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2003 DIGILAW 75 (AP)

Andugula Vijayalakshmi, Varahapatnam, Kaikaluru Mandal. Krishna District v. District Collector, Krishna Dist.

2003-01-10

GODA RAGHURAM

body2003
GODA RAGHURAM, J. ( 1 ) ELECTIONS to the Gram Panchayat of varahapatnam, Kaikaluru Mandal, Krishna district, were conduced on 14-8-2001. The post of Sarpanch is reserved for Scheduled caste Woman category. The petitioner contested for the post of Sarpanch along with the 4th respondent and was declared elected. Of the total 1693 votes poled, the petitioner obtained 806 and the 4th respondent 793 votes. Consequently the petitioner was declared elected as a sarpanch with a margin of 13 votes. The petitioner obtained caste certificate issued by the Mandal Revenue Officer and on that basis the petitioner was considered as belonging to Scheduled Caste community and her nomination accepted and consequent on the result she was declared as elected. During the course of elections the. 4th respondent raised objections before the election Officer regarding the validity of the nomination of the petitioner. The objections not having been accepted, after the elections the 4th respondent filed an election petition op No. 7 of 2001 before the Election Tribunal constituted under the A. P. Panchayat Raj act, 1994 (for short the 1994 Act ) read with the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram panchayats, Mandal Parishads and Zilla parishads) Rules, 1995 (for short the 1995 rules ) issued in G. O. Ms. No. 111, PR, RD and R (Elec.-III) Department, dt 3-3-1995. The Election Tribunal-cum-Junior Civil judge, Kaikaluru, allowed the election petition filed by the 4th respondent on the sole ground that the petitioner belongs to backward Caste and not to Scheduled Caste and consequently could not have been elected to a post of Sarpanch reserved for scheduled Caste community. In coming to the said conclusion the Election Tribunal went in elaborate detail into various circumstances such as whether the petitioner s children were married according to Hindu rituals or Christian rituals; that the Mandal Revenue Officer issued the certificate to the petitioned to the effect that she belongs to Scheduled Caste, in a hurry; that the evidence discloses that the respondent (petitioner herein) used to attend prayers in the Church and the like circumstances, on the basis of oral and documentary evidence presented to it. ( 2 ) ASSAILING the order of the Election tribunal dt 31-10-2002 in OP No. 7/2001 this writ petition is filed. ( 2 ) ASSAILING the order of the Election tribunal dt 31-10-2002 in OP No. 7/2001 this writ petition is filed. The principal ground urged by the petitioner to assail the reasoning and conclusions of the Election tribunal is that the Election Tribunal had no manner of jurisdiction or authority to adjudicate upon the fact whether the petitioner is a Scheduled Caste, that the certificate issued by the Mandal Revenue officer, which is not pleaded, urged or demonstrated to be a forged one, is conclusive on the aspect as to the petitioner s status as a Scheduled Caste and that any challenge to the validity of such certificate could only be under the provisions of the Andhra Pradesh (SC, ST and BCs) Regulation of Issue of Community certificates Act, 1993 (for short the 1993 act ) and not before the Election Tribunal constituted under the provisions of the 1994 act. In support of this contention reliance is placed by the petitioner on the judgment of a learned Single Judge of this court in p. Aruna Devi v. Election Authority-cnm- commissioner. Adoni Municipality and others. ( 3 ) IN the aforesaid decision this court held that"the competent authority prescribed under the 1993 Act had issued the caste certificate to the petitioner and the election petitioner did not invoke the machinery under the Act for cancellation of the same by the time she filed the OP. Unless it is pleaded that the authority that issued the Certificate to the petitioner did not have the jurisdiction, or it is pleaded that the occasion for the authority to issue the certificate to the petitioner does not exist, it cannot be said that the jurisdiction of the Civil Court continued to exist. " ( 4 ) MR. P. Sree Raghuram, learned counsel for the 4th respondent - election petitioner on the contra defends the reasons and conclusions of the Election Tribunal contending that integral to the jurisdiction to adjudicate upon an election dispute under the provisions of the 1994 Act, the Election tribunal is competent and within its power to adjudicate upon the question whether a person belongs to a Scheduled Caste in the circumstances where such person contests an election and gets elected for a seat reserved for Scheduled Caste. Though it is conceded that the community certification issued in favour of the petitioner by the mandal Revenue Officer was not in issue nor was it challenged before the Election tribunal, Mr. Sree Raghuram would contend, the Election Tribunal is competent to adjudicate upon the question whether the petitioner did belong to Scheduled Caste. It is also contended that the validity of the certificate issued to the petitioner by the mandal Revenue Officer concerned without due and proper enquiry, could legitimately be considered by the Election Tribunal. ( 5 ) IN view of the provisions of Sec. 9 of the civil Procedure Code civil courts have the jurisdiction to try all suits of a civil nature excepting suits whose cognizance is either expressly or impliedly barred. The explanation to Sec. 9 is also to the effect that a suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Thus a dispute as to the caste status of a person including a question whether such status is integral to the validity of an election of a person to an elective office would normally fall within the jurisdiction of a civil court for adjudication under the provisions of CPC. However, it is open to the appropriate legislature to enact special legislative dispensations to constitute special courts or tribunals, to exclude the jurisdiction of civil court to adjudicate upon any class of disputes and to consecrate the adjudication of such disputes exclusively to a tribunal. This principle is too well settled and is not in dispute. Analysis of the provisions of the 1993 act: ( 6 ) SECTION 2 (b) defines community certificate" as meaning a certificate issued by the competent authority indicating therein the Scheduled Caste, the Scheduled Tribe or the Backward Class, as the case may be, to which the person belongs. ( 7 ) SECTION 2 (i) defines scheduled Castes and Scheduled Tribes as having the meanings respectively assigned to them in clause (24) and clause (25) of Article 366 of the Constitution of India. ( 7 ) SECTION 2 (i) defines scheduled Castes and Scheduled Tribes as having the meanings respectively assigned to them in clause (24) and clause (25) of Article 366 of the Constitution of India. ( 8 ) SECTION 3 deals with application for a community certificate and enacts that any person inter alia belonging to Scheduled castes, Scheduled Tribes or Backward classes may in order to claim the benefit of any reservation provided to such Castes, tribes or Classes inter alia for any benefit under any special provisions made under clause (4) of Article 15 of the Constitution of india or for the purpose of contesting for elective post in any local authority or for elective posts in the Co-operative institutions, make an application in such form and in such manner as may be prescribed to the competent authority for the issue of a community certificate. ( 9 ) SECTION 4 enacts that a community certificate is to be issued by the competent authority on an application made to it under sec. 3 and further enacts that the certificate issued by any other person, officer or authority other than the competent authority shall be invalid. ( 10 ) SECTION 5 enacts provisions with regard to investigation and cancellation of false community certificates. ( 11 ) SECTION 7 enacts appeal and review remedies and the fora for effectuation of such remedies. ( 12 ) SECTION 8 posits the power of revision in the Government in relation to any decision or order of any person, officer or authority subordinate to it. ( 13 ) SECTION 9 enacts house keeping provisions conferring on the competent authority certain powers of the civil court. ( 14 ) SECTION 10 enacts penalties for obtaining a community certificate by furnishing false information, statement or by other fraudulent means. ( 15 ) SECTION 11 enables withdrawal of the benefits secured on the basis of false community certificate and other sanctions for procuring such benefits. ( 16 ) SECTION 12 enacts the penalties and sanctions for securing appointment by election to a political office on the basis of false community certificate. ( 17 ) SECTION 13 enacts sanctions by way of penalties for issuance of false community certificates. ( 18 ) SECTION 14 enacts the penalties for abettors of offences punishable under the act. ( 19 ) SECTIONS 15 and 16 are in the nature of house keeping provisions. ( 17 ) SECTION 13 enacts sanctions by way of penalties for issuance of false community certificates. ( 18 ) SECTION 14 enacts the penalties for abettors of offences punishable under the act. ( 19 ) SECTIONS 15 and 16 are in the nature of house keeping provisions. ( 20 ) SECTION 17 bars the jurisdiction of a civil court in respect of any order passed by any officer or authority under this Act and enjoins that no stay or injunction shall be granted by a Court in respect of any action taken or to be taken by such officer or authority under this Act in pursuance of any power conferred by or under this Act. ( 21 ) SECTION 19 enacts a non obstante provision immunising the provisions of the act and giving such provisions supremacy over any inconsistent provisions of any other law for the time being in force. ( 22 ) SECTION 20 confers power on the State government to make rules for effectuating the purposes of the Act. ( 23 ) SECTION 21 contains transitional provisions with regard to community certificates issued prior to the commencement of the Act. ( 24 ) RELEVANT rules for effectuation of the purposes of the Act have also been made. Analysis of the relevant provisions of the A. F. Panchayat Raj Act. 1994: ( 25 ) THIS is a legislation enacted pursuant to the field of legislation available to the state - a Legislature under Entry 5 of List-II of the 7th Schedule and Art. 243 in Part IX of the Constitution. Part V of the Act contains provisions relating to constitution of the a. P. Election Commission for Local Bodies for conduct of elections, election offences and miscellaneous election matters and other incidental provisions for regulation and effectuation by elections of responsive and representative governance in Gram panchayats. Chapter III of Part V of the Act sets out provisions with regard to miscellaneous election matters including vacation of seat of office. Sec. 233 occurs in chapter III Part V of the Act and reads as under:"233. Election Petitions: No election held under this Act shall be called in question except by an election petition presented to such authority and in accordance with such rules as may be made in this behalf. " ( 26 ) TO effectuate the provisions of sec. Sec. 233 occurs in chapter III Part V of the Act and reads as under:"233. Election Petitions: No election held under this Act shall be called in question except by an election petition presented to such authority and in accordance with such rules as may be made in this behalf. " ( 26 ) TO effectuate the provisions of sec. 233 of the Act the Andhra Pradesh panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and zilla Parishads) Rules, 1995 (for short the 1995 Rules ) have been made in exercise of the power under Sections 233 and 268 (1) of the 1994 Act, issued in G. O. Ms. Nolll PR, rd and R (Elec. III) Department, dated 3-3-1995. The provisions of these Rules supplement the legislative intent of Sec. 233 of the 1994 Act and delineate the area of adjudication of election disputes by an election Tribunal which is to be constituted under Rule 2 of these Rules. Under this dispensation the District Munsiff, if there is more than one District Munsiff, the Principal district Munsiff, having territorial jurisdiction over the place in which the office of Gram Panchayat is located, is the Election tribunal in respect of the election of members, Sarpanches and Upa-Sarpanches of Gram Panchayats. Conclusions on analysis of the applicable legislative architecture: ( 27 ) ON an interactive analysis of the provisions of the 1993 and 1994 Acts, it is apparent that the adjudication of election disputes is consecrated to the exclusive jurisdiction of the Election Tribunal constituted under the provisions of the 1994 act and all disputes with regard to community certificate issued under the provisions of the 1993 Act is consecrated to the hierarchy of authorities - primary, appellate and revisional, enumerated under the provisions of the 1993 Act. Such exclusive consecration of jurisdiction also operates as a pro tanto exclusion of the jurisdiction of the Civil Courts under the provisions of the CPC. ( 28 ) SECTION 3 of the 1993 Act specifically enacts that the benefits available to a person belonging to the enumerated Castes or tribes in respect of which a community certificate could be issued and has beer, issued include contesting for elective posts in any local authority or Co-operative institution. ( 28 ) SECTION 3 of the 1993 Act specifically enacts that the benefits available to a person belonging to the enumerated Castes or tribes in respect of which a community certificate could be issued and has beer, issued include contesting for elective posts in any local authority or Co-operative institution. Sec. 5 of this Act enumerates the forum and procedure including that for making of a complaint for the purpose of obtaining cancellation of a false community certificate, of any person, Secs. 7 and 8 of this act contain provisions for appeal, review and revision against any order including an order of issue of community certificate which is considered adverse to any interested person. Sec. 12 of the 1993 Act enacts sanctions including penalties for securing of an appointment to an elective post of any local authority or Co-operative society on the basis of a false caste certificate without belonging to such caste. The sanctions include conviction. Sec. 13 also enacts penalties for issuance of false community certificate and Sec. 14 for abettors of offences punishable under the act. Sec. 15 provides that offences should be tried summarily and by a Judicial First Class magistrate. ( 29 ) IN the light of the provisions of the 1993 Act the conclusion is irresistible that the entirety of jurisdiction, power and authority regarding adjudication of any disputes relating to a community certificate issued by or under its presents or saved thereunder, is excluded from the jurisdiction of the Civil court under the provisions of Sec. 9 CPC and have been exclusively consecrated in the hierarchy of authorities specified under the provisions of this Act. ( 30 ) THE provisions of the 1994 Act in particular Sec. 233 posits the clear legislative inference that the jurisdiction that the civil court otherwise had under the provisions of sec. 9 CPC including for adjudication of election disputes of Gram Panchayat, has been excluded from the jurisdiction of the courts under the Code and consecrated to the Election Tribunal constituted under the provisions of this Act. 9 CPC including for adjudication of election disputes of Gram Panchayat, has been excluded from the jurisdiction of the courts under the Code and consecrated to the Election Tribunal constituted under the provisions of this Act. ( 31 ) THERE is thus under the provisions of the 1993 and 1994 Acts a Pro tanto exclusion of jurisdiction from the civil court or from any other court or tribunal of such jurisdiction, power and authority and in relation to such class of disputes as have been consecrated by the two legislations to the care of special tribunals constituted under the respective provisions. ( 32 ) THE extent and amplitude of the jurisdiction of the Election Tribunal constituted under the provisions of the 1994 act or of the certifying and adjudicatory authorities constituted under the provisions of the 1993 Act requires to be construed on an interactive analysis of the principles of both the 1993 Act and the 1994 Act. ( 33 ) IT is a well settled principle of elucidation of jurisdiction of courts, where a plurality of courts are facially perceived to have jurisdiction over a particular class of Us, that such interpretation should be pursued which avoids conflicts of jurisdiction and the potential of conflicting pronouncements over identical subject matters and issues. ( 34 ) ON application of the above principles it needs to be concluded that the Election tribunal constituted and empowered to adjudicate election disputes under the provisions of the 1994 Act has no manner of jurisdiction, power or authority to adjudicate upon a dispute as to the community status of a person to the extent that this aspect is dealt with under the provisions of the 1993 Act. The power to issue a community certificate, the power of investigation into such certification, the cancellation of such certificate or an appeal, review or revision against any certificate of a competent authority is entrusted to the specified authorities under the provisions of the 1993 Act. A fortiori the validity of an election to a local body or Gram Panchayat could not indirectly fall within the adjudicatory matrix of an authority under the provisions of the 1993 Act. ( 35 ) THE above analysis finds support in the ratio of the decision of the Supreme court in Bhgawati Prasad Dixit ghorewala v. Rajeev Gandhi. A fortiori the validity of an election to a local body or Gram Panchayat could not indirectly fall within the adjudicatory matrix of an authority under the provisions of the 1993 Act. ( 35 ) THE above analysis finds support in the ratio of the decision of the Supreme court in Bhgawati Prasad Dixit ghorewala v. Rajeev Gandhi. The appellant before the supreme Court along with the late sri Rajeev Gandhi and certain others was a candidate at the general elections held to fill the seat in Lok Sabha from the 25th Amethi parliamentary Constituency in Uttar pradesh. Sri Rajeev Gandhi was declared elected in the said election. The appellant questioned the validity of the election before the High Court of Allahabad inter alia on the ground that the respondent-Rajeev Gandhi ceased to be an Indian Citizen and was therefore disqualified to be a candidate. The election Tribunal-cum-High Court of allahabad held that it could decide the question whether the respondent had ceased to be a citizen of India. It, however, concluded that the respondent had not lost the Indian citizenship by virtue of his marriage with an Italian lady. The election petition having been dismissed by the High court of Allahabad, the matter was carried in appeal to the Supreme Court. The supreme Court held that the High Court was in error in concluding that it could decide the question whether a person ceased to be an Indian citizen. The Apex Court held that having regard to the provisions of art. 11 of the Constitution and Sec. 9 of the citizenship Act, 1955 (for short the 1955 act ), the provisions with regard to determination of citizenship and determination of the questions whether, when or how any person had acquired citizenship of any other country and therefore lost the citizenship of India are to be determined by such authority and in such manner as may be prescribed by the provisions of the 1955 Act and the Rules made thereunder. The court held that when a mater falls within Sec. 9 (2) of the 1955 Act, all other provisions of law are excluded and the authority prescribed under the Act alone can decide the question arising under sec. 9 (2) of the 1955 Act. The court held that when a mater falls within Sec. 9 (2) of the 1955 Act, all other provisions of law are excluded and the authority prescribed under the Act alone can decide the question arising under sec. 9 (2) of the 1955 Act. It further held, on analysis of various precedents, that the policy underlying Sec. 9 of the 1955 Act is that the right of citizenship of the person who is admittedly an Indian citizen should not be exposed to attack in all forums in the country, but should be decided by one authority in accordance with the prescribed rules and that every other Court or authority would have to act only on the basis of the decision of the prescribed authority in that behalf and on no other basis. Consequently ruled the Supreme Court, even the High court trying an election petition can declare an Indian citizen as having acquired the citizenship of a foreign State only on the basis of a declaration made by the Central government, but could not independently hold an enquiry into that question on its own. The Supreme Court clearly ruled that the question of loss of citizenship of a person would depend upon the decision of the authority constituted for determining the question, under Section 9 (2) of the 1955 Act. ( 36 ) APROPOS the ratio deducible from the aforesaid decision of the Supreme Court and the analysis of the provisions of the 1993 and 1994 Acts, the conclusion is irresistible that the Election Tribunal constituted under the provisions of the 1994 Act has no manner of power, authority or jurisdiction to adjudicate upon the question regarding the community status of a person as belonging to a Scheduled Caste when such status is claimed on the basis of a certificate of a competent authority issued under the provisions of the 1993 Act. The validity of any such certificate is outside the pale of the adjudicatory jurisdiction of the Election tribunal constituted under the 1994 Act. All such disputes would have to be exclusively dealt with, adjudicated and concluded by the hierarchy of authorities under the provisions of the 1993 Act and by no other authority, subject of course to judicial review of the validity of any such decision by the competent authority under the 1993 act. ( 37 ) IN extremis Mr. All such disputes would have to be exclusively dealt with, adjudicated and concluded by the hierarchy of authorities under the provisions of the 1993 Act and by no other authority, subject of course to judicial review of the validity of any such decision by the competent authority under the 1993 act. ( 37 ) IN extremis Mr. Sree Raghuram, learned counsel for the 4th respondent would contend, relegating the question of validity of a community certificate exclusively to the authorities under the 1993 act would undermine the benefits of reservation to an elective office available under the provisions of the 1994 Act as an election petition would have to be preferred within thirty days of the election to the election Tribunal and no determination of invalidity of the certificate issued under the 1993 Act could be obtained by an aggrieved candidate in a reserved constituency before the authorities under the 1993 Act so as to enable the preferring of an election petition urging invalidity of such certificate within the time available for preferring such an election petition. This contention is urged to be rejected. The provisions of the 1993 Act include prosecution and penalties for obtaining appointment to an elective post on the basis of a false community certificate. Other remedies in public law are available apart from the provisions of the 1994 Act, where ouster of a person from an elective office could be sought and obtained in case it is later conclusively determined that the person has obtained appointment to an elective office on the basis of a false community certificate. At any rate the difficulties or delays incident in obtaining invalidation of appointment to an elective post of a person alleged to have obtained such post on the basis of false community certificate could not constitute justification for inferring a jurisdiction in the Election tribunal, which it patently does not have. ( 38 ) ON the analysis above, the order of the Election Tribunal-cum-Junior Civil judge, Kaikaluru, in OP No. 7 of 2001, dated 31-10-2002 setting aside the election of the petitioner to the office of Sarpanch of varahapatnam Gram Panchayat, Kaikaluru mandal, Krishna District, is invalid. It is accordingly set aside. ( 39 ) THE writ petition is allowed as above. No order as to costs.