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Madhya Pradesh High Court · body

2002 DIGILAW 908 (MP)

Faggu Ram v. State of M. P.

2002-10-01

A.K.MISHRA

body2002
ORDER 1. Petitioner in this petition assails the election of respondent No.3 Shri Venkat Nishad as Member of Janpad Panchayat from ward No. 16 of Janpad Panchayat, Katni. 2. The facts shorn of details indicate that election was held in February, 2002 for the members of Janpad Panchayat for various wards. Respondent No.3 Shri Venkat Nishad contested for membership from Ward No. 16 of Janpad Panchayat, Katni and was elected as OBC candidate. He has been later on elected as Vice-President of the Janpad Panchayat and is holding the post at present. Petitioner is resident of Ward No. 16 which was reserved for OBC community as per the notification P-2 issued by the District Election Officer. Petitioner submits that respondent No.3 belongs to the category of the scheduled Tribe in the State of M.P. Because he is by caste "Manjhi". Petitioner alleges that respondent No.3 Shri Venkat Nishad had purchased the land from one Shri Halke Singh Gond who is also a Scheduled Tribe as per sale deed P-4 wherein surname of respondent No. 3 and his father are mentioned as "Manjhi". Vijay Nishad, brother of respondent No.3, has obtained employment in Janpad Panchayat by declaring himself as Scheduled Tribe as per caste certificate P-5. Thus, the petitioner submits that respondent No.3 Shri venkat Nishad belongs to Scheduled Tribe he had no right to contest the election from Ward No. 16 which was reserved for the OBC. He has no right to sit in the meeting of Janpad panchayat as a Member and the Vice-President, therefore, a writ in the nature of quo warranto be issued as respondent No.3 has no authority to sit and participate in the meeting of Janpad Panchayat. 3. Respondent No.3 Shri Venkat Nishad in his return contends that in State of M.P. "Nishad" has not been accepted as a sub-caste of "Manjhi" as per circular R-1 dated 9.2.1996. In there mark sheets of respondent No.3 of Higher Secondary School Examination issued by the Board of Secondary Education. M.P. Bhopal caste is shown as "Nishad" in the mark sheet of LL.B. Pat1-I (R/3) issued by Rani Durgavati Vishwavidyalaya, Jabalpur similar is the position. In mark sheet of B .Com. Part-I (R/4) issued by the Rani Durgavati Vishwavidyalaya, Jabalpur the caste of respondent No.3 is mentioned as "Nishad" and "Nishad" as per notification issued by the State Government dated 26.12.1984 is included in the OBC. In mark sheet of B .Com. Part-I (R/4) issued by the Rani Durgavati Vishwavidyalaya, Jabalpur the caste of respondent No.3 is mentioned as "Nishad" and "Nishad" as per notification issued by the State Government dated 26.12.1984 is included in the OBC. Thus, respondent No.3 belongs to "OBC". 4. Respondent No.2 President-Janpad Panchayat, Katni in the return contends that respondent No. 3 Shri Venkat Nishad suffers disqualification from being elected as member and his subsequent election as Vice-President is bad in law. The caste of respondent No. 3 is "Manjhi", thus, he has no right to continue as Member of Janpad Panchayat and consequently as Vice-President. Certain documents have also been filed recording the name on the basis of the sale deeds in the revenue papers. 5. Shri Vivek Rusia, learned counsel appearing for the petitioner submits that from the sale deed executed in favour of respondent No. 3, it is evident that caste of respondent No.3 is "Manjhi". Brother of respondent No.3 Shri Vijay Nishad is also in service of Janpad Panchayat by virtue of his certificate P-5 in which he has shown his caste as "Manjhi". He has placed reliance on the report of the Collector sent to this Court pursuant to the direction issued on 26.7.2001 to make an enquiry that caste of respondent No. 3 is not proved to be Scheduled Tribe or OBC. He has also relied on the reports submitted by State Level Committee pursuant to the direction dated 10.12.2001 in which a reference has been made to the report of Collector and submits that it was for respondent No.3 to have adduced the evidence with respect to his caste. Thus, sale deed and the caste certificate of brother of respondent No.3 should prevail, hence as per section 36 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, respondent No.3 has no right to continue as a Member of Ward and writ of quo warranto be issued in the facts and circumstances of the case. 6. Shri Naman Nagrath, learned counsel appearing for respondent No.2 President of Janpad Panchayat, Katni has supported the stand of the petitioner. 7. 6. Shri Naman Nagrath, learned counsel appearing for respondent No.2 President of Janpad Panchayat, Katni has supported the stand of the petitioner. 7. Shri L.S. Baghel, learned senior counsel appearing on behalf of respondent No.3 raises a preliminary objection that petitioner having failed to challenge the election of respondent No.3 in accordance with the procedure prescribed under section 122 of the Act, he cannot file a writ petition after one year of the election when for challenging the election mode is prescribed of filing election petition, that ought to have been resorted to. He places reliance on Article 243 (O) and section 122. He also places reliance on a notification issued by the State Government on 26.12.1985 in which "Nishad" caste has been notified to be Backward Class at serial No. 12. He also relies on the circular R-1 in which it has been mentioned that "Nishad" are not to be treated as members of sub-caste of "Manjhi" and are not a member of Scheduled Tribe. He also relies on the mark sheets R-2 of the Higher Secondary of the year 1985 issued by the Board of Secondary Education, M.P., Bhopal; mark sheets R-3 and R-4 issued by Rani Durgavati Vishwavidyalaya, Jabalpur in the year 1986 and 1990 in which caste of respondent No.3 is shown as "Nishad", thus, he submits that there is nothing to doubt the correctness of the mark sheets. Even in the sale deeds the caste has been wrongly shown as "Manjhi" though that has been denied is not conclusive in the matter. Notification issued by the Government has to prevail as such the election of respondent No.3 as member of Backward Class is proper and calls for no interference and this Court cannot decide the disputed questions of facts in this writ petition as to the class and caste of respondent No.3. 8. The first question for consideration is whether an interference is called for in the writ jurisdiction of this Court. This Court called for the report from .the Collector, Katni with respect to the caste of the petitioner; Collector in his report dated 29.9.2001 opined that Shri Venkat Nishad has not proved himself to be member of backward class or that of scheduled tribe. Thereafter considering the inconclusive nature of the report sent by the Collector, the matter was referred to the State Level Committee. Thereafter considering the inconclusive nature of the report sent by the Collector, the matter was referred to the State Level Committee. The State Level Committee has submitted the report dated 15th January, 2002; similar is the opinion expressed by the State Level Committee. thus, the position remains the same and the report of State Level Committee is also not either in favour of respondent No. 3 or against him. 9. In the instant case, it is clear from the mark sheets R-2, R-3 and R-4 of Higher Secondary, LL.B. Part-I and B.Com. Part-I issued by the Board of Secondary Education and Rani Durgavati Vishwavidyalaya, Jabalpur, the respondent No. 3's caste is shown way back in the year 1985, 1986 and 1990 as "Nishad". There is nothing to doubt the correctness of the caste mentioned in these certificates which are earlier in point of time. The notification dated 26th December, 1984 issued by the State Government includes' 'Nishad" in the backward class at item No. 12. Thus, Nishad caste is included in the backward class which is the caste reflected of respondent No.3 in the mark sheets R-2, R-3 and R-4 and Nishad are not be be treated as member of Scheduled tribe or sub-caste of Manjhi is clear from circular R-1 issued in the year 1996, thus, in my opinion, from the mark sheets it is clear that caste of respondent No.3 is 'Nishad' which is a backward class. No doubt about it that in the sale deed P-4, the caste of respondent No.3 is shown as Manjhi, but that is the sale deed executed on 7.4.1999 and purchase is made from the scheduled tribe. There is restriction of making a purchase by a non-tribe person; may be for that purpose respondent No.3 had obtained the sale deed styling himself as Manjhi, but the fact remains that his caste is recorded as Nishad in the mark sheets and the circular R-l indicates that Nishad is not the sub-caste of Manjhi. He cannot be treated to be a member of scheduled tribe in view of the notification of 1984 and 1996 referred to above. The fact that brother of the petitioner had obtained the employment styling himself as member of scheduled tribe and Manjhi cannot buttress the claim of the petitioner. 10. He cannot be treated to be a member of scheduled tribe in view of the notification of 1984 and 1996 referred to above. The fact that brother of the petitioner had obtained the employment styling himself as member of scheduled tribe and Manjhi cannot buttress the claim of the petitioner. 10. In State of Maharashtra v. Milind and others (2001) 1 SCC 4 , the Apex Court has laid down recently that enquiry into the sub-caste is not permissible. Thus, it is not open to conduct an enquiry whether Nishad is sub-caste of Manjhi. Nishad has to be treated as per entry in OBC and inquiry is not permissible to include it in S.T. to widen scope of entry Manjhi. Even if a wrong has been performed by the brother of respondent No.3, claiming himself to be of S.T. caste cannot change and Nishad cannot be included in Manjhi as per the law laid down by the Apex Court in the case of State ofMaharashtra v. Milind and others (supra). 11. Apart from above, there is yet another ground on which no interference is called for in the writ petition. Law provides a mode of challenging the election; election has to be challenged by way of filing election petition under section 122 of the Act and the rules framed there under. There is limitation of 30 days prescribed for filing the election petition. In case petitioner was serious to challenge the election, he ought to have preferred an election petition but he allowed election to attain finality. Once an election petition has not been filed, until and unless it is a case of extreme fraud committed, no interference can be made. In K. Venkatachalam v. A. Swamickan and another (1999) 4 SCC 526 an MLA was elected by impersonation; he was not enrolled as a voter; he was not citizen of India and his continuation as member was an offence. Such fact, situation is not obtainable in the instant case. 12. The Apex Court in Jaspal Singh Arora v. State of M.P. and others (1998) 9 SCC 594 considered the more or less same situation where the election of the President of Municipal Council was not challenged in accordance with the mode provided in M.P. Municipalities Act and was challenged in the writ petition. The Apex Court held that the writ petition was barred by Article 243-ZG of the Constitution. The Apex Court held that the writ petition was barred by Article 243-ZG of the Constitution. The Apex Court held that "3. These appeals must be allowed on a short ground. In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by an election petition as provided under the 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 and also the fact "that an earlier writ petition for the same purpose by a defeated candidate had been dismissed by the High Court." 13. Similar is the bar under Article 243 (O) of the Constitution. Provision of Article 243 (O) is parimateria to Article 243-ZG of the Constitution. Article 243 (O) and Article 243-ZG of the Constitution are quoted below :- "Art. 243-O. 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. Art. 243-ZG 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 243ZA shall not be called in question in any Court; (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 the State. " 14. Thus, in my opinion, petitioner cannot file a writ petition on the disputed question of fact with respect to caste of respondent No.3. 15. " 14. Thus, in my opinion, petitioner cannot file a writ petition on the disputed question of fact with respect to caste of respondent No.3. 15. In Boddula Krishnaiah and another v. State Election Commissioner AIR 1996 SC 1995, considering Article 243-O and 226 of the Constitution of India the Apex Court held that no interference is called for in the election matters in a writ petition. 16. For the foregoing reasons, I find no merit in the instant writ petition. It is dismissed. 17. In the facts and circumstances of the case. No order as to costs.