Rani vs State of M.P. and Others

Rohit Arya, J.—In this writ petition the petitioner has sought the relief of setting aside Annexure P/1 dated 8/1/2015 rejecting the nomination form of the petitioner for election to the post of Sarpanch, Village Bargaon, District Datia, with the further relief for permission to contest the election.

It is submitted that the returning officer has improperly rejected the nomination form. It is further submitted that petitioner belongs to Dhobi caste and the same is of Scheduled Caste category as reflected from the caste certificate issued from District Jalon (UP), hence, the aforesaid seat of Sarpanch being reserved for Scheduled Caste, petitioner''s nomination could not have been rejected.

Smt. Prabal, learned counsel for respondents/Election Commission, raised a preliminary issue that the instant writ petition challenging rejection of nomination paper is misconceived as the election process has already commenced and there is an alternative, efficacious, statutory remedy of filing election petition under Section 122 of the Panchayat Raj Adhiniyam, 1993 and the grounds raised in this petition are available to the petitioner, as contemplated under Rule 21(1)(c) of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification For Membership) Rules, 1995 (hereinafter referred to as the Rules of 1995). She relies upon Article 243-O of the Constitution of India and following the judgments in Hansraj Singh and Others Vs. State of M.P. and Others, (2012) ILR (MP) 3001 : (2013) 3 MPHT 357 : (2013) 1 MPLJ 370 and an order dated 29/01/2015 in Writ Petition No. 8123/2014. Article 243-O of the Constitution of India reads as under:--

"243O. 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 243K, 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."

Learned counsel for the petitioner relies upon following judgments and submits that this Writ Petition is maintainable and rejection of nomination form was illegal:

"1. K. Venkatachalam Vs. A Swamickan and Another, AIR 1999 SC 1723 : (1999) 3 JT 242 : (1999) 3 SCALE 12 : (1999) 4 SCC 526 : (1999) 2 SCR 857 : (1999) 2 UJ 1064 : (1999) AIRSCW 1353 : (1999) 4 Supreme 333 .

Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, AIR 1995 SC 94 : (1994) 5 JT 488 : (1994) 3 SCALE 935 : (1994) 6 SCC 241 : (1994) 3 SCR 50 Supp .

Mrs. Valsamma Paul Vs. Cochin University and others, AIR 1996 SC 1011 : (1996) 1 CTC 301 : (1996) 1 JT 57 : (1996) LabIC 919 : (1996) 1 SCALE 85 : (1996) 3 SCC 545 : (1996) 1 SCR 128 : (1996) 1 UJ 626 .

Union of India and Others Vs. Dudh Nath Prasad, AIR 2000 SC 525 : (2000) 1 CTC 418 : (2000) 1 JT 1 : (2000) 1 SCALE 23 : (2000) 2 SCC 20 : (2000) SCC(L&S) 236 : (2000) 1 SCR 1 : (2000) 3 SLJ 37 : (2000) AIRSCW 56 : (2000) AIRSCW 4573 : (2000) 8 Supreme 318 : (2000) 1 Supreme 38 .

Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Others, AIR 2005 SC 800 : (2005) 1 JT 496 : (2005) 2 SCC 244 : (2005) 2 SCR 848 : (2005) AIRSCW 718 : (2005) 1 Supreme 617 ."

Agreeing with the principle laid down by the Hon''ble Supreme Court and reiterated in the aforesaid judgment in the case of Hansraj Singh (supra) and order dated 29/1/2015 in Writ Petition No. 8123/2014 passed by this Court, this Court is of the view that the instant writ petition is not maintainable. Objection as regards non-maintainability is upheld. However, counsel has argued as regards impugned order and, therefore, the same is addressed accordingly.

The facts of the first case viz. K. Venkkatachalam (supra) are quite distinguishable. In that case the Hon''ble Apex Court had considered the scope of jurisdiction of the High Court under Article 226 of the Constitution of India in the context of Articles 191 and 193 of the Constitution, which provides for disqualification of membership and penalty for sitting and voting when disqualified and held that the High Court can exercise jurisdiction and declare that the election was illegal inasmuch as elector does not posses basic Constitutional and Statutory qualification. In such circumstances the bar of Article 329 will not come into play. The facts were also distinguishable as in that case challenge was made to election of the returned candidate therein on the ground that since he was not elector in the electoral role for Assembly constituency for general election and he had filed his nomination on affidavit impersonating himself for another person of same name in the electoral role. He lacked the basic qualification under clause (c) of Article 173 of the Constitution of India read with section 5 of the Representation of People Act, 1951 which mandate that a person to be elected has to be elector of that constituency. In the aforesaid factual background the aforesaid proposition was laid down.

In the instant case admittedly nomination paper has been rejected on the ground that petitioner though Dhobi by caste, is not scheduled caste in Datia (M.P.) and falls in the category of O.B.C, therefore, can not be permitted to contest the election of Sarpanch from a constituency reserved for Scheduled Caste. There is a specific provision under rule 21(1)(c) of the Rules of 1995, which provides grounds for election petition if petitioner finds that his nomination has been improperly rejected after election is over. Hence, the aforesaid judgment is of no assistance to the petitioner and the reliance upon it is based on misconceived appreciation of principle of law laid down in that judgment.

The second judgment is popularly known as Kumari Madhuri Patil''s case wherein after detailed discussion the Hon''ble Supreme Court in para 13 has laid down as regards procedure for scrutiny of social status certificates which is being adhered to by states by constituting a high power scrutiny committee. The same committee is also in existence in M.P. This judgment is also of no assistance to the petitioner as subject matter does not relate to scrutiny of social status certificates i.e. whether issued by competent authority to the genuine person or not.

Third judgment viz. Valsamma Paul (supra) is also of no assistance to the petitioner as the said judgment is for the proposition that person who was belonging to forward caste and had march of advantageous life, but was transplanted in backward class by adoption or marriage or conversion, did not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. Acquisition of status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution. In that case recognition of the appellant as a member of the Latin Catholics was held to be not relevant for the purpose of entitlement of reservation under Article 16(4) for the reason that she had an opportunity of forward class and had advantageous class and after becoming major, married to a Latin Catholic; and so is held not entitled to reservation to the Latin Catholic, a backward class.

The facts and proposition of law laid down in the fourth case viz. Dudh Nath (supra) are also distinguishable and are of no assistance to the petitioner. In this case issue was whether the Scheduled Caste certificate produced by a person could be accepted as valid for the purpose of appointment to a Central Government''s service in the background of the fact that the person and his grandparents belong to Nuniya caste, which was Scheduled Caste in the State of West Bengal, but not in the State of Bihar. Respondent''s parents were living in District Howrah continuously for more than 30 years before the respondent joined service in the office of the Comptroller and Auditor General of India. Parents before coming to West Bengal were living in Siwan District in the State of Bihar where they also owned some property. Respondent had born in that District, he had schooling and graduated from a college of Bihar. He initially joined service in Customs House, Calcutta (West Bengal) and while working there, he obtained an SC certificate from the Sub-Divisional Officer, Howrah on 16/7/1965. He applied to UPSC as an SC candidate. He also indicated that his parents were ordinarily residing in District Howrah (West Bengal). On requisite enquiry, UPSC found the candidature of the respondent as of SC belonging to Nuniya caste in West Bengal and confirmed the status as such for 1996 examination. The respondent/applicant qualified the test and was appointed against the reserved vacancy as a SC candidate in the year 1968. As per the instructions issued by the UPSC, candidate claiming to be SC or ST was required to submit a certificate from the competent authority of the district on which his parents ordinarily reside. There was a note in the form which clarified that the expression ''ordinarily reside'' will have the same meaning as in Section 20 of the Representation of the People Act, 1950, and held that as per the instructions, respondent was entitled to have SC certificate from District Howrah and the authority concerned was competent to issue such certificate because the respondent''s parents were residing there for more than 30 years. The mere fact that the respondent for the purpose of education stayed in State of Bihar and also graduated from a college in that State, would not affect status of his parents as residents of West Bengal and they could be treated as ordinarily residents of District Howrah. Therefore, while serving in West Bengal respondent had no option, but to obtain certificate from Howrah District as he could not deviate from the instructions issued by the UPSC.

In the fifth case viz. Sobha Hymavathi Devi (supra) the facts of the case were to the effect that a woman of forward caste on marriage to man from Scheduled Tribe was held not entitled to be given the facility of reservation given to the backward community, therefore, whether it be reservation under Articles 15(4) or 16(4) or 330 or 332, the said reservation would be only beneficial to those who belong to a Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by marriage. The Supreme Court relied upon the judgment in Mrs. Valsamma Paul Vs. Cochin University and others, AIR 1996 SC 1011 : (1996) 1 CTC 301 : (1996) 1 JT 57 : (1996) LabIC 919 : (1996) 1 SCALE 85 : (1996) 3 SCC 545 : (1996) 1 SCR 128 : (1996) 1 UJ 626 .

As such all the five judgments are of altogether different factual background wherein proposition of laws laid down in the facts and circumstances of the case are of no assistance to the petitioner.

This Court has perused the impugned order and ground of rejection of nomination paper shown therein. There is no doubt that Dhobi caste in Datia (MP) is of OBC and not SC category. The seat of Sarpanch is reserved for SC category. Merely because the caste certificate is issued to the petitioner from Jalon (UP) showing her of Dhobi caste belonging to SC will not make her entitled to contest the election of Sarpanch from a reserved constituency for SC category. The returning officer under the circumstances has acted in accordance with law. In this case the question involved is not as to whether the petitioner belongs to Dhobi caste or not or the certificate issued to her is validly issued or not for the purpose of enquiry etc., but the issue is as to whether a person belonging to Dhobi caste can be treated as SC for the reserved seat of Sarpanch election in Datia (MP) where Dhobi caste is recognized only as OBC.

Therefore, in the opinion of this Court, the returning officer did not commit any error of law or fact while rejecting the nomination paper of petitioner. Accordingly, Writ Petition is totally misconceived and hereby dismissed.