Supreme Court of India
BHARATI REDDYversusTHE STATE OF KARNATAKA & ORS.
- Citation
- 2018 INSC 213
- Decided
- 6 March 2018
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
A writ of quo warranto cannot be issued unless the incumbent’s ineligibility or disqualification is proved on indisputable facts, and since the Income and Caste Certificate’s validity was still under investigation, the High Court’s writ was improper.
Summary
The appellant, Bharati Reddy, was elected Adhyaksha of a Zilla Panchayat after obtaining an Income and Caste Certificate from the Tahsildar. Unsuccessful candidates alleged that the certificate was fraudulently obtained, that the appellant’s affidavits contained contradictory income disclosures, and that the certificate was issued in a "mortal hurry". The High Court, relying on these allegations, issued a writ of quo warranto directing the appellant to vacate the office. The Supreme Court held that a writ of quo warranto can be issued only when the incumbent’s ineligibility or disqualification is established on indisputable facts. Since the validity of the Income and Caste Certificate was still pending before the Caste Verification Committee, the High Court had no basis to declare the certificate void and could not issue the writ. The Supreme Court set aside the High Court’s orders and directed the Committee to expedite its enquiry within two months, allowing the appeal.
Issues considered
- The post of Adhyaksha of Zilla Panchayat is a public office amenable to a writ of quo warranto.
- Whether the appellant was ineligible or disqualified to hold the office on the basis of the Income and Caste Certificate.
- Whether the High Court could issue a writ of quo warranto before the Caste Verification Committee had decided on the validity of the certificate.
- Whether the procedural irregularities alleged in the issuance of the certificate constitute grounds for a writ.
Legislation cited
Subjects
quo warrantopublic officeeligibilitycaste certificateincome certificatereservationKarnataka Panchayat RajArticle 226Article 243-OCaste Verification Committeedisqualificationjudicial review
Judgment
[2018] 3 S.C.R. 137 137
BHARATI REDDY A
v.
THE STATE OF KARNATAKA & ORS.
(Civil Appeal No. 1763 of 2018)
MARCH 06, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Constitution of India: Art. 226 – Writ of quo warranto –
Issuance of, when – On facts, appellant got elected to the post of
Adhyaksha of Zilla Panchayat – Writ petition before the High Court
C
alleging that the appellant played fraud on the government by
submitting a false affidavit for issuance of Income and Caste
Certificate – Prayer seeking issuance of writ of quo warranto
directing appellant to vacate the office of Adhyaksha, allowed by
the Single Judge and the Division Bench of the High Court – As
regards the Income and Caste Certificate, directions to Caste D
Verification Committee to proceed with the matter – On appeal, held:
Unless the Court is satisfied that the incumbent was not eligible at
all as per the statutory provisions for being appointed or elected to
the public office or that he/she has incurred disqualification to
continue in the said office, which satisfaction should be founded
E
on the indisputable facts, the High Court ought not to entertain the
prayer for issuance of a writ of quo warranto – Thus, the High
Court could not have issued a writ of quo warranto until the Income
and Caste Certificate issued in favour of the appellant, on the basis
of which she participated in the election for the post of Adhyaksha
and got elected, was to be declared void or invalidated by the Caste F
Scrutiny Committee – Mere fact that the certificate was issued in a
short span of five days from the date of the application, per se,
does not lead to an inference that the required procedure has not
been followed and can be no basis to invalidate the certificate –
For a person possessing an Income and Caste Certificate issued by
G
the jurisdictional Authority and so long as it is valid and in force,
treating such a person as usurper of the public office and occupying
it without legal authority, cannot be accepted – Order passed by
the High Court set aside – Caste Verification Committee directed to
expedite the enquiry regarding validity of the Income and Caste
Certificate. H
137
138 SUPREME COURT REPORTS [2018] 3 S.C.R.
A Allowing the appeal, the Court
HELD: 1.1 The post of Adhyaksha of Zilla Panchayat is a
public office in relation to which a writ of quo warranto can be
issued, if the post is occupied by a person who is not eligible to
be so appointed or incurs disqualification to continue to occupy
B the post. Indeed, when a statutory remedy is provided for removal
of disqualified person from the public office who is allegedly
usurper of public office, the writ court would be ordinarily slow in
interfering, much less, issuing a writ of quo warranto. [Para 13]
[160-B-C]
C 1.2 The concurrent finding recorded by the Single Judge
and the Division Bench of the High Court is that the process of
issuance of the certificate to the appellant by the jurisdictional
Authority was done in a mortal hurry. The Court also noted that
there was some overwriting in relation to the date. After adverting
to these circumstances, the High Court opined that there was
D something seriously wrong about the process adopted by the
respondent No.5 for issuance of caste certificate, which was
obviously done to favour the appellant who could then contest
the election. The High Court also noted that the respondent No.5
who had issued the stated certificate was later on suspended,
E pending departmental enquiry against him in reference to the
selfsame certificate issued to the appellant. Additionally, the High
Court has found that there was discrepancy in the two affidavits
filed by the appellant, which is in the nature of suppression and
non-disclosure of material financial information. Finally, the High
Court concluded that since the issue regarding the validity of
F Income and Caste Certificate was pending before the Caste
Verification Committee, which was a fact finding Committee, the
Committee would decide the same on its own merits. Notably,
the High Court did not quash the caste certificate as being void
but left it open to the Caste Verification Committee to proceed
G in accordance with law. [Para 16] [162-D-H; 163-A]
1.3 Interfering in exercise of writ jurisdiction is limited to
judicial review of the decision making process and not of the
decision itself. In the instant case, the final decision regarding
the validity of Income and Caste Certificate issued to the
H appellant has been advisedly kept open, thereby the same, in law
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 139
and in fact, is still valid and in force. There is statutory A
presumption that such caste certificate shall be valid until it is
cancelled by the Competent Authority. However, the only logic
that can be deduced from the contemplation done by the Single
Judge and the Division Bench of the High Court, is that the
process followed by the respondent No.5 for issuing the stated
B
certificate to the appellant is replete with serious doubt and,
therefore, is prima facie fraudulent. In other words, the
existence of the caste certificate or for that matter the fact that it
has been so issued by the respondent No.5, is not doubted or in
dispute. It is not a case of appellant relying on a non-existing or
officially non-issued caste certificate. Thus, enquiry will have to C
be made about the circumstances warranting issuance of stated
certificate in a tearing hurry by the respondent No.5, allegedly to
favour the appellant. The other aspect is about the discrepancies
in the two affidavits submitted by the appellant and including the
suppression and non-disclosure of her truthful financial
D
information. [Paras 18-19] [163-D-H]
1.4 Indubitably, both these aspects would be the subject
matter of the enquiry before the Caste Verification Committee,
being intrinsically mixed with the question of validity of the stated
certificate. Appellant had offered explanation on both these
matters. Regarding the factum of mortal hurry allegedly displayed E
by the respondent No.5 in issuing the caste certificate, she
contended that it was not issued on the same day as alleged but
after due enquiry. That is evinced from the original official file
produced before the Court. The explanation certainly would have
to be examined by the Caste Verification Committee, before F
invalidating the caste certificate on the ground that proper
procedure was not followed. For the present, suffice it to
observe that the mere fact that the certificate was issued in a
short span of five days from the date of the application, per se,
does not lead to an inference that the required procedure has
not been followed. The mere fact that the caste certificate has G
been issued within a short span of five days albeit after following
due procedure, can be no just basis to invalidate the certificate
by the Caste Verification Committee. The said Committee will
be obliged to record a clear finding of fact about the eligibility of
the appellant in reference to her financial status and income, H
140 SUPREME COURT REPORTS [2018] 3 S.C.R.
A keeping in mind the purport of Clause (ii) of the Note to
Notification dated 13 th January, 1995. While considering that
matter, the Committee will have to make an enquiry as to whether
the appellant or her parent(s)/guardian(s) “is” an income tax
assessee /wealth tax assessee on the date of issuance of
the certificate. As regards this fact, Caste Verification Committee
B
would have to examine the correctness and efficacy of the two
affidavits in its proper perspective known to law. It is also
contended by the appellant that Clause (ii) of the Note posits two
aspects:- the first is that the incumbent or either of his/her
parents/guardian should not be an income tax or wealth tax
C “assessee” at the relevant time. The expression used in this
clause, “is” an income tax assessee/wealth tax assessee, pre
supposes that it is in praesenti and for the relevant period.
Secondly, the incumbent must necessarily fall within the
expression “assessee” given in the concerned tax laws. That
means only a person, by whom any tax or any other sum of money
D
is payable under the Act for the concerned period and not other-
wise. No material has been produced or is forthcoming that the
appellant, or for that matter, her husband, had paid any tax or are
liable to pay tax or a sum of money under the concerned tax
legislation, for the relevant period i.e. Financial Year 2015-16.
E Absence of such evidence, the Income and Caste Certificate
issued to the appellant cannot be invalidated. Furthermore, the
income of her husband / spouse is not a relevant fact for issuance
of the Income and Caste Certificate. For, Clause (ii) excludes
benefit only if the incumbent or either of his/her parent/guardian
is an income tax assessee or wealth tax assessee. This provision
F
will have to be interpreted strictly, as in the case of provision for
any other disqualification. The appellant also asserts that there
is no discrepancy or for that matter suppression or
non-disclosure of financial information in the declarations
submitted by her. In any case, that would be a disputed question
G of fact and per se concerning the issue of validity of Income and
Caste Certificate. [Para 20-21] [164-A-H; 165-A-F]
1.5 There is force in the submission of the appellant that
all these issues will be the subject matter during the enquiry into
the question of validity of the stated Income and Caste
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 141
Certificate, which is pending before the Caste Verification A
Committee. Even the High Court was conscious of this position
and perhaps, therefore, did not quash or set aside the Income
and Caste Certificate as being void. A writ of quo warranto
cannot be issued on the basis of assumptions, inferences or
suspicion regarding the factum of fulfillment of eligibility criteria.
B
Being an extraordinary power, ordinarily such a writ ought to be
issued only on the basis of indisputable facts leading to a singular
conclusion that the incumbent was in fact or in law disqualified to
occupy the public office or has incurred disqualification to
continue to remain therein. Only whence such a person would
fall within the description of an usurper of public office without C
legal authority. On the other hand, for a person possessing an
Income and Caste Certificate issued by the jurisdictional Authority
and so long as it is valid and in force, in fact and in law, treating
such a person as usurper of the public office and occupying it
without legal authority, cannot be countenanced. The High Court
D
had plainly erred in engaging itself in an enquiry into a prohibited
area which is already the subject matter of the proceedings
pending before the Caste Verification Committee, without
realizing that the observations made by it were inherently bound
to influence the Committee from taking a just and proper
decision in accordance with law irrespective of its observation to E
decide without being influenced by its decision. [Para 22] [165-
G-H; 166-A-D]
1.6 Strikingly, neither the Single Judge nor the Division
Bench of the High Court thought it appropriate to quash and set
aside the Income and Caste Certificate as being void. If the High F
Court was to allow that relief or other reliefs claimed by the writ
petitioners in entirety after a full-fledged enquiry, the
correctness of that approach could have been tested on a
different scale. It should not be understood to have stated that
such a course was open to the High Court. The High Court
stopped short of concluding that the Income and Caste G
Certificate issued to the appellant is void. It merely expressed a
prima facie opinion that the process adopted by the respondent
No.5 to issue the Income and Caste Certificate to the appellant
created a serious doubt. At best, it observed that the appellant
was instrumental in playing fraud upon the jurisdictional H
142 SUPREME COURT REPORTS [2018] 3 S.C.R.
A Authority and/or the said Authority colluded with the appellant,
by surreptitiously issuing the Income and Caste Certificate to
the appellant. But, finally, it has left the question regarding the
validity of the certificate open to be decided by the Caste
Verification Committee, in the pending proceedings, dealing with
the factum of validity of the certificate issued to the appellant.
B
Having said this, the High Court could not have issued a writ of
quo warranto. That writ could be issued only if the Income and
Caste Certificate was held to be void or after it was invalidated
by the Competent Authority. [Paras 23- 24] [166-E-H; 167-A-B]
1.7 What the writ petitioners (respondents 6 to 9) had
C questioned was the correctness of the declarations submitted by
the appellant about her financial status and income which,
according to them was beyond the prescribed limit and
disentitled the appellant to get the Income cum Caste Certificate.
The firm stand taken by the appellant is that there was no
D discrepancy between the two declarations muchless indicative of
excess income of the appellant at the relevant time. There is no
little of material forthcoming to show that in fact, the appellant or
her parents/guardians had paid income tax or wealth tax during
the relevant Financial Year 2015-16. That indeed could have
disentitled the appellant from getting an Income and Caste
E Certificate. This submission of the appellant is founded on the
setting in which Clause (ii) of the Note has been placed and is
attracted only to an income tax assessee/wealth tax assessee as
per the relevant taxation laws during the current period. An
assessee is a person who pays taxes or is liable to pay tax or any
F other sum of money payable by him/her. The argument is that the
fact that the appellant has been issued PAN number or has filed
tax return and paid tax in the past will be of no consequence and
does not impair or impinge upon the eligibility of the appellant to
get an Income and Caste Certificate for the relevant period in
any manner. These are matters to be considered by the Caste
G Verification Committee and only if rejected, the caste certificate
in question could be invalidated. Until a final decision is taken by
the Caste Verification Committee, in law, it will have to be
presumed that subject certificate is valid and in force in view of
the statutory provision making it explicit to that effect.
H [Para 28] [169-E-G; 170-A-B]
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 143
1.8 Unless the Court is satisfied that the incumbent was A
not eligible at all as per the statutory provisions for being
appointed or elected to the public office or that he/she has
incurred disqualification to continue in the said office, which
satisfaction should be founded on the indisputable facts, the High
Court ought not to entertain the prayer for issuance of a writ of
B
quo warranto. [Para 34] [174-E]
1.9 The High Court had justly negatived the argument of
the appellant which was founded on the interim relief granted by
the High Court in the stated writ petition on the ground that the
same cannot validate an action which was illegal so as to alter the
eligibility criteria for contesting the election of Adhyaksha. The C
High Court is free to deal with that writ petition on its own
merits in accordance with law. [Para 35] [175-E-F]
1.10 This, however, would make no difference to the
conclusion which must be reached in this case that the High Court
could not have issued a writ of quo warranto until the Income and D
Caste Certificate issued in favour of the appellant, on the basis
of which she participated in the election for the post of Adhyaksha
and got elected, was to be declared void or invalidated by the
Caste Scrutiny Committee. [Para 36] [175-G-H]
1.11 In a matter of this nature, the High Court, having kept E
open the issue regarding the validity of the Income and Caste
Certificate to be decided by the jurisdictional Caste Verification
Committee and finding no legal basis to declare the certificate as
void ab initio or choosing to do so, ought to have instead
directed the Caste Verification Committee to expedite the F
enquiry and conclude the same in a time bound manner. The
course adopted by the High Court has only prolonged the
consideration of that issue by the competent authority and
embroiled the parties in avoidable proceedings. [Para 37] [176-
A-B]
G
1.12 The decisions of the Single Judge and the Division
Bench of the High Court impugned in the present appeal are set
aside. The writ petition filed by the respondents 6 to 9 is
disposed of only by directing the Caste Verification Committee
to expedite the enquiry regarding the validity of the Income and
Caste Certificate issued to the appellant by respondent no.5 and H
144 SUPREME COURT REPORTS [2018] 3 S.C.R.
A conclude the same preferably within the stipulated period. [Para
38] [176-C-D]
Kurapati Maria Das v.. Ambedkar Seva Samajan
[2009] 6 SCR 498 : [2009] 7 SCC 387 – relied on.
K. Krishna Murthy (Dr.) and Others v. Union of India
B and Another [2010] 6 SCR 972 : (2010) 7 SCC 202
and Indra Sawhney and Others v. Union of India
(1992) 3 Suppl. SCC 210 ; The University of Mysore
and Another v.. C.D. Govinda Rao and Another
[1964] 4 SCR 575 ; Nawabkhan Abbaskhan v.. State
C of Gujarat. [1974] 3 SCR 427 : (1974) 2 SCC 121;
K. Venkatachalam v. A. Swamickan 1999 AIR 1723 :
[1999] 2 SCR 857 : (1999) 4 SCC 526 ; Arun Singh
alias Arun Kr. Singh v.. State of Bihar and Others
[2006] 2 SCR 1058 : (2006) 9 SCC 375 ; B.R. Kapur
v.. State of Tamil Nadu & Anr. [2001] 3 Suppl. SCR
D 191 : (2001) 7 SCC 231 ; High Court of Gujarat and
Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors.
[2003] 2 SCR 799 : (2003) 4 SCC 712 ; Mor Modern
Coop. Transport Society Ltd. v. Financial Commr. & Secy.
To Government of Haryana [2002] 1 Suppl. SCR 87 :
E (2002) 6 SCC 269 ; R.K. Jain Vs. Union of India
[1993] 3 SCR 802 : (1993) 4) SCC 119 ; Chairman
and Managing Director, Food Corporation of India and
Others v. Jagdish Balaram Bahira and Others
(2017) 8 SCC 670 : Madhuri Patil Vs. Commr., Tribal
Development [1994] 3 Suppl. SCR 50 : (1994) 6 SCC
F 241; Rajesh Awasthi v. Nand Lal Jaiswal and Ors.
[2012] 10 SCR 883 : (2013) 1 SCC 501 ; B. Srinivasa
Reddy v. Karnataka Urban Water Supply and
Drainage Board Employees Asson. [2006] 5 Suppl. SCR
462 : (2006) 11 SCC 731 ; and Hari Bansh Lal v..
G Sahodar Prasad Mahto [2010] 10 SCR 561 : (2010) 9
SCC 655 ; Centre for PIL v.. Union of India [2011] 4
SCR 445 : (2011) 4 SCC 1 – referred to.
Permanent Edn., at p. 647 ; Halsbury’s Laws of England,
4th Edn., Reissue Vol. I, p. 368, para 265 – referred
H to.
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 145
Case Law Reference A
[2010] 6 SCR 972 referred to Para 8
(1992) 3 Suppl. SCC 210 referred to Para 8
[1964] 4 SCR 575 referred to Para 13
[1974] 3 SCR 427 referred to Para 25 B
[1999] 2 SCR 857 referred to Para 26
[2009] 6 SCR 498 relied on Para 28
[2006] 2 SCR 1058 referred to Para 29
C
[2001] 3 Suppl. SCR 191 referred to Para 30
[2003] 2 SCR 799 referred to Para 31
[2002] 1 Suppl. SCR 87 referred to Para 31
[1993] 3 SCR 802 referred to Para 31
D
(2017) 8 SCC 670 referred to Para 32
[1994] 3 Suppl. SCR 50 referred to Para 32
[2012] 10 SCR 883 referred to Para 33
[2006] 5 Suppl. SCR 462 referred to Para 33
E
[2010] 10 SCR 561 referred to Para 33
[2011] 4 SCR 445 referred to Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1763 F
of 2018
From the Judgment and Order dated 04.12.2017 of the High Court
of Karnataka, Dharwad Bench in W. A. No. 5872 of 2017 (LB-RES).
C. A. Sundaram, Sr. Adv, H. Chandra Sekhar, Ms. Rekha Patil,
Ms. Rohini Musa, Abhishek Gupta, Zafar Inayat, Apoorv Tripathi, Advs G
for the Appellant.
Dr. Rajeev Dhawan, S. M. Chander Shekhar, Sr. Advs, S. B.
Mahapathi, Sharanagouda Patil, Giris M. N., Ms. Supreeta Sharanagouda
(for M/s. S-legal Associates), Advs for the Respondents.
H
146 SUPREME COURT REPORTS [2018] 3 S.C.R.
A The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. This appeal, by special leave,
takes exception to the judgment and order passed by the Division Bench
of the High Court of Karnataka, Dharwad Bench dated 04.12.2017 in
Writ Appeal No.5872 of 2017.
B
2. Briefly stated, pursuant to notification dated 04.12.2015,
elections were held and the appellant was elected on 28.03.2016 as a
member of the Zilla Panchayat from 13-Badanahatti Constituency, Ballari
District, Karnataka which was reserved for General (Women) Category.
Later, the State Government published a notification on 15.04.2016
C declaring the reservation for the post of Adhyaksha and Upa-Adhyaksha
of Zilla Panchayats in the State. In Ballari Zilla Panchayat, the post of
Adhyaksha was reserved for the category of Backward Caste-B
(Women). After the said notification, since the appellant intended to
contest the election to the post of Adhyaksha of Ballari Zilla Panchayat,
she made an application on 22.04.2016 to the jurisdictional Tahshildar
D
for issuance of Income and Caste Certificate, a certificate which was a
prerequisite for submitting the nomination form for the election to the
post of Adhayaksha. That certificate was issued by the Tahshildar on
26.04.2016 on the basis of which the appellant contested the election
held on 29.04.2016 and was declared elected. As required in terms of
E the Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.) Act, 1990 and the
Rules framed thereunder, the Income and Caste Certificate has been
forwarded to the District Caste Verification Committee Ballari. The
process of verification thereof is still in progress.
F 3. According to the appellant, at the behest of the unsuccessful
candidates who could not file any election petition to challenge the
election of the appellant, respondent Nos.6 to 9 filed a writ petition
before the High Court of Karnataka, Dharwad being Writ Petition
No.106417 of 2016, about 3 months after the election of the appellant as
Adhyaksha. The substance of the allegation made in the said writ
G petition against the appellant was that she played fraud on the
Government and public by submitting a false affidavit before the
Tahshildar for issuance of Income and Caste Certificate, on the basis of
which she contested the election for the post of Adhyaksha Zilla
Panchayat and got elected to the said post, to which she was otherwise
H not entitled to or qualified for. The allegation about the nature of fraud
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 147
[A.M. KHANWILKAR, J.]
committed by the appellant can be discerned from the assertions made A
in paragraphs 6 and 7 of the writ petition, which read thus:
“6. It is submitted that the 6th Respondent in order to grab
the post of Adhyaksha of Zila Panchayat has submitted a
bogus and false caste certificate to show that she belongs
to the Backward community-B Category obtained from the B
5th Respondent. It is further submitted that in the application
filed by 6th Respondent to 5th Respondent for issuance of caste
certificate, she filed an affidavit stating that her livelihood is
agriculture and that she owns 1.03 acres of agricultural land in
Badanahatti village and 3.50 Acres of land in Sy. No. 36A in
Yarrangaligi village. Further she also declared that her family C
income is not more than Rs.3,50,000/- per annum from all other
sources and that she and her husband are not assessed to Income
Tax and Commercial Tax. The said declaration made by the
6th Respondent is totally false to the knowledge of herself,
which is clear from the Affidavit filed by the 6th Respondent before D
the 2nd Respondent while contesting for the member of Bellary
Zilla Panchayat General Elections. It is further submitted that the
6th Respondent in her affidavit dated 06.02.2016 declared that
she is getting rent of Rs.1,40,000/- per annum and her husband
getting 4,80,000/- per annum, which details are found in paragraph
4-A. This itself shows that her family income from one source E
only is more than 3,50,000/- as declared in the affidavit dated
26.04.2016 filed before the 5th Respondent for issuance of Caste
and Income Certificate. That apart she has also declared in the
said affidavit dated 26.04.2016 that she and her husband are not
assessed to the Income Tax and Commercial Tax, which are also F
contrary to the declaration made in the affidavit dated 06.02.2016
filed before 2nd Respondent that she has been assessed to Income
Tax and has paid Income Tax, the said details are stated in
paragraph 5 of the said affidavit. It is also reliably learnt that the
husband of the 6th Respondent is Class-I contractor and is having
more than income of Rs. 1,00,00,000/- per annum and is assessed G
to Income Tax and Commercial Taxes. True copies of the Affidavit
dated 06.02.2016, 26.04.2016 and Caste and Income Certificate
issued by the 5th Respondent dated 26.04.2016 are produced
herewith as Annexure-E,F and G respectively.
H
148 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 7. It is further submitted that in the proceedings held on
29.04.2016 under the Chairmanship of Regional
Commissioner, Kalburgi Division, Kalburgi, the 6 t h
Respondent was successful in getting elected as Adhyaksha
under the Category-Backward Community-B based on the
above said false Caste and Income Certificate which was
B
issued by the 5th Respondent on the same day of application
without any proper enquiry as required under the law. A
true copy of the said proceedings dated 29.04.2016 is produced
herewith as Annexure-H.”
(emphasis supplied)
C
On the basis of these allegations, the respondent Nos.6 to 9 prayed
for the following reliefs in the said writ petition:
“PRAYER
Wherefore, this Hon’ble Court may be pleased to
D
a. Issue a writ of Quo Warranto directing the 6th Respondent to
vacate the office of the Adhyaksha, Zilla Panchayat, Bellary.
b. set aside the proceedings dated 29.04.2016 bearing No. SUM./
KAM/Pra HaGu/chunavana/05/2016-17 declaring the 6 th Respon-
dent as Adhyaksha of Zilla Panchayat, Bellary vide Annexure-H.
E
c. consequently quash the caste certificate issued to the 6th
Respondent vide order dated 26-04-2016 in application No.
01/16-17 issued by the 5th Respondent vide Annexure-G.
d. pass such other or further orders or directions as this Hon’ble
F Court may deem fit, in the interest of justice”.
(emphasis supplied)
4. This writ petition was contested by the appellant inter alia on
the ground that the same was not maintainable in view of the bar
contained in Article 243-O of the Constitution of India. Further, the writ
G petitioners were only voters and therefore, had no locus to challenge the
election of the appellant as Adhyaksha, which was an indirect election.
Rule 7 of the Karnataka Panchayat Raj Rules explicitly envisages that
only a member of the Panchayat may challenge the validity of the
election of Adhyaksha and Upa-Adhyaksha. It was also pointed out that
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 149
[A.M. KHANWILKAR, J.]
the writ petition filed by the said respondents was a politically motivated A
petition and filed at the behest of unsuccessful candidates who could not
prevent the appellant from getting elected as Adhyaksha. As regards
the allegations in the writ petition that the appellant had made false
declarations and filed incorrect affidavits, the appellant contended that
the Income and Caste Certificate was issued in favour of the appellant
B
by the competent authority after completing all the formalities and
procedure. So long as the said certificate was valid and in force,
issuance of writ of quo warranto was misplaced. For, there is legal
presumption about the validity of the said certificate in terms of Rules 3-
C of the Rules of 1992 framed under the 1990 Act. The said Rule makes
it amply clear that the certificate would remain valid until it is cancelled C
by the jurisdictional Caste Verification Committee. The appellant also
pointed out that the allegation made in the writ petition, regarding the
false or incorrect income disclosure made by the appellant, was wrong
and ill-founded. Such allegation was based on far-fetched logic and
untenable assumptions. The affidavit dated 06.02.2016 submitted along
D
with the nomination form filed for contesting elections from 13-
Badanahatti Constituency was in reference to the factual position stated
therein. Similarly, the affidavit filed by the appellant dated 26.04.2016
was also true, faithful and accurate as it disclosed facts in reference to
the qualification required for contesting the election of Adhyaksha at the
relevant time, in respect of post reserved for “B” Category (Women) E
Backward Caste. In other words, both the affidavits and the information
disclosed therein were truthful, accurate and contextual, as noted in the
respective affidavit. The appellant also asserted that the fact that the
Income and Caste Certificate was issued within five days from the date
of application for the said certificate or on the same date the affidavit
F
dated 26th April, 2016 was filed before the Tahshildar, could not give rise
to a presupposition, inference or assumption that the same was issued
without necessary and proper enquiry. On the other hand, there is legal
presumption that the same was valid, having been issued by the
jurisdictional Tahshildar competent in that regard. The circumstances,
of the time of issue of E-stamps at about 5:27 P.M. or the date of G
affidavit being 26.04.2016, cannot be a just basis to assume that the
certificate was fraudulent, in the face of the statutory provision making
it explicit that it would be valid until cancelled by the Caste Verification
Committee. Thus, the circumstances relied upon by the writ petitioners
H
150 SUPREME COURT REPORTS [2018] 3 S.C.R.
A were neither relevant nor sufficient to draw any inference on fact, much
less legal inference, so as to conclude that the certificate was
fraudulently issued. The fact that the appellant belongs to “Kapu Caste”,
which is notified as B Category Backward Class; and the declaration
regarding income made by the appellant, are issues which are intrinsically
mixed with the issuance of the Income and Caste Certificate. It is not
B
open to question the validity of the said certificate much less to entertain
the prayer for issuance of a writ of quo warranto on the assumption
that the said certificate was fraudulent because of some fortuitous
circumstances. It was pointed out by the appellant that the writ of quo
warranto is not an ordinary power to be exercised by the High Court
C and moreso, in the matter involving disputed questions of fact. The High
Court may be justified in issuing such a writ only if it is indisputable that
the elected public representative was ineligible or disqualified to contest
the election or had incurred disqualification at a later point of time. In
either case, such a person cannot justify holding on to the public post
such as that of Adhyaksha. That situation will arise only if the Caste
D
Verification Committee was to invalidate and cancel the Income and
Caste Certificate issued in favour of the appellant and not otherwise.
On these contentions, the appellant prayed for dismissal of the writ
petition.
5. Preliminary objection regarding bar of jurisdiction in terms of
E Article 243-O of the Constitution of India and locus of the writ
petitioners raised by the appellant commended to the learned Single Judge,
who dismissed the writ petition vide judgment and order dated 21.10.2016.
6. Being aggrieved by the dismissal of the writ petition, the writ
petitioners (respondent Nos.6 to 9 herein) carried the matter in Writ
F Appeal No.101459 of 2016. The Division Bench reversed the judgment of
the learned Single Judge and allowed the writ appeal vide judgment and
order dated 05.06.2016. It remanded the matter to the learned Single
Judge for fresh decision.
7. The appellant therefore, approached this Court by way of
G Special Leave Petition (Civil) No.17059 of 2017 (converted to Civil
Appeal No.10587 of 2017) wherein the preliminary objection regarding
the bar under Article 243-O of the Constitution of India and locus of the
writ petitioners, as also the contention that the only remedy to challenge
the election of the appellant would be an election petition, was reiterated.
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 151
[A.M. KHANWILKAR, J.]
The two-Judge Bench of this Court disposed of the appeal preferred by A
the appellant on the finding that the voter of the Panchayat cannot be
rendered remediless and if he is aggrieved by the election of the
Adhyaksha of the Panchayat, it is open to him to seek the remedy of
judicial review under Articles 226/227 of the Constitution of the India. In
such proceedings, it is open to the High Court to undertake judicial
B
review of the subject matter. In paragraph 13 of its judgment, this Court
observed thus:
“13. It is thus clear that power of judicial review under Articles
226/227 of the Constitution is an essential feature of the Constitution
which can neither be tinkered with nor eroded. Even the C
Constitution cannot be amended to erode the basic structure of
the Constitution. Therefore, it cannot be said that the writ petition
filed by respondent Nos. 6 to 9 under Article 226 of the Constitution
is not maintainable. However, it is left to the discretion of the
court exercising the power under Articles 226/227 to entertain
the writ petition.” D
Again in paragraph 15, the Court observed thus:
“15. As noticed above, though respondent Nos. 6 to 9 are the
voters are not the members of the Zilla Panchayat. They are
aggrieved by the election of the appellant to the office of the E
Adhyaksha. They cannot challenge the election of the appellant
to the office of Adhyaksha by filing an election petition as they
are not the members of the Zilla Panchayat in question. In our
view, a voter of the Zilla Panchayat who is not a member cannot
be denied an opportunity to challenge the election to the office of F
Adhyaksha under Articles 226/227 of the Constitution. Therefore,
we hold that the writ petition filed by respondent Nos. 6 to 9
before the High Court is maintainable.”
After this decision, the preliminary objections regarding the
maintainability of writ petition stood concluded. An attempt was made G
by the appellant to question the correctness of the view expressed by
this Court in the aforesaid decision. Concededly, even if the arguments
of the appellant may appear to be attractive, it cannot be entertained in
relation to the decision inter partes.
H
152 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 8. Be that as it may, in light of the view expressed by this Court,
the parties were relegated before the learned Single Judge of the High
Court. Before the remanded writ petition was taken up for hearing by
the learned Single Judge, the appellant filed a writ petition bearing Writ
Petition No.108700 of 2017 (LB-RES) before the High Court of
Karnataka, Dharwad Bench, challenging the note appended to the
B
notification dated 13.01.1995. That notification had been issued by the
State Government in exercise of powers conferred under Section 2(2)
of the Karnataka Panchayat Raj Act, 1993, for classifying and notifying
the classes of citizens as Backward Class, for the purpose of
reservation of seats and office of Chairperson in Zilla Panchayat, Taluk
C Panchayat and Gram Panchayat. The note predicates that no person
falling under category “B” would be entitled to the benefit of reservation
in the seats and office of Adhyaksha and Upa-Adhyaksha of Zilla
Panchayat, Taluk Panchayat and Gram Panchayat if, inter alia, he/
she or either of his/her parents/guardians was an income tax assessee/
wealth tax assessee (Clause ii). This stipulation has been assailed by
D
the appellant as being in the teeth of the exposition of this Court in K.
Krishna Murthy (Dr.) and Others Vs. Union of India and Another1
and Indra Sawhney and Others Vs. Union of India2. The High Court
being prima facie convinced with the said contention granted interim
stay to the said stipulation (Clause ii) in the notification dated 13.01.1995.
E 9. Reverting to the remanded writ petition from which the present
appeal arises as aforesaid, the same was to be heard by the learned
Single Judge on merits of the controversy for grant of reliefs prayed in
the writ petition including for issuance of a writ of quo warranto. The
learned Single Judge, after examining the rival contentions and after
F taking note of the original documents forming part of the original file
produced by the Government advocate, opined vide judgment and order
dated 21.09.2017 as under:
“11. Learned AGA appearing for respondents 1,3 to 5 filed
following documents pertaining to issuance of caste and income
G certificate to respondent No. 6-Smt. Bharati Reddy w/o
Sri Thimmareddy for perusal of this Court.
1. Application dated 22.04.2016 for issue of caste and income
certificate (Xerox copy).
1
(2010) 7 SCC 202
2
H (1992) Supp (3) SCC 210
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 153
[A.M. KHANWILKAR, J.]
2. Notice dated 23.04.2016 issued by the Revenue Inspector. A
3. Report of the Revenue Inspector dated 26.04.2016 bearing
No. Sam.Kam.Jaa and Aa Zi. Pam.Chu/01/16-17 dated
26.04.2016.
4. Mahazar
B
5. Statement
6. Affidavit of the applicant sworn before the Advocate Notary
7. Applicant’s identity card (Xeroxcopy)
8. Applicant’s voter identity card (Xerox copy)
C
9. Transfer Certificate (certified copy)
10. Study Certificate (certified copy)
11.Original Caste and Income Certificate bearing
No. Sam.Kam.01/06-07 dated 26.04.2016.
D
12. Form No. 24 regarding applicant’s land holding.
12. On perusal of the documents it is seen that on 22.04.2016 the
respondent No. 6 has filed application for issue of caste and
income certificate; on 23.04.2016 the jurisdictional Revenue
Inspector has issued notice to respondent No. 6 pointing out the E
discrepancies with regard to issuance of caste and income
certificate; on 26.04.2016 the Revenue Inspector has submitted a
report recommending to issue caste certificate to the petitioner in
Backward Caste II(B); revenue inspector had conducted mahazar
along with the Village Accountant and opined that there is no
objection for issue of caste certificate to the petitioner in F
Backward Caste II(B); statement of Smt. C. Bharathi w/o V.C.
Thimma Reddy before the Revenue Inspector; affidavit of
Smt. C. Bharathi w/o V.C. Thimma Reddy sworn before the
Advocate Notary, Ballari Tq. Rev. Area on 26.04.2016; Xerox
copy of the original voters’ list of the year 2015; Xerox copy of G
the voter’s identity card; certified copy of the transfer certificate;
certified copy of the study certificate and also the original
certificate issued by the Special Tahasildar, Kurugodu, declaring
the caste of the respondent No. 6 as Kapu which comes under
Backward Category ‘B’ on 26.04.2016 so also the original of Form
No. 24 regarding holding of land by the respondent No. 6. H
154 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 13. The entire process of issuance of caste certificate is
concluded in five days, i.e., application was filed on 22.04.2016
and the caste certificate was issued on 26.04.2016, which cannot
be said to be illegal, as contended by the learned counsel
for respondent No.6. However, on perusal of the affidavit filed
by the respondent No. 6 before the Notary it is seen that
B
the e-stamp paper is purchased at 5.27 PM on 26.04.2016
and after purchase affidavit was sworn before the Notary
and on that day itself the caste certificate is issued. It is
also seen that the date 26.04.2016 is over-written. This
creates a serious doubt about the process of issuance of
C caste certificate by the respondent No.5.
14. The respondent No. 5 being a responsible officer of the
Revenue Department has issued the caste certificate in a
mortal hurry. The respondent No. 6 who purchased the E-stamp
paper on 26.04.2016 at 5.27 PM and on the same day she files
D the affidavit on the E-Stamp paper before the Advocate Notary
and the same is submitted before the Special Tahsildar and the
Tahsildar after verification has issued caste certificate to the
respondent No.6, being the contested candidate for the post of
Adhyaksha of Zilla Panchayat, Ballari. The same is found in the
documents produced by the learned AGA. From this process
E it can be said that the respondent No. 5 being a responsible
officer has not taken care and diligence in issuing the caste
certificate and had adopted a casual working nature.
Whether this casual attitude of the respondent No.5 can
be said as illegality or negligence is to be considered in a
F separate proceedings”.
(emphasis supplied)
Again, while dealing with the factual matrix of the case, the learned
Single Judge, in the same judgment, analysed the issue as follows:
G “35. In this writ petition the core issue relates to the holding of the
office of Adhyaksha of Zilla Panchayat, Ballari, by the
respondent No.6 and also seeking quashing of Annexure-H the
notification declaring the respondent No. 6 as Adhyaksha of Zilla
Panchayat Ballary. Therefore, the concept of creamy layer as
stated supra, does not come in the way of disposal of this writ
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 155
[A.M. KHANWILKAR, J.]
petition which is filed for issue of writ of quo warranto against the A
respondent No. 6 to vacate the office of the Adhyaksha of Zilla
Panchayat, Ballary and also to quash Annexure-H. In view of
the same, the contention of the respondent No.6 does not hold
substance.
36. In the instant petition it is relevant to state that the procedure B
of writ of quo warranto confers jurisdiction and authority on the
Court to control executive action in the matter of making an
appointment of a person to the public office against the relevant
statutory provisions. In the instant case, the petitioners are the
voters/electorates and so also the whistle blowers. It is also
relevant to state that, the writ of Quo Warranto protects C
from illegal deprivation of public office to which they may
have a right and also it relates to protect the public from
usurping of public office by a person who is not entitled to
hold the public office as a result of connivance of executive
or that its active help, wherein the respondent No. 5 being D
the responsible Tahasildar, Kurugodu, issued caste
certificate to respondent No. 6, on the basis of which she
was able to contest and elect for the post of Adhyaksha of
Zilla Panchayat, Ballari. The respondent No.6 was contested
and elected for post of Zilla Panchayat Member from
13-Badanahatti Constituency which was reserved for General E
Category (Woman). In her affidavit (Annexure-E dated
06.2.2016) itself she has stated that she is an income tax
assessee and has even furnished PAN (permanent account
number). However, the said fact is suppressed in the
subsequent affidavit vide Annexure-F dated 26.04.2016 F
submitted before the Tahasildar, Kurugodu (respondent
No. 5) along with her application for obtaining Backward
Class B Community certificate.
xxx xxx xxx xxx
38…However, the respondent No.5 is under suspension G
pending enquiry with regard to the procedure adopted by
him in issuing the caste certificate to the respondent No.6.
39. The respondent No.6 who is elected by a democratic
process, she belonged to Kapu caste, which caste falls under
H
156 SUPREME COURT REPORTS [2018] 3 S.C.R.
A Backward Class-B category, which is indicated in the
Government Notification dated 13.01.1995 of the Government of
Karnataka. However, now the issue is pending before the
Caste Verification Committee and that issue cannot be
decided under the jurisdiction of this court under Article
226 of the Constitution of India.
B
40…. whereas in the instant writ petition the Income Tax
Returns filed by the respondent No. 6 pertains to the year
2013-14. But she sworn in the affidavit that she is not an
assessee for the year 2015-16. It reflects the conduct of
the respondent No.6.”
C
(emphasis supplied)
Finally, the learned Single Judge concluded as under:
“42. It cannot be lost sight of the fact that, the E-stamp paper was
purchased at 5.57 pm on 26.04.2016 and the caste cum income
D certificate was issued on the same day, which fact reveals that
the certificate was issued in a mortal hurry. Accordingly, this writ
petition is filed for issue of writ of Quo Warranto in respect of
quashing the proceedings vide Annexure-H dated 29.04.2016 and
also to direct the respondent No. 6 to vacate the office of
E Adhyaksha of Zilla Panchyat, Ballari.
43. Respondent No. 6 being a responsible member of Zilla
Panchayat, Ballari as she was the successful candidate elected
from 13 Badanahatti constituency which was reserved for General
Category (Woman) as per the notification dated 28.03.2016
published in Karnataka Gazatee. The post of Adhyaksha of Zilla
F Panchayat was reserved for Backward Category B Woman. The
respondent No.6 belonged to Kapu community which belongs to
Category B Community. However, the declaration regarding
her family income reveals that it is more than
Rs.3,50,000/- p.a. that too only from the rental income. This
G shows that the respondent No. 6 files an affidavit to secure
the caste and income certificate from the respondent No.5,
who issued the certificate in a mortal hurry. This creates
serious doubt about the genuinity or otherwise of the
process of issuing the caste certificate. However, the
issue is now pending before the Caste Verification
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 157
[A.M. KHANWILKAR, J.]
Committee, which is a fact finding committee and would be A
decided in its own course. Hence, the question of fact as
regarding the caste of respondent No. 6 in this writ
petition does not arise for consideration.
In view of the aforesaid reasons, I am of the opinion, since the
respondent No. 6 has not declared her correct and proper family B
income only with an intention to hold the post of Adhyaksha which
is a public office, must be prevented from holding the office.”
(emphasis supplied)
On the said finding and after recording its opinion, the learned
Single Judge passed the following order: C
“ORDER
Writ Petition is allowed in part. Accordingly, the proceddings dated
29.04.2016 bearing No. SUM./KAM/PraHaGu/ chunavana/05/
2016-17 declaring the 6th respondent as Adhyaksha of Zilla
D
Panchayat, Ballari, vide Annexure-H is hereby quashed.
Consequently, writ of quo warranto is issued directing the
6th respondent to vacate the office of Adhyaksha, Zilla Panchayat,
Ballari. Rest of the prayers do not arise for consideration
and accordingly they are rejected.
E
The records submitted by the learned A.G.A. before this court
on 07.09.2017 are directed to be returned by substituting them
with Xerox copies.
The observations made in this Writ Petition is restricted
for disposal of this case and shall not have any bearing
regarding the pending litigation before the Caste F
Verification Committee. The Caste Verification
Committee shall independently hold an enquiry and
dispose of the case in accordance with law”.
(emphasis supplied)
G
10. Aggrieved by the aforesaid decision, the appellant filed Writ
Appeal No.5872 of 2017. The writ petitioners (respondent Nos.6 to 9
herein) also filed a cross appeal being Writ Appeal No.100657 of 2017.
Both the appeals were heard and decided together by the Division Bench
of the High Court of Karnataka, Dharwad Bench vide judgment and
H
158 SUPREME COURT REPORTS [2018] 3 S.C.R.
A order dated 04.12.2017. The Division Bench broadly reiterated the view
expressed by the learned Single Judge and affirmed the conclusion of
the learned Single Judge both on factual and legal matters. While analysing
the factual matrix, the Division Bench observed as follows:
35… “As narrated in the preceding paragraph Nos. 12 and 13,
B supra, the appellant filed an application before the jurisdictional
Tahsildar for issue of Caste cum Income Certificate on 22.04.2016
in the prescribed format as per the Notification dated 13.01.1995.
On considering the same, the jurisdictional Revenue Inspector
has issued notice to the appellant calling upon her to rectify the
defects pointed out, pursuant to which, the appellant filed an
C affidavit on India, Non-Judicial, Government of Karnataka,
e-stamp paper issued on 26.04.2016 at 5.27 p.m. declaring
that the appellant and her husband are neither income tax
assesses nor sales tax assesses. Annexure-G to the Writ
Petition No. 106417/2016 is the application filed by the
D appellant in the prescribed format in terms of the
notification dated 13.1.1995, whereby in Clause - 11, it is
stated that the applicant or their father/mother/guardian are
not the assessee of income tax/wealth tax. This is the moot
point which requires to be considered to decide whether
the appellant has played any fraud on the constitution.”
E
(emphasis supplied)
11. Again in paragraph 36, the Division Bench noted as follows:
“36. It is not in dispute that any affidavit filed before the authorities
has sanctity in the eye of law and the same, if found to be false
F statement and misrepresentation, it is a case of perjury punishable
under criminal law. Based on the statement declared by the
appellant, the jurisdictional Tahasildar has issued verification
certificate certifying that the appellant belongs to backward
Class-B Category in terms of the notification dated 13.1.1995. It
G is not in dispute that the statements were made by the appellant
on the E-stamp paper issued on 26.04.2016 at 5.27 p.m. and the
jurisdictional Tahasildar has issued the certificate on the very same
day i.e. 26.04.2016, based on the application bearing No. 01/16-17,
dated 25.04.2016. Fraud played by the appellant is manifest
from the certificate issued by the jurisdictional Tahasildar.
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 159
[A.M. KHANWILKAR, J.]
Based on these facts, the Government of Karnataka has A
now suspended the jurisdictional Tahasildar for providing
false certificate. On 06.02.2016, the appellant swearing to
an affidavit that she is an income-tax assessee, furnishing
the PAN card details, subsequently giving statements
before the Revenue Inspector that she is not a PAN card
B
holder and not an income tax assessee prima facie proves
the fraudulent act of the appellant. In addition to that filing a
false affidavit in order to usurp a public office is highly
deplorable. In such circumstances, if the appellant is continued to
chair and hold the office of Adhyaksha, her action would be fraud
on the constitution….” C
(emphasis supplied)
The other relevant extract of the impugned judgment of the Division
Bench in paragraph 44, reads thus:
“44. The issue relating to the caste, whether the appellant D
belongs to Kapu caste or not is a disputed question of fact.
It is true that there is no absolute bar under Articles 226 and 227
of the Constitution of India to consider annulment of caste
certificate de hors alternative statutory remedy available provided
the disputed question of facts are not involved and the
circumstances warrant invoking of the extraordinary writ E
jurisdiction. The judgments relied upon by the respondents on this
point do not assist the respondents since the matter is already
pending before the Caste Verification Committee, considering this
prayer at this stage would be, entertaining the parallel proceedings
which is not tenable. The determination of caste requires a F
full-fledged enquiry, as such the learned single judge
directing the caste verification committee, to proceed with
the matter cannot be found fault with. Confirming the order of
the learned single Judge, we direct the Caste Verification Committee
to proceed with the matter in accordance with law without being
influenced by any of the observations made above. All rights and G
contentions of the parties are left open. Caste Verification
Committee shall decide the matter in an expedite manner.
In the result, both the appeals stand dismissed.”
(emphasis supplied)
H
160 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 12. We have heard Mr. C.A. Sundaram, learned Senior Counsel
appearing for the appellant and Dr. Rajeev Dhawan & Mr. S.M. Chander
Shekhar, learned Senior Counsel appearing for the respondents.
13. It is indisputable that the post of Adhyaksha of Zilla Panchayat
is a public office in relation to which a writ of quo warranto can be
B issued, if the post is occupied by a person who is not eligible to be so
appointed or incurs disqualification to continue to occupy the post.
Indeed, when a statutory remedy is provided for removal of disqualified
person from the public office who is allegedly usurper of public office,
the writ court would be ordinarily slow in interfering, much less, issuing
a writ of quo warranto. The Constitution Bench of this Court in the
C case of The University of Mysore and Another Vs. C.D. Govinda
Rao and Another3 has observed thus.
“6. The judgment of the High Court does not indicate that
the attention of the High Court was drawn to the technical
nature of the writ of quo warranto which was claimed by the
D respondent in the present proceedings, and the conditions
which had to be satisfied before a writ could issue in such
proceedings.
7. As Halsbury has observed :
E ‘An information in the nature of a quo warranto took the
place of the obsolete writ of quo warranto which lay
against a person who claimed or usurped an office,
franchise, or liberty, to inquire by what authority he
supported his claim, in order that the right to the office or
franchise might be determined.’
F
8. Broadly stated, the quo warranto proceeding affords a
judicial remedy by which any person, who holds an
independent substantive public office or franchise or liberty,
is called upon to show by what right he holds the said office,
franchise or liberty, so that his title to it may be duly
G determined, and in case the finding is that the holder of the
office has no title, he would be ousted from that office by
judicial order. In other words, the procedure of quo warranto
gives the Judiciary a weapon to control the Executive from
3
(1964) 4 SCR 575
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 161
[A.M. KHANWILKAR, J.]
making appointment to public office against law and to protect A
a citizen from being deprived of public office to which he has
a right. These proceedings also tend to protect the public from
usurpers of public office, who might be allowed to continue
either with the connivance of the Executive or by reason of
its apathy. It will, thus, be seen that before a person can
B
effectively claim a writ of quo warranto, he has to satisfy the
Court that the office in question is a public office and is held
by a usurper without legal authority, and that inevitably would
lead to the enquiry as to whether the appointment of the
alleged usurper has been made in accordance with law or
not.” C
(emphasis supplied)
14. The moot question in the present case is: whether the High
Court, in the facts of the present case, was justified in invoking its
extraordinary jurisdiction to issue a writ of quo warranto? Let us
advert to the assertion made in the writ petition in support of such a D
relief claimed by the respondent Nos.6 to 9. The relevant paragraphs
have been extracted in paragraph 3 of this judgment, being paragraphs 6
and 7 of the writ petition. The case of the writ petitioners was that the
appellant, in order to grab the post of Adhyaksha of Zilla Panchayat,
submitted a bogus and false certificate indicating that she belongs to the E
backward community-B category, which was surreptitiously obtained
from respondent No.5. In support of this plea, the crux of the allegation
is that a false, incorrect and misleading declaration was given by the
appellant in respect of her financial status and income. In that, in the
first affidavit dated 6th February, 2016 she had declared that she was
receiving rent of Rs. One lakh forty thousand per annum and her F
husband was receiving rent of Rs. Four lakh eighty thousand per
annum. Whereas in the second affidavit dated 26th April, 2016 filed in
support of the application for grant of Income and Caste Certificate, she
has stated that the annual income of her family was only Rs. Three lakh
fifty thousand; and that she and her husband were not paying income G
tax and commercial tax. According to the writ petitioners, this
declaration was false to the knowledge of the appellant. Further, the
caste certificate was issued on the same day of the application without
any proper inquiry as required under the law. On these assertions, the
H
162 SUPREME COURT REPORTS [2018] 3 S.C.R.
A matter proceeded before the High Court. We will advert to the
explanation offered by the appellant a little later.
15. First, we must notice the other material which had come on
record during the hearing of the writ petition and which weighed with
the High Court. During the hearing, the original official file relating to
B the grant of caste certificate to the appellant was produced by the
Government Advocate, as noted in paragraph 11 of the judgment of the
learned Single Judge and extracted in paragraph 9 above. On analyzing
the documents contained in the original file, it is noticed that the
certificate was not granted to the appellant on the same day of the
application as alleged but it took almost five days’ time for processing
C the application and for its issuance. In that, first, a notice was issued by
the Revenue Inspector, then, a report of the Revenue Inspector was
obtained, Mahazar was prepared, statement was recorded, and then
affidavit of the appellant came to be filed along with other documents,
as has been noted in the original file.
D 16. The concurrent finding recorded by the learned Single Judge
and the Division Bench of the High Court is that the process of issuance
of the certificate to the appellant by the jurisdictional Authority was done
in a mortal hurry. This inference has been drawn by the High Court in
light of the facts revealed from the original official file - that the appellant
E purchased stamp paper for preparing affidavit at 5.27 p.m. on 26th April,
2016 and used the same for notarization and also submitted it to the
respondent No.5, who then issued the caste certificate on the same day
i.e. 26th April, 2016. The Court has also noted that there was some
overwriting in relation to the date. After adverting to these circumstances,
the High Court opined that there was something seriously wrong about
F the process adopted by the respondent No.5 for issuance of caste
certificate, which was obviously done to favour the appellant who could
then contest the election. The High Court also noted that the respondent
No.5 who had issued the stated certificate was later on suspended,
pending departmental enquiry against him in reference to the selfsame
G certificate issued to the appellant. Additionally, the High Court has found
that there was discrepancy in the two affidavits filed by the appellant,
which is in the nature of suppression and non-disclosure of material
financial information. Finally, the High Court concluded that since the
issue regarding the validity of Income and Caste Certificate was
pending before the Caste Verification Committee, which was a fact finding
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 163
[A.M. KHANWILKAR, J.]
Committee, the Committee would decide the same on its own merits. A
Notably, the High Court did not quash the caste certificate as being void
but left it open to the Caste Verification Committee to proceed in
accordance with law.
17. It is pertinent to mention that the Division Bench of the High
Court, while deciding Writ Appeal No.101459 of 2016, vide judgment B
dated 5th June, 2017, has recorded in Para 12 of the judgment that there
is no dispute as to the caste status of the appellant herein; that she
belongs to “Kapu” Caste is not at all in dispute. Considering the above,
the issue before the Caste Verification Committee would essentially be
one relating to the income eligibility of the appellant. That may be a
mixed question of fact and law. Presumably, therefore, the High Court C
stopped short of quashing the Income and Caste Certificate issued in
favour of the appellant as being void.
18. In this backdrop, the controversy will have to be analysed so
as to determine whether the High Court was justified in issuing a writ of
quo warranto in such a situation. Interfering in exercise of writ D
jurisdiction is limited to judicial review of the decision making process
and not of the decision itself. In this case, the final decision regarding
the validity of Income and Caste Certificate issued to the appellant has
been advisedly kept open, thereby the same, in law and in fact, is still
valid and in force. There is statutory presumption that such caste E
certificate shall be valid until it is cancelled by the Competent Authority.
However, the only logic that can be deduced from the contemplation
done by the learned Single Judge and the Division Bench of the High
Court, is that the process followed by the respondent No.5 for issuing
the stated certificate to the appellant is replete with serious doubt and,
therefore, is prima facie fraudulent. F
19. In other words, the existence of the caste certificate or for
that matter the fact that it has been so issued by the respondent No.5, is
not doubted or in dispute. It is not a case of appellant relying on a
non-existing or officially non-issued caste certificate. Thus, enquiry will
have to be made about the circumstances warranting issuance of stated G
certificate in a tearing hurry by the respondent No.5, allegedly to favour
the appellant. The other aspect is about the discrepancies in the two
affidavits submitted by the appellant and including the suppression and
non-disclosure of her truthful financial information.
H
164 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 20. Indubitably, both these aspects will be the subject matter of
the enquiry before the Caste Verification Committee, being intrinsically
mixed with the question of validity of the stated certificate. Appellant
had offered explanation on both these matters. Regarding the factum of
mortal hurry allegedly displayed by the respondent No.5 in issuing the
caste certificate, she contends that it was not issued on the same day as
B
alleged but after due enquiry. That is evinced from the original official
file produced before the Court. In that, the application was made on 22 nd
April, 2016 whence the process commenced and then concluded on 26th
April, 2016. The process was required to be completed expeditiously as
the certificate was required for contesting the impending election of
C Adhyaksha scheduled on 29th April, 2016. This explanation certainly
will have to be examined by the Caste Verification Committee, before
invalidating the caste certificate on the ground that proper procedure
was not followed. For the present, suffice it to observe that the mere
fact that the certificate was issued in a short span of five days from the
date of the application, per se, does not lead to an inference that the
D
required procedure has not been followed.
21. The fact as to whether necessary procedure has been
complied with or not will be one aspect of the enquiry before the Caste
Verification Committee, apart from the core aspect of whether in fact
the appellant fulfills the income and financial criteria. The mere fact
E that the caste certificate has been issued within a short span of five days
albeit after following due procedure, can be no just basis to invalidate
the certificate by the Caste Verification Committee. The said Committee
will be obliged to record a clear finding of fact about the eligibility of the
appellant in reference to her financial status and income, keeping in
F mind the purport of Clause (ii) of the Note to Notification dated 13th
January, 1995. While considering that matter, the Committee will have
to make an enquiry as to whether the appellant or her parent(s)/
guardian(s) “is” an income tax assessee /wealth tax assessee on the
date of issuance of the certificate. As regards this fact, Caste
Verification Committee will have to examine the correctness and
G efficacy of the two affidavits in its proper perspective known to law.
According to the appellant, there is no discrepancy in the disclosures
made by her in the two declarations concerning her financial matters at
the relevant time. The first affidavit dated 6th February, 2016, correctly
discloses the fact that the appellant possessed PAN Card and was an
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 165
[A.M. KHANWILKAR, J.]
income tax assessee, having paid income tax for the Financial Year 2013- A
14. The second affidavit dated 26th April, 2016 is also accurate and
discloses the correct financial position wherein it is stated that the
annual income of her family is Rs. Three lakh fifty thousand from all the
sources; and neither she nor her husband are income tax and
commercial tax payers in reference to the Financial Year (2015-16), for
B
which the affidavit was sworn on 26th April, 2016. It is also contended
by the appellant that Clause (ii) of the Note posits two aspects:- the first
is that the incumbent or either of his/her parents/guardian should not be
an income tax or wealth tax “assessee” at the relevant time. The
expression used in this clause, “is” an income tax assessee/wealth tax
assessee, pre supposes that it is in praesenti and for the relevant C
period. Secondly, the incumbent must necessarily fall within the
expression “assessee” given in the concerned tax laws. That means
only a person, by whom any tax or any other sum of money is payable
under the Act for the concerned period and not otherwise. No material
has been produced or is forthcoming that the appellant, or for that
D
matter, her husband, had paid any tax or are liable to pay tax or a sum of
money under the concerned tax legislation, for the relevant period i.e.
Financial Year 2015-16. Absence of such evidence, the Income and Caste
Certificate issued to the appellant cannot be invalidated. Furthermore,
the income of her husband / spouse is not a relevant fact for issuance of
the Income and Caste Certificate. For, Clause (ii) excludes benefit only E
if the incumbent or either of his/her parent/guardian is an income tax
assessee or wealth tax assessee. This provision will have to be
interpreted strictly, as in the case of provision for any other
disqualification. The appellant also asserts that there is no discrepancy
or for that matter suppression or non-disclosure of financial information
F
in the declarations submitted by her. In any case, that would be a
disputed question of fact and per se concerning the issue of validity of
Income and Caste Certificate.
22. According to the appellant, as long as the Income and Caste
Certificate is valid and in force, which has only been doubted by the
High Court having been issued by the respondent No.5 in a mortal hurry, G
the matter must rest at that. We find force in the submission of the
appellant that all these issues will be the subject matter during the
enquiry into the question of validity of the stated Income and Caste
Certificate, which is pending before the Caste Verification Committee.
H
166 SUPREME COURT REPORTS [2018] 3 S.C.R.
A Even the High Court was conscious of this position and perhaps, therefore,
did not quash or set aside the Income and Caste Certificate as being
void. A writ of quo warranto cannot be issued on the basis of
assumptions, inferences or suspicion regarding the factum of fulfillment
of eligibility criteria. Being an extraordinary power, ordinarily such a
writ ought to be issued only on the basis of indisputable facts leading to
B
a singular conclusion that the incumbent was in fact or in law
disqualified to occupy the public office or has incurred disqualification to
continue to remain therein. Only whence such a person would fall within
the description of an usurper of public office without legal authority. On
the other hand, for a person possessing an Income and Caste Certificate
C issued by the jurisdictional Authority and so long as it is valid and in
force, in fact and in law, treating such a person as usurper of the public
office and occupying it without legal authority, cannot be countenanced.
In our opinion, the High Court had plainly erred in engaging itself in an
enquiry into a prohibited area which is already the subject matter of the
proceedings pending before the Caste Verification Committee, without
D
realizing that the observations made by it were inherently bound to
influence the Committee from taking a just and proper decision in
accordance with law irrespective of its observation to decide without
being influenced by its decision.
23. Strikingly, neither the learned Single Judge nor the Division
E Bench of the High Court thought it appropriate to quash and set aside
the Income and Caste Certificate as being void. If the High Court was
to allow that relief or other reliefs claimed by the writ petitioners in
entirety after a full-fledged enquiry, the correctness of that approach
could have been tested on a different scale. We must immediately clarify
F that we may not be understood to have said that such a course was open
to the High Court. That issue does not arise in this appeal.
24. As aforementioned, the High Court stopped short of concluding
that the Income and Caste Certificate issued to the appellant is void. It
merely expressed a prima facie opinion that the process adopted by the
G respondent No.5 to issue the Income and Caste Certificate to the
appellant created a serious doubt. At best, it observed that the appellant
was instrumental in playing fraud upon the jurisdictional Authority and/
or the said Authority colluded with the appellant, by surreptitiously
issuing the Income and Caste Certificate to the appellant. But, finally, it
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 167
[A.M. KHANWILKAR, J.]
has left the question regarding the validity of the certificate open to be A
decided by the Caste Verification Committee, in the pending
proceedings, dealing with the factum of validity of the certificate issued
to the appellant. Having said this, the High Court could not have issued
a writ of quo warranto. That writ could be issued only if the Income
and Caste Certificate was held to be void or after it was invalidated by
B
the Competent Authority.
25. The distinction between a void and voidable order was con-
sidered in the case of Nawabkhan Abbaskhan Vs. State of Gujarat. 4
The Court noted the dictum of Rubinstein that, when an act is not
voidable but void, it is a nullity and can be disregarded and impeached in
any proceedings, before any Court or Tribunal and whenever it is relied C
upon. In other words, it is made subject to ‘collateral attack’. The Court
observed that illegal act of authorities, if can be defied on self-determined
voidness, startling consequences will follow. It, however, made an
exception of cases where the order is passed by the jurisdictional
authority without hearing the party affected, which entails injury to a D
Constitutionally guaranteed right to the affected party. It held that such
orders may be treated as void and ineffectual to bind the parties from
the beginning. That is not the case on hand. The underlying principle is
that, in cases such as the one under consideration, the Income and Caste
Certificate can only be invalidated after affording opportunity to the holder
of the certificate. It will be useful to reproduce the legal position summed E
up by the Court in paragraph 18 as follows:
“18. …………Decisions are legion where the conditions for
the exercise of power have been contravened and the order treated
as void. And when there is excess or error of jurisdiction
the end product is a semblance, not an actual order, although F
where the error is within jurisdiction it is good, particularly
when a finality clause exists. The order becomes ‘infallible in
error’, a peculiar legal phenomenon like the hybrid beast of
voidable voidness for which, according to a learned author, Lord
Denning is largely responsible. The legal chaos in this branch G
of jurisprudence should be avoided by evolving simpler
concepts which work in practice in Indian conditions.
Legislation, rather than judicial law-making will meet the
needs more adequately. The only safe course, until simple
4
(1974) 2 SCC 121
H
168 SUPREME COURT REPORTS [2018] 3 S.C.R.
A and sure light is shed from a legislative source, is to treat
as void and ineffectual to bind parties, from the beginning,
any order made without hearing the party affected if the
injury is to a constitutionally guaranteed right. In other
cases, the order in violation of natural justice is void in the
limited sense of being liable to be avoided by Court with
B
retroactive force.”
(emphasis supplied)
As the subject certificate still holds the field and until it is invalidated
by the Competent Authority, it is unfathomable as to how the appellant
C can be said to have occupied the public office without legal authority so
as to invoke the extraordinary writ jurisdiction of issuing a writ of quo
warranto.
26. In K. Venkatachalam Vs. A. Swamickan5, the challenge was
to the election of the appellant to the Legislative Assembly in Tamil
D Nadu by way of a writ under Article 226 of the Constitution filed by the
contesting candidate (respondent therein) for a declaration that the
appellant was not qualified to be a Member of Tamil Nadu Legislative
Assembly, since he was not enrolled as an elector in the electoral roll in
the concerned constituency for the general elections in question. The
Court analysed the factual matrix which pointed out that, admittedly, the
E incumbent was not an elector of the concerned constituency and that he
blatantly and fraudulently impersonated himself as another elector in the
constituency. Accepting that indisputable position, the Court proceeded
to conclude that the appellant was not eligible to contest elections from
the concerned constituency, not being a voter in that constituency. It
F thus held that the appellant therein lacked the basic qualification under
Clause (c) of Article 173 of the Constitution of India read with Section 5
of the 1951 Act, which was quintessential to be elected from the
constituency. On such finding, the Court entertained the writ petition
under Article 226 and declared the appellant to be occupying the public
office without legal authority and issued a writ of quo warranto. In
G other words, the matter was decided on the basis of indisputable and
established facts. This judgment will be of no avail to the writ petitioners
in the present case, so long as the Income and Caste Certificate issued
to the appellant is in force.
5
AIR 1999 SC 1723 = (1999) 4 SCC 526
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 169
[A.M. KHANWILKAR, J.]
27. In Kurapati Maria Das Vs. Ambedkar Seva Samajan6 the A
Court distinguished the decision in K. Venkatachalam (supra) being on
the facts of that case and reversed the judgment of the High Court
under challenge, whereby a writ of quo warranto was issued against
the appellant therein. The reason for doing so may have some bearing
on the matter in issue as in that case, there was dispute about the caste
B
status of the appellant. The Court opined that the issue regarding the
caste status can be decided only by the Competent Authority under the
relevant enactment and not by the High Court. The Court accepted the
contention of the appellant that continuance of the post of Chairperson
depended directly on his election, firstly, as a ward member and
secondly as the Chairperson, which election was available only to the C
person belonging to the Scheduled Caste. In paragraph 32 of the
reported decision, the Court while accepting the contention of the
appellant noted that the question of caste and his election are so
inextricably connected that they cannot be separated and therefore,
when the writ petitioners challenged the continuation of the appellant on
D
the ground of his not belonging to a particular caste what they actually
challenged was the validity of the election of appellant though,
apparently, the petition was for a writ of quo warranto.
28. We agree with this exposition. It applies on all fours to the
case on hand. Inasmuch as, what the writ petitioners (respondents 6 to
9) had questioned was the correctness of the declarations submitted by E
the appellant about her financial status and income which, according to
them was beyond the prescribed limit and disentitled the appellant to get
the Income cum Caste Certificate. The firm stand taken by the
appellant is that there was no discrepancy between the two declarations
muchless indicative of excess income of the appellant at the relevant F
time. In our opinion, there is no tittle of material forthcoming to show
that in fact, the appellant or her parents/guardians had paid income tax
or wealth tax during the relevant Financial Year 2015-16. That indeed
could have disentitled the appellant from getting an Income and Caste
Certificate. This submission of the appellant is founded on the setting in
which Clause (ii) of the Note has been placed and is attracted only to an G
income tax assessee/wealth tax assessee as per the relevant taxation
laws during the current period. An assessee is a person who pays taxes
or is liable to pay tax or any other sum of money payable by him/her.
6
(2009) 7 SCC 387
H
170 SUPREME COURT REPORTS [2018] 3 S.C.R.
A The argument is that the fact that the appellant has been issued PAN
number or has filed tax return and paid tax in the past will be of no
consequence and does not impair or impinge upon the eligibility of the
appellant to get an Income and Caste Certificate for the relevant period
in any manner. As noted earlier, these are matters to be considered by
the Caste Verification Committee and only if rejected, the caste
B
certificate in question could be invalidated. Until a final decision is taken
by the Caste Verification Committee, in law, it will have to be presumed
that subject certificate is valid and in force in view of the statutory
provision making it explicit to that effect.
29. In the case of Arun Singh alias Arun Kr. Singh Vs. State of
C Bihar and Others7, this Court over turned the decision of the High
Court issuing a writ of quo warranto, on the ground that it was unclear
from the orders passed by the Superintendence of Police or the District
Magistrate, or for that matter, the State Election Commissioner,
suggestive of the fact that the appellant therein was held to have
D committed any misconduct within the meaning of the Service Rules. In
paragraph 13, the Court observed thus:
“13. ……..No cogent or sufficient reasons have been given
by the High Court for setting aside the well-considered order of
the State Election Commission. Furthermore, issuance of a writ
E of quo warranto is discretionary and such a writ should be
issued only upon a clear finding that the appointment to a
public office was contrary to the statute. For the said purpose
it was obligatory on the part of the High Court to arrive at a
finding that the disqualifying clause contained in Section 139(1)(f)
was squarely attracted in the case of the appellant, in the light of
F the order of the State Election Commission. Evidently, the
appellant was not disqualified.”
30. In B.R. Kapur Vs. State of Tamil Nadu & Anr. 8 the
Constitution Bench was called upon to consider the situation where a
person convicted for a criminal offence and whose conviction has not
G been suspended pending appeal, could be sworn in as the Chief Minister
of a State and continue to function as such. The Court was called upon
to answer the controversy on the basis of indisputable fact that the
incumbent Chief Minister had already been convicted of a criminal
6
(2009) 7 SCC 387
H 7
(2006) 9 SCC 375
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 171
[A.M. KHANWILKAR, J.]
offence and such conviction had not been suspended in the pending A
criminal appeal. After considering the purport of Article 164 and Article
173 of the Constitution, the Court concluded that the appointment of the
second respondent in the appeal as the Chief Minister was in clear
violation of the constitutional provisions and thus a writ of quo
warranto was inevitable. The substratum of the exposition was the
B
factum of basic ineligibility of the person to be appointed or continue as
Chief Minister. In a concurring judgment by Brijesh Kumar, J. (as His
Lordship then was) the nature of writ of quo warranto has been
explicated in the following words:
“79. ……A writ of quo warranto is a writ which lies against the
person, who according to the relator is not entitled to hold an C
office of public nature and is only a usurper of the office. It is the
person, against whom the writ of quo warranto is directed, who is
required to show, by what authority that person is entitled to hold
the office. The challenge can be made on various grounds,
including on the grounds that the possessor of the office does not D
fulfil the required qualifications or suffers from any disqualification,
which debars the person to hold such office. So as to have an
idea about the nature of action in the proceedings for writ of quo
warranto and its original form, as it used to be, it would be beneficial
to quote from Words and Phrases, Permanent Edn., Vol. 35-A,
p. 648. It reads as follows: E
“The original common law writ of quo warranto was a civil
writ at the suit of the Crown, and not a criminal prosecution. It
was in the nature of a writ of right by the King against one who
usurped or claimed franchises or liabilities, to inquire by what
right he claimed them. This writ, however, fell into disuse in F
England centuries ago, and its place was supplied by an
information in the nature of a quo warranto, which in its origin
was a criminal method of prosecution, as well as to punish the
usurper by a fine for the usurpation of the franchise, as to oust
him or seize it for the Crown. Long before our revolution,
however, it lost its character as a criminal proceeding in G
everything except form, and was applied to the mere purposes
of trying the civil right, seizing the franchise, or ousting the
wrongful possessor, the fine being nominal only; and such,
without any special legislation to that effect, has always been
H
172 SUPREME COURT REPORTS [2018] 3 S.C.R.
A its character in many of the States of the Union, and it is therefore
a civil remedy only.”
80. In the same volume of Words and Phrases, Permanent Edn.,
at p. 647 we find as follows:
“The writ of ‘quo warranto’ is not a substitute for mandamus
B or injunction nor for an appeal or writ of error, and is not to
be used to prevent an improper exercise of power lawfully
possessed, and its purpose is solely to prevent an officer or
corporation or persons purporting to act as such from usurping
a power which they do not have. State ex inf. McKittrick v.
C Murphy9
Information in the nature of ‘quo warranto’ does not command
performance of official functions by any officer to whom it
may run, since it is not directed to officer as such, but to person
holding office or exercising franchise, and not for purpose
D of dictating or prescribing official duties, but only to
ascertain whether he is rightfully entitled to exercise
functions claimed. State ex inf. Walsh v. Thatcher10.”
(emphasis supplied)
81. In Halsbury’s Laws of England, 4th Edn., Reissue Vol. I, p.
E 368, para 265 it is found as follows:
“265. In general.—An information in the nature of a quo
warranto took the place of the obsolete writ of quo warranto
which lay against a person who claimed or usurped an
office, franchise, or liberty, to inquire by what authority he
F supported his claim, in order that the right to the office or
franchise might be determined.”
31. In the case of High Court of Gujarat and Anr. Vs. Gujarat
Kishan Mazdoor Panchayat and Ors. 11 (supra) in a concurring
judgment S.B. Sinha, J. (as His Lordship then was) noted that the High
G Court in exercise of its writ jurisdiction in a matter of this nature is
required to determine at the outset as to whether a case has been made
out for issuance of a writ of certiorari or a writ of quo warranto.
However, the jurisdiction of the High Court to issue a writ of quo
9
148 SW 2d 527, 529, 530 : 347 Mo 484
10
102 SW 2d 937, 938 : 340 Mo 865
H 11
(2003) 4 SCC 712
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 173
[A.M. KHANWILKAR, J.]
warranto is a limited one. While issuing such a writ, the Court merely A
makes a public declaration but will not consider the respective impact of
the candidates or other factors which may be relevant for issuance of a
writ of certiorari. The Court went on to observe that a writ of quo
warranto can only be issued when the appointment is contrary to the
statutory rules as held in Mor Modern Coop. Transport Society Ltd.
B
Vs. Financial Commr. & Secy. To Government of Haryana12. The
Court also took notice of the exposition in R.K. Jain Vs. Union of
India13. The Court noted that with a view to find out as to whether a
case has been made out for issuance of quo warranto, the only
question which was required to be considered was as to whether the
incumbent fulfilled the qualifications laid down under the statutory C
provisions or not. This is the limited scope of inquiry. Applying the
underlying principle, the Court ought not to enquire into the merits of
the claim or the defence or explanation offered by the appellant
regarding the manner of issuance of Income and Caste Certificate by
the jurisdictional Authority or any matter related thereto which may be
D
matter in issue for scrutiny concerning the validity of the Caste
Certificate issued by the jurisdictional statutory authority constituted under
the State Act of 1990 and the rules framed thereunder. That inquiry may
require examination of all factual aspects threadbare including the
legality of the stand taken by the appellant herein.
32. In the case of Chairman and Managing Director, Food E
Corporation of India and Others Vs. Jagdish Balaram Bahira and
Others14, the question was in reference to the Caste Certificate which
was invalidated after the verification done by the jurisdictional Scrutiny
Committee. The observations in the said decision may be of some
import, if the Caste Verification Committee was to invalidate the Caste
F
Certificate issued to the appellant after due verification. As a matter of
fact, the enquiry before the Caste Verification Committee ought to
proceed in terms of the procedure prescribed by the Act of 1990 and
Rules framed thereunder and including the dictum of this Court in,
amongst others Madhuri Patil Vs. Commr., Tribal Development15.
33. In Rajesh Awasthi Vs. Nand Lal Jaiswal and Ors.16, the G
Court noted that a writ of quo warranto will lie when the appointment
12
(2002) 6 SCC 269
13
(1993) 4 SCC 119
14
(2017) 8 SCC 670
15
(1994) 6 SCC 241
16
(2013) 1 SCC 501 H
174 SUPREME COURT REPORTS [2018] 3 S.C.R.
A is made contrary to the statutory provisions as held in the case of Mor
Modern Coop. Transport Society Ltd. (supra) Further, relying on the
decision in the cases of B. Srinivasa Reddy Vs. Karnataka Urban
Water Supply and Drainage Board Employees Asson.17 and Hari
Bansh Lal Vs. Sahodar Prasad Mahto18, wherein the legal position
has been restated that the jurisdiction of the High Court to issue a writ of
B
quo warranto is a limited one which can only be issued if the appointment
is contrary to the statutory rules and the Court has to satisfy itself that
the appointment is contrary to the statutory rules. In that case, the Court
after analysing the factual matrix found, as of fact, that there was non-
compliance of sub-Section (5) of Section 85 of the Electricity Act, 2003,
C in the matter of appointment of the incumbent to the post of
Chairperson of the Commission for which it became necessary to issue
a writ of quo warranto. In the supplementing judgment by one of us
Dipak Misra, J. (as His Lordship then was), the settled legal position
expounded in B.R. Kapur (supra), University of Mysore (supra), High
Court of Gujarat (supra), Centre for PIL Vs. Union of India19 has
D
been recapitulated in paragraphs 29 to 33 of the reported decision.
34. We have adverted to some of those decisions in the earlier
part of this judgment. Suffice, it to observe that unless the Court is
satisfied that the incumbent was not eligible at all as per the statutory
provisions for being appointed or elected to the public office or that he/
E she has incurred disqualification to continue in the said office, which
satisfaction should be founded on the indisputable facts, the High Court
ought not to entertain the prayer for issuance of a writ of quo
warranto.
35. In the case of K. Krishna Murthy (Dr.) (supra) the
F Constitution Bench of this Court examined two questions as noted in
paragraph 9 of the reported judgment, which read thus:
“9. In light of the submissions that have been paraphrased in the
subsequent paragraphs, the contentious issues in this case can be
framed in the following manner:
G
(i) Whether Article 243-D(6) and Article 243_T(6) are
constitutionally valid since they enable reservations in favour of
17
(2006) 11 SCC 731
18
(2010) 9 SCC 655
19
(2011) 4 SCC 1
H
BHARATI REDDY v. THE STATE OF KARNATAKA & ORS 175
[A.M. KHANWILKAR, J.]
backward classes for the purpose of occupying seats and A
chairperson positions in panchayats and municipalities respectively?
(ii) Whether Article 243-D(4) and Article 243-T(4) are
constitutionally valid since they enable the reservation of
chairperson positions in panchayats and municipalities
respectively?” B
The Court opined that the objectives of democratic decentralisation
are not only to bring governance closer to the people, but also to make it
more participatory, inclusive and accountable to the weaker sections of
society. The Court went on to observe that reservations in local self-
government are intended to directly benefit the community as a whole, C
rather than just the elected representatives. It is for this very reason that
there cannot be an exclusion of the “creamy layer” in the context of
political representation. It also noted that while exclusion of the “creamy
layer” may be feasible as well as desirable in the context of reservations
for education and employment, the same principle cannot be extended
to the context of local self-government. We may note that this decision D
may be of relevance to the appellant to pursue his remedy before the
High Court in the writ petition No.108700 of 2017, questioning the
validity of Clause (ii) of the notification dated 13.01.1995 providing for
exclusion of “creamy layer” against the reserved category. We may,
however, without any hesitation record that the High Court had justly E
negatived the argument of the appellant which was founded on the interim
relief granted by the High Court in the stated writ petition on the ground
that the same cannot validate an action which was illegal so as to alter
the eligibility criteria for contesting the election of Adhyaksha
conducted on 26th April, 2016. We do not intend to express any opinion
either way on the pending issues in that proceedings, which are not the F
subject matter of this appeal. The High Court is free to deal with that
writ petition on its own merits in accordance with law.
36. This, however, will make no difference to the conclusion which
we must reach in this case that the High Court could not have issued a
writ of quo warranto until the Income and Caste Certificate issued in G
favour of the appellant, on the basis of which she participated in the
election for the post of Adhyaksha and got elected, was to be declared
void or invalidated by the Caste Scrutiny Committee. We do not wish to
dilate on other incidental aspects/arguments as the same will not have
any bearing on the conclusion noted above. H
176 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 37. In a matter of this nature, the High Court, having kept open
the issue regarding the validity of the Income and Caste Certificate to
be decided by the jurisdictional Caste Verification Committee and finding
no legal basis to declare the certificate as void ab initio or choosing to do
so, ought to have instead directed the Caste Verification Committee to
expedite the enquiry and conclude the same in a time bound manner.
B
The course adopted by the High Court has only prolonged the
consideration of that issue by the competent authority and embroiled the
parties in avoidable proceedings.
38. Accordingly, we allow this appeal and set aside the decisions
of the learned Single Judge and the Division Bench of the High Court
C which are impugned in the present appeal. We, however, dispose of the
writ petition filed by the respondents 6 to 9 being Writ Petition No.106417
of 2016 only by directing the Caste Verification Committee to expedite
the enquiry regarding the validity of the Income and Caste Certificate
issued to the appellant by respondent no.5 and conclude the same
D preferably within two months and also intimate its final decision to the
appellant within the same time. Needless to observe that the Caste
Scrutiny Committee will decide the matter on its own merit and without
being influenced whatsoever by any observations made in the impugned
judgments but in accordance with law. Besides, it shall deal with every
contention raised before it by recording tangible reasons.
E
39. The appeal is allowed in the aforementioned terms with no
order as to costs.
Nidhi Jain Appeal allowed.
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "quo warranto"Sign in to search