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2010 DIGILAW 1274 (PAT)

Dinesh Kumar Sah Bharti v. State Of Bihar

2010-05-14

DIPAK MISRA, MIHIR KUMAR JHA

body2010
JUDGEMENT 1. As per Dipak Misra, CJ.The appellant-petitioner was elected to the post of Mukhiya of Khutauna Gram Panchayat, reserved for Extremely Backward Class, on the basis of caste certificate obtained from the Circle Officer, Khutauna bearing no. 621 dated 10.2.2001, on the basis of which the Sub-Divisional Officer issued certificate no. 267 dated 24.7.2003 and the District Magistrate issued certificate no. 904 dated 26.7.2003 stating that he belongs to Kanu caste which has been placed under the list of Extremely Backward Class. 2. The respondent no. 9, one Ram Babu Kamat, challenged the issue of caste certificate in favour of the appellant on many a ground and, eventually, the Sub- Divisional Officer and the District Magistrate concerned cancelled the caste certificate which came to be assailed in CWJC No. 4742 of 2007 wherein this Court vide order dated 13.5.2008 held that the order had been passed without issuing notice to the appellant and, accordingly, remitted the matter to the District Magistrate for fresh adjudication as regards the caste status of the appellant in accordance with law. After the remit, the District Magistrate, upon hearing the appellant and the 8th respondent, passed an order on 30.6.2008 holding that the appellant does not belong to Kanu caste but belongs to Halwai caste which is categorized as Backward Class and not Extremely Backward Class. 3. It is worth noting that on the basis of the earlier order passed by the District Magistrate, the State Election Commission (for short the Commission) had passed an order on 10.2.2008 removing the appellant from the post of Mukhiya but recalled the same after the interim order was passed by the writ Court on 15.4.2008. After the remit, when the District Magistrate passed the order on 30.6.2008, the Commission afforded an opportunity of hearing to the appellant and on the basis of the material brought on record passed the order dated 28.7.2008 removing the appellant from his post and directing for holding of fresh election. 4. After the remit, when the District Magistrate passed the order on 30.6.2008, the Commission afforded an opportunity of hearing to the appellant and on the basis of the material brought on record passed the order dated 28.7.2008 removing the appellant from his post and directing for holding of fresh election. 4. Before the learned Single Judge, it was contended that the District Magistrate had totally failed to appreciate the law by determining the caste of the appellant and further the order passed by him is based on total non-consideration of the material brought on record; that the Commission has no jurisdiction to disqualify him on the ground of caste in view of the provisions of the Bihar Panchayat Act, 2006 (for brevity the 2006 Act) which provides a machinery to challenge the election by way of an election petition before the election tribunal constituted under the Act and the Rules framed thereunder; that if the respondent no. 8, who knew very well about the caste of the appellant, chose not to file an election petition under the 2006 Act but took recourse to a different procedure for removing him from the post through the State Election Commission, the same should not be given acceptation; that the Commission has no authority to pass an order of the present nature in view of the decision rendered in State Election Commission & Ors. vs. Punam Kumari & Anr., 2009(2) PUR 189; that the decision in Arun Singh @ Arun Kumar Singh vs. State of Bihar & Ors., 2006(3) PLJR (SC)17 supports the case of the appellant to the effect that he could not be treated to have been disqualified to hold the post and as the reasons ascribed by the learned Single Judge are not acceptable in law, the impugned order is sensitively susceptible. 5. The stand and stance put forth by the appellant was combatted by the Commission contending, inter alia, that it has the jurisdiction to remove him from the post of Mukhiya under Section 136(1)(h) of the 2006 Act; that the decision in Arun Singh @ Arun Kumar Singh (supra) is distinguishable and that the order passed by the Commission is unsustainable in law. 6. The respondent no. 6. The respondent no. 8 supported the order of the District Magistrate and justified that the cancellation of the caste certificate is valid in the eye of law; that the Commission has jurisdiction to remove a sitting Mukhiya if he incurs disqualification as provided under Section 18(1) of the 2006 Act; that the decision rendered in the case of K. Venkatachalam vs. A. Swamickan & Anr., (1999)4 SCC 526 is squarely applicable to the case at hand; that a writ of quo warranto could be issued if a person usurps public office or is otherwise unfit to hold the office as such or where an election is held in breach of the imperative provisions of law and the order passed by the Commissioner is invulnerable. 7. The learned Single Judge appreciating the rival submissions raised at the Bar came to hold that so far as challenge to the order of the District Magistrate cancelling the caste certificate is concerned, the same is within the jurisdiction of the District Magistrate and there is no warrant that the said order has been passed by following due procedure of law; that the Commission has no power to pass such an order which could only be raised in an election petition provided under Section 139 of the 2006 Act; that the order of the District Magistrate is not fit to be assailed in writ jurisdiction as it would be open to the appellant to get his caste status decided in an appropriate proceeding before a competent civil court; that once the writ Court has been apprised of the fact that the caste certificate has been dislodged, it has the power to issue a writ of quo warranto against such a person; that the law laid down in the case of Bhagwan Singh & Ors. vs. The State of Bihar & Ors., 2004(4) PLJR 482 has not been dislodged as put forth by the appellant in Arun Singh @ Arun Kumar Singh (supra) and that the appellant cannot be permitted to continue to function on the post of Mukhiya and the post having fallen vacant should be filled up by holding an election. 8. We have heard Mr. Uma Kant Shukla alongwith Mr. Rajesh Ranjan No. 1, learned counsel for the appellant, and Mr. R.S. Pradhan, learned Senior Counsel alongwith Mr. Rajeev Lochan for the State Election Commission on the question of admission. 9. 8. We have heard Mr. Uma Kant Shukla alongwith Mr. Rajesh Ranjan No. 1, learned counsel for the appellant, and Mr. R.S. Pradhan, learned Senior Counsel alongwith Mr. Rajeev Lochan for the State Election Commission on the question of admission. 9. To appreciate the factual matrix in proper perspective, we may refer with profit to Section 135 of the 2006 Act. Section 135 reads as under: "135. Qualification for Membership.Every person whose name is in the list of voters of any Panchayat constituency shall, unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected as a member or office bearer of the Panchayat: Provided that in the case of seats reserved for Scheduled Castes or Scheduled Tribes or Backward Classes or Women, no person who is not a member of any of the Scheduled Castes or Scheduled Tribes or Backward Classes or is not a woman, as the case may be, shall be qualified to be elected to such seat." 10. In this context, it is also seemly to refer to Sections 136 and 139 of the 2006 Act which read as follows: "136. Disqualification for Membership. In this context, it is also seemly to refer to Sections 136 and 139 of the 2006 Act which read as follows: "136. Disqualification for Membership. (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person (a) is not a citizen of India; (b) is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State: Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years; (c) is in the service of Central or State Government or any local authority; (d) is in service of any such institution receiving aid from Central or State Government or any local authority; (e) has been adjudged by a competent court to.be of unsound mind; (f) has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behaviour under Section 109 or Section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed; (h) has under any law for the time being in force become ineligible to be a member of any local authority; (i) holds any salaried office or office of profit under the Panchayat; (j) has been found guilty of corrupt practices: Provided that on being found guilty of corrupt practices, the disqualification shall cease after six years of general election. (2) If any question arises as to whether a Member of a Panchayat at any level or Mukhiya of Gram Panchayat or Sarpanch of Gram Katchahri was before election or has become after election subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of State Election Commissioner. (2) If any question arises as to whether a Member of a Panchayat at any level or Mukhiya of Gram Panchayat or Sarpanch of Gram Katchahri was before election or has become after election subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of State Election Commissioner. The matter of disqualification may be brought to the notice of State Election Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard. (3) If a person, who is chosen as a member of Panchayat, a Mukhiya, a Sarpanch is or becomes member of the Lok Sabha, Rajya Sabha, State Legislative Assembly or State Legislative Council, or is or becomes a Municipal Councillor or a Councillor of a Municipal Corporation or a Member of the Sanitary Board, or a member of a Nagar Panchayat or a member of any other Panchayat or Mukhiya, Sarpanch, then within fifteen days from the date of commencement of the term of office of a member of Lok Sabha, Rajya Sabha, State Legislative Assembly or State Legislative Council, or of a Councillor of Municipality or Municipal Corporation or a Member of Sanitary Board or Nagar Panchayat or a Member of other Panchayat or Mukhiya or Sarpanch, his seat in the Panchayat shall become vacant unless he has previously resigned his seat in the Lok Sabha, Rajya Sabha, State Legislative Assembly or State Legislative Council, Municipality or the Municipal Corporation, Sanitary Board or the Nagar Panchayat or of any such Panchayat as the case may be. (4) Oath and affirmation.Immediately after election a member of a Panchayat, Sarpanch or Panch of a Gram Katchahry and Mukhiya of Gram Panchayat shall make and subscribe before such person as the State Election Commission may appoint in this behalf, an oath or affirmation and if such member of a Panchayat, Sarpanch or Panch of a Gram Katchahry or Mukhiya declines or otherwise refuses to make and subscribe such oath or affirmation as aforesaid shall be deemed to have vacated his office forthwith. If such member of a Panchayat, Sarpanch or Panch of a Gram Katchahry or Mukhiya fails to make and subscribe an oath/affirmation after election and within three months of the date on which his term of office commences, his seat on the expiry of the said period shall be deemed to have become vacant." xxx xxx xxx "139. Grounds for declaring election to be void. (1) Subject to the provisions of sub-section (2) if the prescribed authority 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 member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; 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 (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. (2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidate is not valid." 11. The Division Bench in Punam Kumari & Anr. (supra) has held thus: "6. The Division Bench in Punam Kumari & Anr. (supra) has held thus: "6. There is no dispute that while one of the disqualifications prescribed in Section 135 of the Act made by the Legislature is election of a person to a reserved post, when he does not belong to the community for whom the reservation has been made, the legislation in Section 136 of the Act has laid down other disqualifications and at the same time directed that the disqualifications laid down in Section 136 of the Act should be decided by the Commission by providing the same in sub- section (2) of Section 136, but specifically mandated that the disqualification mentioned in Section 135 of the Act shall be decided by the Election Tribunal provided that such disqualification the returned candidate had on the date of his election by providing the same in Clause (a) of sub-section (1) of Section 139 of the Act. 7. When the Constitution has empowered the State Legislature to provide for a mode and method of deciding a particular dispute, the mandate of the Constitution should be construed as a direction to have a decision in such manner and method and not through the plenary power of the writ court vested in it by Article 226 of the Constitution. The plenary power can be used to question the decision rendered by the Authority prescribed by the State but the writ court cannot assume to itself such a power. 8. The disqualification mentioned in Section 136 are specific and do not cover the disqualification mentioned in Section 135. If a Forum does not possesr the power to decide a disqualification it cannot be directed to decide the same. In the instant case, the State Legislature has decided that disqualification matters should be decided by two Forums. As regards a type of disqualification a Forum has been selected and for other types of disqualifications another. Such Forums being available and the same having been established on the basis of a constitutional mandate the judgment of the Honble Supreme Court in K. Venkatachalam (supra) has no application as there is provisions for taking recourse for appropriate relief and, accordingly, it must be construed that the court under Article 226 of the Constitution would not at the threshold go into that question. 9. 9. That being the situation, it appears to us that if disqualification as on the date of election based on the allegation that the person seeking election or having been elected was not a member of the community for whom the reservation was made, is the dispute, the same can only be sorted out by an election petition to be presented before the Election Tribunal and not by presenting a writ petition. 10. As noted above, on the basis of the judgment and order under appeal the matter has been gone in by the Commission and the Commission has rendered a decision. The question is whether the decision is valid or not. For that we have discussed above it appears to us that the disqualification mentioned in Section 135 of the Act cannot be gone in by the Commission. The Commission being a creature of the Statute can function and discharge its duties within the four corners of the Statute and cannot assume or be vested with any power which has not been vested in it by the Statute. If the Commission had no authority to go into the question, as was decided by it, such authority could not be vested in it, by exercising power under Article 226 of the Constitution of India, for the simple reason that the Article 226 authorizes the Court to uphold legal right of a citizen which right stands vested in the citizen and that signifies that the writ court cannot vest any right in a citizen which does not vest in him. That being the situation, the conclusion would be that the decision of Election Commission rendered on the basis of the command of the writ court being a decision rendered by a Forum non-juris, the same is invalid." 12. It is submitted by Mr. Shukla, learned counsel for the appellant, that the decision rendered in Punam Kumari & Anr. (supra) requires reconsideration as the Division Bench has drawn a distinction between Section 135 and Section 136 of.the 2006 Act though Section 135 deals with qualification for membership whereas Section 136 deals with disqualification for membership prior to election as well as after election. Shukla, learned counsel for the appellant, that the decision rendered in Punam Kumari & Anr. (supra) requires reconsideration as the Division Bench has drawn a distinction between Section 135 and Section 136 of.the 2006 Act though Section 135 deals with qualification for membership whereas Section 136 deals with disqualification for membership prior to election as well as after election. It is urged by him that the proviso to Section 135 only stipulates that no person, who is not a member of any Scheduled Caste or Scheduled Tribe shall be qualified to be elected to a reserved seat and by the language employed therein, it cannot be construed that a person, who does not belong to a Scheduled Caste or Scheduled Tribe and later on is found to be so, cannot be treated to be disqualified. It is further canvassed by him that Section 136(2) empowers the State Election Commission to take a decision and, therefore, it is incorrect to say that the power is not vested in it. Additionally, it is contended by Mr. Shukla that the learned Single Judge, while holding that the Commission has no power, has exercised the power under Article 226 of the Constitution of India by issuing a writ of quo warranto which could not have been done in the obtaining factual matrix. The learned counsel submitted that it was petitioner, who had come to the writ Court challenging the order passed by the Commission, and when there was a conclusion that the said Commission could not have passed the order, the learned Single Judge could not have exercised the power of quo warranto suo motu. 13. In view of the aforesaid submissions raised at the Bar, we are disposed to think it is a fit case for admission and, accordingly, let notice be issued on the question of admission and final disposal. Requisites therefor under registered cover with acknowledgement due be filed within a week hence. 14. Registry is directed to fix a rule returnable date within six weeks. 15. Learned counsel for the appellant is granted liberty to mention for listing of the matter for final disposal after expiry of eight weeks.