B M PARA SHIVA MURTHY vs THE TAHASILDAR

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23RD DAY OF JANUARY, 2013 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.15355/2010 (LB-ELE)

BETWEEN:

B.M. PARA SHIVA MURTHY, S/O. LATE C.M.MAHANTHAPPA, AGED ABOUT 55 YEARS, R/O. BENAKANAHALLI, SOSALE HOBLI, T.NARASIPURA TALUK, MYSORE DISTRICT. ... PETITIONER

(BY SRI. A.G.SHIVANNA, ADV. FOR A.G.SHIVANNA & ASSTS.)

AND

THE TAHASILDAR,

T.NARASIPURA TALUK,

MYSORE DISTRICT.

THE RETURNING OFFICER,

BENKANAHALLI GRAMA PANCHAYATH,

T.NARASIPURA TALUK,

MYSORE DISTRICT.

BEGU SHIVA SWAMY,

S/O. LATE GURU MALLAPPA,

AGED ABOUT 55 YEARS,

R/O. BENAKANAHALLI,

SOSALE HOBLI,

T.NARASIPURA TALUK,

MYSORE DISTRICT. ... RESPONDENTS

(BY SRI. H.KANTHARAJ, ADV. FOR R3 SRI. N.B. VISWANATHA, AGA FOR R1 R2 SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ANNEX-A DTD 30.4.10 MADE IN NO., CASTE, INCOME, CR104, 2010-11 PASSED BY THE TASHILDAR T.NARASIPURA TALUK AND ORDER ANNEX-B DTD 30.4.10 PASSED BY THE RETURNING OFFICER BENAKANAHALLI GRAMA PANCHAYAT, T.NARSIPURA TALUK.

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

O R D E R

The petitioner is before this Court assailing the order dated 30.04.2010 which is impugned at Annexure-A to the petition. By the said order, the Tahasildar has withdrawn the certificate which had been

granted in favour of the petitioner to certify that the petitioner belongs to the BC-‘B’ category.

The petitioner while intending to contest for the election as a member of the Grama Panchayath Benkanahalli, Ward No. 3 had sought for issue of certificate to claim that he belongs to BC-‘B’. Accordingly, the Tahasildar on verification had issued the certificate in favour of the petitioner. However, before the nomination of the petitioner was accepted by the Returning Officer, the Tahasildar had passed the impugned order at Annexure-A withdrawing the said certificate. It is in that context, the petitioner approached this Court in this petition. At the first instance, this Court while entertaining the petition had permitted the petitioner to contest the election notwithstanding the withdrawal of the certificate and the election was made subject to the result of the instant petition. In that context, the petitioner having contested has also been

declared elected. This aspect of the matter is not in dispute.

In that light, the question which arises for consideration is with regard to the validity of the action taken by the Tahasildar in recalling the certificate which had been issued in favour of the petitioner earlier. With regard to the manner of consideration of the persons belonging to the BC-‘A’ and BC-‘B’ is as indicated in the notification dated 13.01.1995. The note appended to the said notification also prescribes that the persons though belonging to the said caste are not entitled to such certificate subject to the category of employment and the income derived there from. It is in that context, the question that would arise is as to whether the petitioner had made out a prima facie case to indicate that the Tahasildar was not justified in withdrawing the earlier caste certificate. In that regard, a perusal of the impugned order at Annexure-A would indicate that the

Tahasildar has referred to the income of the spouse of the petitioner as Rs.2,45,000/- per annum and has thereafter arrived at the conclusion that the petitioner would not be entitled to the certificate as the income exceeded the limit stated in the notification. The learned counsel for the petitioner would however rely on the document at Annexure-F i.e. the Salary Certificate of his spouse to indicate that the income as indicated by the Tahasildar is not the actual income of the wife and therefore the Tahasildar has committed an error.

Though, the learned counsel for the respondents seek to justify the action of the Tahasildar, what requires to be noticed is that prima facie the quantum of the income was required to be determined by the Tahasildar, even in the background of the complaint lodged by the 3rd respondent herein, only after providing sufficient opportunity to the petitioner and deciding as to whether the income as stated is correct and as to

whether the spouse of the petitioner was an income tax assessee. The impugned order does not disclose specific details in that regard for having obtained necessary justification from the petitioner except for stating that the Revenue Inspector has submitted a report on verification.

Therefore, on the face of it, the order at Annexure-A is one being without opportunity to the petitioner to effect a right which had been granted in his favour. The matter requires to be considered in that regard. Hence, the order dated 30.04.2010 impugned at Annexure-A is quashed, the matter is remitted to the Tahasildar to reconsider the matter afresh by providing opportunity to both petitioner and the 3rd respondent to putforth their contention and thereafter arrive at the conclusion as to whether the certificate to be granted to the petitioner would be justified or not. Since, the petitioner now contends that he has already been elected and is continuing as a member, this question requires to

be decided at the earliest. Hence, the parties shall appear before the Tahasildar on 15.02.2013 without further notice. The Tahasildar shall thereafter provide opportunity to the parties and shall conclude the proceedings as expeditiously as possible, but not later than three months from the date of the first appearance.

In terms of the above, the petition stands disposed of. No costs.

Sd/-

JUDGE

ST*

B M PARA SHIVA MURTHY vs. THE TAHASILDAR