M. Vemala Nayaka and Others Vs. Smt. Raniyamma and Another - Court Judgment

Excerpt:
- negotiable instruments act, 1881[c.a. no. 26/1881]section 138; [v.jagannathan, j] whether the power of attorney holder is competent to file the complaint and give the evidence in a proceedings under section 138 of the act? held, there is no bar for the power of attorney holder to initiate proceedings under section 138 of the act . the power of attorney holder is also competent to give evidence on behalf of the complainant. section 138; complaint under whether the cheques issued being transferred to another branch of the same bank, attract the offence under section 138 of the n.i. act ? held, whether the cheque was returned for the reasons of the account being closed or the account being transferred to some other branch, is not the criteria, but the fact is that there was no fund available in that particular account of the respondent to honour the cheques thereon in favour of the complainants. on facts, held, even the reasons given by the bank accounts closed and transferred to shanthinagar branch also can be brought within the expression insufficient funds .hence, the offence under section 138 of the act is attracted. section 139; [v. jagannathan, j] presumption under requirement as to complainant proving the existence of legally recoverable debt respondent admitting his liability towards complainant letter of acknowledgment of debt cheque in question were issued by the respondent to clear the existing debt held, the very fact that the respondent has admitted his liability towards complainants by having committed himself to pay the amounts mentioned in the letter of acknowledgement, it is not open to the respondent to take the plea that he is not liable to pay any amount to the complainants. further, in the case on hand, cheque being issued and the same being presented and it being dishonoured and following that the notice being issued by each one of the complainants to the respondent and finally despite service of notice, the respondent having not made any payment within 15 days from the date of service of notice are satisfied, and nothing remains for the complainant to prove further his case. in fact, in response to the legal notice issued to the respondent, in the reply, the respondent does not deny the cheques being issued by him and does not take up the plea that the liability is subject to fulfillment of any of the conditions contained in the memorandum of agreement and the respondent himself strengthened the case of the complainants by acknowledging his debt by issuing a letter. the order of acquittal is not justified. - on the other hand the government notification and clarification dated 11th february, 1995 get well sustained on the scheme of the act and the election rules.order1. in all these writ petitions, the petitioners have challenged the election of smt. raniyamma to the post of adhyaksha of the shimoga district zilla panchayat, shimoga and for a writ of quo warranto restraining smt. raniyamma from functioning as adhyaksha inasmuch as she has no qualification to hold that post.2. shimoga zilla-panchayat has been constituted under the provisions of the karnataka panchayat raj act, 1993 (for short 'the act'). the said panchayat consists of 41 members elected from different constituencies in shimoga district. out of 41 elected members, 8 members belong to scheduled caste and out of them 3 members were elected from the constituency reserved for scheduled caste women. smt. raniyamma is elected from the constituency reserved for scheduled caste women.3. the government in its notification dated 7-3-1997, reserved the post of adhyaksha for scheduled castes and the post of upadhyaksha for unreserved women. thereafter the divisional commissioner convened the meeting to hold the election for the posts of adhyaksha and upadhyaksha on 7-4-1997. smt raniyamma and others were the candidates for the post of adhyaksha. though there was an objection to accept the nomination of smt. raniyamma, her nomination was accepted and ultimately she was declared elected to the post of adhyaksha as she secured more votes than the other candidates who contested the election. this election has been challenged by the petitioners in these petitions and they have also sought for a writ of quo warranto to unseat smt. raniyamma from the post of president on the ground that she is not eligible to hold the post of adhyaksha.4. the petitioners are the residents of shimoga district and they are not the members of the zilla panchayat. sri b.v. acharya, learned senior counsel appearing for the petitioners in some petitions submitted that the government in its notification dated 7-3-1997 has reserved the post of adhyaksha of shimoga zilla panchayat for scheduled caste. if that is so according to him the person who has been elected from the constituency reserved for scheduled caste woman, has no right or eligibility to contest for the post reserved for scheduled castes. in supportof this submission he relied on the decision of the supreme court in the case of saraswati devi v smt. skanti devi and others.5. sri m.r. janardhan, learned senior counsel appearing for smt. raniyamma, sri b. veerabhhdrappa, learned counsel appearing for the zilla panchayat and the learned government advocate appearing for the state submitted that though raniyamma is elected from the constituency reserved for scheduled caste woman, she is entitled to contest for the post of adhyaksha reserved for scheduled caste since she belongs to scheduled caste. further it is submitted that under section 177 of the act, the posts of adhyaksha and upadhyaksha of zilla panchayat are required to be reserved only for scheduled castes, scheduled tribes and backward classes in relation to the total population of the state and it does not provide for reservation for women and therefore the person elected from the constituency reserved for scheduled caste woman is entitled to contest to the post of adhyaksha reserved for scheduled caste, since she belongs to the said caste.6. it is nextly, contended that any election to the posts of adhyaksha and upadhyaksha is required to be challenged by way of an election petition provided under the rules framed under the act and therefore the writ petition under article 226 of the constitution of india, challenging the election is not maintainable in law.7. the short question that arises for consideration is: 'whether smt. raniyamma who has been elected as a member of the zilla panchayat from the constituency reserved for scheduled caste woman, is eligible to contest in the election to the post of adhyaksa, reserved for the scheduled caste'.article 243 of the constitution, has been introduced by 73rd amendment act, 1992. article 243-c provides for composition of panchayats. article 243-d(4) reads as follows:'(4) the offices of the chairpersons in the panchayats at the village or any other level 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:provided that the number of offices of chairpersons reserved for the scheduled castes and the scheduled tribes in the panchayats at each level in any state shall bear, as nearly as may be, the same proportion to the total number of such offices in the panchayats at each level 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:provided further that not less than one-third of the total number of offices of chairpersons in the panchayats at each level shall be reserved for women:provided also that the number of offices reserved under this clause shall be allotted by rotation to different panchayats at each level'.keeping in view the mandate of the constitution, the state government has provided for reservation to the posts of adhyaksha and upadhyaksha under section 177 of the act. section 177(2) of the act reads as follows:'(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 to 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 tribes in the state bears to the total population of the state;(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';(c) not less than one-third of the total number of offices of adhyaksha and upadhyaksha in the state from each categories reserved for persons belonging to the scheduled castes, scheduled tribes and backward classes and those which are non-reserved, for women;provided that the offices reserved under this section shall be allotted by rotation to different zilla panchayat'.from a reading of the above said provision it is clear that under sub-section (2)(c) of section 177 of the act, not less than 1/3rd of the total number of adhyaksha and upadhyaksha in the state for each category shall be reserved for persons belonging to scheduled castes, scheduled tribes and backward classes and those which are not reserved, for women. in view of this specific provision providing for reservation the government framed the rules in its notification dated 17-2-1995. rule 3 of the said rules provides for reservation of offices of adhyaksha and upadhyaksha, which reads thus:'3. reservation of offices of adhyaksha and upadhyaksha.--(1) reservation of offices of adhyaksha and upadhyaksha of zilla panchayats in the state for different categories in accordance with sub-section (2) of section 177 shall be as specified in the table below:tablesl:no.categoryadhyakshaupadhyakshatotalwomentotalwomen1.scheduledcastes42422.scheduledtribes113.backwardclasses (a)category'a'6262(b)category'b'1-1-4.unreserved8383 total:207207'the above said rules provides for reservation for women in the categories of scheduled castes, backward class category 'a' and unreserved (general). the government in view of section 177 of the act and the rules referred to above issued the notification dated 7-3-1997 reserving the post of adhyaksha of the shimoga zilla panchayat for scheduled caste.8. the supreme court in the case of saraswati devi, supra, interpreting the provisions of haryana municipal act and haryana municipal election rules, with reference to article 243 of the constitution of india introduced by 73rd amendment act, has held that the constitutional mandate makes it very clear that such chairpersons of panchayats or municipalities would be made available by rotation as provided by the state legislature to scheduled castes, scheduled tribes and women. the supreme court while considering the provisions of the haryana municipal act, with reference to article 243-t of the constitution of india has held as follows:'as admittedly the post of president, loharu municipality is subjected to double reservation of being available only to an elected member who is a scheduled caste woman and she must have been elected on the scheduled castes seat from the ward reserved for such scheduled castes candidates. as admittedly only three wards, namely, 1, 4 and 5 are reserved for members belonging to scheduled castes and even out of three wards only ward no. 5 from which the appellant was elected was reserved for scheduled castes women and as president's post is reserved for being filled up by a member belonging to the category of scheduled castes women who has been elected on such a seat, the respondent 1 who is elected as a member not on any seat reserved for scheduled caste women but on a seat reserved for general category of women from ward no. 11 is obviously out of the arena of contest for the post of presidentship of loharu municipality. appellant is the sole candidate elected on the seat reserved for scheduled castes women. with respect it is not possible to agree with the reasoning of the high court that the words 'members belonging to' as employed in rule 70(4) of the election rules would bring in all the elected members belonging to scheduled castes into one category to enable them to contest for the post of president. such a reasoning would cut acrossthe very scheme or reservation as envisaged by article 243-t of the constitution of india and section 10(5) read with rule 70(4) of the election rules. the high court with respect has not properly appreciated the thrust of the provision regarding the categories of reservations envisaged by the rule and has equated category with castes which is not contemplated by the act and the election rules. consequently the decision rendered by the high court on the construction of the aforesaid relevant provisions cannot be sustained. on the other hand the government notification and clarification dated 11th february, 1995 get well sustained on the scheme of the act and the election rules. it must, therefore, be held that as respondent 1 and the appellant did not belong to the same category of candidates elected on the seats reserved for scheduled castes women even though both were women and belonged to scheduled castes; they represented separate electoral wards indicating non-competing groups or categories of membership and as both of them were not at par they could not contest on an equal footing for the post of president. as admittedly appellant was the sole returned candidate from the ward reserved for scheduled castes women and as the post of president was also by rotation reserved only for a member belonging to scheduled castes women category she was the sole contestant for the said post and was rightly held to be the president of loharu municipality'.9. smt. raniyamma is elected from the constitutency reserved for scheduled castes women. whereas the post of adhyaksha has been reserved for scheduled castes and it shall be filled up only from among the persons elected from the constituencies reserved for scheduled castes. section 177(2)(c) of the act and the rules specifically provide for reservation of the posts of adhyaksha and upadhyaksha for women in respect of each of the categories. hence, i do not find any substance in the contention raised by the respondents that the act and rules do not provide for reservation for women in each of the categories. in view of the law laid down by the supreme court, smt. raniyamma being elected from the constituency reserved for scheduled caste woman, is not eligible to contest to the post reserved for scheduled castes. therefore, the acceptance of the nomination of smt. raniyamma to the post of adhyaksha anddeclaring her elected as adhyaksha of shimoga zilla panchayatis illegal.10. the learned counsel for the contesting respondents contended that the writ petitions filed by the petitioners challenging the election to the post of adhyaksha is not maintainable in view of the bar contemplated under article 243-o read with rule 7 of the rules framed thereunder. rule 7 of the rules reads as follows:'7. election petition.--(1) any member of the panchayat may challenge the validity of the election of adhyaksha or upadhyaksha, as the case may be within seven days from the date of declaration of the result of election under rule 3, by filing an election petition, together with a deposit of two thousand rupees as security for costs, before the district judge within whose territorial jurisdiction the zilla panchayat is situated'.11. article 243-o(b) of the constitution reads as follows:'(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. under article 243-o(b) of the constitution of india no election to any panchayat shall be called in question except by an election petition as provided under any law made by the state legislature. as per rule 7 of the rules, only a member of the panchayat can challenge the election to the posts of adhyaksha and upadhyaksha. the petitioners being not the members of the panchayat, have no right to present an election petition challenging the election to the post of adhyaksha. therefore, i am of the view that the petitioners having no other alternative remedy are not barred from maintaining the writ petitions challenging the election to the post of adhyaksha under article 226 of the constitution of india. further, if a person holding a public office is not eligible to hold the said post, any citizen may maintain a writ petition for a writ of quo warranto under article 226 of the constitution. therefore, the writ petitions filed by the petitioners are maintainable in law.13. the learned counsel for the contesting respondents submitted that the writ of quo warranto cannot be issued tounseat the elected adhyaksha on the ground that she is not eligible to contest the election since the post of adhyaksha is reserved for scheduled castes and the person elected also belongs to the scheduled caste. no doubt, the court must be reluctant to interfere with the elections except in cases of extreme grounds. the election of smt. raniyamma to the post of adhyaksha is illegal in view of the decision of the supreme court in the case of saraswati devi, supra. therefore, it is clear that she has no right to continue in the office as the adhyaksha of the zilla panchayat.14. in the case of rajendar singh v n.k. shejwalker and another, it is held as follows:'17. it remains to deal with the objection raised by respondent 1 that this court would not issue any writ when the petitioner has an alternative remedy by way of an election petition under section 441 of the m.p. municipal corporation act, 1956, as to this, the law may be recapitulated thus:(i) a writ of quo warranto is issued when a person usurps a public office or is otherwise unfit to hold it. the alleged usurper is called upon to show or prove his authority to hold the same. if he is unable to show or prove such an authority he can be ousted and restrained from functioning in the office, which he has unlawfully usurped and intruded into or is unlawfully holding. this writ is an old judicial remedy against an occupier or usurper of a substantive public office, franchise or liberty;(ii) the essential conditions for issuance of a writ of quo warranto in respect of an office are:(a) the office must be public;(b) the office must have been created by the constitution or by statute;(c) the office must be of a substantive character; and(d) the occupier of office must not be legally qualified to hold or to remain in that office or must not have been appointed in accordance with law.(iii) the existence of an alternative, adequate or suitable remedy is per se not an absolute bar to a writ of quo warranto being issued. this court is generally reluctant to issue that writ against the successful candidate in respect of an elective office. when there is such an alternative remedy to deal with the conduct of an election, a writ of quo warranto may be displaced, and the election may be challenged in the manner laid down by the statute. however, that is merely a material circumstance to be taken into account having regard to the facts of each case;(iv) it is incontestable that this court has, under article 226 of the constitution, power to determine the validity of an impugned election in a proceeding for a writ of quo warranto or other suitable writ or direction. therefore, notwithstanding the provisions for an alternative remedy, i.e., by way of an election petition, this court has the discretion to issue a writ of quo warranto;(v) the existence of an alternative remedy does not bar the jurisdiction of this court to issue a writ of quo warranto, although in appropriate cases quo warranto may be refused on the ground of existence of an alternative remedy;(vi) the discretion whether to grant or to refuse a writ of quo warranto has to be exercised in accordance with sound judicial principles;(vii) where an election is held in breach of imperative provisions of the law so that the election is not an election in the eye of law, this court would not refuse to issue a writ of quo warranto;(viii) a writ of quo warranto will not be issued in a case of mere irregularity which can be cured;(ix) in proceedings for a writ of quo warranto the petitioner does not seek to enforce any right of his own as such, nor complains of any non-performance of any duty towards him. it is the right of the respondent to hold the office which is in question. the test to be applied is whether there has been a usurper of an office of a public nature and substantive in character.these propositions find support in a number of reported decisions, some of which may be cited here -- the university of mysore v c.d. govinda rao and another , the king v speyer, g.d. karkare v t.l. shevde, kanglu baula kotwal v chief executive engineer janpad sabha, durg and piara singh v punjab state. see also 11 halsbury (simonds) 145. as respondent 1 was not eligible for the election patently, we feel compelled to issue a writ of quo warranto'.15. i am in full agreement with the decision referred to above. therefore, the petitioners are entitled to succeed.16. for the reasons stated above, the writ petitions are allowed. it is held that smt. raniyamma is not eligible to hold the office of adhyaksha of the shimoga zilla panchayat. accordingly the election of raniyamma held on 7-4-1997 is quashed.17. smt. raniyamma is restrained from acting as adhyaksha on the basis of her election held on 7-4-1997. the 2nd respondent is directed to hold the election to the post of adhyaksha of shimoga zilla panchayat in accordance with law as expeditiously as possible.

Judgment:
ORDER

1. In all these writ petitions, the petitioners have challenged the election of Smt. Raniyamma to the post of Adhyaksha of the Shimoga District Zilla Panchayat, Shimoga and for a writ of quo warranto restraining Smt. Raniyamma from functioning as Adhyaksha inasmuch as she has no qualification to hold that post.

2. Shimoga Zilla-Panchayat has been constituted under the provisions of the Karnataka Panchayat Raj Act, 1993 (for short 'the Act'). The said Panchayat consists of 41 members elected from different constituencies in Shimoga District. Out of 41 elected members, 8 members belong to Scheduled Caste and out of them 3 members were elected from the Constituency reserved for Scheduled Caste women. Smt. Raniyamma is elected from the Constituency reserved for Scheduled Caste women.

3. The Government in its notification dated 7-3-1997, reserved the post of Adhyaksha for Scheduled Castes and the post of Upadhyaksha for unreserved women. Thereafter the Divisional Commissioner convened the meeting to hold the election for the posts of Adhyaksha and Upadhyaksha on 7-4-1997. Smt Raniyamma and others were the candidates for the post of Adhyaksha. Though there was an objection to accept the nomination of Smt. Raniyamma, her nomination was accepted and ultimately she was declared elected to the post of Adhyaksha as she secured more votes than the other candidates who contested the election. This election has been challenged by the petitioners in these petitions and they have also sought for a writ of quo warranto to unseat Smt. Raniyamma from the post of President on the ground that she is not eligible to hold the post of Adhyaksha.

4. The petitioners are the residents of Shimoga District and they are not the members of the Zilla Panchayat. Sri B.V. Acharya, learned Senior Counsel appearing for the petitioners in some petitions submitted that the Government in its notification dated 7-3-1997 has reserved the post of Adhyaksha of Shimoga Zilla Panchayat for Scheduled Caste. If that is so according to him the person who has been elected from the Constituency reserved for Scheduled Caste woman, has no right or eligibility to contest for the post reserved for Scheduled Castes. In supportof this submission he relied on the decision of the Supreme Court in the case of Saraswati Devi v Smt. Skanti Devi and Others.

5. Sri M.R. Janardhan, learned Senior Counsel appearing for Smt. Raniyamma, Sri B. Veerabhhdrappa, learned Counsel appearing for the Zilla Panchayat and the learned Government Advocate appearing for the State submitted that though Raniyamma is elected from the Constituency reserved for Scheduled Caste woman, she is entitled to contest for the post of Adhyaksha reserved for Scheduled Caste since she belongs to Scheduled Caste. Further it is submitted that under Section 177 of the Act, the posts of Adhyaksha and Upadhyaksha of Zilla Panchayat are required to be reserved only for Scheduled Castes, Scheduled Tribes and Backward Classes in relation to the total population of the State and it does not provide for reservation for women and therefore the person elected from the Constituency reserved for Scheduled Caste woman is entitled to contest to the post of Adhyaksha reserved for Scheduled Caste, since she belongs to the said caste.

6. It is nextly, contended that any election to the posts of Adhyaksha and Upadhyaksha is required to be challenged by way of an election petition provided under the rules framed under the Act and therefore the writ petition under Article 226 of the Constitution of India, challenging the election is not maintainable in law.

7. The short question that arises for consideration is: 'Whether Smt. Raniyamma who has been elected as a member of the Zilla Panchayat from the Constituency reserved for Scheduled Caste woman, is eligible to contest in the election to the post of Adhyaksa, reserved for the Scheduled Caste'.

Article 243 of the Constitution, has been introduced by 73rd Amendment Act, 1992. Article 243-C provides for composition of Panchayats. Article 243-D(4) reads as follows:

'(4) The offices of the Chairpersons in the Panchayats at the Village or any other level 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:

Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level 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:

Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:

Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level'.

Keeping in view the mandate of the Constitution, the State Government has provided for reservation to the posts of Adhyaksha and Upadhyaksha under Section 177 of the Act. Section 177(2) of the Act reads as follows:

'(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 to 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 Tribes in the State bears to the total population of the State;

(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';

(c) not less than one-third of the total number of offices of Adhyaksha and Upadhyaksha in the State from each categories reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and those which are non-reserved, for women;

Provided that the offices reserved under this section shall be allotted by rotation to different Zilla Panchayat'.

From a reading of the above said provision it is clear that under sub-section (2)(c) of Section 177 of the Act, not less than 1/3rd of the total number of Adhyaksha and Upadhyaksha in the State for each category shall be reserved for persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and those which are not reserved, for women. In view of this specific provision providing for reservation the Government framed the rules in its notification dated 17-2-1995. Rule 3 of the said rules provides for reservation of offices of Adhyaksha and Upadhyaksha, which reads thus:

'3. Reservation of offices of Adhyaksha and Upadhyaksha.--(1) Reservation of offices of Adhyaksha and Upadhyaksha of Zilla Panchayats in the State for different categories in accordance with sub-section (2) of Section 177 shall be as specified in the Table below:

TABLE

Sl:No.

Category

Adhyaksha

Upadhyaksha

Total

Women

Total

Women

1.

ScheduledCastes

4

2

4

2

2.

ScheduledTribes

1

1

3.

BackwardClasses

(a)

Category'A'

6

2

6

2

(b)

Category'B'

1

-

1

-

4.

Unreserved

8

3

8

3

Total:

20

7

20

7'

The above said rules provides for reservation for women in the categories of Scheduled Castes, Backward Class Category 'A' and unreserved (general). The Government in view of Section 177 of the Act and the rules referred to above issued the notification dated 7-3-1997 reserving the post of Adhyaksha of the Shimoga Zilla Panchayat for Scheduled Caste.

8. The Supreme Court in the case of Saraswati Devi, supra, interpreting the provisions of Haryana Municipal Act and Haryana Municipal Election Rules, with reference to Article 243 of the Constitution of India introduced by 73rd Amendment Act, has held that the constitutional mandate makes it very clear that such Chairpersons of Panchayats or Municipalities would be made available by rotation as provided by the State Legislature to Scheduled Castes, Scheduled Tribes and women. The Supreme Court while considering the provisions of the Haryana Municipal Act, with reference to Article 243-T of the Constitution of India has held as follows:

'As admittedly the post of President, Loharu Municipality is subjected to double reservation of being available only to an elected member who is a Scheduled Caste woman and she must have been elected on the Scheduled Castes seat from the ward reserved for such Scheduled Castes candidates. As admittedly only three wards, namely, 1, 4 and 5 are reserved for members belonging to Scheduled Castes and even out of three wards only Ward No. 5 from which the appellant was elected was reserved for Scheduled Castes women and as President's post is reserved for being filled up by a member belonging to the category of Scheduled Castes women who has been elected on such a seat, the respondent 1 who is elected as a member not on any seat reserved for Scheduled Caste women but on a seat reserved for general category of women from Ward No. 11 is obviously out of the arena of contest for the post of Presidentship of Loharu Municipality. Appellant is the sole candidate elected on the seat reserved for Scheduled Castes women. With respect it is not possible to agree with the reasoning of the High Court that the words 'members belonging to' as employed in Rule 70(4) of the Election Rules would bring in all the elected members belonging to Scheduled Castes into one category to enable them to contest for the post of President. Such a reasoning would cut acrossthe very scheme or reservation as envisaged by Article 243-T of the Constitution of India and Section 10(5) read with Rule 70(4) of the Election Rules. The High Court with respect has not properly appreciated the thrust of the provision regarding the categories of reservations envisaged by the rule and has equated category with castes which is not contemplated by the Act and the Election Rules. Consequently the decision rendered by the High Court on the construction of the aforesaid relevant provisions cannot be sustained. On the other hand the Government notification and clarification dated 11th February, 1995 get well sustained on the scheme of the Act and the Election Rules. It must, therefore, be held that as respondent 1 and the appellant did not belong to the same category of candidates elected on the seats reserved for Scheduled Castes women even though both were women and belonged to Scheduled Castes; they represented separate electoral wards indicating non-competing groups or categories of membership and as both of them were not at par they could not contest on an equal footing for the post of President. As admittedly appellant was the sole returned candidate from the ward reserved for Scheduled Castes women and as the post of President was also by rotation reserved only for a member belonging to Scheduled Castes women category she was the sole contestant for the said post and was rightly held to be the President of Loharu Municipality'.

9. Smt. Raniyamma is elected from the Constitutency reserved for Scheduled Castes women. Whereas the post of Adhyaksha has been reserved for Scheduled Castes and it shall be filled up only from among the persons elected from the Constituencies reserved for Scheduled Castes. Section 177(2)(c) of the Act and the Rules specifically provide for reservation of the posts of Adhyaksha and Upadhyaksha for women in respect of each of the categories. Hence, I do not find any substance in the contention raised by the respondents that the Act and Rules do not provide for reservation for women in each of the categories. In view of the law laid down by the Supreme Court, Smt. Raniyamma being elected from the constituency reserved for Scheduled Caste woman, is not eligible to contest to the post reserved for Scheduled Castes. Therefore, the acceptance of the nomination of Smt. Raniyamma to the post of Adhyaksha anddeclaring her elected as Adhyaksha of Shimoga Zilla Panchayatis illegal.

10. The learned Counsel for the contesting respondents contended that the writ petitions filed by the petitioners challenging the election to the post of Adhyaksha is not maintainable in view of the bar contemplated under Article 243-O read with Rule 7 of the Rules framed thereunder. Rule 7 of the Rules reads as follows:

'7. Election petition.--(1) Any member of the Panchayat may challenge the validity of the election of Adhyaksha or Upadhyaksha, as the case may be within seven days from the date of declaration of the result of election under Rule 3, by filing an election petition, together with a deposit of two thousand rupees as security for costs, before the District Judge within whose territorial jurisdiction the Zilla Panchayat is situated'.

11. Article 243-O(b) of the Constitution reads as follows:

'(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. Under Article 243-O(b) of the Constitution of India no election to any Panchayat shall be called in question except by an election petition as provided under any law made by the State Legislature. As per Rule 7 of the Rules, only a member of the Panchayat can challenge the election to the posts of Adhyaksha and Upadhyaksha. The petitioners being not the members of the Panchayat, have no right to present an election petition challenging the election to the post of Adhyaksha. Therefore, I am of the view that the petitioners having no other alternative remedy are not barred from maintaining the writ petitions challenging the election to the post of Adhyaksha under Article 226 of the Constitution of India. Further, if a person holding a public office is not eligible to hold the said post, any citizen may maintain a writ petition for a writ of quo warranto under Article 226 of the Constitution. Therefore, the writ petitions filed by the petitioners are maintainable in law.

13. The learned Counsel for the contesting respondents submitted that the writ of quo warranto cannot be issued tounseat the elected Adhyaksha on the ground that she is not eligible to contest the election since the post of Adhyaksha is reserved for Scheduled Castes and the person elected also belongs to the Scheduled Caste. No doubt, the Court must be reluctant to interfere with the elections except in cases of extreme grounds. The election of Smt. Raniyamma to the post of Adhyaksha is illegal in view of the decision of the Supreme Court in the case of Saraswati Devi, supra. Therefore, it is clear that she has no right to continue in the office as the Adhyaksha of the Zilla Panchayat.

14. In the case of Rajendar Singh v N.K. Shejwalker and Another, it is held as follows:

'17. It remains to deal with the objection raised by respondent 1 that this Court would not issue any writ when the petitioner has an alternative remedy by way of an election petition under Section 441 of the M.P. Municipal Corporation Act, 1956, as to this, the law may be recapitulated thus:

(i) A writ of quo warranto is issued when a person usurps a public office or is otherwise unfit to hold it. The alleged usurper is called upon to show or prove his authority to hold the same. If he is unable to show or prove such an authority he can be ousted and restrained from functioning in the office, which he has unlawfully usurped and intruded into or is unlawfully holding. This writ is an old judicial remedy against an occupier or usurper of a substantive public office, franchise or liberty;

(ii) The essential conditions for issuance of a writ of quo warranto in respect of an office are:

(a) the office must be public;

(b) the office must have been created by the Constitution or by Statute;

(c) the office must be of a substantive character; and

(d) the occupier of office must not be legally qualified to hold or to remain in that office or must not have been appointed in accordance with law.

(iii) The existence of an alternative, adequate or suitable remedy is per se not an absolute bar to a writ of quo warranto being issued. This Court is generally reluctant to issue that writ against the successful candidate in respect of an elective office. When there is such an alternative remedy to deal with the conduct of an election, a writ of quo warranto may be displaced, and the election may be challenged in the manner laid down by the statute. However, that is merely a material circumstance to be taken into account having regard to the facts of each case;

(iv) It is incontestable that this Court has, under Article 226 of the Constitution, power to determine the validity of an impugned election in a proceeding for a writ of quo warranto or other suitable writ or direction. Therefore, notwithstanding the provisions for an alternative remedy, i.e., by way of an election petition, this Court has the discretion to issue a writ of quo warranto;

(v) The existence of an alternative remedy does not bar the jurisdiction of this Court to issue a writ of quo warranto, although in appropriate cases quo warranto may be refused on the ground of existence of an alternative remedy;

(vi) The discretion whether to grant or to refuse a writ of quo warranto has to be exercised in accordance with sound judicial principles;

(vii) Where an election is held in breach of imperative provisions of the law so that the election is not an election in the eye of law, this Court would not refuse to issue a writ of quo warranto;

(viii) A writ of quo warranto will not be issued in a case of mere irregularity which can be cured;

(ix) In proceedings for a writ of quo warranto the petitioner does not seek to enforce any right of his own as such, nor complains of any non-performance of any duty towards him. It is the right of the respondent to hold the office which is in question. The test to be applied is whether there has been a usurper of an office of a public nature and substantive in character.

These propositions find support in a number of reported decisions, some of which may be cited here -- The University of Mysore v C.D. Govinda Rao and Another , The King v Speyer, G.D. Karkare v T.L. Shevde, Kanglu Baula Kotwal v Chief Executive Engineer Janpad Sabha, Durg and Piara Singh v Punjab State. See also 11 Halsbury (Simonds) 145. As respondent 1 was not eligible for the election patently, we feel compelled to issue a writ of quo warranto'.

15. I am in full agreement with the decision referred to above. Therefore, the petitioners are entitled to succeed.

16. For the reasons stated above, the writ petitions are allowed. It is held that Smt. Raniyamma is not eligible to hold the office of Adhyaksha of the Shimoga Zilla Panchayat. Accordingly the election of Raniyamma held on 7-4-1997 is quashed.

17. Smt. Raniyamma is restrained from acting as Adhyaksha on the basis of her election held on 7-4-1997. The 2nd respondent is directed to hold the election to the post of Adhyaksha of Shimoga Zilla Panchayat in accordance with law as expeditiously as possible.