Tukaram vs State of Karnataka

Raghvendra S. Chauhan, J.—The petitioner Tukaram, has sought the following prayers from this Court;

(i) A writ of certiorari, any other writ or direction to quash the membership of 8th respondent at serial No. 4 and in result sheet issued by the 5th respondent on dated 05.06.2015 and Annexure-C.

(ii) A writ of Certiorari, any other writ or direction to quash the caste certificate issued by the 4th respondent in favour of the 8th respondent and Annexure-E dated 16.05.2015.

(iii) A writ of Mandamus directing the 5th respondent to declare the 8th respondent gram panchayat membership ward No. 1 for ST served seat and this Hon''ble Court directing the 3rd and 4th respondent to conduct the enquiry of the 8th respondent caste certificate before the District level caste verification committee and the petitioner caste certificate cancel led and 8th respondent gram panchayat membership to declare null and void, in the interest of justice and equity.

(iv) Pass such or issue any other suitable writ, order or direction as this Hon''ble Court deems fit in the circumstance of the case including any order of the case of the present writ petition, in the interest of justice and equity.

Briefly the facts of the case are that, on 07.04.2015, the Deputy Commissioner, Bidar had issued a notification for holding the Gram Panchayat Election 2015, of village Chimkhod, consisting of four villages namely Chimkhod Part 1. Chimkhod Part 2, Fatchpur J, and Khajapur. The petitioner contested the election from village Chimkhod Ward No. 1. Since the petitioner belongs to the Scheduled Tribe category, he stood for the election from the said category. In the election, he secured 351 votes. Meanwhile, the respondent No. 8, Smt. Tejamma, also stood for the said election and secured 355 votes.

After the election the petitioner realised that although the respondent No. 8, claimed to belong to the Scheduled Tribe category, but she actually belongs to the category of Backward Class-A. Therefore, according to him, the respondent No. 8, has falsely claimed that she belongs to the Scheduled Tribe category. Therefore, the prayers made by the petitioner before this Court.

Mr. Jairaj K. Bukka, the learned counsel for the petitioner, has relied on the case of Smt. Rukmani Bai v. The State of Karnataka and others, Writ Petition No. 82159 of 2010, decided on 18.11.2010, and on the case of Smt. Saraswati v. The State of Karnataka and others, Writ Petition No. 15396 of 2010, decided on 22.02.2011 by this Court, in order to canvass his plea, that this Court has ample powers to direct the respondents to hold an enquiry with regard to the caste certificate issued in favour of respondent No. 8, and to set aside the election of respondent No. 8.

On the other hand, Mr. A. Syed Habeeb, the learned counsel for State and Mr. P.S. Malipatil, the learned counsel for the Election Commission, have raised an objection with regard to the maintainability of the writ petition. According to the learned counsel, after the election is over, in case the petitioner wishes to challenge the election of respondent No. 8, on the ground that she was not qualified for the seat of Scheduled Tribe category, then the petitioner should have filed an election petition under Section 19 of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993 (''the Act'' for short). Moreover, the case of Smt. Rukmani (supra) and Smt. Saraswati (supra) are distinguishable from the present case on factual matrix. Therefore, this Court should dismiss this writ petition on the ground of availability of alternate remedy.

Heard the learned counsel for the par ties.

Both in the case of Smt. Rukmani (supra), and in the case of Smt. Saraswati (supra), the issue was whether a caste certificate once issued by the Tahsildar, or by the competent authority, could be withdrawn, without giving an opportunity of hearing to the person in whose favour the caste certificate has been issued. In both the cases, it was held that once a caste certificate has been issued by the competent authority, the same could not be withdrawn without following the principles of natural justice. In the case of Smt. Saraswati (supra) this Court has observed, "when once caste certificate issued by the competent authority and without affording an opportunity of hearing the concerned, the competent authority cannot cancel the caste certificate suo motuo. It is contrary to the principles of natural justice and nothing but excess of jurisdiction and biased".

But the issue involved in the present case is not whether the caste certificate once issued to the petitioner could be cancelled without giving an opportunity of hearing to the petitioner? In fact the issue before this Court presently is, whether the election of respondent No. 8, could be set aside inter alia on the ground that she is allegedly not a member of the Scheduled Tribe, and therefore her election from a seat reserved for the Scheduled Tribe category, is illegal or not''? Since the issued involved in the present case is quite different from the case of Smt. Rukmani (supra) and Smt. Saraswati (supra), neither of these two decisions support the case of the petitioner.

Clearly the bone of contention, in the present case, is the legality of the election of respondent No. 8. Section 19 of the Act, is as under;

"19. Grounds for declaring election to be void.- (1) Subject to the provisions of subsection (2) if the [the Designated Court] is of opinion,-

(a) that on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen as a member under this act; or

(b) that any corrupt practise has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or

(c) that any nomination paper has been improperly rejected; or

(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected,-

(1) by the improper acceptance of any nomination; or

(ii) by any corrupt practise committed in the interests of the returned candidate by an agent; or

(iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or

(iv) by any non-compliance with the provisions of this act or of any rules or orders made thereunder;

(1) the Designated Court shall declare the election of the returned candidate to be void.

(2) If in the opinion of the Designated Court, any agent of a returned candidate has been guilty of any corrupt practise, but [the Designated Court] is satisfied,-

(a) that no such corrupt practise was committed at the election by the candidate and every such corrupt practise was committed contrary to the order and without the consent of

(b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and

(c) that in all other respects the election was free from any corrupt practise on the part of the candidate or any of his agents,

then [the Designated Court] may decide that the election of the returned candidate is not void".

A bare perusal of Section 19 (1) (a) clearly reveals that the petitioner would be entitled to file an election petition against respondent No. 8 inter alia on the ground that she is not qualified to stand for election for a seat reserved for the Scheduled Tribe. Therefore, the petitioner does have an efficacious alternate remedy to challenge the election of respondent No. 8.

As far as seeking a direction from this Court to direct respondent Nos. 3 and 4 to conduct enquiry with regard to the caste certificate of respondent No. 8 is concerned, the petitioner is at liberty to bring to the notice of the District Level Caste Verification Committee the fact that the respondent No. 8 allegedly does not have a legal and valid caste certificate. If such a complaint is made to the Committee, it is for the Committee to take cognizance of the complaint.

For the reasons stated above, this Court does not find any merit in the writ petition. Moreover, due to availability of the efficacious alternate remedy, the writ petition is not maintainable before this Court. The writ petition is therefore dismissed.