Smt. Chaitra Vs. State Of Karnataka - Court Judgment

Excerpt:
- 1 - nc:2023. khc:38756 wp no.18346 of 2023 in the high court of karnataka at bengaluru ® dated this the31t day of october, 2023 before the hon'ble mr justice suraj govindaraj writ petition no.18346 of2023(lb-res) between: smt. chaitra w/o k. muralidhar aged about33years resident of lingammanahalli kadaba hobli, k.g. temple post gubbi taluk tumkuru district57221. ...petitioner (by sri a.v. gangadharappa, advocate) and:1. state of karnataka rep. by chief secretary panchayath raj and rural development department vikas soudha, bengaluru56000.2. deputy commissioner tumkuru district tumkuru57210.3. assistant commissioner tumkuru sub-division stumkuru57210.4. tahsildar gubbi taluk tumkuru district57221.-. 2 - nc:2023. khc:38756 wp no.18346 of 2023 5. grama panchayath kunnala, kadaba hobli gubbi taluk tumkuru district57221 rep. by its panchyath development officer. 6 . smt. ashamani k.m. w/o kalika prasanna k.s. age about41years resident of doddakunnala (post) kadaba hobli, gubbi taluk tumkuru district57221 …respondents (by smt. prathima honnapura, aag a/w smt. b.p. radha, aga for r1 to r4 sri a. nagarajappa, advocate for r5 sri abhishek n.n. advocate for sri jagadeesh m.l. advocate for r6) this writ petition is filed under articles226and227of the constitution of india praying to call for the records and proceedings of the case. quash the order dated98.2023 passed by the r2 in case no.chu(2)viva/13/2023-24 certified copy of which is produced as annexure-e and the certificate bearing no.icr/eln/cr/01/23-24 dated236.2023 issued by the r4 produced as annexure-b by declaring them as illegal, void and wholly without the authority of law. this writ petition coming on for preliminary hearing in ‘b’ group and having been reserved for orders on1310.2023, this day, the court pronounced the following: - 3 - nc:2023. khc:38756 wp no.18346 of 2023 order1 the petitioner is before this court seeking for the following reliefs: a. writ in the nature of certiorari or any other appropriate writ or order quashing the order dated 9.8.2023 passed by the r2 in case no.chu(2)viva/13/2023-24 certified copy of which is produced as annexure-e and the certificate bearing no.icr/eln/cr/01/23-24 dated 23.6.2023 issued by the r4 produced as annexure-b by declaring them as illegal, void and wholly without the authority of law. b. grant such other reliefs as this hon’ble court deems fit in the facts and circumstances of the case including an order as to cost of this writ petition.2. the petitioner claims to be a resident and voter in lingammanahalli village, which is one of the constituent village of the kunnala grama panchayath, which has 9 wards and 21 duly elected representatives. the petitioner was elected to the said gram panchayath from lingammanahalli-1 from one of the seats which was reserved for category-b woman (bcb-woman). respondent no.6 is stated to have been elected for one of the seats in doddakunnala, from the general i.e., unreserved - 4 - nc:2023. khc:38756 wp no.18346 of 2023 category in the year 2020 in the election held on 22.12.2020.3. elections having been called for the post of adhyaksha and upadhyaksha in the year 2023. it is stated that respondent no.6 having obtained a caste certificate showing herself to belong to bcb-woman category contested for the post of adhyaksha by filing her nomination which had been reserved for bcb - woman.4. it is assailing the same that the petitioner had approached the assistant commissioner who upheld the contention of the petitioner that respondent no.6 could not change the category from general to bcb- woman and as such, granted an interim order, prohibiting respondent no.6 from contesting the election.-. 5 - nc:2023. khc:38756 wp no.18346 of 2023 5. challenging the same, respondent no.6 had approached the deputy commissioner. the deputy commissioner had initially stayed the order of the assistant commissioner and permitted the respondent no.6 to contest the election and vide final order dated 09.08.2023 taking into account that respondent no.6 was returned as the successful candidate which was challenged vide a election petition filed by the petitioner came to the conclusion that all those matters would have to be decided in the said election petition but however had made various observations which lead to an inference that the change in the category was permissible and it is assailing the same that the petitioner is before this court seeking for the aforesaid reliefs.6. sri.a.v.gangadharappa, learned counsel for the petitioner would submit that:6. 1. once a member of gram panchayath is elected in the general category, the said member - 6 - nc:2023. khc:38756 wp no.18346 of 2023 cannot change the category to any reserved category and contest for the post of either adhyaksha or upadhyaksha, which is reserved for such particular category. 6.2. the second submission is that there has been a gross hurry in issuance of the caste certificate in favour of respondent no.6 which does not inspire any confidence and without the same having been referred to caste verification committee, the deputy commissioner could not on his own come to a conclusion that the candidature of respondent no.6 in the reserved category was permissible. 6.3. by relying on section 5 of the gram swaraj and panchayat raj act, 1993 (for short, ‘the act’) it is submitted that the reservation of seats having been categorically prescribed and the election having occurred in terms thereof, subsequently, the returned candidate cannot change its candidature. he also relies upon the - 7 - nc:2023. khc:38756 wp no.18346 of 2023 decision of the hon’ble apex court in the case of bharati reddy vs. state of karnataka and others1 more particularly paras 41 and 43 thereof, which are reproduced hereunder for easy reference:41. this, however, will make no difference to the conclusion which we must reach in this case that the high court could not have issued a writ of quo warranto until the income and caste certificate issued in favour of the appellant, on the basis of which she participated in the election for the post of adhyaksha and got elected, was to be declared void or invalidated by the caste scrutiny committee. we do not wish to dilate on other incidental aspects/arguments as the same will not have any bearing on the conclusion noted above.43. accordingly, we allow this appeal and set aside the decisions of the learned single judge and the division bench of the high court which are impugned in the present appeal. we, however, dispose of the writ petition filed by respondents 6 to 9 being writ petition no.106417 of 2016 only by directing the caste verification committee to expedite the enquiry regarding the validity of the income and caste certificate issued to the appellant by respondent 5 and conclude the same preferably within two months and also intimate its final decision to the appellant within the same time. needless to observe that the caste scrutiny committee will decide the matter on its own merit and without being influenced whatsoever by any 1 (2018) 6 scc162- 8 - nc:2023. khc:38756 wp no.18346 of 2023 observations made in the impugned judgments but in accordance with law. besides, it shall deal with every contention raised before it by recording tangible reasons. 6.4. for all the above reasons he submits that the petition is required to be allowed and the reliefs sought for granted.7. smt.pratima honnapura, learned additional advocate general appearing for respondents no.1 to 4 rebuts the arguments of the learned counsel for the petitioner by relying on section 5 and section 44 of the act. her contention is that:7. 1. the reservation under section 5 of the act is for the election to the gram panchayat whereas there is a separate reservation provided under section 44 of the act for the post of adhyaksha and upadhyaksha. 7.2. the manner and methodology of such reservation under both the sections being different, the reservation in the first category - 9 - nc:2023. khc:38756 wp no.18346 of 2023 under section 5 of the act for election to the panchayat cannot be made applicable for the candidature and/or election to the post of adhyaksha and upadhyaksha. in this regard, she relies upon the decision of hon’ble apex court in the case of kasambhai f.ghanchi and ors. vs. chandubhai d.rajput and ors.2 more particularly paras 14, 16, 18 and 19 thereof which are reproduced hereunder for easy reference:14. the idea of providing reservation for the benefit of the weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is also an effort to improve their lot. the reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. if because of their popularity a larger number of scheduled castes, scheduled tribes, backward classes or women get elected to the municipality than the number of reserved seats that would be welcome. when the idea is to promote the weaker sections of the society, and to improve their lot, it would be a contradiction in terms if members belonging to that section are debarred from standing to the office of the president because such a candidate is popular enough to get elected 2 [1997]. supp 5 scr401- 10 - nc:2023. khc:38756 wp no.18346 of 2023 from a general constituency. it is a fundamental principle of democratic election that a person who is more popular is elected, popularity being measured by the number of votes which the person gets. the language of various legal provisions do not in any way suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting the election of the president when that office is to be filled only by a reserved category person5.16. neither the provisions of article 243-t nor of section 10(5) of the haryana act seem to suggest to us that rule 70(4), which provides that offices of the president of municipalities must go on rotation to members belonging to specified categories, must necessarily mean “that the elected members concerned of the municipal committee must have got elected to the seats available to general category candidates or scheduled caste category candidate or backward class category candidate or general women category candidates by rotation”. there seems to be no warrant for such compartmentalisation and nor do the words of the act or the rules indicate that the concept of rotation presupposes that for the contest of president it is to be from amongst the members elected from a particular category from the seats reserved for that category. this inference which is sought to be drawn does not flow from the plain language of article 243-t or from the provisions of the act or the rules framed thereunder and it also does not promote the object of reservation. the legal provisions provide that the office of the president of the municipality should go by rotation to members belonging to specific category and no more. these provisions do not provide that those members, though falling in the category of scheduled castes, scheduled tribes, backward classes or women must be only those who have been elected from the seats reserved for that category of persons. reservation is with reference to the category/caste to which - 11 - nc:2023. khc:38756 wp no.18346 of 2023 the person belongs and not the nature of constituency from which he/she was elected.18. in our opinion, therefore, the conclusion which was arrived at in saraswati devi case [(1997) 1 scc122 did not flow from the language of the relevant provisions and, it is not consistent with the concept of reservation. with respect, it does not lay down the correct law.19. from the aforesaid discussion it follows that the appellant who belongs to the backward class was eligible to stand for the office of president even though he had been elected as a member of the municipality not from a reserved seat but from a general seat. as per the roster it is a backward class member who in the year 1997 is to be the president of the jambusar municipality. the appellant, who admittedly belongs to a backward class could not be regarded as being ineligible merely because he had not been elected to a seat which had been reserved for a backward class candidate. consequently his election as the president, on this ground, could not have been set aside. 7.3. she also relies on the decision of the coordinate bench of this court in the case of c. ramappa vs. b. bolegowda and others3 more particularly paras 2 and 6 which are reproduced hereunder for easy reference:2. briefly stated the facts are:3. ilr1998kar 4019 - 12 - nc:2023. khc:38756 wp no.18346 of 2023 petitioner c. ramappa and first respondent b. bolegowda were elected to bookinakere grama panchayat, k.r. pet taluk, mandya district in the election held in the month of december 1993. it is undisputed that the petitioner was elected from the modur—1 general constituency and the first respondent from bookinkere-3 constituency reserved for backward class. the second respondent called for a meeting on 18.3.1994 for the election of the adhyaksha and upadhyaksha of bookinakere grama panchayat. it is also undisputed that the office of adhyaksha was reserved for backward class and the office of upadhyaksha for general women. in the meeting held on 18.3.1994, the petitioner who had been elected from the general constituency claiming to be the person belonging to backward classes contested the election. first respondent is the other candidate. in the said election the petitioner having secured 9 votes as against 7 votes secured by the first respondent, was declared elected as adhyaksha of the said bookinakere grama panchayat. petitioner in support of his claim that he belongs to backward classes appear to have produced caste and income certificate dated 7.3.1994 issued by the tahsildar, bookinakere.6. heard the learned counsel for the petitioner and the first respondent. in view of the contentions raised the points that would arise for consideration in this writ petition are:1. whether the petitioner having been elected from general constituency could have contested for the office of the adhyaksha of the grama panchayat, reserved for a person belonging to backward classes?.2. whether the prescribed judicial officer was right in holding that the income of the petition exceeded rs. 10,000/- a year from all sources and therefore he was barred from contesting in the election to the office of adhyaksha, reserved for backward classes?.3. to what relief the petitioner is entitled?. - 13 - nc:2023. khc:38756 wp no.18346 of 2023 point no.1: the declaration by the learned munsiff that the petitioner having been elected from general constituency could not have contested in the election held for the office of adhyaksha reserved for backward classes does not survive for consideration in view of the recent decision of the supreme court in kasambhai f. ghanchi v. chandubhai d. rajput [(1998) 1 scc285((1998) 1 scc285: air1998sc815.]. . the apex court while dealing with a similar situation has held that a person elected from the general constituency could as well contest for the chair-person of the municipality reserved for backward classes provided that person belongs to backward classes. the relevant portion reads thus:— “just as all members of the municipality, irrespective of the fact whether they had been elected to a reserved seat or not, are eligible for election to the post of the president when it falls in the general category, similarly when as per the roster the president is to be one who say belongs to the category of scheduled caste then all members of the municipality who are scheduled caste, irrespective of the seat to which they had been elected, would be eligible to stand for election. neither the act nor the rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of president when it is the turn of that category of candidate to become the president of the municipality.” sub-section (2) of section 2 of the panchayat raj act defines ‘backward classes’ and according to the definition such of those persons classified as category ‘a’ and ‘b’ and notified by the government from time to time would be entitled to claim the tag of backward classes. see rule 2 of the karnataka panchayat raj (backward classes) rules - 14 - nc:2023. khc:38756 wp no.18346 of 2023 1993 and the government order no.swl66bca86 bangalore, dated the 13th october 1986. in the instant case admittedly the petitioner belong to lingayath community. persons belong to lingayath community, according to the government order of 1986, could not have claimed backward class tag unless their income from all sources did not exceed rs. 10,000/- the petitioner obtained certificate from the tahsildar regarding his caste and income and based on that certificate contested the election and of course won the election. therefore, in view of the decision of the supreme court in kasambhai f. ghanchi v. chandubhal d. rajput [(1998) 1 scc285((1998) 1 scc285: air1998sc815.]. the argument that the petitioner having been elected from general constituency could not have contested for the office of the adhyaksha reserved for backward classes, does not survive and that is my finding on the first point. 7.4. by relying on both the above decisions, she submits that the decision of the hon’ble apex court in ghanchi’s case was applied by the coordinate bench of this court in ramappa’s case and the proposition laid out in both the matters was that a person who is elected for a particular category to a municipal corporation could contest for a reserved category and there is no embargo on the same since it is the intention of reservation that as much opportunities as is available be provided for a - 15 - nc:2023. khc:38756 wp no.18346 of 2023 person who belongs to a reserved category to be uplifted and contest in those elections, so as to be brought into the mainstream.8. sri.abhishek n.n., learned counsel for respondent no.5 adopts the submissions of learned additional advocate general and he additionally submits that in the present case, the election relating to gram panchayat, article 243-o of the constitution of india which would apply and as such, this court ought not to intercede in a election matter when the matter is seized in the election petition and submits that the petition is required to be dismissed.9. heard sri.a.v.gangadharappa, learned counsel for the petitioner, smt.prathima honnapura, learned additional advocate general along with smt.b.p.radha, learned aga for respondents no.1 to 4, sri.a.nagarajappa, learned counsel for respondent no.5 and sri.abhishek n.n., learned counsel for - 16 - nc:2023. khc:38756 wp no.18346 of 2023 sri.jagadesh m.l., learned counsel for respondent no.6 and perused the papers.10. the points that would arise for determination are:1. whether a person who is elected in a general category to a gram panchayath can at a later point of time contest for the post of adhyaksha and upadhyaksha in a reserved category?.2) whether the impugned order suffers from any legal infirmity?.3) what order?.11. i answer the above points as under:12. answer to point no.1: whether a person who is elected in a general category to a gram panchayath can at a later point of time contest for the post of adhyaksha and upadhyaksha in a reserved category?. 12.1. section 5 of the gram swaraj and panchayat raj act, 1993 deals with the constitution of grama panchayat and the reservations which are required to be made in respect of the membership of the gram panchayat.-. 17 - nc:2023. khc:38756 wp no.18346 of 2023 12.2. section 5 of the gram swaraj and panchayat raj act, 1993 reads as under:- 5. constitution of grama panchayat.- (1) the grama panchayat shall consist of such number of elected members as may be notified from time to time by the (government) [state election commission]. at the rate of one member for [every four hundred population]. or part thereof of the panchayat area: provided that the determination of the number as aforesaid shall not affect the then composition of the grama panchayat until the expiry of the term of office of the elected members then in office: xxxxx (2) seats [shall, subject to the general or special order of the state election commission, be reserved by the deputy commissioner]. in a grama panchayat,- (a) for the scheduled castes; and (b) for the scheduled tribes; and the number of seats so reserved shall bear as nearly as may be, the same proportion to the total number of seats in the grama panchayat as the population of the scheduled castes in the panchayat area or of the scheduled tribes in the panchayat area bears to the total population of the panchayat area; [provided that at least one seat each shall be reserved in a grama panchayat for the persons belonging to the scheduled castes and the scheduled tribes: provided further that, if no person belonging to the scheduled castes is available the seat reversed for that category shall also be filled by the persons belonging to scheduled tribes and vice-versa.]. (3) such number of seats which shall, as nearly as may be one-third of the total number of seats of the - 18 - nc:2023. khc:38756 wp no.18346 of 2023 grama panchayat [shall, subject to the general or special order of the state election commission, be reserved by the deputy commissioner]. for persons belonging to the backward classes: [but the number of seats so reserved for the backward classes under this sub-section shall be so determined, that the total number of seats reserved for the scheduled castes and the scheduled tribes under sub-section (2) and the backward classes under this sub-section shall not exceed fifty per cent of the total number of seats in the grama panchayat.]. [provided that out of the seats reserved under this sub-section, eighty per cent of the total number of such seats shall be reserved for the persons falling under category “a” and the remaining twenty per cent of the seats shall be reserved for the persons falling under category "b": provided further that if no person falling under category “a” is available, the seats reserved for that category shall also be filled by the persons falling under category “b” and vice versa. explanation.- for the purpose of this sub-section, proviso to clause (b) of sub-section (2) of section 44, sub-section (2) of section 123, clause (b) of sub-section (2) of section 138, sub-section (2) of section 162 and clause (b) of sub-section (2) of section 177, categories “a” and “b” shall mean category ‘a’ and ‘b’ referred to in clause (2) of section 2.]. (4) not less than [fifty percent]. of the seats reserved in each category, for persons belonging to the scheduled castes, scheduled tribes and backward classes and of the non-reserved seats in the grama panchayat [shall, subject to the general or special order of the state election commission, be reserved by the deputy commissioner]. for women [subject to an overall limit of one half rounding of to the next number]. [proviso x x x]. - 19 - nc:2023. khc:38756 wp no.18346 of 2023 [provided that the seats reserved under sub- sections (2), (3) and (4) shall be allotted by rotation, to different constituencies in the panchayat area [and such rotation shall be continued for a period of ten years]. provided further that nothing contained in this section shall be deemed to prevent a woman or a person belonging to the scheduled castes and scheduled tribes or backward classes for whom seats have been reserved in a grama panchayat from standing for election to any non-reserved seat in such grama panchayat. (5) subject to the provisions of sub-sections (2), (3) and (4), [and subject to the general or special order of the state election commission, the deputy commissioner].1 shall, by notification, determine,- (a) the constituencies into which the area within the jurisdiction of every grama panchayat shall be divided for the purpose of election to every grama panchayat; (b) the extent of each constituency; (c) the number of seats if any reserved for the scheduled castes, the scheduled tribes, backward classes or women in each constituency; and (d) the number of seats allotted to each constituency which shall be one or more. (6) if for any reason the election to any grama panchayat does not result in the election of the required number of members as specified in subsection (1), the [deputy commissioner]. shall within one month from the date on which the names of the elected members are published by him under sub-section (8) arrange another election for the election of such number of members as will make up the required number. (7) notwithstanding anything contained in sub- sections (1) and (6), but subject to any general or special orders of the government, where two thirds of the total number of members of any grama panchayat have been elected, the grama panchayat - 20 - nc:2023. khc:38756 wp no.18346 of 2023 shall be deemed to have been duly constituted under this act. (8) the [deputy commissioner]. shall publish, in the prescribed manner the names of members elected or deemed to have been duly elected. 12.3. a perusal of the above provision would indicate that the gram panchayat shall consist of such number of elected members as may be notified from time to time by the government at the rate of one member for every four hundred population or part thereof of the panchayat area. this being the total number of members, there is also a reservation required to be made for persons belonging to the scheduled castes and scheduled tribes category as per their population in the panchayat area and a proportionate number of seats shall be so reserved. 12.4. apart from such reservation, there is also a reservation envisaged for persons belonging to backward classes category to a maximum - 21 - nc:2023. khc:38756 wp no.18346 of 2023 extent of 1/3rd out of which 80% shall be reserved for category ‘a’ and remaining 20% for category ‘b’. however, in respect of entire reservation for scheduled castes and scheduled tribes and backward classes, there is a upward ceiling of 50% prescribed under the above provision. 12.5. thus, it is clear that the reservation which is envisaged under section 5 of the act is in terms of the total population of the gram panchayat with one member per population of four hundred and the reservation is in terms of the population of the scheduled castes and scheduled tribes and backward classes in the said gram panchayat. thus, the reservation prescribed under section 5 of the act is for the entire gram panchayat as a whole and does not in any manner take into consideration any particular reservation for any of the posts in - 22 - nc:2023. khc:38756 wp no.18346 of 2023 gram panchayat like the adhyaksha or upadhyaksha. this aspect is dealt with by section 44 of the act. 12.6. section 44 of the gram swaraj and panchayat raj act, 1993 is reproduced hereunder for easy reference:44. election of adhyaksha and upadhyaksha.- (1) every grama panchayat shall, [within one month from the date of publication of names of elected members under sub-section (8) of section 5]. [or immediately before the expiry of term of office of adhyaksha and upadhyksha]. choose two members of the grama panchayat to be respectively adhyaksha and upadhyaksha. in the event of occurrence of any vacancy by reason of death, resignation, removal or otherwise in the office of adhyaksha or upadhyaksha, the grama panchayat shall choose another member to be the adhyaksha or the upadhyaksha, as the case may be. (2) subject to the general or special order of the [state election commission]., the deputy commissioner shall reserve,- (a) such number of offices of adhyakshas and upadhyakshas of grama panchayats in the state for 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 the offices in the state as the population of the scheduled castes in the state or of the scheduled tribes in the state bears to the total population of the state: [x x x x]. - 23 - nc:2023. khc:38756 wp no.18346 of 2023 [provided that, if no person belonging to the scheduled caste is available, the seats reserved for that category, shall also be filled by the persons belonging to the scheduled tribes and vice-versa]. (b) such number of offices of adhyakshas and upadhyakshas of the grama panchayats, 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: [but the number of offices of adhyakshas and upadhyakshas reserved for the backward classes under this clause shall be so determined, that the total number of offices of adhyaksha and upadhyaksha reserved for the scheduled castes and the scheduled tribes under clause (a) and the backward classes under this clause shall not exceed fifty per cent of the total number of offices of adhyaksha and upadhyaksha of the grama panchayaths in the state.]. [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’: provided further that if no person falling under category ‘a’ is available, the offices reserved for that category shall also be filled by the persons falling under category ‘b’ and vice versa.]. (c) not less than [fifty percent]. of the total number of offices of adhyaksha and upadhyaksha of grama panchayats in the state from each of the categories which are reserved for persons belonging to the scheduled castes, scheduled tribe and backward classes and of those which are non-reserved, for women [subject to an overall limit of one half of the total number rounding of to the next number]. - 24 - nc:2023. khc:38756 wp no.18346 of 2023 provided that the offices reserved under this sub-section shall be allotted by rotation to different grama panchayats. explanation.- for the removal of doubts it is hereby declared that the principle of rotation for purpose of reservation of offices under this section shall commence from the first election to be held after the commencement of the karnataka panchayat raj act, 1993. 12.7. a perusal of section 44 of the act would indicate that the posts of adhyaksha and upadhyaksha of the gram panchayat in the state to be reserved for the scheduled castes and scheduled tribes is determined on the basis of the proportion of such offices in the state vis-à-vis the population of the scheduled castes and scheduled tribes in the state. similar is the situation as regards the reservation of the backward classes, which reservation is determined on the basis of total number of offices of adhyaksha and upadhyaksha proportionate to the population of backward classes.-. 25 - nc:2023. khc:38756 wp no.18346 of 2023 12.8. under section 44 of the act, there is once again a limitation of 80% reservation of category ‘a’ of backward classes and 20% for category 'b’ with upper limit of 50% reservation for all the three categories. 12.9. comparison of section 5 and section 44 of the act would indicate that section 5 of the act deals with the reservation in respect of the members of the gram panchayat whereas section 44 of the act deals with reservation of posts of adhyaksha and upadhyaksha of the gram panchayat. under section 5 of the act, it is the population of the gram panchayat which is taken into consideration whereas under section 44 of the act, it is the number of posts of adhyaksha and upadhyaksha vis-à-vis the population of the entire state which is taken into consideration. thus, on the face of both the provisions, it is clear that both section 5 - 26 - nc:2023. khc:38756 wp no.18346 of 2023 and section 44 of the act are applicable in completely different situations and the reservation made under one cannot be taken to apply to the other or made applicable to the other. 12.10. the aforesaid aspect was considered by the hon’ble apex court in the case of kasambhai f.ghanchi which related to election to a municipality under the gujarat municipalities act, 1963 and the gujarat municipalities (reservation of scheduled castes, scheduled tribes, backward classes and women for office of president) rules, 1994. 12.11. the hon’ble apex court dealing with a similar question as that which has arisen in the present matter has come to a categorical conclusion that the idea of providing reservation is for the benefit of the weaker section of the society so as to ensure their participation in the conduct of - 27 - nc:2023. khc:38756 wp no.18346 of 2023 the affairs of the municipality and as such, held that even if a person elected to the municipality under a general category so long as that person belonged to the scheduled castes, scheduled tribes or backward classes category, then, such person could contest for the post of office of the municipality by making use of the reservation provided. the hon’ble apex court in this regard also applied the principles contained under article 243-t of the constitution of india, which is reproduced hereunder for easy reference:243. t. reservation of seats.—(1) seats shall be reserved for the scheduled castes and the scheduled tribes in every municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that municipality as the population of the scheduled castes in the municipal area or of the scheduled tribes in the municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a municipality. (2) not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the - 28 - nc:2023. khc:38756 wp no.18346 of 2023 scheduled castes or, as the case may be, the scheduled tribes. (3) not less than one-third (including the number of seats reserved for women belonging to the scheduled castes and the scheduled tribes) of the total number of seats to be filled by direct election in every municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a municipality. (4) the offices of chairpersons in the municipalities shall be reserved for the scheduled castes, the scheduled tribes and women in such manner as the legislature of a state may, by law, provide. (5) the reservation of seats under clauses (1) and (2) and the reservation of offices of chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334. (6) nothing in this part shall prevent the legislature of a state from making any provision for reservation of seats in any municipality or offices of chairpersons in the municipalities in favour of backward class of citizens. 12.12. the hon’ble apex court has categorically answered the question by holding that a person belonging to backward class was eligible to stand for the office of the president even though he had been elected as a member of the - 29 - nc:2023. khc:38756 wp no.18346 of 2023 municipality not from a reserved seat but from a general seat. 12.13. the ruling in ghanchi’s case was applied by a coordinate bench of this court in ramappa’s case as referred to supra. ramappa’s case was also one which related to a gram panchayat where the petitioner had been elected to the gram panchayat from the general constituency but contested to the office of adhyaksha of the gram panchayat reserved for a person belonging to backward classes. the ruling of the hon’ble apex court in ghanchi’s case and the coordinate bench of this court in ramappa’s case leaves no doubt in my mind that even in respect of a gram panchayat merely because a person has been elected from unreserved or general category, it would not prohibit or prevent such person from contesting to the posts of the adhyaksha and upadhyaksha, which is reserved for a particular - 30 - nc:2023. khc:38756 wp no.18346 of 2023 category so long as that person belongs to that category. this is also for the reason that a person belonging to scheduled castes, scheduled tribes or backward category can always contest as a general candidate and not vis-a-versa. 12.14. article 243-o of the constitution of india also bars courts from interfering in election matters it is reproduced hereunder for easy reference:243. o. bar to interference by courts in electoral matters.—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) no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a state.]. 12.15. though the said bar is not a complete prohibition, courts would have to exercise such - 31 - nc:2023. khc:38756 wp no.18346 of 2023 power in exceptional circumstances which so warrant it. 12.16. thus, looking at the entire conspectus of the matter, being of the opinion that the reservation made under section 5 of the act is different then that under section 44 of the act and therefore, the contest made to the gram panchayat in terms of section 5 under general category cannot prevent a person from contesting to the post of adhyaksha or upadhyaksha in a reserved category under section 44 of the act so long as that person belongs to such reserved category. 12.17. hence, i answer point no.1 by holding that when a person is elected under a general category to a gram panchayat, he/she can at a later point of time contest for the post of adhyaksha and upadhyaksha in the reserved - 32 - nc:2023. khc:38756 wp no.18346 of 2023 category so long as that person belongs to such reserved category.13. answer to point no.2: whether the impugned order suffers from any legal infirmity?. 13.1. the deputy commissioner in the present matter while dealing with the above aspect as also challenge made to the caste certificate has virtually pronounced on the validity of the caste certificate which the deputy commissioner ought not to have done so since he does not have the jurisdiction or the authority to do so. any dispute relating to the issuance of the caste certificate would have to be dealt with by the caste verification committee, which is the authority designated to do so. thus, insofar as the aspect relating to the validity or otherwise of the caste certificate, the matter would have to be referred to the caste verification committee.-. 33 - nc:2023. khc:38756 wp no.18346 of 2023 13.2. apart therefrom, the finding of the deputy commissioner in the impugned order in relation to the eligibility of respondent no.6 to contest under the backward class category is proper and correct as answered in point no.1 above and the order suffers from legal infirmity only insofar as the finding on the caste verification is concerned.14. answer to point no.3: what order?. 14.1. in view of the above discussion, i pass the following: order i. the writ petition is partly allowed. ii. a certiorari is issued quashing the finding, insofar as the caste certificate, arrived at by the deputy commissioner – respondent no.2 in the order dated 09.08.2023 (annexure-e) as regards the validity thereof and the matter is referred to the caste verification committee to - 34 - nc:2023. khc:38756 wp no.18346 of 2023 hold an enquiry and decide the same in accordance with law. iii. the validity or otherwise of annexure-b - caste certificate shall be subject to the result of the proceedings before the caste verification committee. iv. insofar as eligibility of a person elected under a general category to contest for the post of adhyaksha/upadhyaksha has been dealt with hereinabove and the same shall guide the court seized of the election petition. v. the caste verification committee is directed to complete the enquiry within a period of 45 days from the date of receipt of copy of this order. until then, the proceedings in election petition no.1/2023 pending on the file of the senior civil judge and designated court, gubbi shall remain stayed. vi. the caste verification committee to forward a copy of its finding to senior civil judge and - 35 - nc:2023. khc:38756 wp no.18346 of 2023 designated court, gubbi. upon receipt of the said finding, the further proceedings in election petition no.1/2023 to be taken up. sd/- judge prs

Judgment:

- 1 - NC:

2023. KHC:38756 WP No.18346 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU ® DATED THIS THE31T DAY OF OCTOBER, 2023 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO.18346 OF2023(LB-RES) BETWEEN: SMT. CHAITRA W/O K. MURALIDHAR AGED ABOUT33YEARS RESIDENT OF LINGAMMANAHALLI KADABA HOBLI, K.G. TEMPLE POST GUBBI TALUK TUMKURU DISTRICT57221. ...PETITIONER (BY SRI A.V. GANGADHARAPPA, ADVOCATE) AND:

1. STATE OF KARNATAKA REP. BY CHIEF SECRETARY PANCHAYATH RAJ AND RURAL DEVELOPMENT DEPARTMENT VIKAS SOUDHA, BENGALURU56000.

2. DEPUTY COMMISSIONER TUMKURU DISTRICT TUMKURU57210.

3. ASSISTANT COMMISSIONER TUMKURU SUB-DIVISION STUMKURU57210.

4. TAHSILDAR GUBBI TALUK TUMKURU DISTRICT57221.-. 2 - NC:

2023. KHC:38756 WP No.18346 of 2023 5. GRAMA PANCHAYATH KUNNALA, KADABA HOBLI GUBBI TALUK TUMKURU DISTRICT57221 REP. BY ITS PANCHYATH DEVELOPMENT OFFICER. 6 . SMT. ASHAMANI K.M. W/O KALIKA PRASANNA K.S. AGE ABOUT41YEARS RESIDENT OF DODDAKUNNALA (POST) KADABA HOBLI, GUBBI TALUK TUMKURU DISTRICT57221 …RESPONDENTS (BY SMT. PRATHIMA HONNAPURA, AAG A/W SMT. B.P. RADHA, AGA FOR R1 TO R4 SRI A. NAGARAJAPPA, ADVOCATE FOR R5 SRI ABHISHEK N.N. ADVOCATE FOR SRI JAGADEESH M.L. ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE CASE. QUASH THE

ORDER

DATED98.2023 PASSED BY THE R2 IN CASE NO.CHU(2)VIVA/13/2023-24 CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE-E AND THE CERTIFICATE BEARING NO.ICR/ELN/CR/01/23-24 DATED236.2023 ISSUED BY THE R4 PRODUCED AS ANNEXURE-B BY DECLARING THEM AS ILLEGAL, VOID AND WHOLLY WITHOUT THE AUTHORITY OF LAW. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP AND HAVING BEEN RESERVED FOR

ORDER

S ON1310.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: - 3 - NC:

2023. KHC:38756 WP No.18346 of 2023

ORDER

1 The petitioner is before this Court seeking for the following reliefs: a. Writ in the nature of certiorari or any other appropriate writ or order quashing the order dated 9.8.2023 passed by the R2 in case No.CHU(2)VIVA/13/2023-24 certified copy of which is produced as Annexure-E and the certificate bearing No.ICR/ELN/CR/01/23-24 dated 23.6.2023 issued by the R4 produced as Annexure-B by declaring them as illegal, void and wholly without the authority of law. b. Grant such other reliefs as this Hon’ble Court deems fit in the facts and circumstances of the case including an order as to cost of this writ petition.

2. The petitioner claims to be a resident and voter in Lingammanahalli Village, which is one of the constituent village of the Kunnala Grama Panchayath, which has 9 wards and 21 duly elected representatives. The petitioner was elected to the said Gram Panchayath from Lingammanahalli-1 from one of the seats which was reserved for category-B Woman (BCB-woman). Respondent No.6 is stated to have been elected for one of the seats in Doddakunnala, from the general i.e., unreserved - 4 - NC:

2023. KHC:38756 WP No.18346 of 2023 category in the year 2020 in the election held on 22.12.2020.

3. Elections having been called for the post of Adhyaksha and Upadhyaksha in the year 2023. It is stated that respondent No.6 having obtained a caste certificate showing herself to belong to BCB-woman category contested for the post of Adhyaksha by filing her nomination which had been reserved for BCB - Woman.

4. It is assailing the same that the petitioner had approached the Assistant Commissioner who upheld the contention of the petitioner that respondent No.6 could not change the category from General to BCB- Woman and as such, granted an interim order, prohibiting Respondent No.6 from contesting the election.-. 5 - NC:

2023. KHC:38756 WP No.18346 of 2023 5. Challenging the same, respondent No.6 had approached the Deputy Commissioner. The Deputy Commissioner had initially stayed the order of the Assistant Commissioner and permitted the respondent No.6 to contest the election and vide final order dated 09.08.2023 taking into account that Respondent No.6 was returned as the successful candidate which was challenged vide a Election Petition filed by the petitioner came to the conclusion that all those matters would have to be decided in the said Election Petition but however had made various observations which lead to an inference that the change in the category was permissible and it is assailing the same that the petitioner is before this Court seeking for the aforesaid reliefs.

6. Sri.A.V.Gangadharappa, learned counsel for the petitioner would submit that:

6. 1. Once a member of Gram Panchayath is elected in the general category, the said member - 6 - NC:

2023. KHC:38756 WP No.18346 of 2023 cannot change the category to any reserved category and contest for the post of either Adhyaksha or Upadhyaksha, which is reserved for such particular category. 6.2. The second submission is that there has been a gross hurry in issuance of the caste certificate in favour of respondent No.6 which does not inspire any confidence and without the same having been referred to Caste Verification Committee, the Deputy Commissioner could not on his own come to a conclusion that the candidature of respondent No.6 in the reserved category was permissible. 6.3. By relying on Section 5 of the Gram Swaraj and Panchayat Raj Act, 1993 (for short, ‘the Act’) it is submitted that the reservation of seats having been categorically prescribed and the election having occurred in terms thereof, subsequently, the returned candidate cannot change its candidature. He also relies upon the - 7 - NC:

2023. KHC:38756 WP No.18346 of 2023 decision of the Hon’ble Apex Court in the case of Bharati Reddy Vs. State of Karnataka and Others1 more particularly Paras 41 and 43 thereof, which are reproduced hereunder for easy reference:

41. This, however, will make no difference to the conclusion which we must reach in this case that the High Court could not have issued a writ of quo warranto until the income and caste certificate issued in favour of the appellant, on the basis of which she participated in the election for the post of Adhyaksha and got elected, was to be declared void or invalidated by the Caste Scrutiny Committee. We do not wish to dilate on other incidental aspects/arguments as the same will not have any bearing on the conclusion noted above.

43. Accordingly, we allow this appeal and set aside the decisions of the learned Single Judge and the Division Bench of the High Court which are impugned in the present appeal. We, however, dispose of the writ petition filed by Respondents 6 to 9 being Writ Petition No.106417 of 2016 only by directing the Caste Verification Committee to expedite the enquiry regarding the validity of the income and caste certificate issued to the appellant by Respondent 5 and conclude the same preferably within two months and also intimate its final decision to the appellant within the same time. Needless to observe that the Caste Scrutiny Committee will decide the matter on its own merit and without being influenced whatsoever by any 1 (2018) 6 SCC162- 8 - NC:

2023. KHC:38756 WP No.18346 of 2023 observations made in the impugned judgments but in accordance with law. Besides, it shall deal with every contention raised before it by recording tangible reasons. 6.4. For all the above reasons he submits that the petition is required to be allowed and the reliefs sought for granted.

7. Smt.Pratima Honnapura, learned Additional Advocate General appearing for respondents No.1 to 4 rebuts the arguments of the learned counsel for the petitioner by relying on Section 5 and Section 44 of the Act. Her contention is that:

7. 1. The reservation under Section 5 of the Act is for the election to the Gram Panchayat whereas there is a separate reservation provided under Section 44 of the Act for the post of Adhyaksha and Upadhyaksha. 7.2. The manner and methodology of such reservation under both the Sections being different, the reservation in the first category - 9 - NC:

2023. KHC:38756 WP No.18346 of 2023 under Section 5 of the Act for election to the Panchayat cannot be made applicable for the candidature and/or election to the post of Adhyaksha and Upadhyaksha. In this regard, she relies upon the decision of Hon’ble Apex Court in the case of Kasambhai F.Ghanchi and Ors. Vs. Chandubhai D.Rajput and Ors.2 more particularly Paras 14, 16, 18 and 19 thereof which are reproduced hereunder for easy reference:

14. The idea of providing reservation for the benefit of the weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is also an effort to improve their lot. The reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. If because of their popularity a larger number of Scheduled Castes, Scheduled Tribes, Backward Classes or women get elected to the municipality than the number of reserved seats that would be welcome. When the idea is to promote the weaker sections of the society, and to improve their lot, it would be a contradiction in terms if members belonging to that section are debarred from standing to the office of the President because such a candidate is popular enough to get elected 2 [1997]. Supp 5 SCR401- 10 - NC:

2023. KHC:38756 WP No.18346 of 2023 from a general constituency. It is a fundamental principle of democratic election that a person who is more popular is elected, popularity being measured by the number of votes which the person gets. The language of various legal provisions do not in any way suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting the election of the President when that office is to be filled only by a reserved category person5.

16. Neither the provisions of Article 243-T nor of Section 10(5) of the Haryana Act seem to suggest to us that Rule 70(4), which provides that offices of the President of municipalities must go on rotation to members belonging to specified categories, must necessarily mean “that the elected members concerned of the municipal committee must have got elected to the seats available to general category candidates or Scheduled Caste category candidate or Backward Class category candidate or general women category candidates by rotation”. There seems to be no warrant for such compartmentalisation and nor do the words of the Act or the Rules indicate that the concept of rotation presupposes that for the contest of President it is to be from amongst the members elected from a particular category from the seats reserved for that category. This inference which is sought to be drawn does not flow from the plain language of Article 243-T or from the provisions of the Act or the Rules framed thereunder and it also does not promote the object of reservation. The legal provisions provide that the office of the President of the municipality should go by rotation to members belonging to specific category and no more. These provisions do not provide that those members, though falling in the category of Scheduled Castes, Scheduled Tribes, Backward Classes or women must be only those who have been elected from the seats reserved for that category of persons. Reservation is with reference to the category/caste to which - 11 - NC:

2023. KHC:38756 WP No.18346 of 2023 the person belongs and not the nature of constituency from which he/she was elected.

18. In our opinion, therefore, the conclusion which was arrived at in Saraswati Devi case [(1997) 1 SCC122 did not flow from the language of the relevant provisions and, it is not consistent with the concept of reservation. With respect, it does not lay down the correct law.

19. From the aforesaid discussion it follows that the appellant who belongs to the Backward Class was eligible to stand for the office of President even though he had been elected as a member of the municipality not from a reserved seat but from a general seat. As per the roster it is a Backward Class member who in the year 1997 is to be the President of the Jambusar Municipality. The appellant, who admittedly belongs to a Backward Class could not be regarded as being ineligible merely because he had not been elected to a seat which had been reserved for a Backward Class candidate. Consequently his election as the President, on this ground, could not have been set aside. 7.3. She also relies on the decision of the Coordinate Bench of this Court in the case of C. Ramappa Vs. B. Bolegowda and others3 more particularly Paras 2 and 6 which are reproduced hereunder for easy reference:

2. Briefly stated the facts are:

3. ILR1998Kar 4019 - 12 - NC:

2023. KHC:38756 WP No.18346 of 2023 Petitioner C. Ramappa and first respondent B. Bolegowda were elected to Bookinakere Grama Panchayat, K.R. Pet Taluk, Mandya district in the election held in the month of December 1993. It is undisputed that the petitioner was elected from the Modur—1 General constituency and the first respondent from Bookinkere-3 Constituency reserved for backward class. The second respondent called for a meeting on 18.3.1994 for the election of the Adhyaksha and Upadhyaksha of Bookinakere Grama Panchayat. It is also undisputed that the office of Adhyaksha was reserved for backward class and the office of Upadhyaksha for general women. In the meeting held on 18.3.1994, the petitioner who had been elected from the General Constituency claiming to be the person belonging to backward classes contested the election. First respondent is the other candidate. In the said election the petitioner having secured 9 votes as against 7 votes secured by the first respondent, was declared elected as Adhyaksha of the said Bookinakere Grama Panchayat. Petitioner in support of his claim that he belongs to backward classes appear to have produced Caste and Income Certificate dated 7.3.1994 issued by the Tahsildar, Bookinakere.

6. Heard the learned Counsel for the petitioner and the first respondent. In view of the contentions raised the points that would arise for consideration in this Writ Petition are:

1. Whether the petitioner having been elected from General Constituency could have contested for the office of the Adhyaksha of the Grama Panchayat, reserved for a person belonging to backward classes?.

2. Whether the Prescribed Judicial Officer was right in holding that the income of the petition exceeded Rs. 10,000/- a year from all sources and therefore he was barred from contesting in the election to the office of Adhyaksha, reserved for Backward Classes?.

3. To what relief the petitioner is entitled?. - 13 - NC:

2023. KHC:38756 WP No.18346 of 2023 Point No.1: The declaration by the learned Munsiff that the petitioner having been elected from General Constituency could not have contested in the election held for the office of Adhyaksha reserved for backward classes does not survive for consideration in view of the recent decision of the Supreme Court in Kasambhai F. Ghanchi v. Chandubhai D. Rajput [(1998) 1 SCC285((1998) 1 SCC285: AIR1998SC815.]. . The Apex Court while dealing with a similar situation has held that a person elected from the General Constituency could as well contest for the chair-person of the Municipality reserved for backward classes provided that person belongs to backward classes. The relevant portion reads thus:— “Just as all members of the municipality, irrespective of the fact whether they had been elected to a reserved seat or not, are eligible for election to the post of the President when it falls in the general category, similarly when as per the roster the President is to be one who say belongs to the category of scheduled Caste then all members of the municipality who are Scheduled Caste, irrespective of the seat to which they had been elected, would be eligible to stand for election. Neither the Act nor the Rules stipulate that it is only such a member who has been elected to the reserved seat who would be eligible to stand for election to the post of President when it is the turn of that category of candidate to become the President of the municipality.” Sub-section (2) of Section 2 of the Panchayat Raj Act defines ‘Backward Classes’ and according to the definition such of those persons classified as category ‘A’ and ‘B’ and notified by the Government from time to time would be entitled to claim the tag of backward classes. See Rule 2 of the Karnataka Panchayat Raj (Backward Classes) Rules - 14 - NC:

2023. KHC:38756 WP No.18346 of 2023 1993 and the Government Order No.SWL66BCA86 Bangalore, dated the 13th October 1986. In the instant case admittedly the petitioner belong to Lingayath Community. Persons belong to Lingayath Community, according to the Government Order of 1986, could not have claimed backward class tag unless their income from all sources did not exceed Rs. 10,000/- The petitioner obtained certificate from the Tahsildar regarding his caste and income and based on that certificate contested the election and of course won the election. Therefore, in view of the decision of the Supreme Court in Kasambhai F. Ghanchi v. Chandubhal D. Rajput [(1998) 1 SCC285((1998) 1 SCC285: AIR1998SC815.]. the argument that the petitioner having been elected from General Constituency could not have contested for the office of the Adhyaksha reserved for backward classes, does not survive and that is my finding on the first point. 7.4. By relying on both the above decisions, she submits that the decision of the Hon’ble Apex Court in Ghanchi’s case was applied by the Coordinate Bench of this Court in Ramappa’s case and the proposition laid out in both the matters was that a person who is elected for a particular category to a Municipal Corporation could contest for a reserved category and there is no embargo on the same since it is the intention of reservation that as much opportunities as is available be provided for a - 15 - NC:

2023. KHC:38756 WP No.18346 of 2023 person who belongs to a reserved category to be uplifted and contest in those elections, so as to be brought into the mainstream.

8. Sri.Abhishek N.N., learned counsel for respondent No.5 adopts the submissions of learned Additional Advocate General and he additionally submits that in the present case, the election relating to Gram Panchayat, Article 243-O of the Constitution of India which would apply and as such, this Court ought not to intercede in a Election matter when the matter is seized in the Election Petition and submits that the petition is required to be dismissed.

9. Heard Sri.A.V.Gangadharappa, learned counsel for the petitioner, Smt.Prathima Honnapura, learned Additional Advocate General along with Smt.B.P.Radha, learned AGA for respondents No.1 to 4, Sri.A.Nagarajappa, learned counsel for respondent No.5 and Sri.Abhishek N.N., learned counsel for - 16 - NC:

2023. KHC:38756 WP No.18346 of 2023 Sri.Jagadesh M.L., learned counsel for respondent No.6 and perused the papers.

10. The points that would arise for determination are:

1. Whether a person who is elected in a general category to a Gram Panchayath can at a later point of time contest for the post of Adhyaksha and Upadhyaksha in a reserved category?.

2) Whether the impugned order suffers from any legal infirmity?.

3) What order?.

11. I answer the above points as under:

12. Answer to Point No.1: Whether a person who is elected in a general category to a Gram Panchayath can at a later point of time contest for the post of Adhyaksha and Upadhyaksha in a reserved category?. 12.1. Section 5 of the Gram Swaraj and Panchayat Raj Act, 1993 deals with the Constitution of Grama Panchayat and the reservations which are required to be made in respect of the membership of the Gram Panchayat.-. 17 - NC:

2023. KHC:38756 WP No.18346 of 2023 12.2. Section 5 of the Gram Swaraj and Panchayat Raj Act, 1993 reads as under:- 5. Constitution of Grama Panchayat.- (1) The Grama Panchayat shall consist of such number of elected members as may be notified from time to time by the (government) [State Election Commission]. at the rate of one member for [every four hundred population]. or part thereof of the panchayat area: Provided that the determination of the number as aforesaid shall not affect the then composition of the Grama Panchayat until the expiry of the term of office of the elected members then in office: xxxxx (2) Seats [shall, subject to the general or special order of the State Election Commission, be reserved by the Deputy Commissioner]. in a Grama Panchayat,- (a) for the Scheduled Castes; and (b) for the Scheduled Tribes; and the number of seats so reserved shall bear as nearly as may be, the same proportion to the total number of seats in the Grama Panchayat as the population of the Scheduled Castes in the panchayat area or of the Scheduled Tribes in the panchayat area bears to the total population of the panchayat area; [Provided that at least one seat each shall be reserved in a Grama Panchayat for the persons belonging to the Scheduled Castes and the Scheduled Tribes: Provided further that, if no person belonging to the Scheduled Castes is available the seat reversed for that category shall also be filled by the persons belonging to Scheduled Tribes and vice-versa.]. (3) Such number of seats which shall, as nearly as may be one-third of the total number of seats of the - 18 - NC:

2023. KHC:38756 WP No.18346 of 2023 Grama Panchayat [shall, subject to the general or special order of the State Election Commission, be reserved by the Deputy Commissioner]. for persons belonging to the Backward classes: [But the number of seats so reserved for the Backward Classes under this sub-section shall be so determined, that the total number of seats reserved for the Scheduled Castes and the Scheduled Tribes under sub-section (2) and the Backward Classes under this sub-section shall not exceed fifty per cent of the total number of seats in the Grama Panchayat.]. [Provided that out of the seats reserved under this sub-section, eighty per cent of the total number of such seats shall be reserved for the persons falling under category “A” and the remaining twenty per cent of the seats shall be reserved for the persons falling under category "B": Provided further that if no person falling under category “A” is available, the seats reserved for that category shall also be filled by the persons falling under category “B” and vice versa. Explanation.- For the purpose of this sub-section, proviso to clause (b) of sub-section (2) of section 44, sub-section (2) of section 123, clause (b) of sub-section (2) of section 138, sub-section (2) of section 162 and clause (b) of sub-section (2) of section 177, categories “A” and “B” shall mean category ‘A’ and ‘B’ referred to in clause (2) of section 2.]. (4) Not less than [fifty percent]. of the seats reserved in each category, for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward classes and of the non-reserved seats in the Grama Panchayat [shall, subject to the general or special order of the State Election Commission, be reserved by the Deputy Commissioner]. for women [subject to an overall limit of one half rounding of to the next number]. [Proviso x x x]. - 19 - NC:

2023. KHC:38756 WP No.18346 of 2023 [Provided that the seats reserved under sub- sections (2), (3) and (4) shall be allotted by rotation, to different constituencies in the Panchayat area [and such rotation shall be continued for a period of ten years]. Provided further that nothing contained in this section shall be deemed to prevent a woman or a person belonging to the Scheduled Castes and Scheduled Tribes or Backward Classes for whom seats have been reserved in a Grama Panchayat from standing for election to any non-reserved seat in such Grama Panchayat. (5) Subject to the provisions of sub-sections (2), (3) and (4), [and subject to the general or special order of the State Election Commission, the Deputy Commissioner].1 shall, by notification, determine,- (a) the constituencies into which the area within the jurisdiction of every Grama Panchayat shall be divided for the purpose of election to every Grama Panchayat; (b) the extent of each constituency; (c) the number of seats if any reserved for the Scheduled Castes, the Scheduled Tribes, Backward Classes or women in each constituency; and (d) the number of seats allotted to each Constituency which shall be one or more. (6) If for any reason the election to any Grama Panchayat does not result in the election of the required number of members as specified in subsection (1), the [Deputy Commissioner]. shall within one month from the date on which the names of the elected members are published by him under sub-section (8) arrange another election for the election of such number of members as will make up the required number. (7) Notwithstanding anything contained in sub- sections (1) and (6), but subject to any general or special orders of the Government, where two thirds of the total number of members of any Grama Panchayat have been elected, the Grama Panchayat - 20 - NC:

2023. KHC:38756 WP No.18346 of 2023 shall be deemed to have been duly constituted under this Act. (8) The [Deputy Commissioner]. shall publish, in the prescribed manner the names of members elected or deemed to have been duly elected. 12.3. A perusal of the above provision would indicate that the Gram Panchayat shall consist of such number of elected members as may be notified from time to time by the Government at the rate of one member for every four hundred population or part thereof of the Panchayat area. This being the total number of members, there is also a reservation required to be made for persons belonging to the Scheduled Castes and Scheduled Tribes category as per their population in the Panchayat area and a proportionate number of seats shall be so reserved. 12.4. Apart from such reservation, there is also a reservation envisaged for persons belonging to backward classes category to a maximum - 21 - NC:

2023. KHC:38756 WP No.18346 of 2023 extent of 1/3rd out of which 80% shall be reserved for category ‘A’ and remaining 20% for category ‘B’. However, in respect of entire reservation for Scheduled Castes and Scheduled Tribes and backward classes, there is a upward ceiling of 50% prescribed under the above provision. 12.5. Thus, it is clear that the reservation which is envisaged under Section 5 of the Act is in terms of the total population of the Gram Panchayat with one member per population of four hundred and the reservation is in terms of the population of the Scheduled Castes and Scheduled Tribes and backward classes in the said Gram Panchayat. Thus, the reservation prescribed under Section 5 of the Act is for the entire Gram Panchayat as a whole and does not in any manner take into consideration any particular reservation for any of the posts in - 22 - NC:

2023. KHC:38756 WP No.18346 of 2023 Gram Panchayat like the Adhyaksha or Upadhyaksha. This aspect is dealt with by Section 44 of the Act. 12.6. Section 44 of the Gram Swaraj and Panchayat Raj Act, 1993 is reproduced hereunder for easy reference:

44. Election of Adhyaksha and Upadhyaksha.- (1) Every Grama Panchayat shall, [within one month from the date of publication of names of elected members under sub-section (8) of section 5]. [or immediately before the expiry of term of office of Adhyaksha and Upadhyksha]. choose two members of the Grama Panchayat to be respectively Adhyaksha and Upadhyaksha. In the event of occurrence of any vacancy by reason of death, resignation, removal or otherwise in the office of Adhyaksha or Upadhyaksha, the Grama Panchayat shall choose another member to be the Adhyaksha or the Upadhyaksha, as the case may be. (2) Subject to the general or special order of the [State Election Commission]., the Deputy Commissioner shall reserve,- (a) such number of offices of Adhyakshas and Upadhyakshas of Grama Panchayats in the State for 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 the offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State: [X x x x]. - 23 - NC:

2023. KHC:38756 WP No.18346 of 2023 [Provided that, if no person belonging to the scheduled caste is available, the seats reserved for that category, shall also be filled by the persons belonging to the scheduled tribes and vice-versa]. (b) such number of offices of Adhyakshas and Upadhyakshas of the Grama Panchayats, 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: [But the number of offices of Adhyakshas and Upadhyakshas reserved for the Backward Classes under this clause shall be so determined, that the total number of offices of Adhyaksha and Upadhyaksha reserved for the Scheduled Castes and the Scheduled Tribes under clause (a) and the Backward Classes under this clause shall not exceed fifty per cent of the total number of offices of Adhyaksha and Upadhyaksha of the Grama Panchayaths in the State.]. [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’: Provided further that if no person falling under category ‘A’ is available, the offices reserved for that category shall also be filled by the persons falling under category ‘B’ and Vice versa.]. (c) not less than [fifty percent]. of the total number of offices of Adhyaksha and Upadhyaksha of Grama Panchayats in the State from each of the categories which are reserved for persons belonging to the Scheduled Castes, Scheduled Tribe and Backward Classes and of those which are non-reserved, for women [Subject to an overall limit of one half of the total number rounding of to the next number]. - 24 - NC:

2023. KHC:38756 WP No.18346 of 2023 Provided that the offices reserved under this sub-section shall be allotted by rotation to different Grama Panchayats. Explanation.- For the removal of doubts it is hereby declared that the principle of rotation for purpose of reservation of offices under this section shall commence from the first election to be held after the commencement of the Karnataka Panchayat Raj Act, 1993. 12.7. A perusal of Section 44 of the Act would indicate that the posts of Adhyaksha and Upadhyaksha of the Gram Panchayat in the State to be reserved for the Scheduled Castes and Scheduled Tribes is determined on the basis of the proportion of such offices in the State vis-à-vis the population of the Scheduled Castes and Scheduled Tribes in the State. Similar is the situation as regards the reservation of the backward classes, which reservation is determined on the basis of total number of offices of Adhyaksha and Upadhyaksha proportionate to the population of backward classes.-. 25 - NC:

2023. KHC:38756 WP No.18346 of 2023 12.8. Under Section 44 of the Act, there is once again a limitation of 80% reservation of category ‘A’ of backward classes and 20% for category 'B’ with upper limit of 50% reservation for all the three categories. 12.9. Comparison of Section 5 and Section 44 of the Act would indicate that Section 5 of the Act deals with the reservation in respect of the members of the Gram Panchayat whereas Section 44 of the Act deals with reservation of posts of Adhyaksha and Upadhyaksha of the Gram Panchayat. Under Section 5 of the Act, it is the population of the Gram Panchayat which is taken into consideration whereas under Section 44 of the Act, it is the number of posts of Adhyaksha and Upadhyaksha vis-à-vis the population of the entire State which is taken into consideration. Thus, on the face of both the provisions, it is clear that both Section 5 - 26 - NC:

2023. KHC:38756 WP No.18346 of 2023 and Section 44 of the Act are applicable in completely different situations and the reservation made under one cannot be taken to apply to the other or made applicable to the other. 12.10. The aforesaid aspect was considered by the Hon’ble Apex Court in the case of Kasambhai F.Ghanchi which related to election to a Municipality under the Gujarat Municipalities Act, 1963 and the Gujarat Municipalities (Reservation of Scheduled Castes, Scheduled Tribes, Backward Classes and women for office of President) Rules, 1994. 12.11. The Hon’ble Apex Court dealing with a similar question as that which has arisen in the present matter has come to a categorical conclusion that the idea of providing reservation is for the benefit of the weaker section of the society so as to ensure their participation in the conduct of - 27 - NC:

2023. KHC:38756 WP No.18346 of 2023 the affairs of the Municipality and as such, held that even if a person elected to the Municipality under a general category so long as that person belonged to the Scheduled Castes, Scheduled Tribes or Backward Classes category, then, such person could contest for the post of office of the Municipality by making use of the reservation provided. The Hon’ble Apex Court in this regard also applied the principles contained under Article 243-T of the Constitution of India, which is reproduced hereunder for easy reference:

243. T. Reservation of seats.—(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. (2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the - 28 - NC:

2023. KHC:38756 WP No.18346 of 2023 Scheduled Castes or, as the case may be, the Scheduled Tribes. (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. (5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in Article 334. (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens. 12.12. The Hon’ble Apex Court has categorically answered the question by holding that a person belonging to backward class was eligible to stand for the office of the President even though he had been elected as a member of the - 29 - NC:

2023. KHC:38756 WP No.18346 of 2023 Municipality not from a reserved seat but from a general seat. 12.13. The ruling in Ghanchi’s case was applied by a Coordinate Bench of this Court in Ramappa’s case as referred to supra. Ramappa’s case was also one which related to a Gram Panchayat where the petitioner had been elected to the Gram Panchayat from the general constituency but contested to the office of Adhyaksha of the Gram Panchayat reserved for a person belonging to backward classes. The ruling of the Hon’ble Apex Court in Ghanchi’s case and the Coordinate Bench of this Court in Ramappa’s case leaves no doubt in my mind that even in respect of a Gram Panchayat merely because a person has been elected from unreserved or general category, it would not prohibit or prevent such person from contesting to the posts of the Adhyaksha and Upadhyaksha, which is reserved for a particular - 30 - NC:

2023. KHC:38756 WP No.18346 of 2023 category so long as that person belongs to that category. This is also for the reason that a person belonging to Scheduled Castes, Scheduled Tribes or backward category can always contest as a general candidate and not vis-a-versa. 12.14. Article 243-O of the Constitution of India also bars courts from interfering in election matters it is reproduced hereunder for easy reference:

243. O. Bar to interference by courts in electoral matters.—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) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.]. 12.15. Though the said bar is not a complete prohibition, courts would have to exercise such - 31 - NC:

2023. KHC:38756 WP No.18346 of 2023 power in exceptional circumstances which so warrant it. 12.16. Thus, looking at the entire conspectus of the matter, being of the opinion that the reservation made under Section 5 of the Act is different then that under Section 44 of the Act and therefore, the contest made to the Gram Panchayat in terms of Section 5 under general category cannot prevent a person from contesting to the post of Adhyaksha or Upadhyaksha in a reserved category under Section 44 of the Act so long as that person belongs to such reserved category. 12.17. Hence, I answer Point No.1 by holding that when a person is elected under a general category to a Gram Panchayat, he/she can at a later point of time contest for the post of Adhyaksha and Upadhyaksha in the reserved - 32 - NC:

2023. KHC:38756 WP No.18346 of 2023 category so long as that person belongs to such reserved category.

13. Answer to Point No.2: Whether the impugned order suffers from any legal infirmity?. 13.1. The Deputy Commissioner in the present matter while dealing with the above aspect as also challenge made to the Caste Certificate has virtually pronounced on the validity of the Caste Certificate which the Deputy Commissioner ought not to have done so since he does not have the jurisdiction or the authority to do so. Any dispute relating to the issuance of the caste certificate would have to be dealt with by the Caste Verification Committee, which is the authority designated to do so. Thus, insofar as the aspect relating to the validity or otherwise of the caste certificate, the matter would have to be referred to the Caste Verification Committee.-. 33 - NC:

2023. KHC:38756 WP No.18346 of 2023 13.2. Apart therefrom, the finding of the Deputy Commissioner in the impugned order in relation to the eligibility of respondent No.6 to contest under the backward class category is proper and correct as answered in Point No.1 above and the order suffers from legal infirmity only insofar as the finding on the caste verification is concerned.

14. Answer to Point No.3: What order?. 14.1. In view of the above discussion, I pass the following:

ORDER

i. The Writ Petition is partly allowed. ii. A certiorari is issued quashing the finding, insofar as the caste certificate, arrived at by the Deputy Commissioner – respondent No.2 in the order dated 09.08.2023 (Annexure-E) as regards the validity thereof and the matter is referred to the Caste Verification Committee to - 34 - NC:

2023. KHC:38756 WP No.18346 of 2023 hold an enquiry and decide the same in accordance with law. iii. The validity or otherwise of Annexure-B - Caste Certificate shall be subject to the result of the proceedings before the Caste Verification Committee. iv. Insofar as eligibility of a person elected under a general category to contest for the post of Adhyaksha/Upadhyaksha has been dealt with hereinabove and the same shall guide the Court seized of the Election Petition. v. The Caste verification Committee is directed to complete the enquiry within a period of 45 days from the date of receipt of copy of this order. Until then, the proceedings in Election Petition No.1/2023 pending on the file of the Senior Civil Judge and designated Court, Gubbi shall remain stayed. vi. The Caste Verification Committee to forward a copy of its finding to Senior Civil Judge and - 35 - NC:

2023. KHC:38756 WP No.18346 of 2023 designated Court, Gubbi. Upon receipt of the said finding, the further proceedings in Election Petition No.1/2023 to be taken up. Sd/- JUDGE PRS