* HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY +WRIT APPEAL No. 1 of 2007 % Dated 25-07-2007 # Sri Kurapati Maria Das … Appellant VERSUS $ M/s. Dr. Ambedker Seva Samajam, Ambedkar Bhawan, Akberpet, Bapatla, Guntur District & 17 others. Respondents ! Counsel for the appellant : Sri S. Satyanarayana Prasad Senior Advocate for Smt. C. Sindu Kumari ^Counsel for Respondent No.1-10: Sri M. Ravindranath Reddy Counsel for respondent Nos.11,13&16: Government Pleader for Municipal Administration Counsel for respondent Nos.14,15,17&18: Government Pleader for Social Welfare <GIST: > HEAD NOTE: ? Cases referred 1. 1999 (6) ALT 217 (DB) 07. 2005 (3) ALT 578 (DB) 2. AIR 1999 SC 1723 08. AIR 1965 SC 491 3. AIR 1952 SC 64 09. AIR 1954 SC 520 4. AIR 1965 SC 1892 10. AIR 1978 SC 851 5. AIR 1985 SC 1746 11. AIR 1988 SC 61 6. (2003) 8 SCC 204 HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL No. 1 of 2007 Between: Sri Kurapati Maria Das … Appellant AND M/s. Dr. Ambedker Seva Samajam, Ambedkar Bhawan, Akberpet, Bapatla, Guntur District and seventeen others. … Respondents ; JUDGMENT : Counsel for the appellant : Sri S. Satyanarayana Prasad, Senior Advocate for Smt. C. Sindu Kumari Counsel for respondent Nos.1to10 : Sri M.Ravindranath Reddy Counsel for respondent Nos,11,13&16: Government Pleader for Municipal Administration Counsel for respondent Nos.14,15,17 &18: Government Pleader for Social Welfare Dated: July, 2007 Per C.V.NAGARJUNA REDDY, J. Respondent No.9 in Writ Petition No.17853 of 2006 against whom a writ of Quo Warranto was issued by the learned Single Judge, vide his order dated 21.12.2006, has filed this appeal under Clause 15 of the Letters Patent. For deciding the appeal, we may briefly notice the facts: The Government of Andhra Pradesh (respondent No.11 herein) issued notification dated 18.08.2005 whereby the office of the Chairperson of Bapatla Municipal Council (for short, ‘the Council’) was reserved for Scheduled Caste. Thereafter, District Collector, Guntur (respondent No.14 herein) issued notification dated 22.08.2005 reserving Ward No.8 for the Scheduled Caste. On 29.08.2005, the State Election Commission (respondent No.12 herein) issued notification for holding election to the Council. As per the schedule notified by respondent No.12, 24.9.2005 was fixed for election to the Wards and 30.9.2005 was fixed for election to the office of Chairperson. Respondent No.9, who belongs to Scheduled Caste (Mala), filed nomination papers for contesting election from Ward No.8. The appellant filed his nomination as a candidate of the Indian National Congress. In the election held on 24.9.2005, the appellant was declared elected as Councilor from Ward No.8. Later on, he was elected as Chairman of the Council. Soon after the elections, respondent No.1 made representation dated 22.03.2006 to Superintendent of Police, Guntur to investigate into the issue relating to the appellant’s community status. After one month, he made representation dated 14.4.2006 for initiation of action against the appellant by alleging that he got himself elected by making a false claim of being a member of Scheduled Caste. A similar representation was made to Andhra Pradesh State Commission for Scheduled Castes and Scheduled Tribes. On 18.4.2006, respondent No.1 filed a complaint before District Collector, Guntur under Section 5 read with Section 12 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issuance of Community Certificates Act, 1993 (for short, ‘the 1993 Act’). He then filed application under the Right to Information Act, 2005 for supply of documents such as the application filed by the appellant in the month of August, 2005 for issuing a caste certificate, the documents enclosed to the said application for substantiating his claim as belonging to the Scheduled Caste, the previous certificate, if any, issued to the appellant and the caste certificate issued to the appellant pursuant to the application made by him in the month of August, 2005, but could not get the copies of the desired documents. Having failed to persuade the concerned authorities to enquire into the allegations made by him against the appellant, respondent No.1 along with some voters filed writ petition under Article 226 of the Constitution of India for issue of a writ of Quo Warranto against the appellant by alleging that the appellant does not belong to Scheduled Caste and he was not eligible to contest election from Ward No.8 and the office of the Chairperson. Along with the writ petition, the petitioners filed a copy of the Service Roll of the appellant maintained by OSS and Work Charge Establishment of the office of the Assistant Engineer (Operation), Bapatla, Andhra Pradesh State Electricity Board and the seniority list of the Assistant Linemen prepared by the Southern Power Distribution Company of Andhra Pradesh Limited, Operation Division, Tenali, a successor of Andhra Pradesh State Electricity Board, in support of their contention that the appellant is a Christian Mala and belongs to BC-C category. In the counter filed by him, the appellant invoked Article 243ZG of the Constitution and pleaded that the writ petition is not maintainable. He further pleaded that the election can be called in question only in accordance with the procedure prescribed under the Rules made under the Andhra Pradesh Municipalities Act, 1965 (for short, ‘the 1965 Act’ relating to election disputes and that unless the caste certificate issued by the competent authority is cancelled in accordance with the procedure prescribed under the 1993 Act, his election cannot be set aside. After considering the rival pleadings and arguments of the learned counsel for the parties, the learned Single Judge, vide his order dated 21.12.2006, allowed the writ petition and declared that 9th respondent (the appellant herein) is an usurper of the office of the Council of 8th Ward as also the office of Chairman of the Council. The learned Single Judge further held that 9th respondent is guilty of playing fraud on the Constitution and, therefore, it is not necessary to drive the writ petitioners to any other forum on the ground of availability of alternative remedy or on the ground that some question of fact is involved. Sri S. Satyanarayana Prasad, learned Senior Counsel for the appellant made the following submissions: (1) Article 243ZG (b) of the Constitution of India prohibits calling in question any election to a municipality except by an election petition as prescribed under any law made by the Legislature of the State and, therefore, the writ petition filed by respondent Nos.1 to 10 for nullifying the appellant’s election is not maintainable; (2) Respondent Nos. 1 to 10 had effective alternative remedies under Rules 1 and 2 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967 and Section 5 of the 1993 Act and, therefore, the writ petition filed by them ought to have been dismissed by the learned Single Judge; (3) The question whether the appellant belongs to Scheduled Caste or BC-C category is a seriously disputed question of fact and the learned Single Judge gravely erred by making enquiry into such question of fact and nullifying the election. In support of his contentions, the learned counsel relied upon the judgments in K. Vishnuvardhan Reddy and another vs. District Collector and District Election Authority, Kurnool District and another[1] and Sadhanapalli Bheemaraju and others vs. Secretary, A.P. Legislative Assembly, Hyderabad and others[2]. Per contra, Sri M. Ravindranath Reddy, learned counsel for respondent Nos. 1 to 10 submitted that the objection to the maintainability of the writ petition on the ground of bar contained in Article 243ZG (b) of the Constitution is not tenable because the scope of a writ of Quo Warranto is wholly different from the scope of an Election Petition. He submitted that the writ petition filed by respondent Nos.1 to 10 was for ousting the appellant from the offices of the Councilor and the Chairperson of the Council on the ground that he has usurped those offices by playing fraud and, therefore, they could not have been non-suited on the ground of availability of alternative remedy or in view of the bar contained in Article 243ZG. In support of this contention, the learned counsel referred to and relied upon the judgment of the Supreme Court in K. Venkatachalam vs A.Swamickan and another[3]. Learned counsel further submitted that though respondent No.1 tried his best to sensitize the authorities concerned to the usurpation of office by the appellant by using a false community certificate, they failed to take any action under the relevant statutory provisions and that the remedy under Section 5 of the 1993 Act can never be construed as an effective alternative remedy to the constitutional remedy of writ of Quo Warranto, which could be issued only by the superior Courts. Learned counsel invited our attention to the service roll issued by the employer of the appellant and argued that the same is sufficient to prove that he belongs to B.C. (C) category. We have given our serious thought to the respective submissions and scanned the record. A writ of Quo Warranto is a constitutional remedy, which can be availed against a person, who is not qualified to hold a public office or post. By entertaining a petition filed under Article 226 of the Constitution of India, the superior Courts can call upon a person to show as to under what right he holds a public office, franchise or liberty. I n The University of Mysore vs C.D. Govinda Rao and another[4], a Constitution Bench of the Supreme Court dealt with the scope of writ of Quo Warranto and referred to Halsbury’s Law of England, 3rd Edition, Vol.II Page 145 in paragraph 7 of the judgment, which can be usefully extracted hereunder: “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 enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined”.” The Supreme Court then observed: “If the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.” We shall now consider whether the learned Single Judge committed an error by entertaining the writ petition filed by respondent Nos.1 to 10 in the face of the bar created by Article 243ZG (b) of the Constitution. Article 243ZG (b) reads as under: “No election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” In K. Venkatachalam (3 supra), the Supreme Court considered an issue similar to the one dealt with and decided by the learned Single Judge. The facts of that case show that Venkatachalam filed his nomination for being elected as a member of the Legislative Assembly for Lalgudi Assembly constituency in Tamil Nadu, though he was not an elector in the electoral roll of that constituency. A year after the date of election, the un-successful candidate (Swamickan) filed a writ petition under Article 226 of the Constitution for a declaration that Venkatachalam was not qualified to be a member of the Tamil Nadu Legislative Assembly representing Lalgudi Assembly Constituency since he was not an elector in the electoral roll of the said constituency in the general election in question. He also prayed alternatively for a writ of quo warranto directing Venkatachalam to show under what authority he was occupying the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. Swamickan did not file any petition calling in question the election of Venkatachalam under Section 81 of the Representation of the People Act, 1951. A learned Single Judge of the High Court of Madras dismissed the writ petition holding that Article 329 (b) of the Constitution was a complete bar to maintain a writ petition and that a remedy was available under the Representation of the People Act, 1951. However, the writ appeal filed by Swamickan was allowed by the Division Bench of the High Court which held that the High Court had power and jurisdiction under Article 226 of the Constitution to declare that the election of Venkatachalam was illegal inasmuch as he did not possess the basic constitutional and statutory qualifications. Venkatachalam filed an appeal with the application for leave against the said judgment of the Division Bench. His main contention before the Supreme Court was based on Article 329 (b) of the Constitution, which creates a bar on calling in question any election to either House of Parliament or to the either House of the Legislature of a State except by way of an election petition. In support of his contention, Venkatachalam relied on the judgments of the Supreme Court in N.P. Ponnuswami vs Returning Officer, Namakkal Constituency, Namakkal[5], Durga Shankar Mehta vs Raghuraj Singh[6], Brundaban Nayak vs Election Commission of India[7], Mohinder Singh Gill vs Chief Election Commissioner, New Delhi[8], Krishna Ballabh Prasad Singh vs Sub-Divisional Officer, Hilsa-cum- Returning Officer[9] and Election commission of India vs Shivaji[10]. After carefully analyzing the facts in each of the aforementioned cases, the Supreme Court distinguished the same. Paragraphs 20 and 25 to 28 of the report of Venkatachalam’s case, which contained detailed discussion on the issue, read as under: “20. In all these cases there is a common message that when the poll or repoll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under Article 226 of the Constitution and that remedy of the aggrieved parties is under the Act read with Article 329 (b) of the Constitution. The Act provides for challenge to an election by filing the election petition under Section 81 on one or more grounds specified in sub-section (1) of Sections 100 and 101 of the Act. There cannot be any dispute that there could be a challenge to the election of the appellant by filing an election petition on the ground of improper acceptance of his nomination inasmuch as the appellant was not an elector on the electoral roll of Lalgudi Assembly Constituency and for that matter also by any non-compliance with the provisions of the Constitution or of the Act. If an election petition had been filed under Section 81 of the Act High Court would have certainly declared the election of the appellant void. It was, therefore, submitted that respondent could not invoke the jurisdiction of the High Court under Article 226 of the Constitution in view of Article 329 (b) of the Constitution read with Sections 81 and 100 of the Act and only an election petition was maintainable to challenge the election of the appellant. That right the respondent certainly had to challenge the election of the appellant. Election petition under Section 81 of the Act had to be filed within forty-five days from the date of election of the returned candidate, that is the appellant in the present case. This was not done. There is no provision under the Act that an election petition could be filed beyond the period of limitation prescribed under Section 81 of the Act. That being so the question arises if the respondent is without any remedy particularly when it is established that the appellant did not have the qualification to be elected to the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. (25) In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector from that constituency could represent the constituency? He lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act. Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law. (26) The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as Venkatachalam s/o Pethu, taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the Constitution. (27) In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, AIR 1953 SC 210, it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329 (b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? (28) We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent no. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like the Election Commission should invariably be made a party.” The ratio as could be culled out from the judgment in K.Venkatachalam (3 Supra) is that Article 226 of the Constitution is couched in widest possible term and the bar contained in Article 329 (b) cannot be invoked for refusing to entertain petition filed for ouster of a person from a public office. Since Article 243ZG (b) of the Constitution, which was reproduced hereinabove, is ipsissima verba with Article 329 (b) to the entertaining of challenge to the election, we hold that the bar contained therein is not attracted with a petition filed questioning the eligibility of a person to hold a public post or office, which he occupies by virtue of the election held in accordance with the relevant statutes. We shall now examine whether the appellant’s election is in violation of any of the statutory or constitutional provisions, rendering him ineligible to hold a public office. Part XVI of the Constitution of India, evidently in recognition of the economic and social backwardness of the Scheduled Castes, Scheduled Tribes and other weaker classes made special provisions in respect of these classes. They include reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People (Article 330), reservation of seats in the Legislative Assemblies of the States (Article 332) and claims of Scheduled Castes and Scheduled Tribes to services and posts (Article 335). Under Article 338, National Commission for Scheduled Castes and Scheduled Tribes is envisaged and the Commission’s duty is inter alia to participate and advise the State on the planning process of socio-economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State. Article 341 (1) of the Constitution inter alia empowers the President of India, after consultation with the Governor of the State concerned to specify by public notification the castes, races or tribes or parts of or groups within castes, races or tribes, which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to that State. In Punit Rai vs Dinesh Chaudhary[11], the Supreme Court held that the object of Clause (1) of Article 341 is to provide preferential right by way of protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It was also held that it is in furtherance of this object that the President has been authorized to limit the notification to parts or groups within the castes. The President of India in exercise of his power conferred on him under Article 341 (1) of the Constitution notified the Constitution (Scheduled Castes) Order, 1950. It is not in dispute that Mala Community in Andhra Pradesh is included in the Schedule and, therefore, it is a Scheduled