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K. Parthasarathy Vs. C. Nataraja Odayar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 29 of 1958
Judge
Reported inAIR1959Mad156; (1959)1MLJ11
ActsRepresentation of the Pepole Act, 1951 - Sections 36(4)
AppellantK. Parthasarathy
RespondentC. Nataraja Odayar and ors.
Appellant AdvocateK.S. Champakesa Iyengar and ;K.C. Srinivasan, Advs.
Respondent AdvocateV.P. Raman, Adv.
DispositionAppeal dismissed
Cases ReferredLakuhmana Pillai v. Chengam Pillai
Excerpt:
.....a seat in the legislative assembly of a state unless (a) in the case of a seat reserved for the scheduled castes ... he is a member of any of those castes ... under section 33, sub-section 2 of the act '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 ... of which he is a member'. form 2-b requires a further declaration to be made by the applicant who claims to be a member of the scheduled caste.; where a candidate who was an adi-dravida by caste, which is one of the castes included in the list as promulgated by the president under article 341 of the constitution and was, therefore, qualified to stand for the seat reserved..........seat and the third respondent elected to fill the seat reserved for scheduled castes.2. the election tribunal, namely, the district judge of east tanjore, held that the corrupt practice alleged by the petitioner-appellant to nave been committed by the first respondent had not been proved. as that was the only ground on which the election of the first respondent wag challenged the petition was dismissed so far as the first respondent was concerned. the tribunal held that though there was a 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. on these findings the tribunal dismissed the petition. hence this appeal.3. mr. k. s. champakesa.....
Judgment:
1. This appeal arises out of a petition filed by the appellant before us, as before the Election Commission of India in connection with the election of two members to the Madras Legislative Assembly from the Kallakurichi constituency. Of the two seats one was a general seat and the other a seat reserved for the scheduled castes. There were seven candidates out of whom the first respondent who had stood for the general seat was declared elected to it, having obtained the largest number of votes.

The second respondent who stood for the reserved seat got the highest number of votes among the candidates who competed for the reserved seat and was also declared elected. The appellant obtained less votes than the, first respondent. He stood for the general seat and the only ground with which we are now concerned in the appeal which seeks to set aside the election of the first respondent to that seat is that he was guilty of a corrupt practice which is set out in paragraph 12 of the petition to the election commission.

. The petitioner-appellant before, us attacked the validity of the election of the second respondent to the reserved seat on the ground that he was not a member of one of the scheduled castes, and in any event, because, his nomination paper was improperly accepted though it did not comply with the requirements of the concerned rules. The specific requirement relied upon was that the candidate should declare himself as belonging to one of the castes included in the list of scheduled castes as promulgated by the President under Article 841 of the Constitution.

The appellant alleged that there was no valid declaration by the second respondent that he belonged to one of such scheduled castes as he only described himself to be a Hindu Harijan, He therefore prayed that the election of respondents 1 and 2 be declared void, and that he, the appellant, may be declared elected to fill the general seat and the third respondent elected to fill the seat reserved for scheduled castes.

2. The Election Tribunal, namely, the District Judge of East Tanjore, held that the corrupt practice alleged by the petitioner-appellant to nave been committed by the first respondent had not been proved. As that was the only ground on which the election of the first respondent wag challenged the petition was dismissed so far as the first respondent was concerned. The Tribunal held that though there was a 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. On these findings the Tribunal dismissed the petition. Hence this appeal.

3. Mr. K. S. Champakesa Aiyangar. learned counsel for the appellant, once more pressed upon us both these grounds in respect of respondents 1 and 2. Taking first the case of the first respondent, the only question is whether the appellant can be said to have conclusively proved that the first respondent was guilty of the corrupt practice alleged in the petition. The evidence adduced by the appellant to prove the charges made against the first respondent was entirely oral. I Several witnesses were examined who deposed that refreshments were given to voters either by the first respondent or by those who were working for him. The Tribunal has carefully examined the evidence of these witnesses. He had the advantage of watching them when they were giving evidence. It is very easy to procure evidence or the sort that was relied upon by the appellant without any certain means of testing its veracity.

4. As the Tribunal has pointed out, all the witnesses for the petitioner appellant were not wholly disinterested witnesses. We have been taken through their evidence and we agree with the Tribunal that there is an artificiality about it. They all give more or less an identical version which, by its very uniformity, gives room for the suspicion that the witnesses were all deposing to a set story which they were called upon to tell. We are in entire agreement with the Tribunal's findings that the alleged corrupt practice has not been made out by acceptable and reliable evidence. (4) We next come to the case of the second respondent who was declared elected to the reserved seat.

5. The material provisions of the Representation of the People Act, 43 of 1951, relating to this case are the following:

Section 5: "A person shall not be qualified to be chosen to fill a seat in the legislative Assembly of a State unless-

(a) in the case of a seat reserved for the Scheduled Caste or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly constituency in that State; Section 33: ...... ..(2) 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."

Section 100(a) sets out the grounds on which an election can be declared void. An election can be declared void inter alia on the ground that "on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen, to fill the seat under the Constitution or this Act;" and on the ground; that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper acceptance of any nominations......"

6. Form 2B is the form prescribed for a nomination paper concerning election to the Legislative Assembly. In pursuance of the provisions of Section 33 Sub-section (2), the form contains a-further declaration to be made by the applicant who claims to be a member of the scheduled caste.

7.It is common ground that the second respondent merely declared himself to be a Hindu Harijan; and Harijan is not one of the castes included in the list published with the Notification issued by the President of India enumerating scheduled castes in each area of the State. The second respondent gave evidence which remained uncontadicted that he was an Adi-Dravida by caste.

He deposed that the election petitioner was present when the nomination was scrutinised, that there was no objection to it and that he was advised by the clerk that the proper way to describe himself was as "Hindu Harijan." Now "Adi-Dravida" is certainly a caste included in the list of scheduled castes, in the, President's Notification

Accepting the testimony of the second respondent that he belonged to the Adi-Dravida caste, the Tribunal held -- and we are in entire agreement with him -- that the second respondent cannot hut be deemed to be a member of a scheduled caste. He was, therefore, qualified to stand for the seat reserved for the scheduled castes.

8.The other charge is that the second respondent did not declare in the nomination paper filed by him that he was a member of any particular caste which was included in the list of scheduled castes in the notification. The matter is not free from difficulty. Technically, the appellant is justified in pointing out that the declaration made by the second respondent was not sufficiently in accordance with Sub-section (2) of Section 33 of the Act. The second respondent admittedly did not specify the particular caste of which he was a member.

He merely described himself as Hindu-Harijan, Harijan is a word of wide connotation and there is no authoritative definition of that term as applied to any of the Hindus. It was conceded by the learned counsel appearing on behalf of the second respondent that the term Harijan would take in not only the caste of Adi-Dravida but also several other castes mentioned in the President's Notification under Article 341 of the Constitution. There is, therefore, a patent defect in the declaration made by the appellant in his nomination paper. The only question is whether the defect is so such substantial that in law the nomination paper should be rejected.

9. Under Section 36, Sub-section (4) of the Act "The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." There can be no hard and fast rule to find out whether any particular defect is or is not of a substantial character. The Tribunal apparently was of the view that the defect was not substantial in character. In the absence of any authority to the contrary, we are inclined to accept the view taken by the Tribunal.

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 tho 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.

If this defect had been noticed by the returning officer it is very likely that the appellant also would have become aware of the fact, but there is no evidence that there was any objection to the nomination on any ground. In these circumstances, we think that the defect is not of such substantial character as to justify the rejection of the nomination paper.

10. Our attention has been drawn to the decision of .in Election Tribunal in Lakuhmana Pillai v. Chengam Pillai 1952-2 ELR 103, in which it was held by the Election Tribunal, Madras, that a nomination paper of a candidate, who is admittedly an Adi-dravida, - for a seat reserved for the Schedule castes cannot be rejected merely because he has described himself as a "Harijan"; and that at the most, it is only a technical defect not of a 'substantial character within Section 36(4) of the Representation of the People Act, 1951. We agree

with the following observations in the above decision:

"The description Harijan instead of Adi-Dravida is a matter of detail and does not affect the substance. When a man calls himself a, Harijan, there could be no mistake as to what he means, namely, that he belongs to the Scheduled Caste. This error in the description of the particular caste to which he belongs is not in our opinion of such a substantial nature as to invalidate his nomination."

We hold that the appellant has not established his case that the nomination paper relating to the second respondent should have been rejected. We agree with the Tribunal that the second respondent's election cannot be challenged on the ground, that the declaration made by him in the nomination paper was not accurate or that the declaration made was not sufficient.

11. In the result the appeal fails and is dismissed with costs of the first respondent only. Advocate's fee Rs. 100/-.


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