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Vinodhamma Vs. The State of Karnataka, Department of Panchayat Raj, rep. by its Principal Secretary and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 51170 of 2016 (LB-ELE)
Judge
AppellantVinodhamma
RespondentThe State of Karnataka, Department of Panchayat Raj, rep. by its Principal Secretary and Others
Excerpt:
.....including defeated candidate from canvassing correctness of election petitioner are free to seek remedy by way of election petition as provided in the act and the rules petition dismissed. (paras 12, 13) cases referred: 1. n.p. ponnuswami .v. returning officer, namakkal reported in air 1952 sc 64 2. kurapati maria das .vs. dr. ambedkar seva samajan and otehrs reported in (2009)7 scc 387. 3. n.p. ponnuswami .vs. returning officer, namakkal reported in air 1952 sc 64 4. wolver hampton new water works co. v. hawkesford, (1859) 6 c.b. (n.s.) 336, at p.356 5. nevile v. london express newspaper ltd, (1919) a.c. 368 6. attorney general of trinidad and tabago .vs gordon grant and co., 1935 a.c. 532 7. secretary of state v. mask and co., 44 cal. w.n. 709 8. hurduttrai v. off assignee of..........and the said caste does not come under bcm-a category and the 6th respondent has obtained false caste certificate from the tahsildar stating that she belongs to namadhari caste, which is coming under bcm-a category. the 6th respondent contested the election and the result was declared on 31.8.2016. the returning officer has declared the 6th respondent as a winning candidate and issued the certificate. the list of castes, caste certificate and the declaration certificate are produced at annexures-c,d and e respectively. it is further case of the petitioner that the petitioner received notice and calendar of events from the 3rd respondent stating that the election to the president and vice president for channarayapatna grama panchayath is scheduled to be held on 26.9.2016 (today). it.....
Judgment:

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the declaration of result of R-6, declared as winning candidate under Form-36 dated 31.08.2016 issued by R-4 vide Annex-E.)

1. The petitioner in the present writ petition has sought for a writ of certiorari to quash the declaration dated 31.8.2016 declaring the 6th respondent as winning candidate under Form No.36 issued by the 4th respondent as per Annexure-E and grant other reliefs.

2. It is the case of the petitioner that election to the Channarayapatna Grama Panchayath of Devanahalli taluk was announced and published in the gazette on 10.8.2016 as per Annexure-A. The petitioner contested the election for Channarayapatna Grama Panchayath held in the month of August-2016 from Yedalu Constituency under the Women Reserve Category - BCM-A and she belongs to Dhobi, Agasa community. The Returning Officer has declared that the petitioner was the winning candidate on 31.8.2016 and issued the certificate as per Annexure-B. It is further case of the petitioner that the 6th respondent is the resident of Naganayakanahalli Palya village and she has contested the election for Channarayapatna Grama Panchayath held in the month of August-2016 from Palya Constituency under Women Reserve Category - BCM-A. It is the specific case of the petitioner that the 6th respondent belongs to Nagartha caste and the said caste does not come under BCM-A category and the 6th respondent has obtained false Caste Certificate from the Tahsildar stating that she belongs to Namadhari caste, which is coming under BCM-A category. The 6th respondent contested the election and the result was declared on 31.8.2016. The Returning Officer has declared the 6th respondent as a winning candidate and issued the certificate. The list of Castes, Caste Certificate and the declaration certificate are produced at Annexures-C,D and E respectively. It is further case of the petitioner that the petitioner received notice and calendar of events from the 3rd respondent stating that the election to the President and Vice President for Channarayapatna Grama Panchayath is scheduled to be held on 26.9.2016 (today). It is further stated that the post of President is reserved for BCM-A (Women) and the post of Vice President is reserved for Scheduled Tribe (women). The petitioner is one of the aspirants to the post of President since she is elected from women reserved category BCM-A. The petitioner has enquired about who are all other candidates to contest for the post of President. Then the petitioner came to know that the 6th respondent is also the aspirant to contest for the post of President and she has also elected to the reserved category of BCM-A (women) from the Palya Constituency. After enquiry, petitioner came to know that the 6th respondent does not belong to Namadhari caste and she belongs to Nagartha caste, which is not classified as BCM-A category and by suppressing the real caste, the 6th respondent has obtained Namadhari Caste Certificate from the Tahsildar on 17.8.2016 and got elected from Palya Constituency under Namadhari Caste, BCM-A category. Therefore petitioner immediately filed representation before the Tahsildar. But the Tahsildar has not taken any steps till today. In order to prove that the 6th respondent belongs to Nagartha caste, the petitioner produced the School Certificates issued by the concerned Head Master and Principal as per Annexures-H and J. Hence, the present writ petition for the relief sought for.

3. I have heard the learned counsel for the parties to the lis.

4. Sri Jayakumar S. Patil, learned senior counsel for the petitioner vehemently contended that the 6th respondent does not belong to Namadhari caste and she belongs to Nagartha caste, which is not classified as BCM-A category. By suppressing the real caste, the 6th respondent has obtained Namadhari Caste Certificate from the Tahsildar as per Annexure-D on 17.8.2016 and got elected from Palya constituency under Namadhari caste, which is classified as BCM-A category. The said certificate was obtained by the 6th respondent from the Tahsildar suppressing the real caste. Therefore the very declaration made by the 3rd respondent declaring the 6th respondent as elected from the BCM-A category (Namadhari caste) is illegal and therefore she has no right to contest the election to be held today i.e., 26.9.2016. Therefore he sought to allow the writ petition.

5. Per contra, Sri Vivek S. Reddy, learned senior counsel for the 6th respondent sought to justify the declaration made by the 3rd respondent and strenuously contended that the 6th respondent belongs to Namadhari caste, which comes under BCM-A category. He has also disputed the certificates issued by the concerned Head Master and Principal in respect of the 6th respondent as per Annexures-H and J. He brought to the notice of this Court that the Caste-cum-Income certificate dated 4.5.2012 issued by the Tahsildar at an undisputed point of time discloses that the husband of the 6th respondent belongs to Namadhari caste of Hindu religion. He further contended that the Returning Officer has already issued Calendar of events on 14.9.2016 and once the calendar of events is issued, this Court cannot interfere with the election process already began. In support of his submission, he relies upon the dictum laid down by the Hon ble Supreme Court in the case of N.P. PONNUSWAMI .v. RETURNING OFFICER, NAMAKKAL reported in AIR 1952 SC 64 and in the case of KURAPATI MARIA DAS .vs. DR. AMBEDKAR SEVA SAMAJAN AND OTEHRS reported in (2009)7 SCC 387. Therefore he sought to dismiss the writ petition.

6. Smt. B.P. Radha, learned High Court Government Pleader appearing on behalf of Respondent Nos.1 to 5 submits that the Caste Certificate issued by the Tahsildar prevails over the certificates issued by the Head Master and the Principal. She sought for dismissal of writ petition.

7. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

8. It is an undisputed fact that the 6th respondent contested the election of Palya Constituency claiming to be Namadhari caste, which comes under BCM-A category and she has been declared as the elected member of the Channarayapatna Grama Panchayath. The jurisdictional Tahsildar has issued the Caste Certificate on 17.8.2016 to contest the Grama Panchayath election, which clearly indicates that the 6th respondent belongs to Namadhari caste, which is classified as BCM-A category. It is also not in dispute that the calendar of events was issued on 14.9.2016 for the posts of President and Vice President of Channarayapatna Grama Panchayath to be held on 26.9.2016 (today). A meeting notice was also issued to the petitioner as per Annexure-E. The petitioner mainly relies upon the certificate dated 19.9.2016 issued by the Head Master of the Higher Primary School as per Annexure-H and the certificate dated 21.9.2016 issued by the Principal of the Government Junior College, Vijayapura vide Annexure-J to show that the 6th respondent belongs to Nagartha caste and does not come under BCM-A category. The fact remains that the authority to issue caste certificate is only the Tahsildar and not the Head Master/Principal. The Head Master/Principal issues the Caste Certificate on the basis of the details furnished by the parents of the pupil. Head Master and Principal are not the competent authorities to issue the Caste Certificate. The certificate issued by the Tahsildar as per Annexure-D dated 17.8.2016 clearly indicates that the 6th respondent belongs to Namadhari caste and on that basis 6th respondent elected as member of Palya constituency of Channarayapatna Grama Panchayath on 31.08.2016. Knowing fully well the said fact, the petitioner filed the present writ petition only on 22.09.2016, that too after receipt of the notice of calendar of events on 14.09.2016 for the posts of President and Vice President. Unless and until the said certificate issued by the Tahsildar dated 17.8.2016 is set aside by the competent authority, this Court cannot presume that the certificates issued by the Head Master and Principal as per Annexures-H and J that the 6th respondent belongs to the Namadhari caste prevail over the caste certificate issued by the jurisdictional Tahasildar who is the competent authority.

9. The calendar of events already issued as long back as on 14.9.2016 and the election to the President is fixed today i.e., 26.9.2016. Once the calendar of events is issued, this Court cannot interfere in the election process in view of Article 243-O of the Constitution of India, which reads as under:

243-O. 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.

10. The Hon ble Supreme Court in the case of N.P. PONNUSWAMI .vs. RETURNING OFFICER, NAMAKKAL reported in AIR 1952 SC 64, while considering the interference in election matters, has held as under:

9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the high Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.

12. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willies J. in Wolver Hampton New Water Works Co. v. Hawkesford, (1859) 6 C.B. (N.S.) 336, at p.356 in the following passage:

There are three classes of cases in which a liability may be established founded upon statute, one is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of case is, where the statute gives the right to sue merely, but provided no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to .

The rule laid down in this passage was approved by the House of Lords in Nevile v. London Express Newspaper Ltd, (1919) A.C. 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago .vs Gordon Grant and Co., 1935 A.C. 532 and Secretary of State v. Mask and Co., 44 cal. W.N. 709; and it has also been held to be equally applicable to enforcement of rights (see Hurduttrai v. Off Assignee of Calcutta, 52 cal. W.N. 343, At p.349. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.

13. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. This argument however is completely shut out by reading the Act alongwith Article 329(b). It will be noticed that the language used in that article and in S.80 of the Act is almost identical, with this difference only that the article is preceded by the words notwithstanding anything in this Constitution . I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.

11. In the case of BODDULA KRISHNAIAH .vs. STATE ELECTION COMMISSIONER reported in (1996)3 SCC 416, the Hon ble Supreme Court while considering the interference of elections already set in motion, has held as under:

11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.

12. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules.

12. In the case of KURAPATI MARIA DAS .vs. DR. AMBEDKAR SEVA SAMAJAN AND OTEHRS reported in (2009)7 SCC 387 the Hon ble Supreme Court has held as under:

19. In the first place, it would be better to consider as to whether the bar under Article 243-ZG(b) is in absolute bar. The article reads thus:

243-ZG (b) no election to any Municipality 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.

At least from the language of clause (b), it is clear that the bar is absolute. Normally where such a bar is expressed in a negative language as is the case here, it has to be held that the tone of clause (b) is mandatory and the bar created therein is absolute.

20. This Court in its recent decisions has held the bar to be absolute. First such decision is Jaspal Singh Arora v. State of M.P. {(1998)9 SCC 594}. In this case the election of the petitioner as the President of the Municipal Council was challenged by a writ petition under Article 226, which was allowed setting aside the election of the petitioner. In para 3 of this judgment, the Court observed:

It is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition

21. The second such decision is Gurudeep Singh Dhillon v. Satpal {(2006)10 SCC 616}. In that decision, after quoting Article 243-ZG(b) the Court observed that the shortcut of filing the writ petition and invoking constitutional jurisdiction of the High Court under Articles 226/227 was not permissible and the only remedy available to challenge the election was by raising the election dispute under the local statute.

13. In view of the aforesaid reasons, the writ petitioner has not made out any case for interference at this stage, when the calendar of events issued as long back as on 14.09.2016 and election already set in motion. Accordingly, the writ petition is dismissed.

However the Tahsildar is directed to consider the complaint of the petitioner vide Annexure-G dated 17.9.2016 with regard to the Caste Certificate of the 6th respondent and pass orders in accordance with law within a period of one month from the date of receipt of copy of this order.


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