Elections – reservations – caste certificate and income certificate – 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 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 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 3 Committee Ballari. The process of verification thereof is still in progress. 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 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 not entitled to or qualified for. = 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 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.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1763 OF 2018

(Arising out of SLP (Civil) No.1532 of 2018)

Bharati Reddy …..Appellant(s)

:Versus:

The State of Karnataka & Ors. ….Respondent(s)

J U D G M E N T

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.

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-

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Badanahatti Constituency, Ballari District, Karnataka which

was reserved for General (Women) Category. Later, the State

Government published a notification on 15.04.2016 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 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 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 

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Committee Ballari. The process of verification thereof is still in

progress.

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 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 not entitled to or

qualified for. The allegation about the nature of fraud

committed by the appellant can be discerned from the

assertions made in paragraphs 6 and 7 of the writ petition,

which read thus:

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“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 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 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 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 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 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 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.

7. It is further submitted that in the proceedings held on

29.04.2016 under the Chairmanship of Regional

Commissioner, Kalburgi Division, Kalburgi, the 6th

Respondent was successful in getting elected as

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Adhyaksha under the Category-Backward Community-B

based on the above said false Caste and Income

Certificate which was 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)

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

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 6th Respondent as Adhyaksha of Zilla Panchayat,

Bellary vide Annexure-H.

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 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 petitioners were only voters and

therefore, had no locus to challenge the election of the

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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 the writ petition filed by the said

respondents was a politically motivated 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 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 by the jurisdictional Caste Verification

Committee. The appellant also pointed out that the allegation

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made in the writ petition, regarding the false or incorrect

income disclosure made by the appellant, was wrong and illfounded.

Such allegation was based on far-fetched logic and

untenable assumptions. The affidavit dated 06.02.2016

submitted along 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) 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 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

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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 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

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 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

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by the appellant that the writ of quo warranto is not an

ordinary power to be exercised by the High Court 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

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 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.

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6. Being aggrieved by the dismissal of the writ petition, the

writ petitioners (respondent Nos.6 to 9 herein) carried the

matter in Writ 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

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.

The two-Judge Bench of this Court disposed of the appeal

preferred by 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

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Articles 226/227 of the Constitution of the India. In such

proceedings, it is open to the High Court to undertake judicial

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 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.”

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

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 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 by the appellant to question the correctness of the

view expressed by this Court in the aforesaid decision.

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Concededly, even if the arguments of the appellant may

appear to be attractive, it cannot be entertained in relation to

the decision inter partes.

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

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 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-

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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 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.

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 taking note of

the original documents forming part of the original file

1 (2010) 7 SCC 202

2 (1992) Supp (3) SCC 210

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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 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).

2. Notice dated 23.04.2016 issued by the Revenue

Inspector.

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

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)

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.

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 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 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 the voter‟s identity card; certified copy of the transfer

15

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.

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 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 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 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 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

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:

16

“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 petition which is filed for issue of writ of quo

warranto against the 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 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 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 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

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

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

pending enquiry with regard to the procedure adopted by

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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

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.

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.”

(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 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 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 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 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

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issuing the caste certificate. However, the issue is now

pending before the Caste Verification Committee, which is

a fact finding committee and would be 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 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:

“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 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.

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

Verification Committee. The Caste Verification

Committee shall independently hold an enquiry and

dispose of the case in accordance with law”.

(emphasis supplied)

10. Aggrieved by the aforesaid decision, the appellant filed

Writ Appeal No.5872 of 2017. The writ petitioners (respondent

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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 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, 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 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

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.”

(emphasis supplied)

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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 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 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. Based on these facts, the

Government of Karnataka has 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 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….”

(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 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

21

facts are not involved and the circumstances warrant

invoking of the extraordinary writ 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 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 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)

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 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

22

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 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 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 :

„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.‟

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

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

making appointment to public office against law and to protect

a citizen from being deprived of public office to which he has a

3 (1964) 4 SCR 575

23

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

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.”

(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 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 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

24

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 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 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 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

25

official file relating to 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 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.

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

26

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 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

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

27

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 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 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 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 jurisdiction is limited to judicial review of

28

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 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.

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 certificate in a

tearing hurry by the respondent No.5, allegedly to favour the

29

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.

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 alleged but after due enquiry. That is evinced from the

original official file produced before the Court. In that, the

application was made on 22nd 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 Adhyaksha scheduled on 29th April, 2016. This explanation

certainly will have to be examined by the Caste Verification

30

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 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 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 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

31

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 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 income tax assessee, having paid income tax for the

Financial Year 2013-14. 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 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

32

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 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

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 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

33

for any other disqualification. The appellant also asserts that

there is no discrepancy or for that matter suppression or nondisclosure

of financial information 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, 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. 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

34

eligibility criteria. 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 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.

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 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.

35

23. Strikingly, neither the learned 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 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 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 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 has left the

36

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. 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.

25. The distinction between a void and voidable order was

considered 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 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

4

(1974) 2 SCC 121

37

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

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 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 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 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 retroactive force.”

(emphasis supplied)

38

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 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 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 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

5 AIR 1999 SC 1723 = (1999) 4 SCC 526

39

voter in that constituency. It 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 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.

27. In Kurapati Maria Das Vs. Ambedkar Seva Samajan6 the

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 status of the appellant. The Court

6 (2009) 7 SCC 387

40

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 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 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 the appellant about her financial status and income

41

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 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 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. 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

42

the Caste 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.

29. In the case of Arun Singh alias Arun Kr. Singh Vs. State

of 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 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 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 the order of the

7 (2006) 9 SCC 375

43

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 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 offence and such

conviction had not been suspended in the pending 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 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:

8 (2001) 7 SCC 231

44

“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 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 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:

“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 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 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 its

character in many of the States of the Union, and

it is therefore a civil remedy only.”

45

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 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. 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

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. 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 supported his claim, in order that

the right to the office or franchise might be

determined.”

9 148 SW 2d 527, 529, 530 : 347 Mo 484

10 102 SW 2d 937, 938 : 340 Mo 865

46

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 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 warranto is a limited one. While issuing such a writ,

the Court merely 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. 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

11 (2003) 4 SCC 712

12 (2002) 6 SCC 269

13 (1993) 4 SCC 119

47

was required to be considered was as to whether the incumbent

fulfilled the qualifications laid down under the statutory 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 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

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

14 (2017) 8 SCC 670

48

decision may be of some import, if the Caste Verification

Committee was to invalidate the Caste 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

Court noted that a writ of quo warranto will lie when the

appointment 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 quo warranto is

a limited one which can only be issued if the appointment is

15 (1994) 6 SCC 241

16 (2013) 1 SCC 501

17 (2006) 11 SCC 731

18 (2010) 9 SCC 655

49

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, 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 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/she has incurred disqualification to continue in

the said office, which satisfaction should be founded on the

19 (2011) 4 SCC 1

50

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

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:

(i) Whether Article 243-D(6) and Article 243_T(6) are

constitutionally valid since they enable reservations in

favour of backward classes for the purpose of occupying

seats and 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?”

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, rather than just the elected

51

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 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

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 subject

52

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 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.

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. The course adopted by the High

53

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 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 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. 

54

39. The appeal is allowed in the aforementioned terms with no

order as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J.

(A.M. Khanwilkar)

…………………………..….J.

(Dr. D.Y. Chandrachud)

New Delhi;

March 6, 2018.