JUDGMENT
Badar Durrez Ahmed, J.
1. In this petition the Respondent No, 7’s right to hold the office of a Councillor in the Delhi Municipal Corporation is challenged on the ground that she is disqualified to hold the same. Respondent No. 7 represents Ward No. 20, Subhash Nagar, New Delhi which is a constituency reserved for Scheduled Castes. The petitioner, who also contested the election and who lost to Respondent No. 7, alleges that Respondent No. 7 does not belong to a Scheduled Caste and that even her Scheduled Caste Certificate has been cancelled by the SDM, Rajouri Garden, Delhi. Accordingly, the petitioner has, inter alia, prayed for the issuance of an appropriate writ in the nature of quo warranto to the respondents to show under what circumstances, the Respondent No. 7 continues to hold the post of councillor of ward No. 20, Subhash .Nagar, New Delhi.
2. Elections to the municipal Corporation of Delhi were held on 24.3.2002. The Petitioner as well as the Respondent No. 1, amongst others, contested the election from ward No. 20, Subhash Nagar, Delhi. This constituency was reserved for women and was also reserved for candidates belonging to the scheduled castes. The Petitioner received 13,755 votes whereas the Respondent No. 7 got 14,757 votes. Consequently, Respondent No. 7 was declared elected from the aforesaid constituency on 28.3.2002.
3. The entire dispute in the present petition centres around the question as to whether the Respondent No. 7 belongs to a scheduled caste or not. It is obvious that if she does not belong to a scheduled caste then, she would be disqualified from representing the aforesaid constituency which is reserved for scheduled castes. To put things in a correct perspective, it would be pertinent to note that an election petition has also been filed by an elector of the said ward No. 20 under Section 15 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as “the said Act”) challenging the election of the Respondent No. 7 on, inter alia, the ground that the Respondent No. 7 did not belong to a scheduled caste and therefore was not qualified for contesting the said election. The said election petition is entitled Shri Krishan Lal v. Ms. Sunita and Ors., (Election Petition No. 13 of 2002) and is pending in the Court of the Additional District Judge, Delhi. Issue numbers 4 and 5 in the said election petition specifically raise the question with regard to the status and qualification of the Respondent No. 7. The issues 4 and 5 read as under:
“4, Whether the Respondent No. 1 belongs to a scheduled caste category?
5. Whether the Respondent No. 1 acquired the status of a scheduled caste by virtue of her marriage with a jatav notified as a scheduled caste category for the purpose of eligibility to contest municipal election in Delhi?”
Clearly, the question of disqualification of the Respondent No. 7 on the ground of her not belonging to a scheduled castes is very much in issue in the election petition. However, at the same time, it must the noted that the election petition is only with respect to the election of the Respondent No. 7 from the said constituency. The election petition would deal with the situation where the disqualification of the Respondent No. 7 which is called in question pertains to the election itself. It cannot deal with the situation where the disqualification of the Respondent No. 7 arises after the election or continues thereafter. These are two separate and distinct situations. Each has to be dealt with separately under law. In fact, as will be seen below, they are so dealt under the said Act itself as well as under the Constitution. A Councillor’s right to hold office can be challenged by an election petition. However, even if no election petition is filed or if the election petition is dismissed and it is later found that a Councillor is not qualified or is disqualified to hold the post of Councillor, his or her right to continue in office can be challenged and questioned. The question is, where? By way of writ petition seeking a writ of quo warranto such as the present petition or before an authority or tribunal specified under the said Act?
4. When the pendency of the election petition as well as the provisions of Section 15 of the said Act were set up by the learned counsel appearing on behalf of the Respondent No. 7 as a bar to the present writ petition, the learned counsel for the Petitioner responded by stating that in this writ petition she was not challenging the election as such but, was challenging the right of the Respondent No. 7 to continue as a councillor in the municipal Corporation of Delhi as, according to her, she was not entitled to hold the post as she was not a member of a scheduled caste. The learned counsel for the Petitioner submitted that her’s was a case of quo warranto pure and simple. Therefore, according to her, the bar under Section 15 of the said Act would not come into play and the pending election petition would not divest this court of its jurisdiction under article 226 of the constitution to issue a writ of quo warranto.
5. The first question, therefore, is whether Section 15 of the said Act and the factum of the pendency of the election petition would be a bar to the present writ petition? A little background would be necessary to decide this question as well as the other issues that arise for determination in the present writ petition. It is the Petitioner’s case that the Respondent No. 7 does not belong to a scheduled caste. It is further alleged by the Petitioner that the Respondent No. 7 sought nomination and was ultimately elected in the said election on the basis of a false representation that she belonged to a scheduled caste when, in fact, she did not. It is an admitted fact that the Respondent No. 7 was born in a Rajput family. Her father, late Shri C. Singh was a Rajput. Her mother Shrimati Raj Kumari was also a Rajput. Neither of them belonged to a scheduled caste. Although there is a controversy with regard to an alleged false and fabricated certificate submitted by the Respondent No. 7 we need not go into that controversy. Suffice it to say that the only basis on which the Respondent No. 7 now claims to be a member of the scheduled caste is by virtue of her marriage to Ghanshyam who is a jatav which is a recognised scheduled caste in Delhi. Respondent No. 7 claims that, although she is not a jatav by birth, because of her marriage with a jatav and as she has been fully accepted in the community, she became a jatav. It is also pertinent to note that by an order dated 10.7.2002 the Sub Divisional Magistrate, Rajouri Garden, Delhi cancelled the scheduled caste certificate earlier granted to the Respondent No. 7. The cancellation was done in the following terms: –
“And whereas considering all the facts and material on record I am
satisfied that the certificate was wrongly obtained by Ms Sunita w/o
Shri Ghanshyam by furnishing false information. Now, therefore, I,
Shri Vijay Khanna, Sub Divisional Magistrate, Rajouri Garden, Delhi
hereby cancel the certificate bearing No.
SC/03/33/00360/05/03/2002 dated 05/03/2002 issued to Ms Sunita
w/o Shri Ghanshyam with retrospective effect.”
In this writ petition we need not go into the question as to whether the said order of cancellation was valid, legal or proper. What is of importance is that earlier a certificate had been granted to Respondent, No. 7 and subsequently on 10.7.2002 the same was cancelled. The cancellation of the certificate is an event which is subsequent to the election which took place in March 2002. The election petition that is pending before the district judge is, as stated above, limited to the question of the election itself and therefore is restricted to the question of qualification or disqualification on the date of the election itself. The election petition would not, in my opinion, deal with a situation such as the one obtaining in the present case where the cancellation of the scheduled caste certificate has been ordered subsequently. Thus, by itself, the pendency of the election petition would not be a bar to a petition seeking a writ of quo warranto.
6. In this context it would be pertinent to refer to the provisions of the said Act. Section 8 prescribes the qualifications for councillorship. It specifically provides that in the case of a seat reserved for the scheduled castes, a person shall not be so qualified unless he is a member of any of the said castes. Section 9 deals with disqualifications for membership of Corporation. A reading of Sub-section (1) of Section 9 would disclose that the disqualification relates not only to being chosen as a councillor but also for being a councillor. In other words, the qualification or disqualification relate both to the stage where a person seeks election and the stage after the person is chosen or elected. It relates both to the election as well as the continuance of the person as a councillor. Thus, it is clear, that without questioning the election of the person as such, a writ of quo warranto could be sought in respect of the continuance of the person elected as a councillor in the event he is not qualified or suffers a disqualification as indicated in the said Act provided that for some other reason such a writ petition would not be maintainable.
7. The learned counsel appearing on behalf of the Respondent No. 7 submitted that an election could only be called in question by way of election petition as provided in Section 15 of the said Act and on the grounds specified in Section 17 thereof. There is no dispute with this proposition. However, this in itself does not in any way impinge upon the right of a person to file a writ of quo warranto questioning the continuance of a person as a councillor when such councillor is either without the requisite qualifications or is otherwise disqualified from continuing as a councillor. Reference to the provisions of Section 17(1)(a) would further fortify this conclusion. Section 17(1)(a) provides that if the district judge is of the opinion that on the date of his election a returned candidate was not qualified or was disqualified to be chosen as a councillor, he shall declare the election of the returned candidate to be void. Clearly, the qualification or disqualification, in an election petition has relation to the date of election. An election petition does not deal with the situation prevailing after the election. Thus, neither Section 15 nor the facfum of the pendency of an election petition could, by itself, be a bar to the issuance of a writ of quo warranto. For the same reason, the argument that the provisions of Article 243ZG of the Constitution would be a bar to a writ petition such as this, is untenable. Article 243ZG (b) stipulates that “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 the present writ petition the election of the Respondent No. 7 is not called in question. Therefore, Article 243ZG does not come into play.
8. The learned counsel for the Petitioner also relied upon the decision of the Supreme Court in the case of K. Venkatachalam v. A. Swamickan, . The facts of the case before the Supreme Court were that general elections to the Legislative Assembly in Tamil Nadu were held in December 1984 and Venkatachalam and Swamickan were candidates. Venkatachalam was declared elected. A year after the date of election of Venkatachalam, a petition under Article 226 of the Constitution was filed by Swamickan 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 Lalgudi assembly constituency of the general elections in question. He also alternatively prayed 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 present any petition calling in question the election of Venkatachalam under Section 81 of the Representation of The People Act, 1951. He alleged that Venkatachalam impersonated another person of the same name in the electoral roll of Lalgudi assembly constituency and thus had sworn a false affidavit that he was an elector of that constituency. Accordingly, it was alleged that Venkatachalam did not possess the basic qualifications prescribed in Clause (c) of Article 173 of the Constitution read with Section 5 of the representation of the people Act, 1951. The Single judge of the High Court of Judicature at Madras dismissed the writ petition on the ground that it was not maintainable under Article 226 of the Constitution in view of the bar contained in Clause (b) of Article 329 of the Constitution. The Division Bench of the said High Court, however, held that Venkatachalam did not possess the basic qualifications and as such was not qualified to sit as a member of the legislative assembly in Tamil Nadu. The question before the Supreme Court in that case was whether in such a situation the Division Bench of the said High Court had validly exercised its jurisdiction under Article 226 of the Constitution in declaring that Venkatachalam was not qualified to be a member of the Tamil Nadu legislative assembly from Lalgudi assembly constituency. In this connection the Supreme Court observed as under:-
“26. The question that arises for consideration is if in such circumstances the High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be a Member of Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. From 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 a person bears his first name, The appellant would be even criminally liable as he filed his nomination on an affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution.
27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, 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 the widest possible terms and unless there is a 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 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 ?
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 Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed Respondent 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to the 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 this the Election Commission should invariably be made a party.”
Thus, in that case the Supreme Court held that the High Court was right in interfering under article 226 of the Constitution even though an election petition it is clear that 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 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. However, this is subject to the condition that the petitioner must be in such a position that he has no recourse to statutory provisions for the appropriate relief.
9. The next question that emerges is whether, in the facts and circumstances of the present case, the Petitioner has recourse to statutory provisions for obtaining the reliefs sought for in the present writ petition? The answer is in the affirmative. An examination of the relevant provisions of the said Act would make this clear. Section 33 of the Act reads as under:-
“33. Vacation of seat.-(1) If a counsellor-
(a) becomes subject to any of the disqualifications as mentioned in Section 9 or Sub-section (2) of Section 32A or,
(b) resigns his seat by writing under this hand addressed to the Mayor and delivered to the Commissioner, his seat shall thereupon become vacant.
(2) If during three successive months, a councillor is, without permission of the Corporation, absent from all the meetings thereof, the Corporation may declare his seat vacant.
(3) If any question arises as to whether a councillor has become subject to any of the disqualifications mentioned in Section 9 or Sub-section (2) of Section 32A, the question shall be referred for the decision of the Administrator and his decision shall be final.
(4) Before giving any decision on any such question, the Administrator shall obtain the opinion of the Election Commission and shall act according to such opinion.”
Sub-sections (3) and (4) were introduced in 1993 (w.e.f. 1.10.1993). Prior
to this, “Part IX-A (The Municipalities)” comprising Articles 243P to 243ZG
was inserted in the Constitution w.e.f. 1.6.1993. It would be instructive to set
out Article 243V.
“243V. (1) A person shall be disqualified for being chosen as, and for being, a member of a municipality –
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by the legislature of the State.
(2) If any question arises as to whether a member of a municipality has become subject to any other disqualification mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature, State may, by law, provide.”
Thus, what is prescribed in Article 243V of the Constitution is incorporated in Section 33(3) and (4) of the said Act. In view of these provisions, whenever, a question arises as to whether a councillor has become subject to any disqualifications which prevents him or her from continuing as a councillor, the question is to be referred for the decision of the Administrator and his decision shall be final. Moreover, before giving any decision on any such question, the Administrator is required to obtain the opinion of the Election Commission and is also required to act according to such opinion. The powers of the Election Co.mmission in this regard are prescribed in detail in Section 33A of the said Act which reads as under:-
“33A. Powers of Election Commission.- (1) Where in connection with the tendering of any opinion to the Administrator under Sub-section (4) of Section 33, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord, it cannot come to a decisive opinion on the matter which is being inquired into, the commission shall have, for the purpose of such inquiry, the powers of a civil Court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document or other material object producible as evidence;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or a copy thereof from any Court or office;
(e) issuing commissions for the examination of witnesses or documents.
(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed by the person under any law for the time being in force, to furnish information on such points or matters as in the opinion of the Commission may be useful for, or. relevant to, the subject-matter of the inquiry.
(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code (45 of 1860), is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974), forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused and if the case had been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973.
(4) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860).
This indicates that an elaborate machinery is provided by the statute itself for dealing with the question of a councillor having become subject to a disqualification. The question, in the first instance is to be referred to the Administrator. The Administrator is required to obtain the opinion of the Election Commission and such opinion, once obtained, shall be binding upon him as he is to act according to such opinion. The decision of the Administrator so given shall be final. If the decision is that a Councillor has become subject to a disqualification as would dis-entitle him or her to continue as a Councillor, then, in view of the provisions of Section 33(1)(a), such person shall cease to be a Councillor and his or her seat shall thereupon become vacant. Now, this is exactly what the petitioner seeks to achieve by way of this writ petition. But, in view of decision of the Supreme Court in the case of K. Venkatachalam (supra), this writ petition would not be maintainable as the Petitioner has recourse to statutory provisions for obtaining the reliefs sought for in the present writ petition.
10. Reliance by the learned counsel for the petitioner on the Supreme Court decision in B.R. Kapur v. State of Tamil Nadu, is misplaced. That was a case where the Governor had appointed as Chief Minister a person who was not qualified to be a member of the Legislative Assembly. The appointment was contrary to the mandate of Article 164 of the Constitution. In this context the Supreme Court held that the authority of the appointee to hold the appointment could be challenged in quo warranto proceedings (see: para 51 of the said decision). In that case, the petitioner therein had no recourse to statutory provisions for obtaining the reliefs sought for in quo warranto proceedings. Obviously, in view of the Supreme Court decision in K. Venkatachalam (supra), if no such recourse is available, a writ of quo warranto would be maintainable. But, in the present case the petitioner has a specific remedy available under the said Act. Hence, the present petition would not be maintainable.
11. It is also interesting to note that the Petitioner filed the present writ petition on the premise that the pending election petition would take several years before a final outcome results and the real purpose of the representation of scheduled castes from a reserved community would become a mirage. It is in this context that the Petitioner has filed the writ petition. Whether or not this is a legitimate ground for filing the writ petition, is a question which need not detain us. What is of importance is that at the time of filing of the writ petition, the petitioner was pretty much oblivious of the specific provisions of Section 33 of the said Act which clearly provide a statutory and complete remedy for the grievances made in this petition. So, as a point of fact, the question of delay in decision of the election petition, cannot be made the basis for filing the present petition. Because, the real remedy of the petitioner is not the election petition which has been filed by somebody else (an elector), but the proceedings under Section 33 of the said Act, which the Petitioner can avail of at any time.
12. It may also be pointed out that the question, whether the Respondent No. 7 is or is not a member of a scheduled ca.ste, is clearly a question of fact. Normally, cases which involve disputed questions of fact are not entertained under Article 226 of the Constitution. In this view of the matter also, the present writ petition would not be maintainable.
13. Before concluding, it must be recorded that counsel for the parties addressed this court on the question of whether or not the respondent No. 7 was a member of a scheduled caste. Arguments were also advanced on the question of whether one could become a member of a scheduled caste by marriage. I am not dealing with those arguments and submissions in view of the fact that I have decided that the writ petition itself is not maintainable. It is made clear that I have not expressed any opinion on the question of whether or not the Respondent No. 7 is a member of a Scheduled Caste.
14. In view of the foregoing discussion, the writ petition is dismissed. There shall be no order as to costs.