2009 Supreme(SC) 752

TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.
Kurapati Maria Das - Appellant
Versus
Dr. Ambedkar Seva Samajan & Ors. - Respondents
CIVIL APPEAL NO. 2617 OF 2009
(Arising out of SLP (Civil) No.15144 of 2007)
Decided on : April 17, 2009

IMPORTANT POINTS
An election can be challenged only under Article 243ZG(b) and not 226 of the Constitution.
In view of Rule 1 of the Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967 election of Councillor or Chairman cannot be challenged under Article 226 of the Constitution.
Writ of quo warranto challenging continuation of a person to a post would be maintainable in case the disqualification is acquired after joining the post.
Challenge to an election and disputed questions of fact cannot be gone into under writ jurisdiction.

Headnote:(a) Constitution of India – Article 243ZG(b) and 226 – Bar against questioning an election in any way other than an election petition – Expressed in negative language – Bar is absolute – An election cannot be challenged by a writ petition under Article 226. (Para 15, 24)

       (1998) 9 SCC 594; (2006) 10 SCC 616 – Relied upon

       (1999) 4 SCC 526 – Distinguished impliedly

       (b) Andhra Pradesh Municipalities (Decision on Election Disputes) Rules, 1967 – Rule 1 – Specifically providing for challenging election of Councillor or Chairman – Writ petition though camouflaged as writ of quo warranto – Not maintainable for such relief (Para 17)

       (1999) 4 SCC 526; AIR 1953 SC 210 – Distinguished

       (c) Constitution of India – Article 243ZG(b) and 226 – Writ petition filed to challenge appellant’s continuation as chairperson as did not belong to scheduled caste for which the post was reserved – In fact it was a challenge to his election as ward member as well as the chairperson – The petition did not challenge his continuation on ground of any event subsequent to his election as chairperson – Had the appellant changed his caste after election as chairperson, the writ of quo warranto challenging his continuation would have been maintainable. (Para 22)

       (1999) 4 SCC 526 – Distinguished

       (d) Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 – Section 5 and Article 226, Constitution of India – Application u/s 5 challenging caste of appellant not decided for four months – Respondents rushing with writ petition – High Court not having jurisdiction to decide caste – Respondents should have prayed for a direction to authorities to decide the application u/s 5 one way or the other within a time frame – High Court went wrong in entertaining the writ petition and then going into disputed questions of fact. (Para 28)

       Facts of the case:

       The appellant herein contested the election from Ward No.8 of Bapatla as a Councilor in the election held on 24.09.2005. He was declared elected. Later on he was elected as the Chairperson of the Council by all the elected Councilors. The said Ward was reserved for Scheduled Castes and the office of the Chairperson of Bapatla Municipal Council was also reserved for the Scheduled Castes. The appellant herein claimed that he belonged to the Scheduled Caste, namely, "Mala", which is one of the castes specified in the Constitution.

       After about six months of the election of the appellant as the Chairperson, a representation came to be filed by the 1st respondent to the Superintendent of Police, Guntur to investigate into the issue relating to appellants community status.

       A further representation came to be made for initiation of action against the appellant as he had got himself elected by making false claim of being a member of the Scheduled Caste.

       Similar representation was made to Andhra Pradesh State Commission for Scheduled Castes and Scheduled Tribes.

       A complaint was made before the District Collector, Guntur.

       An application was also filed 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 the caste certificate and the documents annexed to such application for substantiating his claim of belonging to the Scheduled Caste, the previous certificate, if any, issued to the appellant and the caste certificate issued to him pursuant to his application made in the month of August, 2005.

       Ultimately, on 20.8.2006, a writ petition came to be filed before the Andhra Pradesh High Court which was allowed.

       Finding of the Court:

       High Court went wrong in entertaining the writ petition and then going into disputed questions of fact.

       Result:

       Appeal allowed with cost.