R1IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE21T DAY OF SEPTEMBER2017BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR W.P. No.106417/2016 (LB-RES) BETWEEN:
1. D. SIDDAYYA S/O THIMMAPPA, AGE61YEARS, OCC.: AGRICULTURE, R/O No.38, ASHRAYA COLONY, MOKA, BALLARI TQ, BALLARI DIST. 583 117.
2. 3.
4. RAGHAVENDRA S/O LATE VENKATESHWARA, AGE32YEARS, OCC.: BUSINESS, R/O No.13/6, OLD MUNICIPAL OFFICE ROAD, BALLARI-583 101. ASUNDI B. NAGARAJGOWDA, S/O B. SIDDANGOWDA, AGE45YEARS, OCC.: BUSINESS, R/O No.2, ESHWAR TEMPLE, ASUNDI VILLAGE, BALLARI TQ, BALLARI -583 101. SATISH REDDY S/O SHIVARAM REDDY, AGE27YEARS, OCC.: BUSINESS, R/O HARIJAN KERE, NEAR BALLARI ROAD, KOLLAGALLU, BALLARI-583 101.-. PETITIONERS (BY SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI RAJASHEKHAR BURJI AND S.B. MATHAPATI, ADVOCATES) AND:
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2. 3.
4. 5.
6. 2 STATE OF KARNATAKA, DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYATRAJ, M.S. BUILDING, AMBEDKAR VEEDHI, BENGALURU-560 001, REPRESENTED BY ITS PRINCIPAL SECRETARY. STATE ELECTION COMMISSION, KSLMF BUILDING, ANNEX # 8TH CUNNINGHAM ROAD, BENGALURU-560 052 REPRESENTED BY ITS SECRETARY. THE DEPUTY COMMISSIONER, BALLARI-583 101. THE ASSISTANT COMMISSIONER, BALLARI-583 101. THE TAHASILDAR, KURUGODU, BALLARI-583 116. SMT. BHARATI REDDY, W/O SRI. THIMMAREDDY, ADHYAKSHA, ZILLA PANCHAYAT, BALLARI, AGED ABOUT45YEARS, R/AT BADANAHATTI VILLAGE, BALLARI TALUK, BALLARI DISTRICT-583 116.-. RESPONDENTS (BY SRI RAVI HOSAMANI, AGA FOR R1 & R3 TO R5, SMT. K. VIDYAVATI, STANDING COUNSEL FOR R2, SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SRI B. SHARANABASAVA, ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS DATED2904.2016 DECLARING THE6H RESPONDENT AS ADHYAKSHA OF ZILLA PANCHAYAT, BALLARI, VIDE ANNEXURE-H & ETC. 3 THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0709.2017 TODAY COMING ON FOR PRONOUNCEMENT OF
ORDERS, THE COURT MADE THE FOLLOWING:
ORDERIn this Writ Petition the Hon’ble Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s). 17059/2017 (filed by the respondent No.6 herein) dated 17.08.2017 has directed this Court to dispose of the Writ Petition as expeditiously as possible, preferably within four weeks from the date of receipt of the order. Copy of the judgment of the Hon’ble Supreme Court is produced before this Court on 28.08.2017. In view of the direction of the Hon’ble Supreme Court, the matter is taken up on priority for disposal.
2. This Writ Petition is filed praying to issue a writ of Quo Warranto directing the respondent No.6 to vacate the office of the Adhyaksha, Zilla Panchayat, Ballari, and consequently quash the proceedings dated 29.04.2016 declaring the 6th respondent as Adhyaksha of Zilla Panchayat, Ballari, vide Annexure-H and also quash the caste certificate issued by the 4 5th respondent vide order dated 26.04.2016 in Application No.1/16-17 to 6th respondent and for other reliefs.
3. Brief facts of the case are as under: The respondent No.2 issued Calendar of Events (Annexure-A) on 18.01.2016 relating to the General Elections to be held in two stages for 922 constituencies of 26 Zilla Panchayats and 3884 constituencies of 175 Taluk Panchayats in the State. The respondent No.6 herein had contested and elected on 20.02.2016 as a Member of Zilla Panchayat, from 13-Badanahatti constituency which was reserved for General (Woman) Category. As per the Notification published in the Karnataka Gazette dated 15.04.2016 (Annexure-D) the post of Adhyaksha of Ballari Zilla Panchayat was reserved for Backward Community-B Category-Woman. Further, the respondent No.6 contested and elected for the post of Adhyaksha of Zilla Panchayat, Ballari, under Backward Class-B (Woman) category. The petitioners contended that the respondent No.6 does not belong to Backward Class-B5category. However, she has managed to obtain a false caste certificate issued by respondent No.5. In the affidavit filed in support of the application for obtaining caste certificate she has not disclosed the correct family income and property held by them. The respondent No.6 has played fraud on the Constitution in order to obtain caste certificate and hence the petitioners have filed this writ petition. However, on 21.10.2016 this Court had dismissed the writ petition holding the writ petition is not maintainable. Aggrieved by the said order, the petitioners have preferred W.A. No.101459/2016. The Division Bench after hearing the matter set aside the order of this Court and remanded the matter for consideration, which was challenged before the Hon’ble Supreme Court in Civil Appeal No.10587/2017. The Hon’ble Supreme Court on 17.08.2017 disposed of the Civil Appeal directing this Court to consider afresh the matter and dispose of this writ petition as expeditiously as possible within four weeks from the date of receipt of a copy of the judgment. However, permitted the respondent No.6 to perform the 6 functions of Adhyaksha of Zilla Panchayat, Bellary, in accordance with law and her continuation as such is subject to the result of the writ petition.
4. The respondent No.6 on 05.09.2017 filed objections to the writ petition contending that she belonged to Kapu Community and on the basis which she possessed the caste certificate to show that she belonged to BCB category and on the basis of which she got elected as Adhyaksha of Zilla Panchayat, Ballari. Further, she has specifically stated that the petitioner No.4-Mr. Satish Reddy s/o Shivaram Reddy, is a relative of respondent No.6 and had family disputes with her since long time and colluding with other petitioners and with other rival political leaders including the defeated candidate, who contested against the respondent No.6 for the post of Adhyaksha, filed this writ petition only with an intention to malign her political career and to tarnish her image in the political circle. Further, she belongs to “Kapu” caste, which is a backward caste, Category-B which fact can be borne out from her school certificates and hence the 7 Tahasildar has rightly issued the caste certificate. Further, upon the complaint filed before the Special Tahasildar, Kurugodu, the Tahasildar has issued a notice dated 10.06.2016 and a reply was submitted by her. The Deputy Commissioner has issued a notice dated 23.06.2016 to respondent No.6 asking her to appear before the Caste Verification Committee for further enquiry. The proceedings before the Caste Verification Committee is still pending. Further, as on today the Caste Verification Committee has not set aside the Caste Certificate. Further, the Hon’ble Supreme Court has held that, a writ of Quo-Warranto restraining the elected Adhyaksha of Zilla Panchayat from functioning cannot be issued. That, the dispute pertaining to the issue of caste certificate of respondent No.6 is pending before the Caste Verification Committee and the same has to be dealt by the concerned authority. Accordingly, the writ of quo-warranto is not maintainable. Hence, the respondent No.6 prayed to dismiss the writ petition. 8 5. In view of the aforesaid facts, the following point arises for consideration. Whether the petitioners have urged justifiable grounds so as to issue a writ of Quo-Warranto directing the respondent No.6 to vacate the post of Adhyaksha, Zilla Panchayat, Ballari and in consequence upon the same, the proceedings dated 29.04.2016 declaring the respondent No.6 as Adhyaksha of Zilla Panchayat, Ballari, is liable to be set aside?. - - - 6.
7. The answer to the above said point is as follows. Learned Senior Counsel Sri S.M. Chandrashekhar appearing on behalf of the petitioners vehemently contended that the respondent No.6 was elected as a member of Zilla Panchayat, Ballari, from 13-Badanahatti constituency which was reserved for General Woman category. Further, the respondent No.1 issued the notification dated 15.04.2016 reserving the post of Adhyaksha of Zilla Panchayat, Ballari, 9 for Backward Class-B (Woman). The respondent No.6 obtained a false caste certificate dated 26.04.2016 vide Annexure-G from the Tahasildar, Kurugodu (respondent no.5 herein) stating that she belonged to “Kapu” caste which falls under Backward Class-B. On obtaining the caste certificate she contested for the post of Adhyaksha scheduled on 29.04.2016 and was declared as elected as per communication dated 29.05.2016 vide Annexure-H.
8. Learned Senior Counsel stoutly contends that the respondent No.6 had obtained a false certificate by fraud and on the strength of which she got elected as Adhyaksha of Zilla Panchayat, Ballari. Therefore, she must be directed to quit the aforesaid office by issuing a writ of Quo-Warranto. In support of his contentions, he has relied upon the following rulings:
1.
2. (2010) 7 Supreme Court Cases 202 – K. Krishna Murthy (Dr.) and Others Vs. Union of India and Another; (1989) 1 Supreme Court Cases 101 – Municipal Corpn. Of Delhi V. Gurnam Kaur; 10 3.
4. 5.
6.
7.
8. 1723 – K. 1999 Supreme Court (1974) 2 Supreme Court Cases 121 – Nawabkhan Abbaskhan V. State of Gujarat; AIR Venkatachalam V. A.Swamickan and another; (2001) 7 Supreme Court Cases 231 – B.R. Kapur Vs. State of T.N. and another; Civil Appeal No.8928/2015 – Chairman and Managing Director, FCI and ors; Civil Appeal No.9124 of 2017 – State of Orissa and anr. V. Bibhisan Kanhar; ILR2008KAR3854– Sri Yamanappa Satyappa Bandiwadar and Others vs. Amingad Grama Panchayat and Others.
9. W.P. No.40323/2011 – Smt. Jyothi V. The Assistant Commissioner, Sagat Taluk and others; 10. W.P. No.80422/2012 – Laxmibai V. The State of Karnataka and others.
11. LAWS (SC) 1998 101 – Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai.-. - - 9. On the other hand, the contesting party who is the respondent No.6, contends that, though the relief sought for in the nature of Writ of Quo-Warranto and writ of certiorari to quash the election result and the caste certificate, the petitioners are the voters of the constituency and they are not the members of the zilla panchayat and hence they can challenge the election of the respondent No.6 to the office of Adhyaksha by filing an election petition as they are not the 11 members of the zilla panchayat in question. Under Clause (b) of Article 243-O of the Constitution of India there is express bar to entertain the writ petition of the subject involving the election of Adhyaksha of Zilla Panchayat. Further, the petitioner No.4 is a relative of respondent No.6 and had family disputes with her since long time and colluding with other petitioners and with other rival political leaders including the defeated candidate who contested against the respondent No.6 for the post of Adhyaksha, filed this writ petition only with an intention to malign her political career and to tarnish her image in the political circle.
10. Further, the allegation of the petitioners that at the time of obtaining the caste certificate, the respondent No.6 falsely declared that her income is less than Rs.3,50,000/- per annum and that neither she nor her family members are assessed to income tax or commercial tax is concerned, it is admitted that respondent No.6 was receiving an income of Rs.1,40,000/- as rent for the year 2013-14 and in her 12 affidavit has disclosed the income of her husband but according to the notification dated 13.01.1995 the income of the husband is immaterial for the purpose of issuance of the backward class certificate.
11. Learned AGA appearing for respondents 1, 3 to 5, filed following documents pertaining to issuance of caste and income certificate to respondent No.6-Smt. Bharati Reddy w/o Sri. Thimmareddy for perusal of this Court. 1.
2.
3. Application dated 22.04.2016 for issue of caste and income certificate (Xerox copy). Notice dated 23.04.2016 issued by the Revenue Inspector. Report of the Revenue Inspector dated 26.04.2016 bearing No.Sam.Kam.Jaa & Aa Zi.Pam.Chu/01/16-17 dated 26.04.2016.
4. Mahazar 5.
6. Statement Affidavit of the applicant sworn before the Advocate Notary Applicant’s voter identity card (Xerox copy) Applicant’s identity card (Xerox copy) 7.
8.
9.
10. Study Certificate (certified copy) Transfer Certificate (certified copy) 13 11. Original Caste & Income Certificate bearing No.Sam.Kam.01/06-07 dated 26.04.2016.
12. Form No.24 regarding applicant’s land holding.
12. On perusal of the documents it is seen that, on - - - 22.04.2016 the respondent No.6 has filed application for issue of caste and income certificate; on 23.04.2016 the jurisdictional Revenue Inspector has issued notice to respondent No.6 pointing out the discrepancies with regard to issuance of caste and income certificate; on 26.04.2016 the Revenue Inspector has submitted a report recommending to issue caste certificate to the petitioner in Backward Caste II(B); revenue inspector had conducted mahazar along with the Village Accountant and opined that there is no objection for issue of caste certificate to the petitioner in Backward Caste II(B); statement of Smt. C. Bharathi w/o V.C. Thimma Reddy before the Revenue Inspector; affidavit of Smt. C. Bharathi w/o V.C. Thimma Reddy sworn before the Advocate Notary, Ballari Tq. Rev. Area on 26.04.2016; Xerox copy of the original voters’ list of the year 2015; Xerox copy of the voter’s 14 identity card; certified copy of the transfer certificate; certified copy of the study certificate and also the original certificate issued by the Special Tahasildar, Kurugodu, declaring the caste of the respondent No.6 as Kapu which comes under Backward Category ‘B’ on 26.04.2016 so also the original of Form No.24 regarding holding of land by the respondent No.6.
13. The entire process of issuance of caste certificate is concluded in five days, i.e., application was filed on 22.04.2016 and the caste certificate was issued on 26.04.2016, which cannot be said to be illegal, as contended by the learned counsel for respondent No.6. However, on perusal of the affidavit filed by the respondent No.6 before the Notary it is seen that the e-stamp paper is purchased at 5:27 PM on 26.04.2016 and after purchase affidavit was sworn before the Notary and on that day itself the caste certificate is issued. It is also seen that the date 26.04.2016 is over- 15 written. This creates a serous doubt about the process of issuance of caste certificate by the respondent No.5.
14. The respondent No.5 being a responsible officer of the Revenue Department has issued the caste certificate in a mortal hurry. The respondent No.6 who purchased the E- stamp paper on 26.04.2016 at 5.27 PM and on the same day she files the affidavit on the E-Stamp paper before the Advocate Notary and the same is submitted before the Special Tahasildar and the Tahasildar after verification has issued caste certificate to the respondent No.6, being the contested candidate for the post of Adhyaksha of Zilla Panchayat, Ballari. The same is found in the documents produced by the learned AGA. From this process it can be said that the respondent No.5 being a responsible officer has not taken care and diligence in issuing the caste certificate and had adopted a casual working nature. Whether this casual attitude of the respondent No.5 can be said as illegality or negligence is to be considered in a separate proceedings. 16 15. The learned senior counsel appearing for the petitioners apart from the arguments advanced but also filed written arguments wherein it is contended that the petitioners had sought for issuance of a writ of Quo-Warranto as against the 6th respondent as she has usurped the public office even though she was disqualified to hold the office of Adhyaksha of Zilla Panchayat, Ballari. But the facts which are undisputed with regard to usurpation of public office and the fraud committed by the 6th respondent in collusion with other officials is apparent on the face of the record. In this regard the Hon’ble Supreme Court of India in Civil Appeal No.9124/2007 has held as follows:
16. “It is clear from the facts that the respondent fraudulently obtained a certificate showing that he belongs to Schedule Tribe Community which stands cancelled by the order passed by the State Level Scrutiny Committee.” - - - It was held by Dennig l.J.
in Lazarus Estates Ltd. Vs. Beasley (1956) 1 All E.R341 345 that:
17. “No court will allow a person to keep an advantage which he has obtained by [….]. Fraud unravels everything. The court will be careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved contracts and all transactions whatsoever.” it vitiates fraud. judgments, 17. The Full Bench of Hon’ble Supreme Court in the case of - - - Chairman and managing Director, FCI and Others Vs. Jagadish Baloaram Bahira and Ors., in Civil Appeal No.8928/2015 dated 06.07.2017 has held as under: “Page 3, Para 3….. When a person who does not belong to a caste, tribe or class for whom reservation is meant, seeks to pass off as its member, such stratagem constitutes a fraud on the Constitution. Page No.29, Para 25…. On the basis of a false caste claim has been held to constitute an egregious violation, even a fraud on the Constitution. In Anjan Kumar Vs. union of India and Ors. This Court held that: “14…. A person not belonging to the Scheduled Caste or Scheduled Tribe claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake/bogus caste certificate and obtaining appointment/ admission from the reserved quota will have far-reaching grave consequences. Page 60, Para 46…. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the Constitution precisely lies in 18 this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142.” - - - 18. Further, the Hon’ble Supreme Court in Nawabkhan Abbaskhan Vs. State of Gujarat in (1974) 2 SCC121has held that: “10. All these lines of approach have received judicial blessings from the House of Lords in the landmark cases of Ridge v. Baldwin. The legal choice depends not so much on neat logic but the facts of life – a pragmatic proposition. Where the law invests an authority with power to affect the behaviour of others what consequence should be visited on abuse or wrong exercise of power is no abstract theory but experience of life and must be solved by practical considerations woven into legal principle. Verbal rubrics like illegal, void, mandatory, jurisdictional, are convenient cloaks but the ordinary man, like the petitioner here, puzzled about his remedy, Rubinstein poses the issue clearly; How does the validity or nullity of the decision affect the rights and liabilities of the persons concerned?. Can the persons affected by an illegal act ignore and disregard it with impunity?. What are the remedies available to the aggrieved occasioned by an illegal act?. All these questions revert to the one basic issue; has the act concerned had an existence or is it merely a nullity?. Voidable acts are those that can be invalidated in certain proceedings; these proceedings are especially formulated for the purpose of directly challenging such acts.. On the leave 19 other hand, when an act is not merely voidable but void, it is a nullity and can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon. In other words, it is subject to “collateral attacks”. Kelson’s view, when a court holds an act a nullity, is that it is not a declaration of nullity, “it is a true annulment, an annulment with retroactive force” 11. Even so, the dilemma of the petitioner is, if an authority in excess or error of jurisdiction directs an illegal act, should the citizen suffer it until upturned in a legal proceeding directly or collaterally?. Can he resist the injury even if the seal of authority simulates validity?. The eloquent words of Wedderburn quoted by Rubinstein in the context of nullity are pertinent: “What is a sentence?. It is not an instrument with a bit of wax and the seal of a Court put to it; it is not an instrument with the signature of a person calling himself a register; it is not such a quantity of ink bestowed upon such a quantity of stamped paper; a sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled.” - - - 19. Further, the facts of the present case are identical with the facts in K. Venkatachalam v. A. Swamickan’s case wherein it is held as under: “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 a member of 20 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 Venkachalam s/o Pethu, taking advantage of 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.” - - - 20. When the facts stood thus, though the matter was heard and reserved for pronouncement of orders, the learned counsel appearing for respondent No.6 has filed two applications, i.e., I.A. No.2/2017 for recalling the order dated 07.09.2017 and I.A. No.1/2017 for adjournment. However, to meet the ends of justice both applications were ordered to be posted before the Court on 15.09.2017. However, on that day, the learned counsel for respondent No.6 has filed a memo not pressing the I.As. Hence, both I.As are dismissed as not pressed. However, learned senior counsel appearing for respondent No.6 seeks permission of this Court to highlight the points of the case and to address arguments, for which, the learned counsel appearing for the 21 petitioners has no objection. In view of the submission of the learned counsels and also in the interest of justice, opportunity is given to the parties to address further arguments. Accordingly, once again the matter is heard at length.
21. The primary contention of the learned counsel appearing for respondent No.6 is that, the nature of issuance of a writ of Quo-Warranto does not arise in this case, since the respondent No.6 being the elected member of Zilla Panchayat from 13-Badanahatti Constituency, which was reserved for the General Category (Woman). Thereafter, she contested and elected as Adhyaksha of Zilla Panchayat, Ballari, which was reserved to Backward Class ‘B’ category. She has produced the caste certificate issued by the Special Tahasildar, Kurugodu-respondent No.5 herein, who being a responsible officer of the Revenue Department, after due procedure issued the caste certificate. However, in view of the challenge made to the caste certificate which is pending 22 before the Caste Verification Committee for adjudication. It gives rise to presumption under Section 114 of the Indian Evidence Act, which reads as under:
114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume— (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business has been followed in particular cases; (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.-. - - 23 22. The caste certificate issued in respect of respondent No.6 being the contested candidate for the post of Adhyaksha of Zilla Panchayat, was issued by the respondent No.5, in the ordinary course, it is found to be valid. However, the challenge made to the caste certificate is now pending before the Caste Verification Committee. The petitioner No.4 being the relative of respondent No.6 colluding with other petitioners including the defeated candidate, have filed the writ petition by urging various grounds whereas the writ petition is not maintainable and similarly the writ petition is not entertainable regarding the relief as sought for in the nature of Quo-Warranto in respect of the post of Adhyaksha of Zilla Panchayat, Ballari.
23. The respondent No.6 in the affidavit filed before the Tahasildar though has stated that her husband is not an income tax assessee, however, her husband’s income should not be taken into consideration in so far as the President-ship of the respondent No.6 is concerned. The Government of 24 Karnataka vide notification dated 13.01.1995 had classified and notified the classes of citizens specified in the Annexure as Backward Classes for the purpose of reservation of seats and offices of chairpersons in Zilla Panchayat, Taluk Panchayat and Grama Panchayat, etc. Note in the said notification reads as under: Note – No person falling under Category ‘B’ shall be entitled to the benefit of reservation in the seats and offices of Adhyaksha and Upadhyaksha of Zilla Panchayat, Taluk Panchayat and Grama Panchayat if,- (i) He/ She or either of his/her parents/ guardian is a Class I or Class II Officer in the service of the Government or holds an equivalent post in public sector undertaking or an employee under a private employer and draws a salary which is not less than that of a Class II Officer (initial stage of the pay scale of Rs.2050- 3950); (ii) He/ she or either of his/ her parents/ guardian is an Income-tax Assessee/ Wealth Tax Assessee; (iii) He/ She or either of his/ her parents/ guardian is assessed to Sales Tax; (iv) He/ She or either of his/ her parents/ guardian or both together owns more than 8 hectares or dry land or its equivalent. 25 24. Learned Senior Counsel appearing for the respondent No.6 has placed reliance on (2013) 4 SCC465– Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others wherein it is held as under: “Once the complainant who challenged the caste certificate under the garb of acting as a public spirited person espousing cause of STs deprived of their right of being considered for appointment, he should have acted seriously and adduced cogent material before Scrutiny Committee to rebut the aforesaid presumption so as to show that its decision was improbable or facutlly incorrect”.-. - - 25. The complaint filed by the petitioners is pending before the Caste Verification Committee and hence the writ petition cannot be entertained. The respondent No.6 had contested and won the election of Adhyaksha. Hence, issuance of writ of Quo-Warranto as sought for the petitioners does not arise. In 2010 (3) G.L.H. 207 (Dr. K. Krishna Murthy and Ors. Vs. Union of India and Anr.) has held as under: Constitutional Law – Reservation – Constitution of India, 1950 – Art. 15(4), Art. 16(4), Art. 243-D and Art. 243-T – Reservation 26 in local self Government institutions and in education and public employment have different object and basis – Reservation in education and public employment cannot be applied mechanically – While the exclusion of the creamy layer may be feasible as well as desirable in the contacts of reservations for education and employment, the same principle cannot be extended to the contacts of local self Government.-. - - 26. In the aforesaid judgment on which reliance is placed by respondent No.6 in support of his contention and also in conformity with the statement of objections filed to the writ petition, it is unequivocally stated and also contended that the aforesaid judgment is in partial agreement. In the said judgment at paragraph Nos. 31, 32 and 33 it is held as under:
31. In this respect, we are in partial agreement with one of the submissions made by Shri M. Rama Jois that the nature of disadvantages which restrict access to education and employment cannot be readily equated with disadvantages in the realm of political representation. To be sure, backwardness in the social and economic sense does not necessarily imply political backwardness. However, the 27 petitioner's emphasis on the distinction between `selection' (in case of education and employment) and `election' (in case of political representation) does not adequately reflect the complexities involved. It is of course undeniable that in determining who can get access to education and employment, due regard must be given to considerations of merit and efficiency which can be measured in an objective manner. Hence, admissions to educational institutions and the recruitment to government jobs is ordinarily done through methods such as examinations, interviews or assessment of past performance. Since it is felt that applicants belonging to the SC/ST/OBC categories among others are at a disadvantage when they compete through these methods, a level-playing field is sought to be created by way of conferring reservation benefits.
32. In the domain of political participation, there can be no objective parameters to determine who is more likely to get elected to representative institutions at any level. The choices of voters are not guided by an objective assessment of a candidate's merit and efficiency. Instead, they are shaped by subjective factors such as the candidate's ability to canvass support, past service record, professed ideology and affiliations to organised groups among others. In this context, it is quite possible that candidates belonging to the SC/ST/OBC categories could demonstrate these subjective qualities and win elections against candidates from the 28 relatively better-off groups. However, such a scenario cannot be presumed in all circumstances. It is quite conceivable that in some localized settings, backwardness in the social and economic sense can also act as a barrier to effective political participation and representation. When it comes to creating a level-playing field for the purpose of elections to local bodies ,backwardness in the social and economic sense can indeed be one of the criteria for conferring reservation benefits.
33. It must be kept in mind that there is also an inherent difference between the nature of benefits that accrue from access to education and employment on one hand and political representation at the grassroots level on the other hand. While access to higher education and public employment increases the likelihood of the socio-economic upliftment of the individual beneficiaries, participation in local- self government is intended as a more immediate measure of empowerment for the community that the elected representative belongs to. The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservations in local self-government are intended to directly benefit the community as a whole, rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the `creamy layer' in the context of political representation. There are bound to be disparities in the socio- 29 economic status of persons within the groups that are the intended beneficiaries of reservation policies. While the exclusion of the `creamy layer' may be feasible as well as desirable in the context of reservations for education and employment, the same principle cannot be extended to the context of local self-government. At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of weaker sections. Hence, it would be counter-intuitive to exclude the relatively better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. It is quite likely that such persons may be better equipped to represent and protect the interests of their respective communities. We can now attempt to provide answers to the contentious issues.
27. For the reasons stated in the judgment stated supra, - - - there cannot be any exclusion of creamy layer in the context of political representation. The respondent No.6 being the contested candidate for the post of Adhyaksha of Zilla Panchayat, she obtained the caste certificate from respondent No.5, who is a responsible Tahasildar and based upon the caste certificate and also the income tax returns filed by her 30 she had contested and won the post of Adhyaksha. However, the petitioner No.4 being the relative of respondent No.6 had some family disputes and to wreck vengeance against her, he colluded with other petitioners including the defeated candidate and also with political persons, filed this writ petition. It is further contended that, Section 2 (2) of The Karnataka Gram Swaraj and Panchayatraj Act, 1993 relates to the definition of “Backward Classes”, which reads as under: “(2). “Backward Classes” means such class or classes of citizens as may be classified as category “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 Grama Panchayat.” 28. In this writ petition the issuance of caste certificate by the respondent No.5 relating to backward class of respondent No.6, who being contested for the post of Adhyaksha of Zilla Pancayat and the same has been challenged in this writ petition by urging various grounds. The counsel for respondent No.6 placed reliance at page No.468 of 31 Ayaaubkhan Noorkhan Pathan’s case (stated supra) wherein it is held as under: “a third person having no concern with the case on hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in exceptional circumstances if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, in relation to which, he can grind his own axe, approaches the Court, then the Court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the Court, requires consideration, the court may proceed suo motu, in such respect.” - - - 29. He further relied upon the paragraph Nos. 6, 10, 11, 13 and 14 of Ayaaubkhan Noorkhan Pathan’s case, which reads thus: “6. Shri A.V. Savant, learned Senior counsel, appearing for the appellant has submitted that respondent no.5 does not belong to any reserved category, infact, he belongs to the General category, and hence, he has no right or locus standi, to challenge the appellant’s certificate. Thus, the High Court committed an error by directing the Scrutiny Committee to entertain the complaint filed by respondent no.5. It has further been submitted that, despite the directions given by this Court, the Scrutiny Committee failed to ensure compliance with the principles of natural justice, as the appellant was denied the opportunity to cross-examine witnesses, and no order was passed with respect to his application for recalling such witnesses for the purpose of cross-examination, which has no doubt, resulted in the grave miscarriage of justice. The affidavit filed by the Scrutiny Committee did not clarify, or make any specific statement with respect to whether or not 32 the appellant was permitted to cross- examine witnesses. It further, did not clarify whether the application dated 28.2.2012, filed by the appellant to re-call witnesses for the purpose of cross-examination, has been disposed of. Moreover, the procedure adopted by the Scrutiny Committee is in contravention of the statutory requirements, as have been specified under the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No.XXIII of 2001 (hereinafter referred to as the, `Act 2001’), and the Rules, 2003 which are framed under the Act 2001 and therefore, all proceedings hereby stand vitiated. The appellant placed reliance upon several documents which are all very old and therefore, their authenticity should not have been doubted. The earlier report submitted by the Vigilance Cell dated 29.12.1998, clearly stated that the traits and characteristics of the appellant’s family, matched with those of Bhil Tadvi (Scheduled Tribes). The action of respondent no.5 is therefore, completely malifide and is intended, solely to harass the appellant, and the High Court committed grave error in not deciding the issue related to the locus standi of respondent no.5 in relation to him filing a complaint in the first place, as the said issue was specifically raised by the appellant. Therefore, the present appeal deserves to be allowed.
10. A “legal right”, means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR1974SC1719 and State of Rajasthan & Ors. v. Union of India & Ors., AIR1977SC1361.
11. In Anand Sharadchandra Oka v. University of Mumbai, AIR2008SC1289 a similar view was taken by this Court, 33 observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.
13. This Court, even as regards the filing of a habeas corpus petition, has explained that the expression, ‘next friend’ means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody. (Vide: Charanjit Lal Chowdhury v. The Union of India & Ors., AIR1951SC41 Sunil Batra (II) v. Delhi Administration, AIR1980SC1579 Mrs. Neelima Priyadarshini v. State of Bihar, AIR1987SC2021 Simranjit Singh Mann v. Union of India, AIR1993SC280 Karamjeet Singh v. Union of India, AIR1993SC284 and Kishore Samrite v. State of U.P. & Ors., JT (2012) 10 SC393.
14. This Court has consistently cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of the court. The right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. Whenever any public interest is invoked, the court must examine the case to ensure that there is in fact, genuine public interest involved. The court must maintain strict vigilance to ensure that there is no abuse of the process of court and that, “ordinarily meddlesome bystanders are not granted a Visa”. Many societal pollutants create new problems of non- redressed grievances, and the court should make an earnest endeavour to take up those cases, where the subjective purpose of the lis justifies the need for it. (Vide: P.S.R. Sadhanantham v. Arunachalam & Anr., AIR1980SC856 Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC114 State of Uttaranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC402 and Amar Singh v. Union of India & Ors., (2011) 7 SCC69 - - - 34 30. The learned senior counsel for the aforesaid reasons contended that the respondent No.6 has filed her detailed objections to the writ petition and contended that there is no substance in the writ petition and also no grounds are made out so as to issue a writ of Quo-Warranto. This writ petition is filed only to wreck vengeance against the respondent No.6 by the petitioner No.4 colluding with other petitioners and also the defeated candidate so as to malign her career in political circle. Hence, sought for dismissal of the writ petition.
31. Countering the above arguments the learned Senior Counsel appearing for the petitioners taken me through the contents of the writ petition as well as the income tax returns submitted by the respondent No.6 being the contested candidate for the post of Adhyaksha of Zilla Panchayat, which was reserved for Backward Class B category. Hence, the core issue would be as to whether the caste certificate issued by the respondent No.5 is in accordance with law or not. At the 35 first instance, though this writ petition was dismissed as not maintainable on the ground of maintainability in view of the bar contained in Article 243-O of the Constitution of India and also under Rule 7 of Panchayath Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat), Rules, 1994 before the jurisdictional District Judge by an aggrieved party but the order of the learned Single Judge was challenged before the Division Bench of this Court in W.A. No.101459/2016 wherein the Division Bench had held that the writ petition is very much maintainable and hence the matter was remanded to this Court for fresh disposal of the case keeping open all other questions as well as contentions. However, the respondent No.6 challenging the order of the Division Bench approach the Hon’ble Supreme Court. The Hon’ble Supreme Court with the observations stated supra, remanded the matter to this Court for disposal. It is relevant to note Rule 7 of The Karnataka Panchayat Raj Rules, 1994, which reads as under:
36. “7. Election dispute petition: (1) any member of Zilla Panchayat, in whose jurisdiction the Zilla Panchayat lies, can question the election of Adhyaksha and Upa-Adhyaksha before the said District Judge, within 15 days from the date of declaration of election result by depositing Rs.2,000/- along with an Election Petition.” - - - 32. It is clear from the aforesaid Rule that non member of the Zilla Panchayat cannot maintain an election petition but the petitioners herein have filed this writ petition challenging the caste certificate issued to respondent No.6, on the basis of which respondent No.6 has become the Aadhyaksha of Zilla Panchayat, Ballari. However, the petitioners are the voters of the constituency. Therefore, he contends that the writ petition is maintainable and also entertainable.
33. In view of the above said contentions Section 177 of The Karnataka Panchayat Raj Act, 1993, would be beneficial for adjudication of the dispute, which reads as under:
177. Election of Adhyaksha, Upadhyaksha and term of office.- (1) The elected members of the Zilla Panchayat referred to in clause (i) of sub-section (1) of section 159 shall [within one month from the date of publication of names of members under section 172]., after every general election of member of Zilla Panchayat or on its reconstitution or establishment under this Act or immediately before the expiry 37 of term of office of Adhyaksha and Upadhyaksha]. choose two member from amongst them to be respectively Adhyaksha and Upadhyaksha thereof, and so often as there is a casual vacancy in the office of Adhyaksha and Upadhyaksha they shall choose another member from amongst them to be Adhyaksha or Upadhyaksha, as the case may be: Provided that no election shall be held if the vacancy is for a period of less than one month. to (2) There shall be reserved by the [Government]., in the prescribed manner,- (a) Such number of offices of Adhyaksha and Upadhyaksha of Zilla Panchayat in the State for the persons belonging the Scheduled Castes and Scheduled Tribes and the number of such offices bearing as nearly as may be the same proportion to the total number of offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribe in the State bear to the total population of the State; [x x x x x x]. (b) such number of offices of Adhyaksha and Upadhyaksha in the State which shall as nearly as may be one-third of the total number of offices of Adhyaksha and Upadhyaksha in the State, for the persons belonging to the Backward Classes: [Provided that out of the offices reserved under this clause, eighty per cent of the total number of such offices shall be reserved for the persons falling under category ‘A’ and the remaining twenty per cent of the offices shall be reserved for the persons falling under category ‘B’ ;]. 38 (c) not less than one-third of the total number of offices of Adhyaksha and Upadhyaksha in the State from each categories reserved the Scheduled Castes, Scheduled Tribes and Backward Classes and those which are non-reserved, for women: for person belonging to Provided that the offices reserved under this section shall be allotted by rotation to different Zilla Panchayat Explanation.- For the removal of doubts it is hereby declared that the principle of rotation for the purposes of reservation of offices under this sub-section shall commence from the first ordinary election to be held after the commencement of the Karnataka Panchayat Raj Act, 1993. [(3) The term of office of every Adhyaksha and every Upadhyaksha of Zilla Panchayat shall, save as otherwise provided in this Act, be twenty months from the date of his election or till he ceases to be a Member of Zilla Panchayat, whichever is earlier:]. [Provided that the member who is elected as Adhyaksha or Upadhyaksha to fill the casual vacancy in the office of Adhyaksha or Upadhyaksha shall hold office the remainder of the period for which the Adhyaksha or Upadkyaksha in whose place he has been elected would have held office if the vacancy had not occured.]. (4) The election of the Adhyaksha or the Upadhyaksha of a Zilla Panchayat and, filling up of vacancies in the said offices and the determination of disputes relating to such election shall be in accordance with such rules as may be prescribed: Provided that the authority to determine such election disputes shall be the District Judge having Jurisdiction. for - - - 39 34. Learned Senior Counsel Sri Jayakumar S. Patil appearing for respondent No.6 has produced a copy of the interim order passed by this Court dated 01.09.2017 in W.P. No.108700/2017 (LB-RES) wherein the operation of the Note under category ‘B’ of notification dated 13.01.1995 bearing No.RDP5ZPS95i) was stayed insofar as the petitioner in the said writ petition is concerned, who is the respondent No.6 herein. In the said writ petition applying the doctrine of creamy layer against 9 (nine) communities enumerated therein as illegal, void, unconstitutional declared that the persons belonging to 9 (nine) communities under Category-B was stayed. Hence, the learned senior counsel for respondent No.6 (petitioner in W.P. No.108700/2017) contended that the said notification is stayed and hence the same ratio be applied to the instant case. In support of his contention he has also referred to Article 15(4), 16(4) 243-D and 243-T of the Constitution of India, relating to the backward classes and Reservation in local self government institutions and bodies and etc., with regard to the concept of creamy layer. 40 However, the said writ petition was filed by the respondent No.6 herein as a precautionary measure and does not have any bearing in disposal of this case.
35. In this writ petition the core issue relates to the holding of the office of Adhyaksha of Zilla Panchayat, Ballari, by the respondent No.6 and also seeking quashing of Annexure-H the notification declaring the respondent No.6 as Adhyaksha of Zilla Panchayat, Ballary. Therefore, the concept of creamy layer as stated supra, does not come in the way of disposal of this writ petition which is filed for issue of writ of quo warranto against the respondent No.6 to vacate the office of the Adhyaksha of Zilla Panchayat, Ballary and also to quash Annexure-H. In view of the same, the contention of the respondent No.6 does not hold substance.
36. In the instant petition it is relevant to state that the procedure of writ of quo warranto confers jurisdiction and authority on the Court to control executive action in the matter of making an appointment of a person to the public 41 office against the relevant statutory provisions. In the instant case, the petitioners are the voters/ electorates and so also the whistle blowers. It is also relevant to state that, the writ of Quo Warranto protects from illegal deprivation of public office to which they may have a right and also it relates to protect the public from usurping of public office by a person who is not entitled to hold the public office as a result of connivance of executive or that its active help, wherein the respondent No.5 being the responsible Tahasildar, Kurugodu, issued caste certificate to respondent No.6, on the basis of which she was able to contest and elect for the post of Adhyaksha of Zilla Panchayat, Ballari. The respondent No.6 was contested and elected for post of Zilla Panchayat Member from 13-Badanahatti Constituency which was reserved for General Category (Woman). In her affidavit (Annexure-E dated 06.02.2016) itself she has stated that she is an income tax assessee and has even furnished PAN (permanent account number). However, the said fact is suppressed in the subsequent affidavit vide Annexure-F dated 26.04.2016 42 submitted before the Tahasildar, Kurugodu (respondent No.5) along with her application for obtaining Backward Class B Community certificate.
37. One more issue in this writ petition is regarding maintainability of the writ petition raised by the respondent No.6. But, the Hon’ble Supreme Court in the remand order has observed that the writ petition is very much maintainable.
38. Regarding the point of prescribed eligibility criteria to obtain the caste and income certificate is questioned in this writ petition is concerned, the respondent No.6 has furnished the material particulars regarding her income status but as stated supra there was mortal hurry in issuing the caste and income certificate. On perusal of records it reveals that the E-stamp paper was purchased at 5.27 pm on 26.04.2016 at Ballari on which the affidavit was typed and sworn before the Advocate Notary and later was submitted before the Tahasildar, Kurugodu (respondent No.5) and on that day 43 (26.04.2016) itself the caste and income certificate was issued by the respondent No.5. However, the respondent No.5 is under suspension pending enquiry with regard to the procedure adopted by him in issuing the caste certificate to the respondent No.6.
39. The respondent No.6 who is elected by a democratic process, she belonged to Kapu caste, which caste falls under Backward Class-B category, which is indicated in the Government Notification dated 13.01.1995 of the Government of Karnataka. However, now the issue is pending before the Caste Verification Committee and that issue cannot be decided under the jurisdiction of this Court under Article 226 of the Constitution of India.
40. Section 175 of the Panchayat Raj Act, 1993 provides for removal of members for misconduct. Section 179(4) of the Act provides for removal of Adhyaksha and Upadhyaksha of Zilla Panchayat by the Government for misconduct in discharge of duties whereas in the instant writ petition the 44 Income Tax Returns filed by the respondent No.6 pertains to the year 2013-14. But she sworn in the affidavit that she is not an assessee for the year 2015-16. It reflects the conduct of the respondent No.6.
41. The Division Bench of this Court while disposing of the Writ Appeal No.101459/2016 referring to the judgment of Hon’ble Supreme Court in K. Venkatachalam V. Swamickan and another reported in AIR1999SC1723 observed that, 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. The observation of the Division Bench of this Court to deal the matter relating to the issue of respondent No.6 holding the post of Adhyaksha of Zilla Panchayat, Ballari.
42. It cannot be lost sight of the fact that, the E-stamp paper was purchased at 5.27 pm on 26.04.2016 and the caste cum income certificate was issued on the same day, which fact reveals that the certificate was issued in a mortal 45 hurry. Accordingly, this writ petition is filed for issue of writ of Quo Warranto in respect of quashing the proceedings vide Annexure-H dated 29.04.2016 and also to direct the respondent No.6 to vacate the office of Adhyaksha of Zilla Panchayat, Ballari.
43. Respondent No.6 being a responsible member of Zilla Panchayat, Ballari as she was the successful candidate elected from 13 Badanahatti constituency which was reserved for General Category (Woman) as per the notification dated 28.03.2016 published in Karnataka Gazatte. The post of Adhyaksha of Zilla Panchayat was reserved for Backward Category B Woman. The respondent No.6 belonged to Kapu community which belongs to Category B community. However, the declaration regarding her family income reveals that it is more than Rs.3,50,000/- p.a. that too only from the rental income. This shows that the respondent No.6 files an affidavit to secure the caste and income certificate from the respondent No.5, who issued the certificate in a mortal hurry. 46 This creates serious doubt about the genuinity or otherwise of the process of issuing the caste certificate. However, the issue is now pending before the Caste Verification Committee, which is a fact finding committee and would be decided in its own course. Hence, the question of fact as regarding the caste of respondent No.6 in this writ petition does not arise for consideration. In view of the aforesaid reasons, I am of the opinion, since the respondent No.6 has not declared her correct and proper family income only with an intention to hold the post of Adhyaksha which is a public office, must be prevented from holding the office. Hence, the following order is passed. Writ Petition is allowed in part. Accordingly, the
ORDERproceedings dated 29.04.2016 bearing No.SUM./KAM/Pra HaGu/chunavana/05/2016-17 declaring the 6th respondent as Adhyaksha of Zilla Panchayat, Ballari, vide Annexure-H is hereby quashed. Consequently, writ of quo warranto is issued directing the 6th respondent to vacate the office of 47 Adhyaksha, Zilla Panchayat, Ballari. Rest of the prayers do not arise for consideration and accordingly they are rejected. The records submitted by the learned A.G.A. before this Court on 07.09.2017 are directed to be returned by substituting them with Xerox copies. The observations made in this Writ Petition is restricted for disposal of this case and shall not have any bearing regarding the pending litigation before the Caste Verification Committee. The Caste Verification Committee shall independently hold an enquiry and dispose of the case in accordance with law. bvv Sd/- JUDGE