Veerayya Siddaramayya Hasavimath Vs. Zilla Parishad - Court Judgment

Shivashankar Bhat, J.

1. The appellants are the Writ Petitioners. They sought the quashing of the nominations of respondents 3 and 4 as Members of Balehosur Mandal Panchayat, as per notification dated 14-12-1987 published by the Deputy Commissioner, on the basis of the nominations made by the Zilla Parishad. The petitioners also sought for a declaration that respondents 3 and 4 are not eligible to be nominated under Section 5(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats, Act, 1983 (referred as 'the Act').

2. The four petitioners are the elected Members of the Mandal Panchayat. According to the petitioners 24 Members were elected to the Mandal Panchayat, out of whom 13 belonged to Congress-1 party and 11 belonged to Janatha Party, in the election held in January 1987. The Adhyaksha of the Zilla Parishad, in the purported exercise of power entrusted to him by the Zilla Parishad, nominated two Members as the Members of the said Mandal Panchayat, under Section 5(3) of the Act. This nomination by the Adhyaksha of Zilla Parishad was set aside by this Court. In the meanwhile, the Calendar of Events announced to hold the election of Pradhana and Upapradhana on 21-4-1987 to the Mandal Panchayat had been stayed by this Court. The nominations made by the Adhyaksha of Zilla Parishad were set aside by this Court on 21-9-1987. Petitioners 1 and 2 had filed their nominations to contest for the Office of Pradhana and Upapradhana respectively. On the disposal of the Writ Petition challenging the nominations made by the Adhyaksha of Zilla Parishad under Section 5(3) of the Act, the election to elect the Pradhana and Upapradhana had to be conducted. The Returning Officer issued notices to hold the election on 8-1-1988. In the meanwhile the Zilla Parishad met and nominated respondents 3 and 4 as Members under Section 5(3) of the Act. Petitioners assert that the nominations were not called for, as the Mandal Panchayat had a few elected Members who belong to the backward class. Petitioners also questioned the status of respondents 3 and 4 as not belonging to backward class as enumerated in the relevant Rules made under the provisions of the Act.

3. The assertion of the petitioners that there are already elected Members belonging to backward classes, is denied in the statement of objections filed by respondents 3 and 4. The other assertion that respondents 3 and 4 did riot belong to the backward classes and thus ineligible for nomination is also denied. Both sets of parties have filed several documents in support of their respective contentions.

4. The learned single Judge dismissed the Writ Petition by holding that, the petitioners have resorted to misrepresentation of facts in the Writ. Petition as to their annual income from lands, as also regarding the community to which they belong. In view of this fact, the learned single Judge held, it was unnecessary to go into other questions and that petitioners by their false averments disentitled themselves for the relief.

5. The learned Counsel for the appellants advanced the same contentions, as raised in the Writ Petition. It was argued that the averments referred as false by the learned single Judge, were in fact true facts and the Zilla Parishad nominated respondents 3 and 4 to induct them as Members to strengthen the Janatha Party in Mandal Panchayat.

6. At the outset, we are constrained to reject the first contention of the petitioners, that some of the elected Members belonged to backward classes. It is essentially a question of fact. The contention of the contesting respondents, that, the Zilla Parishad had before it sufficient material before opining that no Member of backward class was elected to the Mandal Panchayat has to be accepted. Unless these basic facts are glaringly inaccurate or patently unacceptable, the opinion formed by the Zilla Parishad, on this question of applicability of Section 5(3) of the Act, necessitating the nominations under the said provision has to be accepted. Questions of fact sought to be raised by the petitioners, as disputed facts cannot be lightly entertained, specially when the power under Section 5(3) of the Act is exercised by the Zilla Parishad which is a responsible elected body under the very Act.

7. On the second question as to the eligibility of respondents 3 and 4 to be called as belonging to backward classes, again, essentially this is one of fact. The learned Counsel however raised a plea involving the interpretation of the relevant Rules, by contending that, these nominated persons (respondents 3 and 4) did not belong to the class of 'rural artisans', or 'agricultural labourers' whose annual income from all sources do not exceed Rs. 6,400/-.

8. The definition of Backward Classes in the Karnataka Zilla Parishads and Taluk Panchayats Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules 1985, as amended in 1987, reads thus:-

'Backward Classes:- Means rural artisans or landless agriculture labourers, whose gross annual income from all sources (including his share of income of the joint family, if any, of which he is a Member) does not exceed rupees six thousand four hundred;

Provided that no person shall be deemed to belong to a backward class unless the population of the caste, tribe to which he belongs is less than one per cent of the total population of the District:

Explanation: for the purpose of this Rules, the population shall be the population as estimated by the Karnataka Backward Classes Commission 1972.'

9. According to the learned Counsel for the appellants, respondents 3 and 4 were owners of agricultural lands and their interest in the lands cannot be denied; therefore, in spite of following any other vocations falling within the concept of 'rural artisans', they cease to be 'rural artisans'. In other words, a 'rural artisan' has to be exclusively to be an artisan and his character as rural artisan is lost in case he owns any agricultural land.

10. In view of the importance of the question we asked the learned Advocate. General to assist us in this regard and we have heard him elaborately. We are thankful to the learned Advocate General for the assistance rendered by him in the interpretation of the Rule in question.

11. Section 5(3) of the Act provides for nomination of persons who belong to any backward class. The purpose is to provide representation to a particular class and that is to be achieved by nominating a person who belongs to the particular class called 'backward class'. The test is, whether the nominee 'belongs' to the said class. The status of the person, here, is derived, by his being a constituent of the backward class, though, individually, he may have alt the attributes of an upper class.

12. The definition also contemplates a person who has other sources of income, apart from being an agricultural labourer or a rural artisan. The definition, while prescribing the income test, provides for computing the income from 'all sources' a phrase of wide amplitude. Thus, a person who is essentially a rural artisan (like a potter), may have some agricultural land; but essentially if the community wherein he lives treats him as a rural artisan, the status has to be accepted as indicative of the class to which he belongs. The proviso to the definition has given the colour of caste or tribe, to the 'class' defined. Thus the process of investigation as to whether a person belongs to a backward class, under the Rules involves an investigation into several factors - the vocation of the person, his income and his caste or tribe. This investigation is for the purpose of determining the status contemplated by the definition of 'backward class'. In such a situation, the possibility of such a person belonging to a particular class (by following a particular vocation), having another source of income through agriculture, cannot result in denying him of the particular status. The test is, as to how the person is, essentially looked at or treated. The dominant character of the said person's vocation, certainly should prevail, in this regard.

13. The learned Advocate General, who argued that the dominant or essential vocation of the person has to be seen while testing his status under the definition, referred to two decisions of the Supreme Court arising out of orders made under Article 15(4) of the Constitution of India. Under Article 15(4), identification of those who belong to socially and educationally backward classes, has to be done.

14. In CHITRALEKHA v. STATE OF MYSORE AIR 1964 SC 1832, the Supreme Court considered the question and observed that caste cannot be the sole or dominant consideration in identifying the backwardness, though it may form one of the considerations. The ascertainment of the backwardness of a group of persons can also be made on the basis of other relevant criteria. Thus, the approach is to identify the group of persons, who form a class which is backward. This view reiterated in K.C. VASANTH KUMAR AND ANR. v. STATE OF KARNATAKA : AIR1985SC1495 , Chitralekha's case was referred with acceptance and the ratio of Chitralekha's case was stated as, -

'In that case the Court was concerned with a list of backward classes prepared on the basis of economic condition and occupation.'

(Underlining is by us)

15. Sri F.V. Patil, the learned Counsel for the contesting respondents cited KUM. K.S. JAYASHREE v. STATE OF KERALA : [1977]1SCR194 , wherein the test of determining social backwardness was once again explained. At para 21, it is stated, --

'The problem of determining who are socially and educationally backward classes is undoubtedly not simple. Sociological and economic considerations come into play in evolving proper criteria for its determination.'

(Underlining is by us)

In B. SUBHAS CHANDRA SHETTY v. STATE OF MYSORE AND ANR1968(1) Mys.L.J. 203 n 207. again, a similar question came up for consideration, a Division Bench of this Court held, -- '

'The order has treated the family as a unit for purposes of classification. Therefore, what has to be seen is whether a particular family to which the candidate belongs is socially and educationally backward. When the family is considered as a unit for purposes of classification, it is not possible to envisage a situation where one Member of the family is treated as backward while another is not.'

'The petitioner's father was a school teacher employed in the service of the erstwhile district Board in South Kanara. He retired in about August 1963. A school teacher is not considered as belonging to the. socially and educationally backward classes. While in service it is not disputed that his family was not one belonging to the socially and educationally backward classes. After retirement, it cannot be said that the retired teacher became socially and educationally backward, merely because he has chosen one of the occupations specified in para-3 of the Order. It is common knowledge that even after retirement, a school teacher is held in the same esteem in. society as before and a retired school teacher who takes to agriculture, our opinion, cannot be regarded as belonging to the socially and educationally backward classes.'

16. The sociological factor leads to a search as to the setting in which the person lives and functions. As the language of the definition emphasises the question is whether, the person belongs to the class treated as backward. This concept involves an examination of his social status and the recognition meted out by the community in general. A person, who mainly depends upon his vocation (equated to being rural artisanship) is identified by that vocation, rather than with reference to a small interest he has in an agricultural land. A village blacksmith is so called, in spite of his having some minor agricultural income; the rural society accepts and treats him essentially as a blacksmith and not as a land owner.

17. The learned Counsel for the contesting respondents urged that this Court cannot inestigate, by reference to a few documents, as to whether respondents 3 and 4 belong to the backward class; it was contended that the opinion of the Zilla Parishad, based on relevant material has to prevail and in this case, the Zilla Parishad had sufficient material before it on this question.

18. This, contention, has to prevail. Disputed questions of fact on such an issue as to the backwardness of the person, who is nominated, cannot be examined as if this Court is a Court of first appeal. Unless the nomination made under Section 5(3) is patently bad and is opposed to the relevant provisions of the Act and the Rules made thereunder, this Court; would not interfere, in the exercise of its Writ Jurisdiction.

19. The election of Pradhana and Upapradhana, was stayed by this Court earlier in a Writ. Petition. On its disposal, steps were taken to notify the election afresh. Hence, it cannot be said that, the authorities deliberately delayed the elections to favour any particular political party. No doubt, Section 43 of the Act contemplates an early election of the Pradhana, on the Constitution of a Mandal Panchayat. The period of four weeks fixed under Section 43 is a dominant, guiding factor. But, any delay in holding an election, by itself will not vitiate the election, specially, when, the elections were postponed by the interim order of this Court.

20. It is unnecessary to go into the question whether the petitioners deliberately made false averments in the Writ Petition.

21. No other contention survives for consideration.

22. In the result, for the reasons stated above, this appeal fails and is dismissed.