IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10672 of 2008 Dinesh Kumar Sah Bharti, son of late Panch Lal Sah, resident of village, PO & P.S. Khutauna, Anchal Khutauna, District- Madhubani ……. Petitioner Versus 1. The State of Bihar 2. The District Magistrate, Madhubani, At PO and District- Madhubani 3. The State Election Commission through the State Election Commissioner, At & PO Patna 4. The Deputy Secretary, State Election Commission of Bihar, At & PO Patna 5. The Sub-Divisional Officer, Phulparas, At & PO Phulparas, District- Madhubani 6. The Executive Magistrate, Phulparas, At & PO Phulparas, District- Madhubani 7. The Circle Officer, Khutauna, At & PO Khutauna, District- Madhubani 8. Ram Babu Kamat, son of late Jarwai Kamat, resident of village, PO and PS Khutauna, Anchal- Khutauna, District- Madhubani ……. Respondents. -------------- For the petitioner : - Mr. Uma Kant Shukla, Advocate For Respondent No.8 :- M/S. Birendra Prasad Verma, Sr. Advocate, Dr. Mritunjaya Kumar Gautam, Yogendra Kumar and Mr. R.N. Ray, Advocates For the State :- Mr. Sanjeev Kumar, AC to AAG-7. For Election Commission: M/S R.S.Pradhan & Rajeev Lochan, Advocates. ----------- 7. 27 .01.2010 The writ petition has been filed for quashing the order contained in memo no. 580 dated 30.6.2008 passed by the District Magistrate, Madhubani (Respondent no. 2) by which he has held that the petitioner belongs to Halwai caste and not Kanu caste for which he had earlier been granted a caste certificate. The petitioner has further challenged the order dated 28.7.2008 (Annexure-7) passed in Case No. 01/2008 by the State Election Commissioner (Respondent No.3) by which he has declared the petitioner as not qualified to hold the reserved post meant for extremely backward class on the basis of the order dated 30.6.2008 passed by the District Magistrate, Madhubani and directed for filling up of the post in accordance with law. The brief facts of this case are that the petitioner contested the election to the post of Mukhiya of Khutauna Gram 2 Panchayat. The petitioner claiming to belong to Kanu caste, obtained caste certificate from the Circle Officer, Khutauna bearing No. 621 dated 10.2.2001 and on the basis of the same the Sub-Divisional Officer issued certificate No. 267 dated 24.7.2003 and the District Magistrate issued certificate No. 904 dated 26.7.2003 stating that the petitioner belongs to Kanu caste which has been placed under the list of extremely backward class. The petitioner was elected as Mukhiya of the said Panchayat. Subsequently, the respondent no. 8, Ram Babu Kamat, filed a petition before the Executive Magistrate, Phulparas, District- Madhubani ( Respondent no. 6) alleging that the petitioner did not belong to Kanu caste and had wrongly been elected from the seat reserved for extremely backward class. It is stated in the writ petition that earlier the respondent no. 6, the Executive Magistrate submitted a report dated 13.6.2006 raising doubts regarding the said allegation but subsequently by a report dated 11.2.2007 (Annexure-2) submitted by the Respondent No. 6 before the Sub-Divisional Officer, Phulparas (Respondent No.5), he stated that the petitioner belongs to Halwai caste on the basis of the various documents available in the Circle records including the RS Khatian and the CS Khatian. The petitioner filed CWJC No. 4742 of 2007 challenging the said report dated 11.2.2007. During the pendency of the same, the Sub-Divisional Officer and the District Magistrate cancelled the caste certificate issued in favour of the petitioner which orders were also challenged in the said writ petition by amending the prayer. By order dated 13.5.2008, this Court held that the order having been passed without issuing notice 3 to the petitioner and hearing him in the enquiry, the enquiry report dated 11.2.2007 and the orders dated 15.5.2007 and 1.6.2007 passed on the basis of the same were set aside and the matter was remanded back to the District Magistrate for fresh adjudication on the caste status of the petitioner in accordance with law after hearing all concerned including the respondent no. 6 therein, who is respondent no. 8 in the present writ petition. Thereafter the matter was again heard by the District Magistrate and after hearing the petitioner and the respondent no. 8, he passed the aforesaid impugned order dated 30.6.2008 holding that the petitioner does not belong to Kanu caste rather to Halwai caste which is a backward class and not an extremely backward class. Earlier, on the basis of the previous order of the District Magistrate, the State Election Commission had passed an order dated 10.2.2008 removing the petitioner from his post but recalled the same on learning about the interim order dated 15.4.2008 passed by this Court in the aforesaid writ petition. Subsequently, on the basis of the order dated 30.6.2008 passed by the District Magistrate, the State Election Commissioner again heard the petitioner and respondent no. 8 and on the basis of the materials on the record passed the impugned order dated 28.7.2008 removing the petitioner from his post and directing holding of fresh election thereon. Learned counsel for the petitioner has challenged the order dated 30.6.2008 of the District Magistrate on the ground that there was no justification for coming to a different conclusion 4 regarding the caste of the petitioner being Kanu when the same had been issued by the Executive authorities up to the District Magistrate in the year 2003 certifying him to belong to Kanu caste which is an extremely backward class. It is submitted that as a matter of fact the caste certificate of the petitioner as belonging to Kanu caste was initially issued in favour of the petitioner as early as in the year 1994. It is urged by learned counsel for the petitioner that the District Magistrate has not properly considered the case of the petitioner and the documents filed on his behalf along with list of documents on 24.6.2008 (Annexure-4 and 4/1) which documents clearly supported the stand of the petitioner that he belongs to Kanu caste. It is further submitted that the District Magistrate did not follow the guidelines issued by the Supreme Court for the determination of the caste status of a person but proceeded in hot haste against the petitioner. It is also submitted by learned counsel that the D.M. has relied upon a torn and pasted Khatian and disbelieved the certified copy of the continuous Khatian produced by the petitioner from the record room of Darbhanga district. Learned counsel submits that in terms of Rules 69 and 130 of the Board Miscellaneous Rules, such records are maintained in the district record room and have rightly been produced by the petitioner from the Darbhanga record room where the original old documents were kept prior to the bifurcation of the District and creation of the new district of Madhubani. It is lastly submitted by learned counsel that the question of caste cannot be finally decided by the District Magistrate 5 and only the Civil Court can finally adjudicate the matter and prayed in the alternative that petitioner may be given liberty to get his caste status declared by the Civil Court, in case this Court is not inclined to interfere in the matter. So far as the order dated 28.7.2008 of the State Election Commissioner is concerned, learned counsel submits that the State Election Commissioner has no jurisdiction to disqualify on the ground of caste and in view of the provisions of the Bihar Panchayat Raj Act, the same could have been challenged only by filing an election petition before the Election Tribunal constituted under the Act and Rules framed thereunder. It is contended by learned counsel that the respondent no. 8 cannot be permitted to challenge his action in a roundabout manner since he knew the caste of the petitioner from before the election but did not file an election petition and approached the Executive Magistrate for getting his caste certificate set aside. It is urged that such a procedure is unknown to law and it will open a Pandora’s Box leading to interference by the Executive authorities in a validly held election. Learned counsel also relies upon a decision of a Division Bench of this Court in the case of The State Election Commission and others Vs. Punam Kumari and another: since reported in 2009(2) PLJR 189, in paras- 9 and 10 of which it has been held as follows:- “9. - That being the situation, it appears to us that if disqualification as on the date of election based on the allegation that the person seeking 6 election or having been elected was not a member of the community for whom the reservation was made, is the dispute, the same can only be sorted out by an election petition to be presented before the Election Tribunal and not by presenting a writ petition. 10. - As noted above, on the basis of the judgment and order under appeal the matter has been gone in by the Commission and the Commission has rendered a decision. The question is whether the decision is valid or not. For what we have discussed above it appears to us that the disqualification mentioned in section 135 of the Act cannot be gone in by the Commission. The Commission being a creature of the Statute can function and discharge its duties within the four corners of the Statute and cannot assume or be vested with any power which has not been vested in it by the Statute. If the Commission had no authority to go into the question, as was decided by it, such authority could not be vested in it by exercising power under Article 226 of the Constitution of India, for the simple reason that the Article 226 authorizes the Court to uphold legal right of a citizen which right stands vested in the citizen and that signifies that the writ court cannot vest any right in a citizen which does not vest in him. That being the situation, the conclusion would be that the decision of Election Commission rendered on the basis of the command of the writ court being a decision rendered by a Forum non- juris, the same is invalid.” Learned counsel for respondent no.8, on the other hand, submits that the District Magistrate had rightly come to the conclusion on the basis of the documents and materials produced before him by the petitioner and this respondent as also the documents brought out on the basis of the enquiry made by his subordinates that the petitioner belongs to the backward class Halwai caste and not the extremely backward class Kanu caste. It is submitted that earlier the petitioner 7 had come to this Court and his whole grievance was that no notice was given to him and he was not given any opportunity of hearing when the executive authorities up to the District Magistrate had passed the order holding that he belongs to Halwai caste and not Kanu caste and this Court by order dated 13.5.2008 had remanded the matter to the District Magistrate for the sole reason of violation of the principles of natural justice. Thereafter the petitioner was duly heard and all the documents filed by him have also been considered by the District Magistrate in his order and on the basis of the facts and materials on the record, the District Magistrate has come to the said conclusion. It is submitted that there is no illegality - procedural or factual- in the order of the District Magistrate or in the proceedings before him and thus his order is fit to be upheld by the writ court. It is submitted that in the previous writ petition filed by him, the petitioner had not challenged the authority of the District Magistrate to reconsider and recall earlier caste certificate granted by the executive authorities and thus it is not open to the petitioner to challenge the same in the present writ petition. Learned counsel also refers to the documents filed by the respondents including the RS Khatian, Annexure-8 in the name of his father in which he has been shown as belonging to Halwai caste. He also refers to the BPL (below poverty line) list of 2004 (Annexure-B) in which the petitioner and his two brothers have been shown as belonging to Halwai caste. It is, thus, urged by learned counsel for the respondent that there were sufficient materials before the District Magistrate to come to the conclusion that the petitioner belonged to Halwai caste and 8 not Kanu caste and the said order thus, is not fit to be successfully assailed in a writ petition. Learned counsel further submits that once the District Magistrate has come to the conclusion that the petitioner belongs to the backward class Halwai caste and not the extremely backward class Kanu caste, then he was clearly not qualified to contest the election for the post of Mukhiya reserved for extremely backward class as the same would be in contravention of the provisions of the Bihar Panchayat Raj Act. In the said circumstances, it is urged that the State Election Commissioner has rightly acted in the matter and unseated the petitioner from a post which was reserved for extremely backward class to which he did not belong. Learned counsel further submits that the present case is not covered by the decision in Punam Kumari’s case (supra) as in the said case it was held that a pre-election dispute relating to disqualification for contesting the elections on a reserved post can only be challenged through an election petition, whereas in the present matter the caste certificate of the petitioner of extremely backward class has been withdrawn and he has been declared to belong to backward class. It is contended that on the facts of this case, it would be clearly covered by the decision of the Supreme Court in the case of K.Venkatachalam Vs. A.Swamickan and another: (1999) 4 SCC 526, in para-27 of which it has been held as follows:- “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 9 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 the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its power 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 the bar of Article 329(b) will not come into play when the case falls under Articles 191 and 193 and the 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?” Learned counsel further submits that even if assuming that the petitioner’s election ought to have been challenged by filing an election petition, but once this Court upholds the orders of the District Magistrate and there is no reason that the same should not be upheld, then it is evident that the petitioner would be holding a post which he was not qualified to hold under the provisions of the Act and in such circumstances, merely setting aside the order of the State Election Commission would amount to perpetuating the illegality and in such a case, as held by the Apex Court and this Court in a catena of decisions, no interference should be made with the order of the Election Commission even if found to be contrary to law. Lastly, learned counsel submits that even if the order of 10 the State Election Commission is set aside holding that it was not competent to pass the said order then this Court may exercise its power of issuing a writ of quo warranto for unseating the petitioner in view of the law laid down by a Division Bench of this Court in the case of Shri Bhagwan Singh and others Vs. The State of Bihar and others: 2004(4) PLJR 482, in paras 24,25,26 and 28 of which it has been laid down as follows:- “24.- Thus, once this Court comes to know on being moved by any of the parties that a person holding the office is disqualified then this Court cannot sleep over the matter and allow the office bearer of a Panchayat to hold the office though he is not eligible and his election is void one. This matter requires attention by this Court. In cases where the candidates, having been convicted and sentenced for more than six months, are elected by suppressing the fact of their conviction and sentence and the disqualified persons holding the office of the Panchayat or as a matter of fact usurper of the office, though they have no right to hold the office and because of their disqualification, by suppression, fraud and misrepresentation, they have managed to get elected, in such a case this court will be failing in duty in preventing the public injury in case of refusal to interfere in such case. In such cases, this Court will issue a writ of quo warranto restraining the office bearers to function as members of the Panchayat. 25.- A Constitution Bench of the Apex Court in the case of B.R.Kapur Vs. State of Tamil Nadu, reported in (2001) 7 S.C.C. 231 held that if a disqualified person is appointed as Chief Minister by the Governor, the same can be challenged in a writ of quo warranto. Thus, if a disqualified person is holding an office, his matter can be challenged by a writ of quo warranto for maintaining purity and perfection in the democratic process. 26.- Coming to the present cases, it appears that in regard to the cases where the State Election Commission has disqualified the candidates on 11 the ground that they have been convicted and sentenced for more than a period of six months, which is a disqualification in terms of section 139(1)(g) of the Act, even though I have held that the State Election Commission has no power to decide disqualification with regard to pre- election matters, the fact is that these candidates have suppressed the factum of their conviction and sentence and by playing a fraud, they got their nomination papers accepted as valid and were elected to the election. The fraud vitiates everything even the solemn proceedings of the Court. The fraud is sworn enemy of justice and equity. In exercise of equitable jurisdiction, this Court will not interfere with the order of the State Election Commission as that will amount to perpetuating an illegality and allowing a person not authorized to continue to hold the office. 28.- Thus, in all the said cases, through the Election Commission has no power as they relate to pre-election conviction and sentence, but this Court is not inclined to interfere as that will amount to allowing them to take benefit of their own fraud and misrepresentation. Even if the Election Commission has no power to disqualify them, the matter has been brought to the notice of this Court then this Court would issue a writ of quo warranto against them. Accordingly, a declaration be made that the election of the petitioners of the said cases on the posts concerned was void and not legal and valid and they cannot continue to function as such and, accordingly, they are restrained from functioning on the posts held by them. Let steps be taken for filling up the posts by holding election to the said offices.” In this regard, learned counsel also relies upon a decision of Constitution Bench of the Supreme Court in the case of The University of Mysore Vs. C.D.Govinda Rao and another: AIR 1965 SC 491, para-7 of which is quoted below. “7.- As Halsbury has observed:- “An information in the nature of a quo warranto 12 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.” Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding 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; 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 provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus 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.” Learned counsel also relies upon a decision of the Madhya Pradesh High Court in the case of Rajendra Singh Vs. N.K.Shejwalker and another: AIR 1971, M.P. 248, in para-17 of which the law relating to issuance of a writ of quo warranto has been 13 recapitulated in the following terms:- “17.- It remains to deal with the objection raised by respondent No. 1 that this Court would not issue any writ when the petitioner has an alternative remedy by way of an election petition under Section 441 of the M.P.Municipal Act, 1956, as to this, the law may be recapitulated thus:- (i) A writ of quo warranto is issued when a person usurps a public office or is otherwise unfit to hold it. The alleged usurper is called upon to show or prove his authority to hold the same. If he is unable to show or prove such an authority, he can be ousted and restrained from functioning in the office, which he has unlawfully usurped and intruded into or is unlawfully holding. This writ is an old judicial remedy against an occupier or usurper of a substantive public office, franchise or liberty. (ii) The essential conditions for issuance of a writ of quo warranto in respect to an office are – (a) the office must be public; (b) the office must have been created by the constitution or by statute; (c) the office must be of a substantive character; and (d) the occupier of office must not be legally qualified to hold or to remain