said document also discloses that the petitioner produced an affidavit dated 24-4-2000 and got his caste changed in the school records as 'Namadhari' from 'Namadhari Kunchitiga'. It is for the first time in the year 2000, just before the elections to the panchayat, the petitioner has got his caste changed on the basis of the affidavit. The petitioner on the basis of the school certificate and the certificate issued by the Tahsildar certifying him to belong to Namadhari caste contested the elections. An objection was raised by one G.S. Halesh before the Returning Officer stating that the petitioner has produced a false caste certificate. But the objection was turned down by the Returning Officer on the ground that it was not within his jurisdiction to decide about the caste of the petitioner. After the elections, the returning of the petitioner as the successful candidate was challenged in an election petition. During the pendency of the election petition the caste certificate issued by the Tahsildar was challenged by Halappa, the first respondent herein, before the Deputy Commissioner and President of the District Level Caste and Income Verification Committee, Davangere. By his order dated 5-9-2000, the Deputy Commissioner cancelled the certificate issued by the Tahsildar as invalid. The cancellation order was challenged by the petitioner in W.P. No. 30354 of 2000 and this Court observed in its order dated 7-12-2000 to the effect that:
"It is made clear that the order of this Court dated 15-9-2000 shall not prevent the election Tribunal from proceeding with the election petition pending before it and expedite its disposal in accordance with law".
The election Tribunal proceeded with the case and held that the petitioner belonged to Kunchitiga caste and not to Namadhari caste as claimed by him. The order of the election Tribunal was appealed against before the District Judge, Davangere. The Court below refused to interfere with the finding of the Tribunal with regard to the caste of the petitioner. It is submitted by learned Counsel Mr. Jayakumar S. Patil that the election Tribunal was at error in taking into consideration the cancellation of the certificate by the Caste Verification Committee for arriving at its conclusion. It is his fervent submission that when once the order of the committee was stayed, the Tribunal ought not to have looked into the said order either for supporting its conclusions or treated it as a basis to arrive at a finding regarding the caste of the petitioner.
10. It must be said at the outset that staying the operation of an order is something totally different from setting it aside. When an order is stayed, it does not take effect but awaits the final outcome of the proceedings in which it is stayed. An order stayed does not during the period of stay become invalidated nor does it loose its character of being a valid order made by the Statutory Authority in the exercise of the powers vested in it under a statute. I need not dwell much on this aspect of the matter as it is has been held in State of Punjab and Ors. v. Gurdev Singh, which incidentally has been relied upon by Mr. Jayakumar S. Patil himself, that:
"6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, 1966 AC 736 : (1956)1 All ER 855 : (1956)2 WLR 888 (HL) Lord Redcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders" ".
In the light the decision supra it cannot be disputed that the withdrawing of the caste certificate by the Caste Verification Committee is an order made in the due course of law and as far as I could see no brand of invalidity is visible in it and it could be resisted in law effectively only by obtaining a decision of the Court. Since the petitioner has not established its invalidity in any Court, it is always open for the Courts and the Statutory Authorities to place reliance on the said order. Therefore, the contention of Mr. Jayakumar S. Patil to the contrary cannot be accepted. The election of the petitioner is, thus, bad not only because of the incomplete nomination paper presented by him but also because he did not in fact belong to Namadhari caste. As a result, the impugned order does not call for any interference and the writ petition is liable to be dismissed.
11. In W.P. No. 37758 of 2000, the petitioner-H.M. Nataraj has challenged the order dated 17-11-2000 passed in No. 6/2000-01 by the Deputy Commissioner, Davangere District, The impugned order is produced at Annexure-G. By the order impugned the first respondent withdrew the caste certificate issued to the petitioner by the Tahsildar certifying him as belonging to Namadhari caste. It is not now disputed at the Bar that the certificate is one issued under Act 7 of 1991. In this petition, I need not go into the question as to whether the certificate could at all have been issued for the purpose for which it was issued. So long as the issuance of certificate is under Act 7 of 1991, whatever may be its purpose, the power of respondent 1-Deputy Commissioner to withdraw the certificate in his capacity as Chairman of the Caste and Income Verification, Committee can never be questioned.
12. The committee headed by the Deputy Commissioner has recorded the statements of both the petitioner and respondent 3. The matter was also enquired into by the Department of Backward Classes and Minorities. The District Officer who visited the Taluk Office of Honnalli and verified with the office has found that no one from Namadhari community lives there. It was further ascertained by the District Officer that the petitioner, Nataraja belongs to Kunchitiga caste and that he obtained a bogus certificate by creating false documents and making wrong declarations before the concerned authorities. The decision taken by the Deputy Commissioner has the legitimacy of legal reasoning and does not lack rational or legal objectivity and, therefore, is not liable to be interfered with in exercise of powers under Article 226 of the Constitution.
13. In W.P. No. 7221 of 2002, the petitioner-K. Halappa has challenged the judgment dated 7-2-2002 passed in M.A. No. 44 of 2000 produced as Annexure-A to the writ petition, on the file of the District Judge at Davangere insofar as it pertains to setting aside the declaration of petitioner as duly elected candidate from Kundur Constituency to the Zilla Panchayat, Davangere.
14. The final direction was given in the election petition declaring the petitioner as having been duly elected to the Zilla Panchayat following the decision of this Court in Jaganmohan v. Gayakwad and Ors., 2000(4) Kar. L.J. Sh. N. 14. wherein this Court held that after declaring election of a returned candidate as null and void, Court cannot decline to declare candidate challenging the election of returned candidate, as duly elected, where he is found to have received majority of valid votes. The Court below sitting in appeal has set aside the direction given by the Tribunal by placing reliance on the principle laid down by the Apex Court in Gadakh Yash-wantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil and Ors., The Apex Court held therein that the mere fact that election petitioner secured the next highest number of votes after returned candidate is not a sufficient ground to declare him elected. In Vishwanatha Reddy v. Konappa Rudrappa Nadgouda and Anr. a Constitution Bench of the Apex Court has pointed out how the votes polled by a disqualified candidate in a multi-cornered contest have to be treated for purpose of issuing directions under Section 101 of the Representation of Peoples Act, in the following terms:
"This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected".
The above ratio was laid down by the Apex Court on the premise that it is difficult to determine on the principle of fair inference that all the votes secured by the disqualified candidate would have been polled by the election petitioner who secured the next highest number of votes. Considering the fact that the election to the Zilla Panchayat in the present case was multi-cornered one, the principle in Konappa Rudrappa Nadgouda's case, supra will apply to the facts of the case and the Court below having rejected the claim of the petitioner by applying the said principle, the impugned direction does not call for any interference in this petition.
15. In W.P. No. 30354 of 2000, the petitioner-G.P. Srinivas has sought for quashing of the order (Annexure-B) dated 5-9-2000 in No. DBCM Sim. Pra. Pathra Vi.Ni. 13/2000-01 passed by respondent 1 and Annexure-C, dated 8-9-2000 in No. GPIC CR 1/2000-01 passed by respondent 2.
The principal reason why the Deputy Commissioner withdrew the certificate issued by the Tahsildar could be gathered from the recitals contained in para 2 of the order. They are:
The reasoning adopted by the Deputy Commissioner for withdrawing the caste certificate is well-founded. An order passed by an authority in exercise of the power vested in him acting fairly and reasonably cannot be interfered with in this petition under Article 226 of the Constitution.
16. In the result, for the reasons stated above, I find no merit in these petitions and they are, accordingly, dismissed.