Mahant Kamlesh Giri v. Mr. N.S. Virk, Addl. A.G., Punjab

“9. What is contended by learned counsel for the appellant is that on the marriage of the appellant with Appala Raju in the customary form of the Bhagatha CWP No. 2080 of 2009 -3- Community, the appellant had been recognized as a member of the Bhagatha Community and accepted as such by the members of community and consequently, the appellant must be taken to have acquired membership of the Bhagatha Community. First of all, we must point out that the High Court, in our view, has rightly held that there was nothing to show that the marriage of the appellant with Appala Raju took place in the customary mode followed by the Bhagatha Community. On the other hand, as noticed by the High Court, the available evidence tends to indicate that the marriage was more in the form followed by Sistu Karnams, the community to which her father belonged. Secondly, as noticed by the High Court, there is nothing to show that the appellant was accepted by the Bhagatha Community of Bhimavaram as a member of that community. As discussed by the High Court based on the evidence in the case, the indication available was that the appellant hardly resided in Bhimavaram village to which her maternal grand-father belonged and there was no occasion for that community to treat her as a member of that community. There is also nothing to show that the appellant followed the way of life of that community.

10. What then remains is the fact that the appellant though assigned the caste of her father Murahari Rao, namely, the Sistu CWP No. 2080 of 2009 -4- Karnam community, had married a tribal belonging to the Bhagatha Community. On the basis of this marriage, it is argued that she must be taken to have acquired membership in the community of her husband and consequently treated as a member of that community. It is in that context that the decision in Horo (supra) was relied on. It is also contended that the decision in Horo (supra) related to an election dispute and consequently, the ratio of that decision should govern the present case. We have already indicated that there is nothing to show that the marriage of the appellant with Appala Raju was sanctioned or approved by the elders of the Bhagatha Community or the concerned Panchayat or was in tribal form or that the formalities attending such a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to CWP No. 2080 of 2009 -5- defeat the very object of such a reservation. The decision of this Court in Valsamma Paul (Mrs.) vs. Cochin University and others (supra), supports this view. Neither the fact that a non- backward female married a backward male nor the fact that she was recognized by the community thereafter as a member of the backward community, was held to enable a nonbackward to claim reservation in terms of Articles 15(4) or 16(4) of the Constitution. Their Lordships after noticing Bhoobun Moyee v. Ram Kishore, (1865) 10 MIA 279, and Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai, (1879-80) 7 IA 212, held that a woman on marriage becomes a member of the family of her husband and thereby she becomes a member of the caste to which she has moved. The caste rigidity breaks down and would stand as no impediment to her becoming a member of the family to which the husband belongs and to which she gets herself transplanted. Thereafter, this Court noticed that recognition by the community was also important. Even then, this Court categorically laid down that the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the Constitution CWP No. 2080 of 2009 -6- for the reason that she as a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see no reason why the principle relating to reservation under Articles 15(4) and 16(4) laid down by this Court should not be extended to the constitutional reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are also constitutional reservations intending to benefit the really underprivileged and not those who come to the class by way of marriage. To the extent the decision in Horo (supra) can be said to run counter to the above view, it cannot be accepted as correct. Evenotherwise, in the absence of evidence on the relevant aspects regarding marriage in tribal form and acceptance by the community, the decision in Horo (supra) cannot come to the rescue of the appellant. On a consideration of the relevant aspects, we are of the view that whether it be a reservation under Articles 15(4) or 16(4) or 330 and 332, the said reservation would benefit only those who belong to CWP No. 2080 of 2009 -7- a Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by marriage, like the appellant in this case. Thus, in our view, the High Court was fully justified in coming to the conclusion that the appellant could not claim the right to contest a seat reserved for a Scheduled Tribe in terms of Article 332 of the Constitution of India merely by virtue of her marriage to a person belonging to a Scheduled Tribe.

11. What remains is the argument based on the certificates allegedly issued under The Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993. The High Court has not accepted the certificates as binding for the reason that the evidence showed that the certificates were issued based on the influence exercised by the appellant as a member of the Legislative Assembly, one after another, immediately on an application being made and without any due or proper enquiry. We are impressed by the reasons given by the High Court for not acting on these certificates. That apart, a reference to Section 3 of the Act would indicate that a certificate thereunder, insofar as it relates to elections, is confined in its validity to elections to local authorities and co-operative institutions. It does not embrace an election to the CWP No. 2080 of 2009 -8- Legislative Assembly or to the Parliament. Therefore, in any view of the matter, it cannot be said that the High Court, exercising jurisdiction under The Representation of The People Act in an Election Petition is precluded from going into the question of status of a candidate or proceeding to make an independent inquiry into that question in spite of the production of a certificate under the Act. At best, such a certificate could be used in evidence and its evidentiary value will have to be assessed in the light of the other evidence let in in an Election Petition. Therefore, nothing turns on the factum of a certificate being issued by the concerned authority under the Act of 1993. We are also satisfied as the High Court was satisfied, that no proper inquiry preceded the issuance of such a certificate and such a certificate was issued merely on the say so of the appellant. We have, therefore, no hesitation in overruling this argument raised on behalf of the appellant. The learned counsel for the petitioner contended, that election of an elected candidate holding public office, can be challenged by way of writ petition, even though an alternative remedy of election petition is available. In support of this this contention he placed reliance on the judgment of the Hon'ble Supreme Court in the case of K. Venkatachalam Vs. A. Swamickan 1999(3) R.C.R.(Civil) 110 , wherein on the following CWP No. 2080 of 2009 -9- facts :- “2. General elections to the Legislative Assembly in Tamil Nadu were held in December, 1984 VenkatacIalam, the appellant Swamickan, respondent candidates. In the result declared Venkatachalam was elected. A year after the date of election of Venkatachalam, petition under Article 226 of the Constitution was filed by Swamickan for a declaration that Venkatachalam was not qualified to be member of the Tamil Nadu Legislative Assembly representing Lalgudi Assembly Constituency since he was not elector in the electoral roll of Lalgudi Assembly Constituency for the general elections in. question. He also prayed alternatively for writ of quo warranto directing Venkatachalam to show under what authority he was occupying the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. Swamickan did not a present any petition calling in question the election of Venkatachalam under Section 81 of the Act. He alleged that Venkatachalam impersonated him for another person of the same name in the electoral roll of Lalgudi Assembly Constituency and thus sworn a false affidavit that he was elector of that constituency. It was alleged that the act of Venkatachalam was fraudulent and a CWP No. 2080 of 2009 -10- criminal act, which came to be known to Swamickan after he scrutinized the entire electoral roll of the Lalgudi Assembly Constituency.

3. By judgment dated December 3, 1985 a learned single Judge of the High Court dismissed the writ petition holding that Article 329(b) of the Constitution was a complete bar when remedy was available under the Act. Aggrieved Swamickan filed writ appeal which as noted above, was allowed by the Division Bench of the High Court by judgment dated April 23, 1986. High Court held that it was not powerless in exercise of its jurisdiction under Article 226 of the Constitution from declaring that the election of Venkatachalam was illegal inasmuch as he did not possess the basic constitutional statutory qualifications. Aggrieved Venkatachalam got leave to appeal to this Court. His main contention has been that having regard to the provisions of Article 329(b) of the Constitution, High Court could not exercise its jurisdiction under Article 226 of the Constitution and further that a writ of quo warranto could not be issued after lapse of one year at instance of the candidate who was defeated in the elections.” On the facts noted above, the Hon'ble Supreme Court was pleased to lay down as under :- CWP No. 2080 of 2009 -11- “In view of the judgment of this Court in the case of Election Commission of India v. Saka Varikata Rao, AIR (1953) SC 210 it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329 (b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? CWP No. 2080 of 2009 -12-

26. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly, The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election Assembly Constituency. Normally in a case like this Election Commission should invariably be made a party.” It is prayed, that respondent No.6 be removed from the post of Sarpanch by setting aside her election. Mr. Vishal Sodhi, learned counsel appearing on behalf of respondent No.6, at the outset, raised a preliminary objection regarding maintainability of writ petition, in view of the availability of the alternative remedy of election petition. In support of this objection the learned counsel for respondent No.6 placed reliance on Article 243(O) of the CWP No. 2080 of 2009 -13- Constitution of India, read with Section 74 of the Punjab State Election Commission Act, 1994, wherein it has been laid down that an election of an elected candidate cannot be challenged, except by way of election petition. The contention of learned counsel for respondent No.6, therefore, was that as the petitioner has an alternative remedy and there is a specific bar against entertainment of writ petition, the writ petition deserves to be dismissed. The learned counsel for respondent No.6 also vehemently contended, that this Court cannot go into the disputed questions of fact, for the reason, that the certificate issued to respondent No.6 holding her to be member of Scheduled Caste has neither been set aside, nor has been questioned in any competent Court, therefore, her election in absence of setting aside of the Scheduled Caste Certificate cannot be questioned in this writ petition. It is also the contention of the learned counsel for the respondent No.6, that grant of Scheduled Caste certificate after holding an enquiry cannot be questioned in writ petition, as it has to be proved by respective parties by leading evidence “as to whether respondent No.6 has been accepted in the community of Scheduled Caste, and in case she stood accepted her election cannot be challenged, therefore, the petitioner cannot be permitted to adopt short cut method by invoking the writ jurisdiction of this Court to challenge the continuance of a duly elected Sarpanch, by not availing the statutory remedy of election petition. CWP No. 2080 of 2009 -14- In support of contention that “whether respondent No.6 is to be treated as a member of Scheduled Caste or not”, is to be gone into only by permitting the parties to lead evidence placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Kerala and another Vs. Chandramohanan AIR 2004 Supreme Court 1672, wherein the Hon'ble Supreme Court laid down, that the question 'Whether a person ceases to be a member of a community by change of religion?, has to be determined by appropriate Court, as such question depends upon facts of each case. The other contention of the learned counsel for respondent No.6 was, that in view of the judgment of the Hon'ble Supreme Court, it is not possible to hold that respondent No.6 is not member of Scheduled Caste, unless she is allowed to lead evidence to prove, that she has been accepted as Scheduled Caste, by community and that she ceases to be member of the Backward Class, though not disputed, that she was “Ghumar” by birth i.e. Backward class. The learned counsel appearing on behalf of respondent No.6 also contended, that the petitioner is misreading the judgment of the Hon'ble Supreme Court in contending, that the election of the petitioner is to be set aside merely because she acquired the status of Scheduled Caste by way of marriage. The contention is, that the reading of the judgment, reproduced above, would show, that in the case before the Hon'ble Supreme Court the candidate had failed to prove her acceptance in the community to which she claimed to be belonging to, nor she was CWP No. 2080 of 2009 -15- able to prove, that her marriage was performed as per the custom of the community. The contention is, that the finding of the Hon'ble Supreme Court holding, that the appellant therein was not member of Scheduled tribe was on the facts of the said case, which cannot be used as a precedent to oust respondent No.6 from office of Sarpanch. On consideration, I find that it is a settled law, that the High Court is not to exercise the jurisdiction under Articles 226/227 of the Constitution of India, in case, the petitioner has an alternative statutory remedy, specially in the election disputes. However, the jurisdiction of the High Court under Article 226 of the Constitution of India to entertain a writ petition in spite of availability of statutory remedy, also can not be questioned, specially in a case where there is no dispute on facts, in that event, there is hardly any reason for the High Court to relegate the party to the statutory remedy, when nothing required to be proved, as the facts stand admitted. In the present case, it is not disputed, that respondent No.6 was “Ghumar” by birth, which is a Backward Class community, whereas admittedly she was claiming status of Scheduled Caste, only by virtue of her marriage to a Scheduled Caste person. The reading of the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the petitioner shows, that a person by marrying a member of a Scheduled Caste is not entitled to claim benefit of Scheduled Caste, in the matter of CWP No. 2080 of 2009 -16- election and service. The Hon'ble Supreme Court, had not accepted the certificate, duly placed on record, claiming her to be elected as a member of a particular Tribe. The certificate of respondent No.6, on admitted facts and law laid down by Hon'ble Supreme Court can not be accepted. Even if the matter is enquired into, the authorities can reach to only one conclusion, that she is not entitled to be a member of Scheduled Caste, The Hon'ble Supreme Court has also laid down, that on admitted facts, if the elected candidate is ineligible to contest the election, an d the election is vitiated for want of eligibility to contest the election, then the High Court in exercise of jurisdiction under article 226 of the Constitution of India can issue a writ in the nature of Quo Warranto, to oust the elected candidate by declaring election to be void by ignoring the bar under the law. In view of the law laid down by the Hon'ble Supreme Court and in view of admitted facts, for the reasons stated, this writ petition is allowed. The election of respondent No.6 is set aside, and writ in the nature of quo warranto is issued ousting respondent No.6 from the office / post of Sarpanch of Gram Panchayat Village Dunera Jhikla, Block Dhar Kalan, Tehsil Dhar Kalan, District Gurdaspur. No costs.

14.07.2010 'sp' (VINOD K. SHARMA) JUDGE