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Dharmarao S/O Bhagwantrao Atram Vs. Returning Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberElection Petition No. 1 of 1980
Judge
Reported in(1980)82BOMLR544
AppellantDharmarao S/O Bhagwantrao Atram
RespondentReturning Officer
DispositionPetition dismissed
Excerpt:
representation of the people act (act xliii of 1951), sections 33(2), 33(4), 36(4), s(a) - conduct of election rules, 1961, rule 4, form 2b -- constitution (scheduled tribe) order, 1950, clause (2) and schedule part ix, entry no. 18 -- constitution of india, article 173(c) -- seat reserved for scheduled tribes in legislative assembly of maharashtra state -- candidate when entitled to contest for such seat -- nomination paper filed by candidate for seat reserved for scheduled tribe whether must disclose that he belongs to particular specified tribe -- section 33(2) whether mandatory -- failure to mention name of particular tribe in declaration by candidate contesting reserved seat for scheduled tribe whether defect of substantial character within section 36(4).;from article 173(c) of the.....jamdar, j.1. the petitioner, who is an elector in the sironcha (scheduled tribe reserved) constituency of the maharashtra legislative assembly, has filed this petition under section 81 of the representation of the people act, 1951, challenging the election of respondent no. 2 penta rama talandi to the maharashtra legislative assembly from sironcha constituency, on the ground that the nomination paper of respondent no. 3 was wrongly rejected.2. the petitioner is the cousin brother of respondent no. 3 and was one of the four proposers, who proposed the candidature of respondent no. 3.3. the election to the maharashtra legislative assembly from the sironcha constituency was held in may 1980. for the said election, last date of filing nomination papers was may 2, 1980, the scrutiny of.....
Judgment:

Jamdar, J.

1. The petitioner, who is an elector in the Sironcha (Scheduled Tribe Reserved) Constituency of the Maharashtra Legislative Assembly, has filed this petition under Section 81 of the Representation of the People Act, 1951, challenging the election of respondent No. 2 Penta Rama Talandi to the Maharashtra Legislative Assembly from Sironcha Constituency, on the ground that the nomination paper of respondent No. 3 was wrongly rejected.

2. The petitioner is the cousin brother of respondent No. 3 and was one of the four proposers, who proposed the candidature of respondent No. 3.

3. The election to the Maharashtra Legislative Assembly from the Sironcha Constituency was held in May 1980. For the said election, last date of filing nomination papers was May 2, 1980, the scrutiny of nomination papers was fixed on May 3, 1980, the date of withdrawal of candidature was May 5, 1980, and the poll was scheduled to be held on May 28, 1980.

4. Sironcha constituency was reserved for scheduled tribes. By virtue of Clause (2) of the Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as the Scheduled Tribe Order, as amended by Act 108 of 1976, the tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in Parts I to XVI of the Schedule to the said Order shall, in relation to the States to which these Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule. Part IX of the Schedule to said order enumerates the tribes, which are Scheduled Tribes in the State of Maharashtra, Entry No. 18 of this Part relates to Gond Tribe and sub-tribes of the said tribe. It reads as follows :

18. Gond, Rajgond, Arakh, Artakh, Agaria; Asur, Badi, Maria, Bada Maria, Bhatola, Bhima, Bhuta, Koilabhuta, Koilabhuti, Bhar Bisonhora Maria, Chota Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Doris, Kaiki, Gatta, Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Katanga, Khotola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mena, Mahoewar, Moghya, Mogia, Monghya, Mudia, Murja, Nagarchi, Naikpod, Nagwanshi, ojha, Raj, Sanjhari, Jhareka, thatia, Thotya, Wade Maria, Vade Maria.

5. In pursuance to the Notification about election of a member to the Maharashtra Legislative Assembly from Sironcha Constituency, respondent Nos. 2 and 3 filed their nominations on May 2, 1980. In all six nomination papers were filed; 4 in respect of candidature of respondent No. 3 and two in respect of candidature of respondent No. 2. The candidature of respondent No. 3 was proposed by the petitioner Dharmarao Bhagwantrao Atram, Sayed Habibuddin Sayed Imamuddin, Abdul Hakim Abdul Rahim and Laxmanrao Trimbakrao Koret.

6. In the declaration given by respondent No. 3 on all the four nomination papers he mentioned that he belonged to Scheduled Tribe, while respondent No. 2 mentioned in his declaration that he belonged to 'Madiya' tribes At the time of scrutiny of nomination papers which was held on May 3, 1980 as declared, the returning officer pointed out to respondent No. 3 and the petitioner that the name of the tribe to which respondent No. 3 claimed to belong was not mentioned in the declaration given by respondent No. 3 below his nomination papers. Respondent No. 2 also raised the same objection. Respondent No. 3 also raised objection to the nomination of respondent No. 2 but we are not concerned with that objection in this petition. When the aforesaid defect in the nomination papers was pointed out to respondent No. 3 by the returning officer, respondent No. 3 produced two certificates in support of his claim that he belongs to the Scheduled Tribe, known as 'Rajgond'. Both these certificates were issued by the Special Executive Magistrate Shri Bezalwar on May 3, 1980. In the first certificate, name of the tribe to which respondent No. 3 belonged was not mentioned. In the second certificate (Ex. 35), which is described as 'Letter of Identification, it was mentioned that respondent No. 3 belongs to Adiwasi (Rajgond) caste. However, by his order Ex. 2-(h) the Returning Officer rejected the nomination of respondent No. 3, holding that the question involved was not whether the candidate had proved or not proved whether he belonged to scheduled tribe, but the question was whether he had or had not made a proper declaration as provided in Sub-section (2) of Section 33 of the Representation of the People Act. He also rejected the contention urged by respondent No. 3 that the defect of not mentioning the name of the particular scheduled tribe in the declaration should be treated as a minor defect.

7. As respondent No. 2 was only the validly nominated candidate, the Returning Officer made a declaration under Section 53(2) of the Representation of the People Act, 1951, read with Sub-rule (1) of Rule 11 of the Conduct of Election Rules, 1961, on May 5, 1980 that respondent No. 2 was duly elected. The petitioner, therefore, presented this petition on May 22, 1980 for quashing the declaration dated May 5, 1980 made by the Returning Officer that respondent No. 2 was duly elected as Member of the Maharashtra Legislative Assembly and also for setting aside the order passed by the Returning Officer (Respondent No. 1) on May 3, 1980 rejecting the nomination paper of respondent No. 3.

8. The petitioner inter alia averred in his petition that respondent No. 1, the Returning Officer, had not pointed out any defect in the nomination paper of respondent No. 3 when it was presented to him on may 2, 1980 even though a duty was cast on respondent No. 1 under Section 33(4) of the Representation of the People Act, 1951, to satisfy himself about certain formalities in respect of the nomination paper. He further averred that if any defect in the nomination paper was apparent, it should have been brought to the notice of respondent No. 3 and the proposer to afford them an opportunity to rectify it. The petitioner further averred that at the time of scrutiny of the nomination papers, it was not disputed that respondent No. 3 belongs to a scheduled tribe. According to the petitioner, non-mention in the nomination paper of the name of the tribe to* which respondent No. 3 claimed to belong was not a defect of substantial character, because respondent No. 3 is a well-known personality in Chandrapur district coming from a very respected family of Rajgond and whose father is a recognized leader and head of the scheduled tribe people of Chandrapur district, apart from the fact that respondent No. 3 himself had contested the election to the Maharashtra Legislative Assembly held in the year 1978 from Gadchiroli reserved Constituency of Chandrapur district. The petitioner further averred that the certificate of the Special Executive Magistrate filed before the Returning Officer conclusively proved that respondent No. 3 belongs to the scheduled tribe 'Rajgond' and that as the identity of respondent No. 3 and his eligibility to contest the election was duly established on the basis of the material before the Returning Officer, the defect in the nomination paper of respondent No. 3 was merely technical and hence the order dated May 3, 1980 passed by the Returning Officer rejecting the nomination paper of respondent No. 3 and consequently the declaration about election of respondent No. 2 are illegal and are liable to be set aside.

9. The Returning Officer (Respondent No. 1) filed his written statement at ex. 9. The written statement filed by respondent No. 2 is at ex. 11. The contentions raised on behalf of respondent Nos. 1 and 2 are practically identical. The Returning Officer admitted in his written statement that he did not point out any defect in the nomination paper of respondent No. 3 and asserted that Sub-section (4) of Section 33 of the Representation of the People Act does not require a Returning Officer to correct any errors in the declaration made by the candidate in his nomination paper. According to him, all that the Returning Officer has to do on presentation of nomination papers is that he has to satisfy himself that the names and electoral roll numbers of the candidates and his proposers as entered in the nomination papers are the same as those in the electoral rolls and nothing more. The Returning Officer as well as respondent No. 2 denied the position that there was no dispute at the time of scrutiny of nomination papers about the claim of respondent No. 3 that he belongs to a scheduled tribe. According respondent No. 2, no question of disputing or not disputing whether respondent No. 3 belongs to scheduled tribe or not; arose at the time of scrutiny of nomination papers because respondent No. 3 had not disclosed in his declaration the name of the tribe to which he claimed to belong. They further contended that the Special Executive Magistrate was not competent to issue the certificate (ex. 35). The Returning Officer emphatically denied that the said certificate conclusively proved that respondent No. 3 belongs to the scheduled tribe Rajgond. Both respondent Nos. 1 and 2 disputed the position that non-mention of the name of the tribe in the nomination paper of respondent No. 3 was not a defect of substantial character. They contended that non-mention in his nomination paper by a candidate, seeking election from reserved constituency, that he belongs to a particular scheduled tribe is a failure to disclose the basic qualification under Section 3(A) of the Representation of the People Act, 1951, and non-compliance of Section 33(2) of the Act and as such, it is a defect of substantial character. According to them, respondent No. 3 should have disclosed the name of the particular tribe to which he belonged in order to give an opportunity to the Returning Officer and other candidates to judge whether he belonged to scheduled tribe or not. Both respondent Nos. 1 and 2 specifically denied that respondent No. 3 belongs to the tribe Rajgond described in Entry No. 18 of Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950.

10. On these pleadings, following issues were framed at Ex. 20, and-my findings are noted against them.

Issues Findings1. Whether failure of respondent No. 3 Yes to mention in his declaration the parti-cular tribe to which he belongs, isa defect of substantial character within the meaning of Section 36(4) of the Representation of the People Act, 1951?2. Whether it was obligatory on the part Not pressed of the Returning Officer (respondentNo. 1) to point out the defect at the time of presentation of the nomination paper ?3. Whether at the time of scrutiny of No. the nomination papers by the ReturningOfficer, it was duly established that respondent No. 3 belongs to Rajgond tribe and was eligible to contest from the Sironcha Constituency which is reserved for Scheduled Tribes? 4. Whether the petitioner proves that No. nomination of respondent No. 3 was wrongly rejected 5. What order As per finalorder.

11. Even though the petitioner and respondent No. 3 averred in their pleadings that it was obligatory on the part of the Returning Officer (respondent No. 1) to point out to them that it was necessary to mention the name of the particular tribe to which respondent No. 3 claimed to belong and even though they aspects, assented in their evidence without pleading to that effect that when nomination papers were presented to respondent No. 1, the Returning Officer, they asked him as to whether there was any defect in the nomination papers and that respondent No. 1 told them that the nomination papers were in order, Shri Rajani Patel, the learned Counsel for the petitioner, fairly conceded that there was no statutory obligation on the Returning Officer to examine the nomination papers at the time they are presented, with a view to ascertain whether any defect other than those mentioned in Sub-section (4) of Section 33 of the Representation of the People Act, 1951, is present. He conceded that it was not expected of respondent No. 1 to inform the petitioner 'and respondent No. 3 about the defect in question at the time when the nomination papers were presented. Issue No. 2 was, therefore, not pressed.

12. Before coming to the main question that arises for consideration in this matter, I would prefer to dispose of the small controversy about the claim of respondent No. 3 that he belongs to the Rajgond tribe. As mentioned above, not only respondent No. 2 but also the Returning Officer disputed this claim of respondent No. 3. It is, however, pertinent to note that as admitted by respondent No. 1 Shri Paranjape in his cross-examination, at the time of scrutiny of nomination papers, none raised an objection that respondent No. 3 did not belong to any scheduled tribe. Shri Bezalwar, the Special Executive Magistrate who issued the certificate (Ex. 35) and who belongs to the same place from which respondent No. 3 hails, has specifically asserted in his evidence that respondent No. 3 is a Rajgond. It was suggested to him in his cross-examination that even though respondent No. 3 styles himself as Rajgond, in fact he and his family members do not belong to that tribe. He denied this suggestion, which clearly implies that respondent No. 3 and his family members style themselves as Rajgonds. Respondent No. 3's father Raje Vishweshwarrao, who is examined on behalf of the petitioner, asserted in his. evidence that his uncle Raje Kirtimantrao, petitioner Dharmarao and he himself belong to Rajgond tribe, members of which are residing in Sironcha and other taluqas of Chandrapur district. He further stated in his examination-in-chief that he contested the Assembly -elections held in 1957 and 1962 from the Sironcha reserved Constituency and the Assembly elections held in 1967 and 1972 from the Gadchiroli reserved Constituency, as a member of the scheduled tribe, known as Rajgond. He also asserted that whenever he contested the election from reserved constituency he had given a declaration that he belonged to the scheduled tribe 'Rajgond1. No attempt was made to disprove these assertions by filing declarations made by this witness at the elections which he contested from reserved constituencies. Not only that but his claim that he contested four Assembly elections from the constituencies reserved for scheduled tribes was not challenged in his cross-examination. It was suggested to him that prior to 1977 in all the declarations made by him on various nomination papers, he had mentioned his tribe as Gond (Raj). He, denied the suggestion and stated that as per his information there is no sub-tribe known as 'Raj' of the Gond tribe. Obviously, this is wrong, because, it will be seen from Entry No. 18 of Part IX of the .Schedule to the Scheduled Tribes Order that 'Raj' is recognised as a sub-tribe of the Gond tribe. But that would not negative his claim that he and his family members belong to Rajgond tribe.

13. Shri R. Patil, learned advocate for respondent No. 2, tried to urge that prior to 1977 Raje Vishweshwarrao could not have contested any election as a 'Rajgond1 because this tribe was not recognised as scheduled tribe in Maharashtra State before the Scheduled Tribes Order was amended by Act 108 of 1976 with effect from July 27, 1977. He pointed out that as per the original order dt. 6th September 1950 only the Gond tribe was recognised as a scheduled tribe in the erstwhile Bombay and Madhya Pradesh States. This Order was modified by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order 1956. By this Modification 'Gond1 and 'Rajgond' tribes were recognised as scheduled tribes in western Maharashtra; Gond,. including sub-tribe 'Raj', was recognised as scheduled tribe in Chanda district and other parts of Vidarbha, while Gond, including Naikpad and Rajgond, was recognised as scheduled tribe in Marathwada region. This position continued till July 27, 1977 when by Act 108 of 1976 the present Schedule, referred to above, was substituted. There is, therefore, some substance in the contention that Raje Vishweshwarrao could not have contested the Assembly election prior to 1977 merely by stating in his declaration that he was a 'Rajgond'. But that does not mean that his claim that his family belongs to Rajgond tribe is false. Admittedly, Rajgond is a subscribe of Gond tribe and at all the material times Gond was recognised as scheduled tribe in the region from which he contested the elections.

14. A new suggestion was made to the petitioner Dharmarao, who asserted in his examination-in-chief that he and respondent No. 3 belong to the scheduled tribe Rajgond. It was suggested to him that he and respondent No. 3 and members of their family are Kshatriya Rajgonda. No such suggestion was made to Shri Vishweshwarrao and this theory was given up when respondent No. 3 entered the witness box. No such suggestion was made to him. Respondent No. 3 specifically asserted in his. evidence that when he contested the election in 1978 he had mentioned in his declaration that he belonged to Rajgond tribe. In fact, this position was brought on record in his cross-examination. Moreover, it was not suggested to him that he does not belong to Rajgond tribe. It is true that, as admitted by respondent No. 3, his uncle Kirtimantrao, who contested the election in 1978 against him, mentioned in his nomination paper that the name of his tribe was 'Gond'. This does not, however, materially affect the claim of respondent -No. 3 because as observed above, Rajgond is a sub-tribe of Gond tribe. Obviously, respondent No. 1, the Returning Officer, has no knowledge about the tribe to which respondent No. 3 belongs and respondent No. 2 did not step into the witness-box to assert that respondent No. 3 does not belong to the scheduled tribe Rajgond. There, is, therefore, no substance in the contention urged on behalf of the respondents that respondent No. 3 is not a Rajgond and does not belong to any of the scheduled tribes mentioned in Entry No. 18 of Part IX of the Schedule. This aspect of the matter, however, has absolutely no bearing on the material questions involved in this petition.

15. Shri Rajani Patel, learned Counsel for the petitioner, urged that in view of the fact that respondent No. 3 belongs to a well-known family of Rajgonds in Chandrapur district and that respondent No. 3, his father Raje Vishweshwarrao and his uncle Kirtimantrao had contested the Assembly elections reserved for scheduled tribe on number of-occasions in the past and also in view of the definite evidence in the forms of caste certificate tendered before the Returning Officer, the defect in the nomination paper was not of a substantial character and hence the Returning Officer was not justified in rejecting the nomination paper.

16. Before considering this argument, it would be worthwhile to enumerate the relevant provisions of the Constitution and the Representation of the People Act, 1951. Article 173 of the Constitution, which prescribes qualification for membership of the State Legislature, reads as follows :

A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he :

(a) is a citizen of India and makes and subscribes before some person authorised in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule;

(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age, and, in the case of a seat in the Legislative Council, not less than thirty years of age; and

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

17. The qualifications contemplated by Clause (c) of Article 173 for membership of the Legislative Assembly are mentioned in Section 5 of the Representation of the People Act, 1951. Sub-section (a) of Section 5, which is relevant for the purposes of this election petition, lays down that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless he is a member of any of those castes or any of those tribes, as the case may be, and is an elector for any Assembly constituency in that State. Clause (2) of the Constitution (Scheduled Tribes) Order, 1950 made by the President in exercise of the powers conferred by Clause (1) of Article 342 of the Constitution of India, lays down that the tribes or tribal communities, or part of, groups within, tribes or tribal communities, specified in Parts I to XVI of the Schedule to the Order shall, in relation to the States to which these parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in these Parts of that Schedule. As mentioned above, the tribes which are deemed to be scheduled tribes in the State of Maharashtra are enumerated in various clauses of Part IX of the Schedule, the relevant entry for the purpose of this petition being Entry No. 18. It is thus clear that unless a candidate belongs to the tribe or sub-tribe mentioned in the various entries in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, he would not be entitled to contest for any seat reserved for scheduled tribes in the Legislative Assembly of the State of Maharashtra, that being the basic qualification of candidature for the seats reserved for scheduled tribes.

18. Section 33 of the Representation of the People Act, 1951, prescribes the procedure for presentation of nomination paper and also requirements for a valid nomination. Sub-section (1) of Section 33 contemplates that a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer, must be delivered to the Returning Officer at the place specified in the notice issued under Section 31, on or before the date appointed under Clause (a) of Section 30, between the hours of eleven O' clock in the forenoon and three O' clock in the afternoon. The word 'prescribed' used in Section 33(1) means 'prescribed by rules under the Representation of the People Act'. Rule 4 of the Conduct of Elections Rules, 1961, prescribes that every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate. The form appropriate for election to the Legislative Assembly is Form 2 B. It is as follows :

FORM 2 B

(See Rule 4)

NOMINATION PAPER

Election to the Legislative Assembly of...(State)

I nominate as a candidate for election to the Legislative Assembly from the ...assembly constituency. Candidate's Name....His Postal Address...His name is entered at S. No. ...in Part No. ... of the electoral roll for the assembly constituency.

My name is...and it is entered at S. No. ...in Part No. ...of the electoral roll for the...assembly constituency.

Date......... (Signature of proposer)I, the above-mentioned candidate, assent to this nomination and hereby declare

(a) that I have completed...years of age;

Score out the paragraph, if not applicable (b) that I am (set up) at this election by the...party;

(c) that the symbols I have chosen are, in order of performance (i)...

(ii)...and (iii)...

Score out the word not applicable, I further declare that I am a member of the.../ **caste/tribe which is a scheduled ** caste/tribe of the State of...in relation to...(area) in that State.

Date......... (Signature of proposer)(To be filled by the Returning Officer)

Serial No. of nomination paper.... This nomination was delivered to me at my office at...(hour) on...(date) by the candidate/proposer.

Date........ (Returning Officer)---------------------------------------------------------------------------------Decision of Returning Officer accepting or rejecting the Nomination Paper

I have examined this nomination paper in accordance with Section 36 of the Representation of the People Act, 1951, and decide as follows :

Date........ (Returning Officer)* Score out the word not applicable.. (Perforation)...

Receipt for Nomination Paper and Notice of Scrutiny.

(To be handed over to the person presenting the Nomination Paper)

Serial No. of Nomination paper .... The nomination paper of...a candidate for election from the...assembly constituency was delivered to me at my office at...(hour) on...(date) by the candidate/proposer. All nomination papers will be taken up for scrutiny at .... (hour) on...(date) at...(place).

Date.......... (Returning Officer)---------------------------------------------------------------------------------* Score out the word not applicable.

19. It will be seen from this form that every candidate has to make ^ declaration in the nomination paper about his age and mention therein the name of the party, if any, which sets him up at the election and also the symbols, in order of preference, chosen by him. It would be appropriate to mention at this stage that the proviso to Rule 4 of the Conduct of Elections Rules, 1961, provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of Sub-section (4) of Section 36. It will also be seen from the prescribed form that a candidate contesting the election from a reserved constituency has to make a further declaration about caste or tribe to which he claims to belong. Sub-section (2) of Section 33 also provides that in a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the state. Sub-section (3) relates to a candidate, who having held any office referred to in Section 9, has been dismissed and a period of five years has not elapsed since the dismissal. Such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State. Sub-section (5) provides that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the Returning Officer at the time of scrutiny. Section 34 lays down that a candidate shall not be deemed to be duly nominated for election from a constituency unless he makes the deposit as stated in the said section.

20. Section 36 of the Representation of the People Act, lays down the procedure which the Returning Officer is expected to follow while scrutinising the nomination papers and mentions the grounds on which the Returning Officer can reject any nomination ' paper. Sub-sections (2) and (4), which are relevant for the purposes of this petition, read as follows :

(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, .if any, as he thinks necessary, reject any nomination on any of the following grounds :

(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :

Articles 84, 102, 173 and 191, Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.

(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

21. Section 100(1)(c) lays down that if any nomination has been improperly rejected, the election of the returned candidate shall be declared to be void.

22. The copy of the nomination paper subscribed by the petitioner as proposer is produced at Ex. 2(c). The declaration given by respondent No. 3 about the tribe to which he belongs, when translated in English reads as follows :

I further declare that I am a Member of Scheduled Tribe which is a scheduled tribe of- the State of Maharashtra, in relation to 153 Sironcha Legislative Assembly Constituency in that State.

23. It is an admitted position that declarations on the other three nomination papers were in the same words. A plain reading of the declaration will show that respondent No. 3 has not specified the particular caste or tribe of which he is a member. This position is not disputed and it is conceded that Sub-section (2) of Section 33 was not complied with. The present case, therefore, is one of non-compliance of Section 33(2). As mentioned above, it is the case of the petitioner that it was too well-known in Sironcha Constituency and other parts of Chandrapur district that respondent No. 3 belongs to a scheduled tribe and this fact was further corroborated by the certificate (Ex. 35) tendered by respondent No. 3 before the Returning Officer at the time of scrutiny of the nomination papers. It is also urged that the evidence led on behalf of the petitioner at the trial of this election petition leaves no doubt that respondent No. 3 belongs to Rajgond tribe which is recognised as one of the scheduled tribes in the State of Maharashtra. Question, however, is whether the Returning Officer was expected to make any enquiry as to whether respondent No. 3 really belongs to any of the scheduled tribes mentioned in Part IX of the Schedule to the Scheduled Tribes Order, and whether the order rejecting the nomination paper can be set aside on the basis of the evidence let before this Court at the trial of the election petition.

24. The Supreme Court has considered this aspect of the matter in a number of decisions and has held that in case of non-compliance of Section 33(2) no enquiry under Section 36(2) is contemplated and in such a case the nomination paper must be rejected if the defect is of a substantial character. The first decision cited on this point by respondent Nos. 1 and 2 is in the case of Brijendralal Gupta v. Jwalaprasad : [1960]3SCR650 . In that case, the nomination of one Udebhan Tiwari (Respondent No. 5 before the Supreme Court) was rejected on the ground of his omission to declare his age in the nomination paper, and the question that arose for consideration of the Supreme Court was whether failure of a candidate to specify his age as required by the prescribed form of the nomination paper amounted to a defect of substantial character under Section 36(4) of the Representation of the People Act. The Election Tribunal held that rejection of the nomination was proper. In appeal, the High Court of Madhya Pradesh held that the Returning Officer ought to have held an enquiry under Section 36(2)(a) and satisfied himself whether or not respondent No. 5 was eligible to stand for the election. In setting aside this finding, their Lordships of the Supreme Court observed in para 9 of the judgment as follows :

In our opinion the High Court was .in error in coming to this conclusion. If the nomination paper of respondent 5 did not comply with the provisions of Section 33 the case fell squarely under Section 36(2)(b) and the only question which can arise in such a case is whether or not the defect arising from the failure to comply with the provisions of Section 33 is of a substantial character or not. If the defect is not of a substantial character the Returning Officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the Returning Officer has to reject the nomination paper on the ground of the said defect. That is the effect of the provisions of Section 36(2)(b) and (4) read together. An enquiry which is necessary under Section 36(2)(a) may and can be held for instance in cases where the nomination paper shows the age of the candidate as above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for election under Article 173 of the Constitution) in other words, the impugned nomination has complied with the provisions of Section 33 and as such does not fall under Section 36(2)(b) at all, nevertheless the validity of the nomination can be challenged on the ground that in fact Article 173 is not complied with. Cases falling under this class must be distinguished from cases falling under Section 36(2)(b). In the latter class of cases the failure to comply with the provisions of Section 33 being established there is no scope for any enquiry under Section 36(2)(a). Once the alleged non-compliance is proved, the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character. Therefore, it is not right to hold that even- after the Returning Officer was satisfied that the omission to specify his age showed that the nomination paper of respondent No. 5 had not complied with the provisions of Section 33, he should still have held an enquiry under Section 36(2)(a). Non-compliance with the provisions of Section 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non-compliance in question is of a substantial character.

25. In the case of Ranjit Singh v. Pritam Singh : [1966]3SCR543 , the candidate whose nomination paper was rejected by the Returning Officer had failed to comply with Section 33(5), which provides that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny. The said candidate did not produce a complete copy of Part IV of the electoral roll which consisted of 25 pages. The last page contained a second list of amendment. The name of the candidate did appear in the first amendment to the electoral roll and a certified copy of the relevant page was produced along with the nomination paper. It also appeared from the copy produced before the Election Tribunal that the name of the candidate Shri Vazir Singh which was included by the first amendment was not deleted in the second list of amendment. This position however, did not appear from the copy produced by Wazir Singh before the Returning Officer. Their Lordships of the Supreme Court held that Section 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that purpose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof.

26. In Narbada Prasad v. Chhaganlal : [1969]1SCR499 , also the concerned candidate, whose nomination paper was rejected, was an elector of different constituency and had failed to produce a copy of the electoral roll of the constituency or of the relevant part thereof or a certified copy of the relevant entry therein' either along with the nomination paper or at the time of scrutiny, as contemplated by Section 33(5). He had produced along with his nomination paper a certificate from the Tahsildar, who had no authority to issue certified copy of the electoral roll. The certificate was not a certified or a true copy of the relevant entry. The candidate had, however, filed his affidavit. The Supreme Court upheld the rejection of nomination paper, as there was no compliance with the provisions of Section 33(5) of the Representation of the People Act and, there was no power in the Court to dispense with this requirement. Their Lordships also observed (relevant observation is in para 5) that it is a well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded. (emphasis supplied), [herein indicated in italics - Editor].

27. It is therefore, clear that non-compliance of the provisions contained in Section 33 cannot be cured at a subsequent stage. As respondent No. 3 had failed to mention in the declaration that he belongs to a particular scheduled tribe, there was no question of curing the defect at a subsequent stage. As observed above, no enquiry under Section 36(2)(a) was contemplated and the Returning Officer was not expected to take into consideration the certificate (Ex. 35) tendered by respondent No. 3 at the time of scrutiny of the nomination papers. The fact that the petitioner, his father and his uncle contested series of elections from reserved constituencies in the past is irrelevant, nor is the position of respondent No. 3 improved by the evidence led at the trial to establish that respondent No. 3 belongs to Rajgond tribe which is recognised as one of the scheduled tribes in the State of Maharashtra. It is clear from Section 33(2) and Form 2B that the nomination paper itself must show that the candidate seeking election from reserved constituency is qualified to contest. An enquiry by the Returning Officer or the Court hearing an election petition is contemplated only if Section 33(2) is complied with, that is to say, the candidate mentions in his declaration that he belongs to a particular scheduled tribe and that this claim is disputed either at the scrutiny of nomination papers or in a election petition'. In case of non-compliance with the requirements of Section 33 or 34, the Returning Officer is not expected to hold an enquiry for ascertaining whether the candidate is qualified to contest the election and in such a case the Returning Officer is bound to reject the nomination paper unless of course the defect is not of a substantial character.

28. There is also no substance in the argument that the certificate (Ex. 35) produced by respondent No. 3 before the Returning Officer conclusively established that he was qualified to contest the election. The certificate (Ex. 35) was asked for on May 3, 1980 and was issued by the Special Executive Magistrate on the same day. When translated in English, it reads as follows :

I know and identify Shri (Kumar) Raje Satyawanrao son of Raje Vishweshwarrao since his childhood and he belongs to Adiwasi (Raj Gond) caste. Hence this letter of identification.

29. It was urged on behalf of respondent No; 2 that this certificate is not valid. In support of this contention, reliance was sought to be placed on the Government Resolution No. CBC 1077/50876/D-V, dated March 21, 1979. By this Resolution, the Government directed, in modification of the existing orders, that the caste certificates issued by the Special Executive Magistrate should be treated as preliminary certificates and the authority to issue a final certificate of caste should be with the Executive Magistrate authorised by the District Magistrate, and the Special Executive Magistrate should certify only the castes to which they themselves belong. Clause (3) of the Resolution further provides that as already stated in Government Circular dated October 7, 1976, the caste certificate must contain the following information :

(1) The caste should be clearly mentioned, and no abbreviations should be used;

(2) Its classification as Scheduled Caste, Scheduled Tribe, etc. should also be clearly mentioned;

(3) It must be in the prescribed form;

(4) It must mention No. and date of Government orders classifying the Community; and

(5) It must state that the person is an ordinary resident in the respective jurisdiction of the competent authority.

30. It is further provided that a caste certificate which does not contain all these details would not be held as valid. Obviously the certificate (Ex. 35) does not contain the requisite information and there is nothing to show that Shri Bezalwar the Special Executive Magistrate, who issued the certificate, was authorised to do so by the District Magistrate. The certificate (Ex. 35) was, therefore, invalid and the Returning Officer would have been justified in ignoring this certificate even if he would have been required to hold an enquiry into the claim made by respondent No. 3 that he belongs to a particular scheduled tribe.

31. The material question, therefore, that arises for consideration is whether the defect in the nomination paper is of a substantial character. In support of his contention that the defect is not of a substantial character, Shri Rajani Patel, placed reliance on the decisions reported in K. Parthasarthy v. C. Nataraja : AIR1959Mad156 , Rangilal Chaudhury v. Doha Sao : [1962]2SCR402 , and Namdeo v. Govinddas (1964) M. L.J. 51.

32. In Parthasarathy's case, (citation supra), election of the second respondent (in appeal before the High Court), who was elected to the Madras Legislative Assembly from one of the two seats reserved for Scheduled Caste in Kallakurichi constituency, was challenged on the grounds that the second respondent was not a member of one of the scheduled castes and that his nomination paper was improperly accepted though it did not comply with the requirements of the concerned Rules. In the declaration on the nomination paper, the second respondent merely declared himself to be a Hindu Harijan, which was not one of the castes included in the list published with the Notification issued by the President, enumerating scheduled castes in each area of the State. The Election Tribunal held that though there was no defect in the declaration made by the second respondent as to his caste, it was only a technical defect and not one of a substantial character, entitling the rejection of the nomination paper. It appears that the second respondent gave evidence before the Tribunal which remained uncontradicted, that he was an Adi-Dravida by caste. The learned Judges of the Madras High Court upheld the finding of the Tribunal, observing as follows :

Obviously, it is not every defect which will warrant the rejection of a nomination paper. The defect must be of a substantial character. Here we have the case of a person who is, on the evidence, qualified to stand as a member of a Scheduled caste for a seat reserved for that community. He has, no doubt, not stated the particular caste which had been included in the President's list of castes, but he has declared himself to belong to a class, namely, Harijan, which would certainly include the caste to which he now says he belongs, namely, Adi-Dravida.

33. Relying strongly on this observation, Shri Rajani Patel urged that as respondent No. 3 has mentioned in his nomination paper that he belongs to scheduled tribe, which would certainly include the tribe to which, he now says, he belongs, namely, Rajgond, the defect must be treated as of technical nature. It is, however, pertinent to note that the learned Judges accepted the view of the Tribunal that the defect was not substantial in character because there was no authority to the contrary. They were also influenced by the fact that no objection was raised to the nomination on any ground. They also strongly relied on the evidence led before the Tribunal to show that the concerned candidate belonged to the caste Adi-Dravid, which is a scheduled caste. The Supreme Court has now held that in case of non-compliance of Sections 33 and 3** no further enquiry is contemplated and the only question that remains to be considered is whether the defect is of substantial character. Hence, in view of this position the ratio of Parthosarthy's case, is no longer good law. Moreover, the decision can be distinguished on facts also because in that case no objection was raised to the nomination paper on any ground.

34. In Rangilal Chaudhury's case (citation supra) the election of appellant Rangilal from Dhanbad constituency was set aside by the High Court agreeing with the contention of respondent Dahu Sao that his nomination paper was improperly rejected. The nomination paper of Dahu Sao was rejected by the Returning Officer on the ground that in the nomination for the proposer instead of putting down the name of the constituency as 'Dhanbad', put down the name 'Bihar' there. Dahu Sao challenged the election of the appellant Rangilal, but the Election Tribunal dismissed the petition. Their Lordships of the Supreme Court held that the mistake was not of a substantial character as to entail rejection of nomination paper and upheld the finding of the High Court that the nomination paper of respondent Dahu Sao was improperly rejected. It is, however, pertinent to note that the mistake was held not to be of a substantial, character on the background that the election was a bye-election and not a general election and that the defect occurred in the printing form in Hindi, which was supplied to the candidate for the purposes of nomination to this bye-election. Their Lordships did not lay down a proposition that the mistake in mentioning the constituency is not of a substantial character. On the contrary, the following observations which appear in para 4 of the judgment clearly show that Their Lordships emphasised the position that ordinarily a mistake in mentioning the constituency is a defect of substantial character. The relevant observations are as follows :

Generally speaking if the nomination paper does not disclose at all the name of the constituency for which the nomination has been made, the defect would be of a substantial character, for there would then be no way of knowing the constituency for which a candidate is being nominated. But there may be cases where the nomination form shows the constituency for which the nomination is being made though there may be some defect in filling up the form. In such a case it seems to us that if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been properly filled in that respect, the defect in filling the form would not be of a substantial character.

35. In view of these observations and in view of the special circumstances of the case before the Supreme Court, the decision in Rangilal Chaudhury's case would not be of any will to the petitioner and respondent No. 3.

36. In Namdeo's case, (citation supra), the nomination paper' was rejected on the ground of mistake in surname. The learned Judges of the Division Bench of this Court held that the rejection was improper. They came to the conclusion that nowhere the law requires that surname of the candidate should be mentioned in the nomination paper. The. ratio of this case, therefore, is not attracted to the facts of the present case because Sub-section (2) of Section 33 enjoins a duty on the candidate to mention in his declaration that he belongs to a particular scheduled caste or a particular scheduled tribe.

37. Various decisions were cited on behalf of respondent Nos. 1 and 2 in support of the contention that the defect in question is of a substantial character. In the first case Rattan Anmol Singh v. Ch. Atma Ram : [1955]1SCR481 , four nomination papers of the concerned candidate were rejected under Section 36(2)(d) on the ground that the thumb impressions of the proposers and seconders on the nomination papers were not attested, ss contemplated by Rule 2(2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951. The Supreme Court rejected the contention that attestation is a mere technical or unsubstantial requirement. Their Lordships observed that when the Jaw enjoins the observance of a particular formality, it cannot be disregarded and the substance of the thing must be there.

38. In Bern Ram v. Smt. Prasenni : [1959]1SCR1403 , Ranjit Singh v. Pritam Singh (supra) and Narbada Prasad v. Chhaganlal (supra), the Supreme Court considered the effect of non-compliance by the candidate of Section 33(5) of the Representation of the People Act, 1951. In all these cases, Their Lordships held that rejection of nomination paper for non-compliance of Section 33(5) was proper. In Beru Ram's case (citation supra). Their Lordships observed in para 14 of the judgment as follows :

Section 33(5) requires the candidate to supply the prescribed copy and Section 36(2)(b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to. produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of Section 33(5) is not mandatory but is directory, because the statute itself has made it clear that failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific -consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence.

39. They further observed in para 15 as follows :

There is no doubt that the essential object of the scrutiny of nomination papers is that the returning officer should be satisfied that the candidate who is not an elector in the constituency in question is in fact an elector of a different constituency. The satisfaction of the returning officer is thus the matter of substance in these proceedings; and if the statute provides the mode in which the returning officer has to be satisfied by the candidate it is that mode which the candidate must adopt.

40. In Ranjit Singh's case (citation supra), in which the question was whether production of incomplete copy of electoral roll was a defect of substantial character, Their Lordships observed as follows :

Section 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that purpose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof. To such a case Section 36(4) has no application. That provision is to the effect that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. But the non-production of a complete copy of the relevant part in our opinion is a defect of a substantial character for it makes it impossible for the returning officer to decide whether the candidate is qualified or not. Qualification for standing for election is a matter of substantial character.

(emphasis supplied), therein indicated in italics -- Editor.].

41. In Brijendralal Gupta's case (citation supra), the question before Their Lordships was, as mentioned above, whether failure of a candidate to specify his age as required by the prescribed form of the nomination paper amounts to a defect of substantial character under Section 36(4) of the Representation of the People Act, 1951, In holding that the defect is of a substantial character, Their Lordships observed in para 10 of the judgment as follows :

It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf. That being the requirement of the prescribed nomination form it is difficult to hold that the failure to specify the age does not amount to a defect of a substantial character. The prime facie eligibility of the person to stand as a candidate which depends under Article 173 of the Constitution, inter alia, or, his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration. It would, we think, be unreasonable to hold that the failure to make a declaration on such an important matter is a defect of an unsubstantial character.

42. In Harjit Singh Mann v. S. Umrao Singh it was held that the requirement of Section 33(1) as to delivery of nomination paper between the specified hours is mandatory and that the delay in presentation of nomination paper is a defect of substantial character and justified its rejection.

43. Applying to the present case the principles enunciated by the Supreme Court in the above cases while upholding rejection of nomination for non-compliance of Section 33 of the Representation of the People Act, 1951, it is clear that the nomination paper of respondent No. 3 was rightly rejected. As mentioned above, in view of Article 173 of the Constitution and Section 5(a) of the Representation of the People Act, 1951, no person shall be qualified to be chosen to fill a seat reserved for scheduled caste or scheduled tribe unless he is a member of any of those castes or tribes. It is, therefore, necessary that the nomination paper filed by the candidate contesting for a seat reserved for scheduled tribe must disclose that he belongs to a particular tribe, which is mentioned in any of the entries in the Schedule, appended to the Constitution (Scheduled Tribes) Order, 1950. Such a mention is necessary in order to enable the Returning Officer to ascertain whether the candidate is qualified to contest the election from the reserved constituency. It is also necessary to enable the other contesting candidates to dispute the claim of the candidate that he belongs to a particular scheduled tribe. The question does not relate merely to the identity of the candidate. It relates to the basic qualification for contesting an election from reserved constituency. It is not enough that the candidate belongs to a scheduled tribe. The nomination form must show that position. That is why Sub-section (2) of Section 33 enjoins a duty on the concerned candidate to make a declaration in the nomination form specifying the particular caste or tribe to which he claims to belong. It is also clear from the manner in which Sub-section (2) of Section 33 is worded that the provision is absolutely mandatory. It lays down that unless nomination paper contains such a declaration, the candidate shall not be deemed to be qualified to be chosen to fill that seat. The candidate who claims to contest election from reserved constituency cannot avoid to mention the name of the particular tribe to which he claims to belong and then try to fill in the lacuna by leading evidence to show that he belongs to a particular tribe which is recognised as a scheduled tribe. The requirement of making a declaration about the tribe is not an empty formality. It is the very basis of the claim to contest the election from a constituency reserved for scheduled tribe. This is so because only particular tribes 'are recognised' as scheduled -tribe;; in particular area. As observed by the Supreme Court in Ranjit Singh's case : [1980]2SCR501 (citation supra), qualification for standing for election is a matter of substantial character. It is a matter of prima facie eligibility of a candidate which depends under Article 173 of the Constitution read with Section 5(a) of the Representation of the People Act, 1951, on his being a member of any one of the particular tribes enumerated in the relevant part of the Schedule to the Scheduled Tribes Order. It is in respect of such an important matter that the prescribed form requires the candidate to make a declaration. The defect of not mentioning the name of the tribe is of substantial character.

44. Respondent No. 3, who claims to belong to 'Rajgond' tribe did not mention this fact in all his nomination papers. The declaration is conveniently vague on this point. Non-mention by respondent No. 3 of the particular tribe to which he claimed to belong made it impossible for the Returning Officer to decide on the basis of the nomination papers whether he was qualified to contest the election or not. No objection could have been raised by anybody and the very object of the provision was frustrated. It is,' therefore, abundantly clear that failure of respondent No. 3 to mention in the declaration made by him on all his nomination papers that he belonged to a particular tribe, which is recognised as a scheduled tribe, was a defect of substantial character, which justified rejection of his nomination paper. The Returning Officer was, therefore, perfectly right in rejecting the nomination papers of respondent No. 3.

45. In the result, the petition fails and is dismissed with costs.


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