IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.4611/2019 BETWEEN:
SHRI GURUVINAYAKA S/O. CHELUVARAJU AGED ABOUT 33 YEARS R/AT NO.17, 4TH CROSS PARAMAHAMSA ROAD YADAVAGIRI, MYSURU- 570 002 … APPELLANT (BY SRI S.SHIVAKUMAR, ADVOCATE) AND:
1. R.RAVINDRAKUMAR S/O LATE RAJAPPAJI AGED ABOUT 53 YEARS R/AT NO.64/1, 3RD MAIN ROAD 7TH CROSS, ALLANAHALLI EXTENSION MYSURU- 570 018 2. RAJU.N.
S/O. LATE NARAYANA D.M. AGED ABOUT 41 YEARS R/AT NO.24/A, B.B.MILL ROAD BANNIMANTAPA, MYSURU- 570 015 3. MAHESH.S.
S/O. SHIVAMALLA NAYAKA AGED ABOUT 36 YEARS R/AT NO.65/2, MANJUNATHAPURA 4TH STAGE, GOKULAM MYSURU- 570 020 4. SWAMY S/O. LATE HANUMANTHA NAYAKA AGED ABOUT 49 YEARS R/AT NO.118, GOKULAM 4TH STAGE, MANJUNATHAPURA MYSURU- 570 020 5. B.N.VEENA, K.A.S.
THE RETURNING OFFICER (WARD NOS.18, 23, 24, 40 & 41) ZONAL OFFICE 06 MYSURU CITY CORPORATION NEW SHESHADRI AYYER ROAD MANDI MOHALLA, MYSURU- 570 021 …RESPONDENTS (BY SRI REUBEN JACOB, ADVOCATE FOR C/R1;
NOTICE IN RESPECT OF R3 HELD SUFFICIENT V/O/DT: 03.09.2019; R2, R4 AND R5 SERVED) THIS MFA IS FILED UNDER SECTION 38 OF THE KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976 PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 09.04.2019 PASSED BY THE PRINCIPAL DISTRICT & SESSIONS JUDGE, MYSURU IN E.C.NO.03/2018 DECLARING THE ELECTION OF THE APPELLANT FROM WARD NO.18, MYSURU CITY CORPORATION AS NULL AND VOID ETC.
THIS MFA COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is preferred against the judgment and order dated 09.04.2019 in Election Petition No.3/2018 passed by the Principal District & Sessions Judge, Mysuru. By the impugned judgment and order, the trial Court declared the election of the appellant as Councillor to Ward No.18 of Mysuru City Corporation held on 31.08.2018 as null and void and declared that respondent No.1 is elected Councillor to the said ward.
2. Respondent No.1 filed election petition No.3/2018 against the appellant and respondent Nos.2 to 5 herein under Section 33 of the Karnataka Municipal Corporations Act, 1976 for declaration of the election of the present appellant as null and void and to declare him as elected candidate.
3. For the purpose of convenience, the parties will be henceforth referred to with their ranks before the trial Court.
4. The Urban Development Authority vide notification dated 19.07.2018 declared the election for the office of Councillor for Ward No.18 of Mysuru City Corporation and reserved the constituency for the candidate of Scheduled Tribe. The petitioner submitted his nomination as congress candidate. Respondent No.1 submitted his nomination as Bharatiya Janata Party candidate, respondent No.2 submitted his nomination as Janata Dal (Secular) party candidate and respondent Nos.3 and 4 submitted their nominations as independent candidates. Respondent No.5 was appointed as Returning Officer.
5. Elections were conducted on 31.08.2018.
Results were declared on 03.09.2018. Respondent No.1 secured 2683 votes and the petitioner secured 2229 votes. Since respondent No.1 secured highest votes, he was declared as elected candidate.
6. The petitioner challenged the election of respondent No.1 on the ground that he did not belong to the Scheduled Tribe and by producing fake caste certificate he managed to contest the election. He claimed that respondent No.1 was not qualified to contest the election and acceptance of his nomination was improper and that materially affected the election. The petitioner further claimed that since he was the second highest securer of the votes, he shall be declared as elected candidate.
7. Respondent No.1 contested the petition denying the allegations made against him. He contended that his parents, grandparents belonged to Nayaka community which is a Scheduled Tribe and accordingly, the caste certificate was issued to him. He further contended that the petitioner himself was not a candidate belonging to Scheduled Tribe, therefore, he was not qualified to contest the election.
8. Respondent Nos.2 to 4 did not contest the petition. Respondent No.5 contested the petition denying the allegations of improper reception of nomination. She further contended that she acted on the basis of the caste certificate issued by the Tahsildar and the petitioner did not raise any objections at the time of acceptance of the nomination as alleged by him. Ultimately, respondent No.5 submitted that, if the petitioner is able to prove his allegations, automatically respondent No.1’s election will be cancelled.
9. In support of their respective claim, the parties adduced evidence. The petitioner got examined himself as PW.1 and the Head Mistress of Government Higher Primary School, Alagur village, T.Narasipura Taluk as PW.2 and got marked Ex.P1 to Ex.P27. Respondent No.1 got himself examined as RW.1 and on his behalf examined RW.2 to RW.5 and Ex.R1 to Ex.R14 were marked.
10. The trial Court after hearing the parties, by the impugned judgment and order allowed the petition and declared the election of respondent No.1 as void and declared the petitioner as returned candidate on the following grounds:
(i) Ex.P8 the caste certificate of respondent No.1 produced before respondent No.5 was secured on the basis of the caste certificate of his father. Under Ex.P23, the caste certificate of respondent No.1’s father was cancelled in the year 2008. Thus Ex.P8 had no legs to stand and that was the outcome of suppression of material fact;
(ii) The very fact of obtaining Ex.P8 on 15.08.2018 a Government Holiday, smacks doubts about it;
(iii) Father of respondent No.1 was prosecuted for securing Government job on the basis of false caste certificate. Though he was discharged in the said case that was only on technical ground;
(iv) The petitioner has secured second highest votes. Therefore on declaration of election of respondent No.1 as null and void, the petitioner is entitled to be declared as returned candidate; & (v) Ex.P8 the caste certificate of respondent No.1 was cancelled under Ex.P27 the order of the Tahsildhar, Mysuru.
11. Being aggrieved by the said judgment and order of the trial Court, respondent No.1 is before this Court.
12. Sri Shivakumar.S, learned Counsel for the appellant seeks to assail the impugned order of the trial Court on the following grounds:
(i) Under the Karnataka Scheduled Castes and Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.) Act, 1990 (‘the Act’) the Competent Authority to verify and cancel the caste certificate is the Committee constituted under Section 4-C of the Act and not the Tahsildar.
(ii) Since the order of the Tahsildar cancelling the caste certificate is without jurisdiction, Ex.P23 order of cancellation of caste certificate of the father of respondent No.1 shall be simply ignored;
(iii) Since the Act provides only for reservation in education and employment, caste certificate Ex.P8 issued to respondent No.1 for election is not governed by the said Act. Therefore, even the order at Ex.P27 cancelling respondent No.1’s caste certificate is without jurisdiction.
(iv) Further the appeal filed by respondent No.1 against the order at Ex.P27 is pending for consideration;
(v) Respondent No.1, his parents, grandparents belong to Nayaka Community which is evident from Ex.R1 and Ex.R2. Therefore, respondent No.1 did belong to Nayaka Community. The trial Court overlooked that evidence;
(vi) The evidence adduced by respondent No.1 proved that the petitioner belongs to Bestar community which is non Scheduled Tribe community. Therefore, he was also not eligible to contest the election of Councillor; & (vii) The trial Court committed error in declaring the election of respondent No.1 as void and declaring the petitioner as returned candidate.
13. In support of his contention, he relies upon the following judgments:
(i) Sri Chikkanna vs. District Social Welfare Officer and Member Secretary, District Schedule Caste and Schedule Tribe Caste Verification Committee, Mysore and another1 (ii) Sri S.Kiran Kumar vs. The State of Karnataka and others2 1 WP No.13173/2008 (GM-CC) 2 WP No.855/2019 (GM-CC) (iii) Sri Anil Kumar vs. State of Karnataka and others3 (iv) D.K.Sharma v. Ram Sharan Yadav and others4.
14. Per contra, Sri. Reuben Jacob, learned Counsel for the petitioner seeks to support the impugned order of the trial Court on the following grounds:
(i) Respondent No.1 did not belong to Scheduled Tribe. Ex.P8-the caste certificate produced by him before respondent No.5 was secured on the basis of the caste certificate of his father. Whereas his father’s caste certificate itself was cancelled under Ex.P23.
(ii) Further, the caste certificate of respondent No.1 itself was cancelled under Ex.P27. Thus it was clear that respondent No.1 was not qualified to contest the election which was reserved for a candidate belonging to Scheduled Tribe;
(iii) The caste certificates Exs.R1 and R2 relied by respondent No.1 were disputed and they were not proved in accordance with law. The petitioner belonged 3 WP No.16668/2018 (GM-CC) 4 AIR 1993 SC 95 to Scheduled Tribe community that was evident from his school records;
(iv) The cancellation orders Exs.P23 and 27 cannot be ignored on the alleged lack of jurisdiction unless they were challenged and reversed by the Competent Authorities;
(v) In the light of respondent No.1 not belonging to the Scheduled Tribe, the acceptance of his nomination materially affected the election. Therefore, the Court below was right in allowing the election petition; & (vi) Since the election petitioner was the candidate who secured next highest votes, he was entitled to be declared as returned candidate.
15. In support of his contention, he relies on the following judgments:
(i) Krishnadevi Malchand Kamathia v.
Bombay Environmental Action Group5 (ii) Board of Trustees of Port of Kandla v/s Hargovind Jasraj6 5 (2011) 3 SCC 363 6 (2013) 3 SCC 182 (iii) Punit Rai v. Dinesh Chaudhary7 (iv) State of Tamil Nadu v. A.Gurusamy8 (v) Konappa Rudrappa Nadgouda v/s Vishwanath Reddy and another9 16. Having regard to the rival contentions, the questions that arise for determination of this Court are:
(i) Whether respondent No.1 was eligible/qualified to contest the election of Councillor to Ward No.18 of the Mysuru City Corporation held on 31.08.2018?
(ii) Whether acceptance of the nomination of respondent No.1 was improper and materially affected the election?
(iii) Whether the impugned order of the Trial Court declaring the election of respondent No.1/appellant herein as null and void is sustainable in law?
(iv) Whether the impugned order of the Trial Court declaring the petitioner as returned candidate is sustainable in law?
7 (2003) 8 SCC 204 8 (1997) 3 SCC 542;
9 AIR 1969 SC 447 Regarding Point Nos.1 to 3:
17. Section 35(1)(a) and 35(1)(d)(i) of the Karnataka Municipal Corporations Act, 1976 (for short ‘K.M.C. Act’) are material for the purpose of this petition which read as follows:
“35. Grounds for declaring elections to be void.―(1) Subject to the provisions of sub-section (2), if the 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 Councillor under this Act; or ……………………… (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected.― (i) by the improper acceptance of any nomination; or ……………………… the Court shall declare the election of the returned candidate to be void.”
(Emphasis supplied) 18. There is no dispute between the parties that in the election held on 31.08.2018 for the office of Councillor to ward No.18 of Mysuru City Corporation that constituency was reserved for the candidate belonging to the Scheduled Tribe. There is also no dispute that respondent No.1 submitted his nomination paper before the Returning Officer along with the caste certificate as per Ex.P8 claiming that he belongs to Nayaka Community. There is also no dispute that Nayaka Community is Scheduled Tribe.
19. The question was whether respondent No.1 belonged to Nayaka Community. Respondent No.1 himself admits in his cross-examination that he secured Ex.P8 the caste certificate by producing his father’s caste certificate. His father admittedly secured employment in police department producing caste certificate to the effect that he belongs to Nayaka Community. The said caste certificate was admittedly cancelled under Ex.P23 on 17.12.2008 by the Tahsildar, T.Narasipura. Therefore, as on the date of respondent No.1 filing application for issue of Ex.P8, his father’s caste certificate was already cancelled and that was within the knowledge of respondent No.1.
20. Though it is contended that his father has filed an appeal challenging the cancellation order Ex.P23, no material was produced before the Trial Court or even before this Court to substantiate such contention. It is not even the case of respondent No.1 that there was any interim order against the order Ex.P23. Therefore, irresistible conclusion is that respondent No.1 filed his nomination based on Ex.P8 which in turn was secured by producing his father’s caste certificate. But to the knowledge of respondent No.1, his father’s caste certificate was cancelled under Ex.P23 much before that.
21. The father of respondent No.1 had secured employment in Government representing that he belongs to Scheduled Tribe ‘Nayaka Community’. On cancellation of his caste certificate, he was sought to be prosecuted in Spl.C.No.87/2014 on the file of the VI Additional District and Special Judge, Mysuru for the offences punishable under Sections 196, 198, 199 and 420 of IPC and Section 3(1)(ix) and Sub Order 7(1)(ii) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act on the basis of the charge sheet filed by T.Narasipura police.
22. Ex.R14 is the order of the said Court discharging the respondent’s father on his application.
The perusal of the said document shows that father of respondent relying on the Government order No.SWD 713 SAD 93, Bengaluru dated 11.03.2002 claimed his discharge. Under the said notification, State Government issued directions stating that once the caste certificate issued under the Act is cancelled or surrendered, the person who obtained such certificate shall not be prosecuted. The Government had given that benefit to the person who secured such certificate.
23. On that ground the father of respondent No.1 was discharged. Having received that benefit of discharge on the basis of Ex.P23 the cancellation order, respondent No.1 now wants to claim that his father has filed appeal against the said order, therefore, the order shall be ignored. Respondent No.1 cannot approbate and reprobate together and such stand fails the test of fairness and rationality.
24. Further, pending the proceedings before the Trial Court, the Tahsildar Mysuru on recommendation of Caste Verification Committee cancelled the caste certificate Ex.P8 also under his order Ex.P27. Therefore, the caste certificate Ex.P8 based on which respondent No.1’s nomination was submitted lost its validity since its inception.
25. To advance his contention that orders under Exs.P23 and P27 were passed without jurisdiction, learned counsel for respondent No.1 (appellant herein) relied on the judgments of this Court in Chikkanna’s case, Kiran Kumar’s case and Anil Kumar’s case. The reading of the said judgments themselves show that the affected parties therein approached this Court claiming that the cancellation orders were passed without jurisdiction. But respondent No.1 did not take recourse to such proceedings. As against that he claims that himself and his father have filed appeal before the Appellate Authority against the order under Exs.P23 and P27. That amounts himself submitting to the jurisdiction of those authorities.
26. Further, the Hon’ble Supreme Court in Krishnadevi’s case referred to supra while dealing with issue whether the Courts can simply ignore an order or judgment on the ground of nullity, in paras 18 and 19 of the judgment held as follows:
“18. In Sultan Sadik v. Sanjay Raj Subba, this Court took a similar view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstances, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reasons. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.”
(Emphasis supplied) 27. Similarly, while considering the similar issue the Hon’ble Supreme Court in Board of Trustees of Port of Kandla in para Nos.29 and 30 of the judgment held as follows:
“29. To the same effect is the decision of this Court in Pune Municipal Corpn. V. State of Maharashtra wherein this Court discussed the need for determination of invalidity of an order for public purpose: (SCC pp.225-26, paras 36 & 38-39) “36. It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states:
‘The principle must be equally true even where the “brand of invalidity” is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court’.
He further states:
‘The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the “void” order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.’ 38. A similar question came up for consideration before this Court in State of Punjab v. Gurdev Singh….
39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. ‘If the statutory time of limitation expires, the court cannot give the declaration sought for’.”
30. Reference may also be made to the decisions of this Court in R.Thiruvirkolam v. Presiding Officer, State of Kerala v. M.K.Kunhikannan Nambiar Manjeri Manikoth and Tayabbhai M.Bagasarwalla v. Hind Rubber Industries (P) Ltd., where this Court has held that an order will remain effective and lead to legal consequences unless the same is declared to be invalid by a competent court.”
(Emphasis supplied) 28. In substance, in the aforesaid judgments, the Hon’ble Supreme Court held that no order can be ignored altogether unless right remedy is sought against such order by the right person in the right proceedings though the order may be hypothetically nullity. Therefore, this Court is not inclined to accept the submission of learned counsel for respondent No.1 that Exs.P23 and P27 shall be totally ignored.
29. On excluding Ex.P8, the other documents relied on by respondent No.1 were Exs.R1 and R2 the alleged caste certificates of his grand parents. In the cross-examination of RW.1, the genuineness of those two documents was disputed. It was even suggested that they did not relate to his grand parents. Respondent No.1 did not choose to examine the concerned Authorities to prove Exs.R1 and R2.
30. In the light of above said facts and circumstances, irresistible conclusion is that as on the date of filing the nomination respondent No.1 was not qualified to contest the election of Councillor to ward No.18 which was reserved for a candidate belonging to Scheduled Tribe. Therefore, the reception of his nomination paper was improper and materially affected the election in question. Therefore, the declaration of his election by the trial Court as null and void does not suffer any infirmity or illegality.
Regarding Point No.4:
31. The next question is, “Whether the trial Court was justified in declaring the election petitioner as the returned candidate?”
32. It was no doubt true that the petitioner was the candidate securing the next highest votes. No doubt in Konappa Rudrappa Nadgouda’s case, the Hon’ble Supreme Court held that the votes casted in favour of the candidate whose election was declared void shall be treated as thrown away votes. But subsequently, in D.K.Sharma’s case referred to supra referring to (1961) 3 All ER 354 in para 5 of the judgment held as follows:
“………………………………………………………………….. The voters in this country have become very conscious even though a large number of them might be illiterate. They have not only started taking great interest in the election but exercise their franchise after knowing every thing about contesting candidates and their parties. It is, therefore, not possible to hold on the basis of the oral evidence that 46027 voters who cast their votes in favour of respondent No.1 did so after having noticed about disqualification of respondent No.1 and knowing that their votes shall be wasted. It follows, therefore, that the second prayer of the petitioner to declare him as duly elected after throwing away the votes of respondent No.1 cannot be allowed.”
(Emphasis supplied) 33. Thus, it was held that the votes of the voters shall not be wasted treating them as thrown away votes, that too when no evidence was adduced to show that the voters were educated of the fact that the returned candidate was disqualified to contest. Therefore, the said later judgment has to be followed.
34. In this case also petitioner has not adduced evidence to show that 2683 persons who voted for respondent No.1 were aware that he was not qualified/eligible to contest the election or they were educated in that regard, still consciously they voted for him.
35. In the light of the aforesaid judgments and discussions, the Trial Court was not right in declaring the petitioner as the returned candidate. Therefore, that part of the impugned order warrants interference. The appeal is partly allowed.
The impugned judgment and order dated 09.04.2019 in Election Petition No.3/2018 passed by the Principal District and Sessions Judge, Mysuru to the extent of declaring the election of the appellant (respondent No.1 before the Trial Court) as Councillor to Ward No.18 of Mysuru City Corporation as null and void is confirmed.
Further, the impugned judgment and order of the Trial Court to extent of declaring respondent No.1 herein (election petitioner) as Councillor to Ward No.18 of Mysuru City Corporation is hereby set aside.
As existing material on record was adequate to decide the matter, the additional evidence sought to be produced under I.A.No.3/2019 is not required. Therefore, the said application is dismissed.
In view of disposal of the appeal, other pending I.As and memo stood disposed of.
Sd/- JUDGE KSR/KG