Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 293 (KER)

Madhavi, K. v. The State Election Commission

2005-05-06

A.K.BASHEER

body2005
Judgment :- 1. The sole prayer in this writ petition is to issue a writ of quo-warranto against respondent No.2 "directing her to vacate the office of the Municipal Councilor from Ward No.22 of Kozhikode Corporation as she is not qualified to be elected in the reserved constituency for Scheduled Castes". 2. A brief reference to the chequered history of this litigation is necessary to consider the question whether the petitioner is entitled to get the relief prayed for. 3. The petitioner and respondent No.2 had contested the municipal election held in September 2000 from a constituency reserved for Scheduled Castes. The petitioner lost the election. She filed an election petition before the Munsiff's Court contending that respondent No.2 did not belong to a Scheduled Caste and therefore her election from the reserved constituency was not legally valid. The above objection was upheld by the Munsiffs Court. However, the District Court in appeal held that the certificate issued by the Tahsildar in favour of respondent No.2 proved that she was a member of the Scheduled Caste and therefore the election was proper and valid. The above judgment was challenged by the petitioner before this court in C.R.P.No.1723/2001. This court did not find any merit in the Civil Revision Petition and it was accordingly dismissed. However, it was made clear that the petitioner would be at liberty to approach the appropriate authority under the Kerala Scheduled Castes and Scheduled Tribes Regulation of issue of Community Certificate Act, 1996 (Act 11 of 1996) and challenge the correctness of the certificate issued to respondent No.2. A copy of the order passed by this court in the above C.R.P. is on record as Ext.P-1. 4. The Scrutiny Committee constituted under Act 11 of 1996 held that respondent No.2 belonged to Peruvannan Community and therefore she had to be treated as a Scheduled Caste. The order passed by the Scrutiny Committee is on record as Ext.P.2. Ext.P.2 order was challenged by the petitioner before this court in M.F.A.No.636/2003. By Ext.P.3 judgment, a Decision Bench of this court set aside the order passed by the Scrutiny Committee and held that respondent No.2 did not belong to a Scheduled Caste. The order passed by the Scrutiny Committee is on record as Ext.P.2. Ext.P.2 order was challenged by the petitioner before this court in M.F.A.No.636/2003. By Ext.P.3 judgment, a Decision Bench of this court set aside the order passed by the Scrutiny Committee and held that respondent No.2 did not belong to a Scheduled Caste. On an interlocutory application moved by the petitioner, after disposal of the appeal it was clarified by the Division Bench that it would be open to the petitioner to claim further reliefs under Section 92 of the Kerala Municipality Act before the State Election Commission. A copy of the said order is on record as Ext.P.4. It is the admitted position that the petitioner has filed Ext.P.5 petition before respondent No.1, the State Election Commission for appropriate orders under Section 92 of the Act and it is even now pending consideration before the said authority. 5. It is in the above circumstances that the present writ petition has been filed praying for the relief mentioned supra. It is submitted by learned counsel for the petitioner that respondent No.1 has "declared" that he had no jurisdiction to disqualify a Councilor. Respondent No.1 has been adjourning the petition from time to time without hearing the parties. It is further submitted by the learned counsel that this court can exercise its jurisdiction under Article 226 and issue a writ of quo-warranto since it has been held by a Division Bench of this court in Ext.P.3 judgment that respondent No.2 does not belong to a Scheduled Caste. In that view of the matter, the election of respondent No.2 as a Councilor to the Municipal Corporation from a reserved constituency is illegal and invalid. 6. Learned counsel for respondent No.2 however submits that the only remedy available to the petitioner is to file an election petition as provided under the Kerala Municipality Act. The Division Bench of this; court had "specifically directed" the petitioner to approach the Election Commission under Section 92 of the Act. The petitioner having filed the petition before respondent No.1 under Section 92 of the Act, it is not open to her to approach this court under Article 226 of the Constitution. The Division Bench of this; court had "specifically directed" the petitioner to approach the Election Commission under Section 92 of the Act. The petitioner having filed the petition before respondent No.1 under Section 92 of the Act, it is not open to her to approach this court under Article 226 of the Constitution. It is further contended that respondent No.2 was duly elected in an election validly held and therefore continuance of respondent No.2 as a Councilor, cannot be challenged in a proceeding under Article 226 of the Constitution. 7. The short question that arises for consideration is whether a writ of quo-warranto can be issued in the above facts and circumstances. 8. Learned counsel for the petitioner submits that the pendency of the petition before the Election Commission under Section 92 of the Act will not in any way affect the right of the petitioner to approach this court under Article 226 of the Constitution. The Division Bench had only clarified that it would be open to the petitioner to claim further reliefs under Section 92 of the Act before the Election Commission. This clarification did not imply or mean that the petitioner had been relegated to the Election Commission or that the door to this court was closed. 9. The above contention raised by the petitioner has considerable force. Though the main plank of the argument of the learned counsel for respondent No.2 is that the Division Bench having "specifically directed" the petitioner to approach the Election Commission, it is not open to her to invoke the jurisdiction of this court under Article 226 of the Constitution. A perusal of Ext.P-4 order passed by this court in the interlocutory application substantiate the contention of the petitioner that the Division Bench had only made it clear that the remedy under Section 92 of the Act would be available to the petitioner. Learned counsel for the petitioner has further contended that the clarification issued by the Division Bench in the above facts and circumstances, will not be hit by the principles of resjudicata. Learned counsel invites my attention to the following decisions in support of his contention: Kanamathareddi Seethamma v. Kanamathareddi Kotareddi and Another A.I.R. 1949 Madras 586 (F.B.) N.V. Panchapagasan v. K. Swamitathan A.I.R. 1985 Madras 154 and Bharathi Amma and others v. Kumaran Peethambaran and another A.I.R. 1990 Kerala 88. 10. Learned counsel invites my attention to the following decisions in support of his contention: Kanamathareddi Seethamma v. Kanamathareddi Kotareddi and Another A.I.R. 1949 Madras 586 (F.B.) N.V. Panchapagasan v. K. Swamitathan A.I.R. 1985 Madras 154 and Bharathi Amma and others v. Kumaran Peethambaran and another A.I.R. 1990 Kerala 88. 10. It is trite that the rule of resjudicata is not to fasten upon the parties special principles of law as applicable to them interse, but to ascertain their rights and the facts upon which these rights directly and substantially depend and to prevent the ascertainment from being nugatory by precluding the parties from reopening or recontesting that which has been finally decided. Mathura Prasad v. Dossibai A.I.R. 1971 S.C. 2355. In order to attract the bar of resjudicata an issue of fact or an issue of mixed fact and law must have been decided between the contesting parties. If such a decision is rendered on the issue involved in the lis between the parties, the contestants or the parties to the lis cannot turn round and say at a later stage that the said decision is not binding on them. Necessarily when an issue is decided on the basis of the facts available on record, the law applicable on the point in issue would have been applied. When such a decision is arrived at there, need not necessarily be a declaration of an abstract proposition of law between the parties to the lis. To put it differently, when an issue is decided, there is no declaration of law as an abstract principle. What is decided is only the issue involved in the case or resolution of a dispute interse. No principle of law is thrust upon the parties. Application of law relevant to the facts in issue may undergo a change later. But still the decision taken on the basis of the law which was applicable at the relevant point of time, cannot be altered at a later stage in view of the amendment or change that may come into operation subsequently. 11. In the case on hand, the Division Bench had not relegated the petitioner and respondent No.2 to the jurisdiction of the Election Commission. It was also not considered by the Division Bench whether or not the Election Commission was the ultimate authority to decide the issue. 11. In the case on hand, the Division Bench had not relegated the petitioner and respondent No.2 to the jurisdiction of the Election Commission. It was also not considered by the Division Bench whether or not the Election Commission was the ultimate authority to decide the issue. It is also pertinent to note that the election held to the particular constituency was not in issue before the Division Bench at all. The question that had come up for consideration was whether the order passed by the Scrutiny Committee on the caste status of respondent No.2 was legally sustainable or not. The Division Bench further held that Peruvannan is not included in the 1950 Presidential Order the Scheduled Castes and Scheduled Tribes order had excluded Peruvannan and included only Mannan and Vannan as serial number 17 in Act 61 of 2002. The Division Bench further held that Peravannan is not included in the 1950 Presidential Order or the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 or in the Constitution (Scheduled Caste) Orders (Second Amendment) Act, 2002. Thus the Division Bench only held that Peruvannan could not be treated as Scheduled Caste unless the Presidential Order was amended. 12. A perusal of the above Judgment rendered by the Division Bench clearly shows that the validity of the election was not and could not have been an issue in the proceeding which culminated in Ext.P.3 Judgment. As mentioned earlier, the Division Bench had clarified at a later stage in an application filed by the petitioner after the disposal of the appeal that it was open to the petitioner to claim further reliefs in proceedings under section 92 of the Municipality Act before the State Election Commission. This clarification did not foreclose on conclude any issue other than what was decided in the appeal on the question relating to the order passed by the Scrutiny Committee. In that view of the matter, the contention of respondent No.2 that the petitioner cannot approach this court under Article 226 cannot be sustained. 13. There is yet another aspect of the matter. Section 92 of the Act deal with determination of subsequent disqualification of a Councilor. In that view of the matter, the contention of respondent No.2 that the petitioner cannot approach this court under Article 226 cannot be sustained. 13. There is yet another aspect of the matter. Section 92 of the Act deal with determination of subsequent disqualification of a Councilor. The above statutory provision postulates that whenever a question arises as to whether a Councilor had become disqualified under any of the stipulated clauses mentioned in the Act after having been elected as such Councilor, any Councilor of a Municipality concerned or any other person entitled to vote at the election in which the Councilor was elected, may file a petition before the State Election Commission, for decision. In order to attract the provisions under Section 92 of the Act the elected Councilor must become disqualified for any of the reasons mentioned in Section 86 or Section 91 of the Act. Section 92 gets attracted only in a post election scenario. Disqualification which existed prior to the election cannot be called in question in a proceeding under Section 92. In that view of the matter, the petitioner is justified in contending that she would not get any relief by taking recourse to Section 92 of the Act. 14. What remains to be considered is whether this Court can intervene in exercise of its jurisdiction under Article 226 of the Constitution in the instant case and issue a writ of quo-warranto. In University of Mysore v. Govinda Rao (1964) 4 S.C.R. 576 Their Lordships of the Supreme Court had observed thus: “............ the procedure of quo-warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. It also protects a citizen from being deprived of public office to which he may have a right. the procedure of quo-warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. It also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo-warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo-warranto, he must satisfy the court, inter alia that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." 15. The law is settled that notwithstanding the bar under Article 329 (b) of the Constitution, the High Court can declare an election illegal if a disqualified person gets elected. [K. Venkatachalam v. A. Swamickan and Another A.I.R. 1999 S.C. 1723. In the above decision Their Lordships held that “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”. 16. The question that arose in Venkatachalam's case (supra) was whether the appellant possessed the necessary qualification to be chosen from Lalgudi Constituency to the Legislative Assembly of Tamil Nadu. The appellant had successfully contested the election from Lalgudi though he was not an elector on the rolls. In fact, he had committed impersonation and used the name of another person to file the nomination paper. The appellant had successfully contested the election from Lalgudi though he was not an elector on the rolls. In fact, he had committed impersonation and used the name of another person to file the nomination paper. His election was not challenged by the respondent through an election petition, but after a lapse of one year from the date of election, the respondent filed a writ petition under Article 226 before the High Court of Madras. One of the reliefs prayed for in the writ petition was for issuance of a writ of quo warranto directing the appellant to show under what authority he was occupying the seat in the Legislative Assembly as a member representing Lalgudi Assembly Constituency. But a learned Single Judge of the High Court dismissed the writ petition holding that it was not maintainable under Article 226 of the Constitution in view of the bar contained in clause (b) of Article 329 of the Constitution. However, a Division Bench of the High Court held that the appellant not being an elector of the Constituency, he did not possess the necessary qualification to be chosen from that Constituency. 17. The primary question raised before the. Supreme Court was whether the High Court was justified in exercising the jurisdiction under Article 226 of the Constitution in view of the bar under Article 329 (b), especially since the election of the appellant was never challenged under the provisions of the Representation of the People Act, 1951 and also since the writ petition was filed before the High Court after a lapse of one year from the date of election. Repelling the contentions of the appellant Their Lordships held that the bar under Article 329(b) does not come into play when the case falls under Articles 191 and 193. The appellant was not an elector on the electoral roll of the Constituency in question. He had impersonated himself for another person of the same name in the electoral roll. Since the appellant lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act, the Supreme Court held that his election was liable to beset aside. He had impersonated himself for another person of the same name in the electoral roll. Since the appellant lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act, the Supreme Court held that his election was liable to beset aside. It was in the above context that Their Lordships held that, the power under Article 226 of the Constitution which is couched in widest possible term, 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. (emphasis supplied) 18. A Division Bench of this Court in Shaiju v. State Election Commission 2003 (1) K.L.T. 658 had occasion to consider the question whether the candidates in a Municipal election who did not subscribe to the oath or affirmation in the prescribed form at the time of filing the nomination, were qualified to hold the office. Answering the question in the negative, the Division Bench held that if any person who has incurred a disqualification by operation of any of the provisions of the statute or if he does not fulfil any of the statutory obligations or conditions, he will not be eligible to contest the election. Thus, the Division Bench took the view that notwithstanding the bar under Article 243-ZG and 329 of the Constitution, the High Court can exercise its jurisdiction under Article 226. The Division Bench therefore set aside the election and directed the elected candidates to vacate their offices. 19. In the case on hand, a Division Bench of this court had held that respondent No.2 did not belong to a Scheduled Caste Community. Obviously, therefore, she could not have contested the election from a constituency reserved for members of the Scheduled Castes and Scheduled Tribes. The disqualification which existed at the time when respondent No.2 filed her nomination for election confirmed even after her election. A disqualified person cannot hold an office because it would be in stark violation of a statutory mandate. Clause (c) of Section 85 of the Kerala Municipality Act postulates that no person who is not a member of a Scheduled Caste or Scheduled Tribe shall be qualified for election as a Councilor of a Municipality from a seat reserved for the Scheduled Castes and Scheduled Tribes. Clause (c) of Section 85 of the Kerala Municipality Act postulates that no person who is not a member of a Scheduled Caste or Scheduled Tribe shall be qualified for election as a Councilor of a Municipality from a seat reserved for the Scheduled Castes and Scheduled Tribes. An usurper who holds an office without any authority or sanction of law, shall have to vacate it. The mere fact that respondent No.2 was elected as a Councilor, does not justify her continuance in office if her election itself is illegal and in violation of the statutory mandate. Respondent No.2 has no case that the Judgment of the Division Bench holding that she is not a member of the Scheduled Caste has not become final. In that view of the matter, the contention of the petitioner that respondent No.2 was not qualified to contest the election from a constituency reserved for Scheduled Castes is liable to be accepted. Therefore, the writ petition is allowed. Respondent No.2 shall vacate the Office of the Councilor from Ward No.22 of the Municipal Corporation, Kozhikode forthwith.