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2022 DIGILAW 1533 (KAR)

K. G. Kumaraswamy v. B. T. thimmaiah

2022-12-01

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT VISHWAJITH SHETTY, J. - This intra court appeal is filed assailing the order dtd. 30/5/2013 passed by the learned Single Judge of this Court in W.P.No.17975/2010. 2. Heard the learned Counsel for the parties and also perused the material available on record. 3. Brief facts of the case as revealed from the records which are necessary for the purpose of disposal of this appeal are, the jurisdictional Tahsildar had issued a caste certificate in favour of the appellant stating that he belongs to Bhovi community which falls under Scheduled Caste. The said caste certificate was challenged by respondent no.1 herein before this Court in W.P.No.6366/2008 and the said writ petition was disposed of with a direction to respondent no.1 to avail the alternative remedy of appeal as provided under the statute. Respondent no.1, thereafter, filed an appeal before the Appellate Authority under Sec. 4-B of the Karnataka Scheduled Caste/Scheduled Tribe & Other Backward Caste (Reservation of Appointments, etc.,) Act, 1990 (for short, 'the Act') and the Appellate Authority vide its order dtd. 24/3/2009 set aside the caste certificate issued in favour of the appellant and the matter was remitted to the Tahsildar for holding fresh enquiry. This order was questioned by the appellant herein in W.P.No.8171/2009 and this Court had disposed of the said writ petition without interfering with the orders passed by the Appellate Authority with an observation that the Tahsildar shall decide the entire issue independently without being influenced by the observations made by the Appellate Authority in its orders. The Tahsildar, thereafter, held a fresh enquiry and passed an order dtd. 31/3/2010 declaring that the appellant belongs to Bhovi community. The said order was challenged by respondent no.1 before this Court in W.P.No.17975/2010 which was allowed by the learned Single Judge of this Court vide the order impugned and the matter was remitted back to the Tahsildar once again for fresh enquiry. Being aggrieved by the said order, respondent no.3 in the writ petition has preferred this appeal. 4. Learned Counsel for the appellant submits that the learned Single Judge had erred in entertaining the writ petition though respondent no.1 had an efficacious alternative remedy under Ss. 4-B & 4-F of the Act. Being aggrieved by the said order, respondent no.3 in the writ petition has preferred this appeal. 4. Learned Counsel for the appellant submits that the learned Single Judge had erred in entertaining the writ petition though respondent no.1 had an efficacious alternative remedy under Ss. 4-B & 4-F of the Act. She submits that this Court in the first round of litigation in W.P.No.6366/2008 had relegated respondent no.1 to avail the alternative remedy of appeal and having regard to the said background, the learned Single Judge could not have entertained the writ petition without respondent no.1 availing the alternative remedy. She submits that on two occasions, the Tahsildar has considered the material available on record and issued caste certificate in favour of the appellant and for extraneous reasons, respondent no.1 has been initiating repeated proceedings against the appellant. She also submits that in the election petition which was filed before this Court in E.P.No.3/2008, reliance was placed on the caste certificate issued to the appellant, and therefore, the learned Single Judge was not justified in quashing the said caste certificate. 5. Per contra, learned Counsel appearing for respondent no.1 submits that the caste certificate was issued by the Tahsildar for the purpose of contesting the election. He submits that the Act does not provide for issuing such a caste certificate, and therefore, the alternative remedy of appeal was not availed. He also submits that the Tahsildar has issued the caste certificate without holding proper enquiry and without appreciating the material evidence available on record, and therefore, the learned Single Judge was justified in allowing the writ petition. 6. Learned Special Counsel for respondent nos.2 to 4 submits that the caste certificate issued under the provisions of the Act can also be used for the purpose of contesting the elections. He fairly submits that as against the order of the Tahsildar under Sec. 4-A of the Act, respondent no.1 has got an efficacious alternative remedy under Sec. 4-B of the Act, which he has not availed of. He submits that the appellant does not belong to Bhovi community and the Tahsildar has erred in issuing the caste certificate to the said effect. 7. He submits that the appellant does not belong to Bhovi community and the Tahsildar has erred in issuing the caste certificate to the said effect. 7. The material on record would go to show that respondent no.1 had initially approached this Court in W.P.No.6366/2008 challenging the caste certificate issued in favour of the appellant and this Court had disposed of the said writ petition with a direction to respondent no.1 to avail the alternative remedy available under the statute. Thereafter, respondent no.1 had preferred an appeal under Sec. 4-B of the Act before the Appellate Authority who had set aside the caste certificate issued by the Tahsildar, and remitted the matter to the Tahsildar for fresh consideration. The Tahsildar has once again issued the caste certificate in favour of the appellant and the same was questioned by respondent no.1 directly before this Court in W.P.No.17975/2010 without availing the alternative remedy available to him under Sec. 4-B of the Act. 8. Undisputedly, the caste certificate has been issued by the Tahsildar to the appellant exercising his powers under Sec. 4-A of the Act. Irrespective of the purpose for which the said caste certificate has been issued, since the caste certificate has been issued in exercise of the powers under Sec. 4-A of the Act by the Tahsildar, respondent no.1 has an efficacious alternative remedy to challenge the said caste certificate before the Appellate Authority as provided under Sec. 4-B of the Act. Under the circumstances, in our considered view, the learned Single Judge was not justified in entertaining the appeal, more so when respondent no.1 was directed to avail the alternative remedy of appeal in the first round of litigation. 9. The Division Bench of this Court in W.A.No.200109/2015 (Basanna Vs. The General Manager & others) disposed of on 9/7/2019 has observed that as against the order passed under Sec. 4-A of the Act, the appeal lies under Sec. 4-B of the Act before the Assistant Commissioner or the remedy of revision is also available under Sec. 4-F of the Act before the Deputy Commissioner. 10. Under the circumstances, we are of the considered view that the learned Single Judge was not justified in entertaining the writ petition since respondent no.1 had not availed the efficacious alternative remedy available under the Act. Accordingly, the following order: 11. The writ appeal is allowed. The order dtd. 10. Under the circumstances, we are of the considered view that the learned Single Judge was not justified in entertaining the writ petition since respondent no.1 had not availed the efficacious alternative remedy available under the Act. Accordingly, the following order: 11. The writ appeal is allowed. The order dtd. 30/5/2013 passed by the learned Single Judge in W.P.No.17975/2010 is quashed, with liberty to respondent no.1 to avail the alternative remedy available to him under the Act and if respondent no.1 avails such a remedy within a period of four weeks from the date of receipt of the certified copy of this order, the same shall be considered by the competent authority in accordance with law, as expeditiously as possible, but not later than a period of four months from the date of filing of such appeal/revision.