ORDER
A.V. Srinivasa Reddy, J.
1. The petitioner who is elected as the Taluk Panchayat member from the Shimoga Taluk Panchayat has filed W.P. No. 46715 of 2001 for quashing the order Annexure-A, dated 14-8-2001 passed by the learned Principal Civil Judge (Senior Division), Shimoga in Election Miscellaneous No. 36 of 2000 and Annexure-B, dated 1-12-2001 passed by the learned Additional District Judge, Shimoga in Election Miscellaneous Appeal No. 24 of 2001. In W.P. No. 31959 of 2000 the challenge is to quash the order Annexure-F, dated 22-9-2000 passed by the Assistant Commissioner, Shimoga in No. MAG.CR.40/2000-2001 dismissing the appeal filed by the petitioner against the order passed by the Tahsildar, Shimoga Taluk withdrawing the caste certificate issued to her.
2. The petitioner contested the elections held to the Shimoga Taluk Panchayat in May/June 2000, which was reserved for BCA (woman), claiming that she belongs to Kumbara caste. She was elected as member having secured the highest number of votes. At the time of filing her nomination papers the petitioner also produced the caste certificate issued by the Tahsildar certifying her as belonging to Kumbara caste which was classified as BCA category. After the results were declared. one Gulfom who also contested the said election and who had secured the next highest votes complained to the Tahsildar that the petitioner does not belong to Kumbara caste and requested the Tahsildar to withdraw the certificate issued to her. The Tahsildar withdrew the certificate. The said order of the Tahsildar withdrawing the certificate was challenged by the petitioner in appeal before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal. Aggrieved against the said order the petitioner has preferred W.P. No. 31959 of 2000.
3. The defeated candidate Gulfom also filed an election petition before the Principal Civil Judge (Senior Division) under Section 132(1) of the Karnataka Panchayat Raj Act, 1993. The said election petition was allowed declaring the election of the petitioner as null and void. The appeal preferred by the petitioner before the Additional District Judge, Shimoga came to nought and aggrieved the petitioner has preferred W.P. No. 46715 of 2001.
4. Coming to the core of the controversy as to whether the petitioner is a Kumbara by caste and as such was entitled to be elected for the reserved seat in the constituency in question, the Court below has in substance concurred with the conclusion of the Civil Judge (Junior Division). Both sides have produced enormous material in the form of oral and documentary evidence in support of their respective cases. The Court of first instance and the Court below have considered these materials and have applied their mind to the facts brought before them and ultimately found that the petitioner does not belong to the Kumbara community as claimed by her. Both the Courts have concurrently found that the petitioner belongs to Lingayat community. In arriving at that conclusion, they have thought it fit to rely on certain set of documents which portrayed the petitioner as belonging to Lingayat community while discarding from consideration the other set of documents in which the petitioner’s caste was shown to be that of Kumbara. The argument advanced by Mr. Jayakumar Patil is that it was not open to the Courts below to have adopted a pick and choose method when appreciating evidence particularly so when the documents which have been discarded from consideration are also official documents. The caste of the petitioner is shown in her school T.C. as Lingayat. The school entry, Ex. P. 1(f), relating to the husband of the petitioner also reveals that he belonged to Lingayat community. The entry in the admission register pertaining to the petitioner also shows that she is a Lingayat. These are entries made in the ordinary course of the business of the school and therefore they have high probative value, enough to form a rational basis for the inference that the fact so evidenced by these documents can be taken as proved. These entries alone could provide the basis for declaring the status of a person insofar as the caste is concerned as these documents being earliest in point of time can be reasonably expected to reveal the true picture. No doubt, in cases where a wrong entry is made by inadvertence of the parents or the candidate himself, it would be open for them to get them corrected later on by resorting to proceedings meant for such alteratior of status of caste. Where a sub-sequent entry relating to the caste of a person is different from the one forthcoming from the entries in the school admission records, it is for the person concerned to show how this change was brought about. In the absence of a suitable explanation from the person concerned, the Courts would be justified is discarding the subsequent entries. Therefore, the Courts below were right in discarding the subsequent school records which described the petitioner’s caste as Kumbara. Many of the certificates relied upon by the petitioner in which she has been shown to belong to Kumbara caste are not issued by the authorities who are authorised to issue such certificates. The school documents such as the admission register and the T.C. have probative force of such magnitude that they do not admit of any effective contradiction. It would be more so in a case where the contradictory evidence produced is in the form of school records of a later period disclosing a different fact without explaining how the change has been brought about. It was for the petitioner to show how an incorrect entry as to caste was made in the school records at the earliest point of time and how they were subsequently changed. In the absence of such explanation the Courts below were right in refusing to place any reliance on the subsequent school records which showed her caste as Kumbara. In Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribal Development and Ors., the Apex Court held:
“The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste”.
The mention of the caste of the petitioner in her T.C. and the school register as Lingayat coupled with the failure on her part to explain as to how the caste has been changed to Kumbara in the subsequent school records goes to show that she chose to describe her caste as Kumbara subsequently in order to derive the benefits that such change would bring to her. Therefore, the concurrent finding of the Courts below that the petitioner does not belong to Kumbara caste is well-founded.
5. The finding recorded by the Courts below in regard to the caste of the petitioner being pure finding of fact this Court cannot in exercise of its jurisdiction under Article 227 of the Constitution upset the said finding. In Khimji Vidhu v. Premier High School, AIR 2000 SC 3495 the Apex Court while answering the question whether the High Court was right in interfering with a finding of fact recorded by the Trial Court and the first Appellate Court, observed:
“Both the Trial Court as well as the first Appellate Court, on the basis of the material on the record, came to the conclusion that the respondent had used the spaces and passages, which had not been let out to them, in a manner other than for use of ingress and egress and had committed breach of the terms of the tenancy of vital nature. Both the Courts detailed the manner in which the tenant had put to use the spaces and passages. These findings of fact could not have been interfered by the High Court in exercise of its jurisdiction under Article 227 of the Constitution. Jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an Appellate Court only”.
The finding recorded by the Courts below not suffering from any error of jurisdiction, in exercise of jurisdiction under Article 226 the finding so recorded cannot be interfered with by the High Court. Learned Counsel Mr. Jayakumar S. Patil also brought to my attention the decision rendered in Madhukar and Ors. v. Sangram and Ors., wherein the Apex Court held that the first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. There can be no dispute about the said principle but in the instant case the first Appellate Court has referred to the evidence on record, both oral and documentary, and on a detailed analysis of the evidence addressed itself to the questions of law and fact arising for its consideration and recorded its findings by giving reasons therefor. Therefore, the principle enunciated in the said decision is not of much help to the petitioner in the present case.
6. Learned Counsel Mr. Jayakumar S. Patil submitted that the Tahsildar was only competent to issue the caste certificate and he had no competence to withdraw it and, therefore, the order passed by him withdrawing the certificate suffers from exercise of the power not vested in him. There can be no disputing the fact that the Tahsildar is the prescribed authority under the Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointments etc.) Act, 1990 for issuing the caste certificate. It is well-settled principle of law that an authority empowered to do a thing can always undo it. I do not find any substance in this submission of learned Counsel. In State of Tamil Nadu and Ors. v. A. Gurusamy, the Apex Court proceeded on the premise that the District Collector who had issued the certificate had the authority under law to cancel it. Though the stand that the District Collector had no authority to cancel the certificate issued was not directly in issue in the said case, the very fact that the Apex Court proceeded to consider the correctness or otherwise of the cancellation made by District Collector without reference to this aspect and on the assumption that the District Collector did have that power to revoke the certificate goes to show that the authority did have the power to cancel the certificate issued by him.
7. While on this point it would, however, be necessary to refer to a shortcoming in the Karnataka Panchayat Raj Act, 1993 (‘the Act’ for short). The shortcoming relates to the omission in the Act to prescribe the Competent Authority for issuance of the caste certificate. There is not even a reference made in the statute to the effect that the certificate issued by the Tahsildar under the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments etc.) (Amendment) Act, 1990 (‘the Act 7 of 1991’, for short), would hold good for the purposes of the Act. The learned Government Advocate submitted that there is no provision in any other statute providing for issuance of a caste certificate by an authority other than the Tahsildar. He also submitted that no Government orders or circulars have been issued providing that the certificates issued by the Tahsildar under the Act 7 of 1991 would hold good for purposes of the Act. Considering that any claim by a person as belonging to a particular caste for purpose of contesting an election reserved for that particular caste has to be supported by a certificate issued by a properly constituted authority, it is imperative that the Legislature has to either prescribe an appropriate authority under the Act or provide that the certificate issued under the Act 7 of 1991 would hold good for the purposes of the present Act also. The nomination paper to be filed by the candidate contesting the election to the Taluk Panchayat is in self-declaratory form and the declaration to be given by a contestant in support of his claim that he belongs to a particular caste is as found in Clause (c). It reads;
“(c) That I am a member of… Caste/Tribe/Class which is a Scheduled Caste/Scheduled Tribe/Backward Class of the State of Karnataka. A copy of the Scheduled Caste/Scheduled Tribe/Backward Class certificate issued in my favour by the Competent Authority is enclosed”.
(emphasis supplied)
The Act or the Karnataka Panchayat Raj (Conduct of Election) Rules, 1993 (‘the Rules’ in short) do not state or define ‘Competent Authority’ whose certificate is required to be enclosed by the contestant along with his nomination paper. Admittedly, the certificate issued by the Tahsildar under Act 7 of 1991 is meant exclusively for providing reservation to the Scheduled Castes, Scheduled Tribes and Other Backward Classes for appointment to posts in the State Civil Services and establishments, as could be seen from the preamble which explicitly states:
“An Act to provide for the reservation of appointments or posts in favour of the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes in the State Civil Services and establishments in the public sector and in admission to Universities and to the Educational Institutions established or maintained or aided by the State Government.
Whereas, the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens are not adequately represented in the services or posts in the State Civil Services and establishments in public sector and among the students admitted to the Universities and to Educational Institutions established or maintained or aided by the State Government.
And whereas, it is expedient to provide in favour of them such reservation.”. ….
Such certificate issued by the Tahsildar under the Act of 1990 cannot be made use of by the candidate as proof of his/her caste unless and until the Act or the Rules provide for such dual usage of the certificate. Admittedly in this case, the Tahsildar is not a Competent Authority to issue the Caste Certificate in favour of candidates aspiring to contest the election. Therefore, in my considered opinion, there appears to be a void in this regard which requires the attention of the Legislature.
8. Insofar as the declaration of respondent 1 as duly elected to the Taluka Panchayat in Election Miscellaneous Appeal No. 36 of 2000 the Court below has relied on the decision of the Punjab and Haryana High Court in Hari Singh Nalwa v. Kartar Singh Bhadana and Ors., and the observation made in Jaganmohan v. Gayakwad and Ors., 2000(4) Kar.L.J. Sh.N. 14 Considering the fact that a very short duration is left for the term of the Panchayat to come to close, it would not be in public interest to interfere with the order passed by the Court below declaring the first respondent (in W.P. No. 46715 of 2001) as duly elected following the principle laid down in the decisions referred to supra. Ordering for fresh election would be a drain on the scarce finances of the State and a re-election is not the right remedy in the facts and circumstances of the case as the beneficiary thereof would hold office for a very brief period.
9. Thus on an overall consideration of the issues involved, I find that the impugned orders under challenge in these petitions do not call for any interference. In the result, for the reasons stated above, I find no merit in these petitions and both the petitions are dismissed.