M. Narayanappa vs The Returning Officer District Watershed Development Officer Dept. of Water Shed Development and Others

Ashok B. Hinchigeri, J.—The Petitioner has called into question, the order, dated 01.04.2010 passed by the Court of the II Addl. District and Sessions Judge, Mysore in Election Petition No. 7/2007.

The facts of the case in brief are that the Petitioner is elected as the Corporator of the Mysore City Corporation, Ward No. 41 in the election held on 28.10.2007, The said ward was reserved for a person belonging to the Scheduled Tribe. The Respondent No. 9 challenged the Petitioner''s election contending that he does not belong to the Scheduled Tribe. The Election Tribunal/District Judge set aside the Petitioner''s election. Aggrieved by the same, this petition is instituted.

Sri S.P. Kulkarni, the learned Counsel for the Petitioner submits that the Tribunal has acted on the orders of the District Caste Verification Committee. It is Sri Kulkami''s emphatic submission that the said Committee holds the enquiry under the Karnataka Scheduled Caste and Scheduled Tribe and Other Backward Classes (Reservation of Appointments, Etc.) Act, 1990 (1990 Act for short). Its orders can have application only for seeking admission to educational institution or to get a public appointment. In support of his submissions, he cites this Court''s order, dated 23.01.2009 passed in Writ Petition No. 13173/2008. The relevant paragraph of the said judgment is extracted here in below:

Rule 5-A provides that the validity certificate of Scheduled Caste or Scheduled Tribes issued by the Verification Committee shall remain valid for the purpose of education and employment until it is cancelled or until the date on which the candidate changes his religious faith whichever is earlier. In so far as the validity certificate issued to the backward class is concerned, t shall remain in force till the said caste enjoys reservation without applying creamy layer criteria or until it is cancelled whichever is earlier. The Rules also provides for filing application for validity certificate in the prescribed form. It is only when such an application is filed to the committee, the committee gets jurisdiction to enquire into the caste of such person. It is on such enquiry the committee issues validity certificate. Therefore under the scheme of the Act and the Rules, there is no provision for any other person filing an application to the committee or to any other authority under the Act requesting the committee to hold an enquiry regarding the validity of the caste certificate issued under Rule 3A[2] and [3] of the Rules. Similarly, even for caste certificate, the committee constituted under the Act has no suo motu jurisdiction to initiate enquiry against any person to whom a caste certificate has been issued to find out whether that certificate is valid or not. Under the circumstances on a complaint given by a political rival of the Petitioner, the question of Caste Verification Committee initiating proceedings to find out the validity of a caste certificate issued u/s 3A[2] and [3] would not arise. Therefore the proceedings initiated against the Petitioner is one without jurisdiction and is liable to be quashed.

He further submits that the Petitioner has already filed an appeal against the Tahsildar''s order withdrawing the caste certificate. The appeal is pending consideration before the Assistant Commissioner.

Sri Kulkami complains that the proceedings of the Caste Verification Committee and the Tahsildar have unduly weighed with the Ejection Tribunal. He also submits that the Election Tribunal has not considered the conduct of the Respondent No. 9 who himself does not belong to the Scheduled Tribe.

Sri Kashinath, the learned Counsel appearing for Sri C. Jagadeesh for the Respondent Nos. 2 and 5 submits that the decision of this Court in W.P. No. 13173/2008 has no application for the facts of this case. The said order came to be passed in the context of the election to the state legislative assembly. In the case on hand, what is involved is the election to the Mysore City Corporation. The Government has issued the circular/order adopting the provisions of 1990 Act and the Rules framed thereunder for the caste verification, etc.

Sri Kashinath, the learned Counsel submits that the Petitioner has not asserted in any way before the Election Petition that he belongs to Nayaka community, one of the enumerated Scheduled Tribes. He only wants to succeed on hyper technical grounds. He has not even produced an iota of documentary evidence before the Election Tribunal to show that he belongs to Nayaka community.

Sri kashinath submits that the Petitioner himself has claimed BCA reservation in 2001 and sought election to Ward No. 50 reserved for BCA category and got elected as against the reserved category of BCA.

Sri V.R. Sarathi, the learned Counsel appearing for M/s Ravivarma Kumar Associates for the Respondent No. 9 takes serious exception to the conduct of the Petitioner. He submits that the Petitioner had filed Writ Petition No. 6846/2003 challenging the Caste Verification Committee''s order, dated 26.03.2008. On 24.04.2008, he withdrew the writ petition with the liberty to file the appeal before the Appellate Authority. Suppressing the filing of this petition, he filed another Writ Petition No. 12075/2009 challenging the very same order, dated 26.03.2008. The said writ petition was also dismissed by this Court by its order, dated 17.09.2009. The filing of the two writ petitions is not whispered in the memorandum of this writ petition.

Sri Sarathi further submits that this Court in Writ Petition No. 14959/2007 had directed the Deputy Commissioner to conduct the enquiry to find out as to which category the Petitioner belongs to. The Deputy Commissioner has held the enquiry in his capacity as the Chairman of the District Caste Verification Committee.

Sri Sarathi further submits that the appeal filed by the Petitioner against the order of the District Verification Committee before the Appellate Authority (Director of Scheduled Tribes Welfare Department) is also dismissed two weeks ago.

The learned Counsel, relying on the decision of the Apex Court in the case of Lilly Kutty Vs. Scrutiny Committee, S.C. and S.T. and Others, submits that an action to obtain a right/privilege in subversion of the constitutional purpose amounts to fraud on the Constitution.

Sri R. Devdas, the learned Additional Government Advocate submits that the Petitioner is liable to be prosecuted for what as has been doing.

I have gone through the impugned order minutely. The Petitioner in the course of his cross-examination has admitted that, he was elected to the Mysore City Corporation in 2001 from Ward No. 50 reserved for BCA category. The Petitioner cannot be belonging to both BCA and ST. Though he has pleaded his unawareness of signing any papers claiming the BCA reservation, he is a beneficiary of the said reservation.

The Election Tribunal has also verified the records before it. The school records reveals that the Petitioner admitted his children mentioning their caste as Raja Parivar. The documentary and oral evidence placed on the record of the Tribunal clearly shows that he either belongs to Huvadiga or Raja Parivar and certainly not Nayaka community, one of the enumerated Scheduled Tribes. Dehors the orders of the District Caste Verification Committee and the Tahsildar also, it is difficult to arrive at different conclusion.

The facts of the case on hand and the facts of the W.P. No. 13173/2008 are entirely different. In the instant case, we are concerned with the election to the local body namely Mysore City Corporation. In the said case, the issue which fell for consideration arose from the election to the said Legislative Assembly. The Government has issued the order/circular adopting the provisions of 1990 Act and the Rules framed thereunder for the purpose of reservation of seats for the wards and offices of the President and Vice President of the Corporation. The Caste Verification Committee consisting of Deputy Commissioner and its other members has held an elaborate enquiry and has delivered the finding that the Petitioner does not belong to the Scheduled Tribe. The enquiry held by the said Committee cannot be treated as the one without jurisdiction. The Petitioner has not challenged the said Committee''s order in this petition. In the two earlier writ petitions, which he had filed, he has not been successful. Further in this writ petition, he has not whispered about the filing of the earlier writ petitions. Thus, the Petitioner has withheld the material facts from this Court.

Not finding any merits or bona fides in this petition, I dismiss this petition imposing a cost of Rs. 1,000/- on the Petitioner payable to the Karnataka State Bar Council towards the Advocates'' Welfare Fund. The cost shall be paid within one week from today.

Endorse a copy of this order to the State Bar Council.

Before parting with this case, I have to mention that because of the usurpation of the Corporatorship by a candidate not belonging to the Scheduled Tribe, the interests of the aspiring eligible Scheduled Tribe candidates in ward No. 41 have suffered. The concerned authorities are directed to hold bye-election to ward No. 41 of the Mysore City Corporation as expeditiously as possible and in any case, within six weeks from today.

Sri Jagadish and Kashinath, the advocates are permitted to file their memos of appearance for Respondent Nos. 2 and 5 in one week''s time.