Skip to content


Rathwa Mohansinh Chhotubhai Vs. Amarsinghbhai Virayabhai Rathwa and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Case NumberElection Petition No. 2 of 1980
Judge
Reported inAIR1982Guj34; (1982)1GLR307
ActsRepresentation of the People Act, 1951 - Sections 33(2) and 36(4)
AppellantRathwa Mohansinh Chhotubhai
RespondentAmarsinghbhai Virayabhai Rathwa and anr.
Appellant Advocate J.G. Shah and; D.T. Shah, Advs.
Respondent Advocate J.X. Thakore, Adv. General and; H.M. Mehta, Adv.
Excerpt:
.....argument further proceeds on the assumption that further evidence could be led before the returning officer in order to make good the deficit, if any. advocate general's further argument in this connection was that even though change in the constitution of constituencies was effected in the year 1966, the original form like form 2-a continued to be operative and, therefore, the difficulty of the nature, that has arisen in this case, would arise. 26. it was then urged that a technical mistake like the one on hand should not be allowed to set at naught the cumbersome and costly procedure of election and reliance in this connection was placed on s......it was required to be interpreted to mean where in a parliamentary constituency any seat is reserved for a candidate of the scheduled caste or tribe. the member would be required to specify the specific caste or tribe, so that out of a number of candidates in that constituency, it could be ascertained at a sheer glance as to who am the candidates for a reserved seat and who are the candidates for a general seat. the argument in so far as it goes to this stage appears to be sound. the, further argument of mr. advocate general however was that the provisions of s. 33(2) lost all significance and importance the moment there came to be provided the single-member constituencies. he, therefore, urged that s. 33(2) should be treated as otiose by me. he, for that purpose sought.....
Judgment:
ORDER

1-20. x x x x x x x x

21. (x x x x) It is not disputed that ever since the amendment in that Act the double-member and multi-member constituencies have become a matter of the past. S. 33(2) was there in this very form in those days and Mr.Advocate General with emphasis urged that the text of S. 33(2) was such as would be applicable only to the situation where in a constituency, there were two or more seats, one or more of which was or were reserved for a member of the Scheduled Caste or a Scheduled Tribe: He in this connection stressed the word 'any' occurring there. It must be fairly conceded that the word 'any' denotes 'anyone' and when there is reference to one, Ordinarily there would be reference to two or more seats also. When S. 33(2) was there prior to the constitution of the single member constituencies, it was required to be interpreted to mean where in a parliamentary constituency any seat is reserved for a candidate of the Scheduled Caste or Tribe. The member would be required to specify the specific caste or tribe, so that out of a number of candidates in that constituency, it could be ascertained at a sheer glance as to who am the candidates for a reserved seat and who are the candidates for a general seat. The argument in SO far as it goes to this stage appears to be sound. The, further argument of Mr. Advocate General however was that the provisions of S. 33(2) lost all significance and importance the moment there came to be provided the single-member constituencies. He, therefore, urged that S. 33(2) should be treated as otiose by me. He, for that purpose sought reliance on some observations of the Supreme Court judgment in V. V.Giri's case (AIR 1959 SC 1318), already referred to by me. In that case, the illustration appended to S. 54(4) of the R. P.Act. 1951 was treated by the Supreme Court as otiose M some respects. Said S. 54(4) had an illustration. which is reproduced below (it is to be noted that this whole S. 54 has been deleted from the statute by Representation of the People Amendment Act, 1961, being Act. No. 40/61):-

'Illustration: At an election in a constituency to fill four seats of which two are reserved there are six candidates, A. B, C. D, E and F. and they secure votes in descending order. A securing the largest number B, C and D are qualified to be chosen to fill the reserved seats, while A. E and F are not so qualified. The Returning Officer will first declare-B and C duly elected to fill the two reserved seats and then declare A and D (not A and E) to fill the remaining two seats.'

In paragraph 15 of the said reported judgment (V. V. Giri's case supra), the Supreme Court has observed as follows (at p. 1325)):-

'Whilst we are dealing with S. 54 we may incidentally refer to the appellant's argument based on S. 8(2)(c) of the Delimitation Act, which provides that in every two-member constituency one seat shall be reserved either for the Scheduled Castes or for the Scheduled Tribes and the other seat shall not be so reserved. It is urged that in view of this provision, the case contemplated by the illustration to S, 54 (4) is not likely to occur any more and in that sense the' illustration has become otiose'. That may be true. But even so the significance of the illustration lies in the fact that it clarifies and explains concretely how the reservation of seats for the depressed castes and tribes will actually work out in elections in the relevant constituencies.'

In one sense, the Supreme Court agreed that the importance of S. 54(4) and the illustration appended to it was no more, but the Supreme Court did not say that the provisions came to be effaced for all purposes. It has emphasised that the significance of the illustration lay in the fact that it clarified and explained concretely how the reservation of seats for the depressed caste, and tribe will actually work out in elections in the relevant constituencies. The fact that S. 54(4) carne to be deleted as a consequence of the amending Act No. 40/61 by S. 12 thereof with effect from 20-9-61 shows that the Parliament is alive to the redundancy of any privisions. Despite the change in the constitution of constituencies the Legislature thought it wise to retain S. 33(2) on the statute book. Mr. Advocate General wanted me to hold that Parliament through over-sight for got to delete this provision, when the Amending Act Of 1966 came to be enacted. It is not ordinarily safe to attribute this sort of slip to an August body like Parliament. Apart from this general proposition, there is a clear indication in Section 33 itself about the Legislature's consciousness about the implications of the amendments of the year 1966. A big proviso came to be added to sub-s. (4) of Section 33 by the very Amending Act of 47/66 by S. 29 thereof. It is therefore reasonable to assume that despite the chance in the constitution of the constituencies by making them single member constituencies the Legislature want ed to retain sub-s. (2) of S. 33 of the R P. Act. If the purpose of S. 33(2) was be only Purpose to distinguish the candidates for reserved seats from those for general seats, the argument advanced by Mr. Advocate General perhaps would have held the field. The purpose of S. 33(2), however. is not that only purpose to be served. Over and above the purpose already specified by Mr. Advocate general. the purpose appears to give a choice to the candidate of the scheduled caste or tribe to opt for the additional benefit of contesting on the reserved seat. To me it appears that the major Purpose of the Parliament in enacting S. 33(2) in the mandatory form is that out of a number of' castes and tribes, which would be obviously notified by the President, the candidate must mention in his nomination form which one, out of a number of castes or tribes, he is belonging to. The election forms are open to inspection at the hands of rival candidate. Such a rival candidate or his agent is empowered to object to the nomination paper of the other candidate. In order to effectively object to the claim of a candidate to be belonging, to one or the other of a number of castes or tribes, he is to be given a legitimate notice or information so that -he may ascertain whether the claim is well-rooted or not. A parliamentary constituency ordinarily a very big one. Comparatively smaller, but nevertheless quite extensive would obviously be the constituency for a State Legislative Assembly or Council In some cases, rival candidate may or may not be knowing the other rival candidate, who aspires for a reserved seat. In order to give, notice to the other intending objectionist, the Parliament provided that out of a number of castes or tribes, the claimant of this additional benefit of candidature for a reserved seat must specify to what caste or tribe he belongs. The objectionist cannot be and is not intended to be allowed to remain in a nebulous state of mind. It is with this evident purpose in mind, which must be existing even prior to 1966. S. 33(2) is retained by the parliament, despite being fully alive to the constitution of single member constituencies.

22. Mr. Advocate General in this connection had emphasised the words 'any seat' along with the words 'that seat' occurring in the latter part of that subsection and urged that the phrase 'that seat' was obviously referable to the earlier words 'any seat'. When the Parliament. despite the constitution of single member constituency, retained sub-s. (2) of S. 33, it is more advisable to read the section by reading 'a' for 'any' rather than ignoring the entire statutory provision. Ordinary presumption of law is that the Legislature does not speak anything, which is devoid of any meaning. The retention of S. 33(2), even after 1966, therefore, is to be understood to be indicative of the Parliament's desire to continue to achieve the earlier purpose of posting the would be objectionist with the readily available material for his further search and scrutiny, so that within a matter of a few days available to him between the date of filing of the nomination papers and the date of scrutiny, he collects the requisite material and places it and presses his point.

23. As an extension of his argument, Mr. Advocate General urged that Art. 14 of the Constitution of India would be attracted, if one person fills in the form by writing Rathwa in the form and another Person does not write so, but the form is sufficiently indicative of the man being of that tribe. It is difficult to appreciate this argument. This argument proceeds on the assumption that both the forms are validly accepted. The argument further proceeds on the assumption that further evidence could be led before the Returning Officer in order to make good the deficit, if any. When Section 33(2) cuts at the nomination forms itself, the scope for any invidious different treatment would hardly arise.

24. Mr. Advocate General's further argument in this connection was that even though change in the constitution of constituencies was effected in the year 1966, the original form like Form 2-A continued to be operative and, therefore, the difficulty of the nature, that has arisen in this case, would arise. The argument was put forward in support of the plea that S. 33(2) and other allied provisions of Rule 4 and Form 2-A had become nugatory in importance, but when I do not uphold the main argument, the subsidiary argument pressed by Mr. Advocate General cannot be accepted.

25. Lastly, it was urged that the Gujarat form, as was supplied by the office of the Returning officer, had misled the respondent. Who for no fault of his comes to suffer. In a, society where rule of law prevails, a man his presumed to know the law, including Section 33(2) of the Act. A person, who puts forth himself as a candidate for Parliament is expected to know the law of the land and this alleged mistake cannot be allowed to have its sway in the matter of language. I hasten to add that at the hands of a careful candidate, there is no possibility of Gujarati form causing misleading.

26. It was then urged that a technical mistake like the one on hand should not be allowed to set at naught the cumbersome and costly procedure of election and reliance in this connection was placed on S. 36(4) of the R. P. Act. It was urged with considerable and appreciable, vehemence that the provisions of S. 36(4) had an over-powering effect over the provisions of S. 33(2) and the defect in this case should be held to be 'not of a substantial character'. S. 36(2) deals with, the scrutiny of nominations, Sub-s. (4) of S. 36 makes a general provision that if the defect is not of a substantial character, it should not be allowed to sway the judgment of the Returning Officer. The question again would turn to the character of the requirement under S. 33(2) of the R. P. Act. When the Parliament in very emphatic language ordained that the monition papers shall not be accepted. It is to be presumed legitimately that the Parliament treated the requirement of S. 33(2) as of substantial character.

27. In above view of the matter the election petition is required to be allowed and the election of the respondent No. 1 is set aside, because there was improper acceptance of his nomination paper and the result of the respondent No. 1has been materially affected thereby. The election of the respondent No. I is hereby set aside. The respondent No. 1 etc pay costs of the petitioner, which are assessed at Rs. 500/-. The High Court to intimate the substance of this decision to the Election Commission and the Speaker of the House of Parliament as soon as possible and soon as may be thereafter to send to the Election Commission an authenticated copy of this decision.

28. At this stage, Mr. H. M.Mehta, the learned advocate appearing for the respondent No. 1, applied for stay of the operation of this order under S. 116-B of the Representation of the People Act, 1951. The operation of this order is stayed for a period of three weeks, after the receipt of the certified copy of this judgment which shall be applied for and obtained urgently by the respondent No. 1.

29. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //