Siddappa Yellappa v. Election Officer & Anr.

1. As one of the elected members from a reserved seat of Akkatangerhal Village Panchayat constituted and functioning under the Karnataka Village Panchayats and Local Boards Act, 1959 (hereinafter referred to as the Act) tendered resignation, the election authority functioning under the said Act initiated necessary steps for filling up the said casual vacancy. On 23-4-1979 the election authority issued the calendar of events setting out several dates as set out hereunder:

“Receipt of nominations — 24-4-1979 to 28-4-1979 Scrutiny of nominations — 1-5-1979 Withdrawal of nominations — 4-5-1979 Date of election — 28-5-1979”

2. On or before the appointed date and time, the petitioner, respondent No. 2 and two others filed their nominations before the Returning Officer. On 1-5-1979, the Returning Officer scrutinised the aforesaid nomination papers and by separate orders of the same date rejected the nomination papers of the petitioner and two others and accepted the nomination papers of respondent No. 2 who had filed two nomination papers. With the rejection of the nomination papers of the petitioner and two others, respondent No. 2 alone was left in the field who did not withdraw his nomination papers on 4-5-1979. In that view, the Returning Officer being satisfied that respondent No. 2 was qualified to be chosen to fill the seat, made the necessary declaration on 4-5-1979 declaring that respondent No. 2 is duly elected to fill the casual vacancy as provided by the provisions of the Karnataka Panchayat and Taluk Board Election Rules, 1959. In this petition under Art. 226 of the Constitution, presented on 11-5-1979, the petitioner has challenged the rejection of his nomination paper and has sought for a mandamus direction to the Returning Officer to accept his nomination paper and hold elections to fill the seat in accordance with law. In his nomination paper, the petitioner has stated that he belongs to Nayaka caste and was a member of the scheduled caste and therefore, entitled to contest from the seat reserved to scheduled caste/scheduled tribe members. A similar declaration has been made by respondent No. 2 in his nomination paper. At the time of scrutiny, it appears, respondent No. 2 while producing a caste certificate issued by the Block Development Officer in his own favour also-produced a transfer certificate issued by the Head Master, Government Kannada Boys School, Akkatangerhal, in which the caste of the petitioner is described as ‘Hindu Berad’. His objection was that the petitioner was not a member of the scheduled caste/scheduled tribe and was therefore not entitled to contest for the reserved seat. Accepting the objections of respondent No. 2, the Returning Officer, being of the view that the petitioner has not established his claim that he was a member of the scheduled caste/scheduled tribe by any documentary evidence, has rejected his nomination paper.

3. The case of the petitioner is that he is a member of the Berad caste or community and the same is called by different names as ‘Nayaka, Valmiki, Balmiki’ etc. and that fact has been recognised by the Government itself in the several orders issued by it providing for reservation of posts and seats to members of scheduled caste/scheduled tribes in services and educational institutions. He therefore, urges that the rejection of his nomination paper insisting on the production of documentary evidence, which was not required and without ascertaining the different names by which the community of Berad is called, is illegal. He has also produced the transfer certificate issued by the Head Master, Government Kannada Boys' School, Akkatangerhal, in which the caste of respondent No. 2 is described as ‘Hindu Berad’, as in his case (Exhibit C-1).

4. In dental of the allegations made by the petitioner, respondents have not filed their objections and therefore his allegation that he and respondent No. 2 are members of the community or caste called ‘Hindu Berad’ which is also called by different names like Nayaka, Valmiki, Balmiki etc. has necessarily to be accepted. At the hearing of the case also Sri Ravivarma Kumar, learned counsel for respondent No. 2 did not contest these allegations and even conceded that the petitioner and respondent No. 2 are members of the same community and were therefore, entitled to contest for the reserved seat.

5. Sri A.V Albal, learned counsel for the petitioner contended that the ground on which the Returning Officer has rejected the nomination paper of the petitioner viz., that he had not produced documentary evidence in proof of his claim that he is a member of the scheduled caste/scheduled tribe is manifestly illegal and his order is, therefore, liable to be quashed.

6. Sri Ravivarma Kumar, learned counsel for respondent No. 2 while agreeing with the correctness of the submission made by Sri A.V Albal, contended that with the declaration of respondent No. 2 as duly elected by the Returning Officer, the entire process of election has been completed and the only manner and forum in which the petitioner could challenge the rejection of his nomination paper and the declaration of respondent No. 2 was only by an election petition under S. 13 of the Act and not by a writ petition under Art. 226 of the Constitution. He maintained that having regard to the bar created by sub-article (3) of Art. 226 or even assuming that the same has been deleted, the petitioner can challenge the validity of the election only in an election petition and not in a writ petition. In support of his contention Sri Ravivarma Kumar strongly relied on the rulings of the Supreme Court in N.P Ponnuswami v. Returning Officer, Namakkal(1) and Nanhoo Mal v. Hira Mal(2). In answer to this contention of Sri Ravivarma Kumar, Sri Albal urged that this is essentially a case of pre-election dispute and therefore, it is open to this Court to examine the validity of the rejection of the nomination paper and grant appropriate reliefs. In support of his contention Sri Albal strongly relied on the ruling in Fakirappa Yellappa Kali v. Deputy Commissioner, Dharwad(3). As the question raised by Sri Ravivarma Kumar goes to the root of the matter, I propose to examine the same first.

7. Earlier I have noticed that on the last day of receipt of withdrawals, the Returning Officer having found that respondent No. 2 was qualified to fill the seat and being the only candidate left in the field, has declared him as duly elected as a member of the panchayat. With the rejection of the nomination papers of the petitioner and others, under the Rules, the Returning Officer had no choice but to declare respondent No. 2 as duly elected. In the situation that developed before him, keeping aside the validity of the rejection of the nomination paper of the petitioner, the Returning Officer acted legally in declaring respondent No. 2 as duly elected. With that declaration, the question of holding a poll on 28-5-1979, scrutiny, counting of votes and declaration of results thereunder did not rightly arise before the Returning Officer and therefore, he was justified in not holding a poll and other events on 28-5-1979 and thus the entire process of election to the reserved seat stood terminated on 4-5-1979. In a similar situation a Division Bench of the High Court of Madras in A.V Srinivasalu Reddy v. S. Kuppuswami Goundar(4).

“I think therefore that the term ‘election’ may be taken to embrace the whole procedure whereby an ‘elected member’ is returned, whether or not it be found necessary to take a poll”.

8. In Ponnuswami's case the Supreme Court in considering the true scope and ambit of the term ‘election’ approved the above statement of law and observed thus:

“As we have seen, the most important question for determination is the meaning to be given to the word “election” in Art. 329(b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In Srinivasalu v. Kuppuswami, AIR. 1928 Mad. 253 at p. 255 the learned Judge of the Madras High Court after examining the question, expressed the opinion that the term “election” may be taken to embrace the whole procedure whereby an “elected member” is re turned, whether or not it be found necessary to take a poll. With this view, my brother. Mahajan, J. expressed his agreement in Sat Narain v. Hanumun Parshad, AIR. 1946 Lah. 85; and I also find myself in agreement with it. It seems to me that the word “election” has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression “conduct of elections” in Art. 324 specifically points to the wide meaning, and that meaning can also read consistently into the other provisions which occur in Part XV including Art. 329(b). That the word “election” bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury's Laws of England in the following passage, see p. 237 of Halsbury's Laws of England, Edn. 2, Vol. 12 under the heading “Commencement of Election”.

“Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is ‘reasonably imminent’. Neither the issue of the writ, nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when the conduct and management of an election may be said to begin. A gain, the question as to when a particular person commences to be a candidate is a question to be considered in each case.”

The discussion in this passage makes it clear that the word “election” can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process”.

9. In Nanhoo Mal's case the Supreme Court has reiterated the same principle. On the principles enunciated in the above rulings, I cannot, but hold that the process of election to the casual vacancy of the reserved seat of the panchayat was completed on 4-5-1979 and that what is being challenged by the petitioner in truth and substance is a post election dispute and not a pre-election dispute.

10. In Fakirappa Yellappa Kali's case, the nomination paper filed by the petitioner for election to a Taluk Development Board was rejected on the ground that he had not properly described the caste to which he claimed to belong. In that case, the petitioner approached this Court challenging the rejection of his nomination paper even before the elections were completed. Before Rama Jois, J. an objection was raised by the respondents that as against the rejection of his nomination paper, the petitioner had an alternative remedy under the Act and therefore, his writ petition having regard to sub-article (3) of Art. 226 of the Constitution was not maintainable. In a closely reasoned judgment, Rama Jois, J. rejected the contention of the respondents and held that the rejection of the nomination paper was a pre-election dispute for which there was no alternative remedy and therefore, sub-article (3) of Art. 225 of the Constitution had no application. But, in this case the facts are entirely different and the entire process of election has been completed as noticed by me earlier. In this view, the ratio in Fakirappa Yellappa Kali's case has no application to the precise question that arises for determination in this case. Even in Fakirappa Yellappa Kali's case, Rama Jois, J. observed thus:

“This Court has consistently taken the view that once the election is over the only proper and effective remedy for challenging the election is by means of an election petition”

11. S. 13 of the Act provides for the remedy of an election petition in cases of improper rejection of a nomination paper to the Munsiff within whose territorial jurisdiction the village concerned is situate. As the election in the case is over on 4-5-1979, the petitioner had undoubtedly the remedy of an election petition to the Munsiff of the area under S. 13 of the Act. Whether the petitioner has chosen that remedy or not and whether that remedy is now lost to him, are not grounds on which I can ignore the consistent view taken by the Supreme Court and this Court and annul the election as that would be the result of accepting the case of the petitioner. In the absence of a bar created by sub-art. (3) of Art. 226 of the Constitution substituted by 42 Amendment which still continues to be part of our Constitution, the Supreme Court and this Court have consistently taken the above view. In this view, whether sub-art. (3) of Art. 226 has been deleted by 44th Amendment of the Constitution (44th Amendment Act 1978), the provisions relating to High Courts and Supreme Court have not been put into force by the Central Government, it does not make any difference in the case. In this view, I have no other alternative but to hold that this is a post-election dispute which cannot be properly challenged under Art. 226 of the Constitution and this writ petition is therefore, liable to be dismissed on that ground.

12. As my order is subject to appeal, I briefly propose to record my finding on the merits of the contention urged by Sri Albal.

13. The Returning Officer has rejected the nomination of the petitioner on the ground that he had not produced documentary proof in support of his claim that he is a member of a scheduled caste/scheduled tribe. In his nomination he has expressly stated that he is a member of the scheduled caste/scheduled tribe. The Act and the Rules or any other law, does not require a member of the scheduled caste/scheduled tribe to produce proof in support of his claim that he is a member of the scheduled caste/scheduled tribe. The school leaving certificates show that the petitioner and respondent No. 2 belong to the same caste. Sri Ravivarma Kumar, in my opinion, rightly did not therefore, support the order of the Returning Officer rejecting the nomination paper of the petitioner. In these circumstances, I have no hesitation in holding that the rejection of the nomination paper of the petitioner by the Returning Officer was manifestly illegal, perverse and has resulted in Substantial injury to the petitioner and he was therefore, entitled for the relief sought by him, if the election was not over of 4-5-79. In case the election had not been completed, I would have granted the relief on the ratio of the ruling in Fakirappa Yellappa Kali's case, which I cannot do for the reasons stated by me earlier.

14. In the light of my above discussion, I hold that the rule issued in this case is liable to be discharged. Rule discharged.

15. In the circumstances. I direct the parties to bear their own costs.