\ HIGH COURT OF CHHATTISGARH AT BILASPUR Wm (SB: Hon’ble Mr. T.P.SHARMA, J.) Wri‘r Pe'h‘fion (Art227) No.665 of 2011 Rajendra Kumar I Vs. Dr.$hiv Kumar' Tamer and ofher‘s POST FOR PRONOUNCEMENT OF THE ORDER ON 9/9/2011 y _ Sd/— ”111’. Sharma Judge Pefifioner HI6H COURT OF CHHATTISGARH AT BILASPUR Writ Pefi‘rion (227) No.665 of 2011 Rajendra Kumar‘ aged abouf 42 year‘s, 5/0 laTe Shri Dwarika Pmsad, Vofer‘ No.412, Parf~1 Ward No.38, Residenf of — Millpara, Durg Tah. & Disffburg (C.G.) Versus Respondents Dr‘.Shiv Kumar Tamer Aged abouT 58 years, S/o LaTe Shri Ramji Tamer Residenf of 644 Samidha Sindhiya Nagar‘, Ward No.21, Durg Tah. & Disf’rDur‘g (C.G.) Mohdlrshad Aged about 35 year's, Shri Shekh Unus Residenf of Ward No.32, Durg Moifhil par'a, Durg Toh. & DisTTDur'g (6.6.) Naval Kumar Soni Aged obouf 65 years, S/o Shri Jaddulal Soni Residenf of Ward No.32, Durg Mh‘hil para, Durg Tah. & DisTTDur'g (6.6.) Chhinn Mas? Bise Yadov Aged abouf 55 years, 5/0 $hri Gaya Ram Yodav Resident of Ward No.6, Durg Thefhwar‘ para, Dur'g Tah. 6: DisT‘rDurg (C.G.) Mohammad Yusuf Aged abou’r 5O year's, 5/0 Iafe Shri Mohd. Kosim Residen‘r of Ward No.36, Durg Baba Rom Deo Ward, Ganjpora Durg Tah. & DisHDurg (6.6.) Raju Sonkor Aged obouf 35 years, S/o Shri Tijau Ram Resident of Word No.92, Durg In from‘ of Shiv Mandir Rajiv Nagar, Durg Tah. & Dish‘Durg (6.6.) Shonkorlol Tamrakor Aged abouf 66 years, S/o Shri Mangloo Sao Tamrakar Residen’r of Word No.30, Durg Tamer para, Durg Tah. & Dish‘Durg (C.G.) 8. Dis'rrict E!ec’ricn Officer and Refurning Officer (Municipal Corporai'ion, Durg (C.G.), CoIIecTormz Premises Durg (Chha'rfisgarh) (Wrif Pe’ri’rion under Ariicle 227 of The Consfi’rufion of India) Mr.V.G.Tamaskar, counsel for the petitioner Mr.Avinash Mishro, counsel for respondent No.1. None presan’r for ofher respondenfs. (SB: Hon‘ble Mr,T.P. Sharma, J.) ORDER (PaSSed on 9-9—2011) k 1. By This wri‘r pe’riTion under Article 227 of the Constitution of India the petitioner has challenged the legality & propriety of the order dated 11.11.2010 passed by the District Judge, Durg in Misc.Judicial Casa No.7/2010 (Election Petition of Mayor of the Municipal Corporation, Durg), whereby learned District Judge has decided Issue No.1 as negative and held that respondent No.1 was qualified to contest election as member of Other Backward Class. 2. I have heard learned counsel for the parties, perused the order impugned, copy of the plaint and copy of the written statement. 3. Learned counsel for the petitioner vehemently argued that specific issue has been framed by the Court below relating to competency of respondent No.1 to contest the election. As per respondent No.1 claim, he is a member of Tamer caste and his annual income at time of contesting election as Mayor was more than 4,50,000/—, therefore, as per pleading of respondent No.1, he was a member of Other Backward Class and was not below creamy—layer. 4. Learned counsel for the petitioner placed reliance in the matter of Sandhya Thakur v. Vimla Devi Kushwah and others‘, in which the / 2005) 2 SCC 731 appellanf chiming eligibilify fo elecfion from a ward reserved for backward communifies, The Supreme Cour? has held Thai The appeHam, who by bir‘l'h not belong ’ro a backward class or community, would nof be em‘i‘rled 1‘0 confes‘r a seal reserved for a backward class or communiTy merely on basis of her marriage 1'o a male of Thai communiTy. Likewise The Supreme CourT has also held ThaT There is no reason To differ from The view Taken by The High CourT ThaT The circular daTed 12-3—1997 was noT resTricTed in iTs operaTion To employmenT and admission To educaTional insTiTuTions, buT was also relevanT and applicable in elecTions To local bodies. 5. Learned counsei for The peTiTioner furTher argued ThaT This case is squarely covered by The judgmenT of The Supreme CourT in The maTTer of Sandhya Thakur (supra) and respondenT No.1 was noT compeTenT To conTesT elecTion as a member of OTher Backward Class from a seaT reserved for OTher Backward Class, being a member of OTher Backward Class of creamy layer, buT The CourT below has decided The issue as negaTive. 6. On The oTher hand, learned counsel for respondenT No.1 opposed The peTiTion and argued ThaT dispuTe relaTing To casTe is sTill pending for consideraTion before The CourT below, Therefore, while arriving aT a finding on Issue No.1 and noT deciding The elecTion peTiTion of respondenT No.1, The CourT below has noT commiTTed any illegaliTy. 7. The CourT below has framed Issue No.1 and has given The finding on The aforesaid issue which reads as under-:- W(W) W (1)WWW1WWW WWW—o1 WWW, 4,5o,ooo/—W%Wm?an?sw gifzossTqi‘QqsbirmWwiah waswmmwwmnsm W$WW§WWW »W,Ghi$mma1f$m$w ad$m$w£insmisuzsg nasmwsgmmaé‘ra—a‘mndi Mahmwmmi ma? 8. Whiie dealing wifh The ques‘rion of opera‘rion of fhe circular dafed 12.3.1997 issued by The undivided Stafe of Madhya Pradesh, The Supreme Court has observed in para 2 as under:~ “2.In' The lighf of The decision in Valsamma Poul v. Cochin Universify {(1996) 3 SCC 545} and our decision rendered Today in Sobha Hymava‘rhi Devi v. Seffi Gangadhara Swomy {(2005) 2 SCC 244}, which was heard aiong wi’rh this appeal, if musf be held That The oppellanf, who by birfh did no1' belong f0 a backward class or community, would not be enfifled To conTesT a seaT reserved for a backward class or communiTy, merely on The basis of her marriage To a male of ThaT communiTy. Therefore, iT is noT possible To accepT The argumenT ThaT The appellanT was enTiTled To conTesT a seaT reserved for a backward communiTy merely because of her marriage To a person belonging To The Namdev communiTy or casTe. We also see no reason To differ from The‘High CourT in iTs view ThaT The circular daTed 12-3— 1997 was noT resTricTed in iTs operaTion To employmenT and admission To an educaTional insTiTuTion, buT was also relevanT and applicable in elecTions To local bodies. IT is, Thus, found ThaT boTh The reasons given by The High CourT for affirming The decision of The DisTricT Judge seTTing aside The elecTion of The appellanT are susTainable. In view of This we have no hesiTaTion in confirming The decision of The High CourT and in dismissing This appeal. Hence, we dismiss This appeal wiTh cosTs." 9. IT appears from The decision of The Supreme CourT in The maTTer of Sandhya Thakur (supra) (supra) ThaT The circular daTed 12.3.1997 was under consideraTion before The High CourT of Madhya Pradesh and as per view of The High CourT of Madhya Pradesh, operaTion of The circular daTed 12.3.97 was noT resTricTed To employmenT and admission To an educaTional insTiTuTion, buT was also relevanT and applicable in elecTions To local bodies. 10.The presenT peTiTioner has filed The insTanT peTiTion againsT successful candidaTe i.e. respondenT No.1 for quashing of elecTion of respondenT No.1 and for declaraTion ThaT he is elecTed Mayor of The Municipal CorporaTion, Durg. 11. This is a serious maTTer of elecTion. For decision of Issue No.1, The parTy as whose insTance Issue No.1 has framed was under obligaTion To produce / such circular da'red 12.3.1997 and also under obliga‘tion To file copy of judgmenf of The High Cour? of Madhya Pradesh To ensure 'rha‘r fhe circular has been discussed and fhe High Cour? of Madhya Prodesh has given aforesaid finding, buf ihe order impugned does nof reveal fhai fhe peTifioner has filed ‘rhe aforesaid circular before The Cour? below. 12. In absence of such circular, The Cour’r below was nof jusfified To arrive a‘r posifive or negafive finding To Issue No.1, Thaf foo as preliminary issue. In These circumstances, by arriving af a finding on Issue No.1, fhe Court below has not considered the necessity of examining such circular and thereby committed illegality, but in absence of such circular, no finding would be legally possible. 13.Consequently, the pefition is allowed and finding on Issue No.1 is hereby quashed. Parties are at liberty fo file adequate material before the Court below and the Court below shall decide the issue on the basis of material and evidence without being influenced by fhe order impugned and order passed by this Court. No order as to costs. Sd/- T.P. Sharma Judge B/~