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2004 DIGILAW 1034 (BOM)

RAMU MAHATANG PATEL v. RAJKUMAR DAYARAM PATEL

2004-08-16

P.S.BRAHME

body2004
Judgment P. S. BRAHME, J. ( 1 ) HEARD learned counsel for the parties. The petitioner contested the election to 119 - Melghat (ST) assembly constituency. Respondent No. 1 - Rajkumar Patel was declared elected by margin of 3335 votes, the petitioner polled 40363 votes, whereas respondent No. 1 polled 43698 votes and respondent No. 2 - Dr. Ramesh Raikwar polled 14533 votes. The election was contested by 8 candidates. The 119 Melghat (SC) assembly Constituency was reserved for Scheduled Tribe Candidate. The respondent No. 2 - Dr. Ramesh Raikwar does not belong to Scheduled Tribe candidate. The Nomination Paper of respondent No. 2 was improperly accepted by the Returning Officer in spite objection recorded by petitioners Polling Agent. ( 2 ) THE petitioner challenged the election of respondent No. 1 in this election petition under section 80 of the Representation of the People Act, 1951 on various grounds. The petitioner prayed that the election of respondent No. 1 as member of Legislative Assembly of 110 - Melghat (ST) Assembly Constituency in the election which are held on 5-9-1999 be declared as void and illegal and the result declaring him elected as Member of Legislative Assembly No. 119 - melghat (ST) Assembly Constituency in the election be set aside and the petitioner be declared elected as Member of Legislative Assembly of 119 melghat (ST) Assembly Constituency at the elections held on 5-9-1999. The petitioner also sought for ancillary reliefs. ( 3 ) THE learned counsel for the petitioner has only pressed two points : 1) improper acceptance of Nomination Paper of respondent No. 2 and 2) As a result of improper acceptance of the Nomination Paper of respondent No. 2, the result of the election has been materially affected. ( 4 ) THE averments in the petition relating to these two grounds are as under : the respondent No. 1 to 8, all submitted their nomination papers to the returning Officer. Respondent No. 5 had submitted two nomination papers out of which one nomination paper was rejected and other nomination paper was accepted. The respondents No. 5 to 8 had withdrawn their candidature on and before the date of withdrawal of candidature. As such after the date of withdrawal was over, the respondent Nos. 1 to 4 and the petitioner were in the fray of elections for the said Melghat Assembly Constituency. The respondents No. 5 to 8 had withdrawn their candidature on and before the date of withdrawal of candidature. As such after the date of withdrawal was over, the respondent Nos. 1 to 4 and the petitioner were in the fray of elections for the said Melghat Assembly Constituency. At the time of scrutiny of nomination papers Mr. Dnyaneshwar Bhise - Election Agent of petitioner had filed objection before the Returning Officer on 19-8-1998 at about 11. 35 a. m. stating that respondent No. 2 - Dr. Ramesh Raikwar did not belong to adiwasi Korku Tribe and the Scheduled Tribe, that the 119 Melghat (ST) assembly Constituency was reserved for the Adiwasi Korku Tribe, that in the government Resolution No. CBC-1494/pra. Kra-Ma. V. K.-5 dated 18th november, 1995 "halba" caste is deleted from the list of Adiwasi Tribes and that by Government Resolution dated 13-6-1995, "halba Koshti" is included in the list of Special Backward Classes. It was stated in the abovementioned objection that in view of the Government Resolutions, the candidature of the Nationalist congress Party i. e. of respondent No. 2, cannot be treated as a candidate of adiwasi Tribe and 119 Melghat (SC) Assembly Constituency being reserved for the Scheduled Tribe, the respondent No. 2 was not entitled to contest from the said constituency. It was prayed that his nomination paper be rejected. However, the Returning Officer rejected the objection on the ground that respondent No. 2 had produced the caste certificate which showed him to be belonging to "halbi" caste and that caste certificate was signed by the Sub Divisional officer and he was a scheduled tribe candidate. ( 5 ) IT is contended by the petitioner that the respondent No. 2 does not belong to the "halbi" caste and is not a scheduled tribe. That it is revealed from the copy of the caste certificate that the certificate is issued on the strength of 1) school leaving certificate of respondent No. 2, 2) Copy of admission register in respect of respondent No. 2 and his father, 3) transfer certificate of father of respondent No. 2, 4) birth certificate of father of respondent No. 2, 5) copy of the records of rights register in respect of grandfather of respondent and 6) the affidavit. It is contended that the caste certificate of respondent No. 2 has not been validated and it is yet to be scrutinized by the Scrutiny Committee. The entry in the birth register maintained by the Police Station, Achalpur in respect of birth of a male child to Tukaram Ganpat Bunkar and it does not show that tukaram Ganpat belong to the Halbi Caste, or Scheduled Tribe. It is contended that from the documents on the basis of which birth certificate or caste certificate was obtained by respondent No. 2, it is clear that the ancestors of respondent No. 2 are Koshti and not Halbi and/or Scheduled Tribe. ( 6 ) IT is further contended in the petition that Nomination paper of respondent No. 2 was improperly accepted by the Returning Officer as a consequence of which respondent No. 2 contested the election and secured 14533 votes. Petitioner secured 40363 votes while respondent No. 1 who is elected candidate secured 43698 votes. Difference between the votes secured by respondent No. 1 - the elected candidate and the petitioner is 3335. If the nomination paper of respondent No. 2 would not have been accepted by the returning Officer then the petitioner would have got more than 10000 of votes securedby respondent No. 2. In any case the figure shows that the improper acceptance of nomination papers of respondent No. 2 has materially affected the result of the elections. ( 7 ) IT is averred in the petition that, it is settled law that an impossible standard of proof should not be laid down and the reasonable probabilities should be given weightage. The respondent No. 2 - Dr. Ramesh Tukaram Raikwar, whose nomination paper has been improperly accepted, has secured disproportionately large number of votes than the difference between the number of votes obtained by the respondent No. 1 - and petitioner who has obtained next higher number of votes. The result of the election insofar as it concerned the respondent No. 1 is materially affected because of improper acceptance of nomination paper of respondent No. 2. Therefore, the election of respondent no. 2 has to be declared as void on the ground as specified in section 100 (1) (d) (i) of the Representation of People Act, 1951. The result of the election insofar as it concerned the respondent No. 1 is materially affected because of improper acceptance of nomination paper of respondent No. 2. Therefore, the election of respondent no. 2 has to be declared as void on the ground as specified in section 100 (1) (d) (i) of the Representation of People Act, 1951. ( 8 ) I do not find it necessary to narrate other averments in the petition in respect of other grounds of challenge as the learned counsel for the petitioner restricted his challenge to the election of respondent No. 1 to only above mentioned two grounds. ( 9 ) RESPONDENT No. 1 resisted the petition by his written statement - Exhibit 18. It is denied that the nomination paper of respondent No. 2 was improperly accepted. It is further denied that as a result of improper acceptance of nomination paper of respondent No. 2, the election of this respondent is materially affected. It is denied that Halba Koshti is and/or was not recognised by government of India as a Scheduled Tribe. It is denied that the respondent No. 2 could not be treated as candidate of Adiwasi Tribe and/or Scheduled Tribe. It is denied that respondent No. 2 was not eligible to contest election. It is denied that respondent No. 2 belongs to Halba Caste and that he is not Scheduled Tribe candidate. It is denied that the caste certificate of respondent No. 2 has not been validated by Caste Scrutiny Committee. It is admitted that transfer certificate dated 22-10-1999 issued by Head Master, Nagar Palika Marathi School abbaspur, District, Achalpur shows the date of birth of respondent No. 2 as 22-2- 1953. It is denied that the entry of date of birth of respondent No. 2 and the name of father of respondent No. 2 is shown as Tukaram Ganpat Bunkar. It is denied that copy of date of birth register of Police Station Achalpur deposited in the office of Collector, Amravati shows that there is an entry at page 94 in the register of 1953 showing the birth details of a male child whose fathers name is shown as Tukaram Buwaji Bunkar and the date of birth is shown as 22-2-1953. It is denied that the father of respondent No. 2 did not belong to Halbi Caste and/or scheduled Tribe. It is denied that the father of respondent No. 2 did not belong to Halbi Caste and/or scheduled Tribe. It is denied that there is material discrepancy as to the date of birth in copy of relevant extracts of birth - register and certificate appended by respondent No. 2 with his certificate. It is denied that if the nomination paper of respondent No. 2 were not to be accepted by the Returning officer, then the petitioner would have got more than 10000 votes secured by respondent No. 2. It is denied that the figures show that improper acceptance of nomination paper of respondent No. 2 has materially affected the result of election of 199 Melghat (ST) Assembly Constituency It is denied that respondent has secured disproportionately large number of votes with reference to the number of votes obtained by respondent No. 1 and the petitioner. It is denied that there has been improper acceptance of Nomination form, much less that of respondent No. 2. It is prayed that the petition is liable to be rejected. ( 10 ) THE petitioners claim is resisted by respondent No. 2 by his written statement - Exhibit 14. It is submitted that Government Resolution No. CBC- 1494/pra. Kra. 236- Ma. V. K.-5 dated 18th November, 1995 deleting Halba Tribe from the list of Government Resolution dated 13-6-1995 adding Halba Koshtis to special Backward Class is ultra vires of the Constitution as State Government has no authority or power to amend/modify/delete Scheduled Tribes list approved by the Parliament. The frequent inconsistent stand on status of Halbi by the State Government is due to interference of the likes of petitioner, who has enjoyed the privilege of being a Minister in the State of Maharashtra is only with the intention of political gains. That respondent No. 2 is filing documents as per the list of annexures in support of his caste claim. It is submitted that the authorityissuing caste certificate has scrutinized ancient documents on which the caste claim of respondent No. 2 is based. Scrutiny Committee also verified caste claim of respondent No. 2 and declared that the caste claim of respondent No. 2 is treated as valid of his belonging to Scheduled Tribe. However, the claim was made subject to SLP 16273/1986 pending before the Supreme Court of India. Scrutiny Committee also verified caste claim of respondent No. 2 and declared that the caste claim of respondent No. 2 is treated as valid of his belonging to Scheduled Tribe. However, the claim was made subject to SLP 16273/1986 pending before the Supreme Court of India. It is contended that "halba Koshti" is a sub-caste of Koshti, as held by the scrutiny Committee is without any proof or any documentary evidence. Documents enclosed in the list of annexures will reveal that the respondent No. 2 belongs to Halbi tribe and profession of his forefathers was weaving. It is due to political interference in the working of the scrutiny committee and the pressure brought on them by the political bosses, unnecessary aberrations are created and during caste certificate scrutiny for political gains harassing the members of halbi community in general. ( 11 ) IT is specifically denied that respondent No. 2 does not belong to Halbi - Scheduled Tribe. It is admitted that the certificate issued by S. D. P. O. Achalpur on 31-7-1998 was deposited by respondent No. 2 to the Returning officer. It is submitted that respondent No. 2 has contested election earlier and at that time also, he deposited the caste certificate. The caste certificate of the respondent No. 2 has been validated by the Caste Scrutiny Committee and the statement of the petitioner in respect of invalidation is abundantly false. It is admitted that the date of birth of respondent No. 2 is 22-2-1953. It is contended that a copy of an extract of Birth Register of Police Station, Achalpur deposited in the office of the Collector, Amravati filed by the petitioner appears to be tampered or in respect of some other person for the reason that "bunkar" is not the term used in local parlance in Achalpur for any caste/community. The column pertaining the caste is left blank. Extract enclosed with the reply of the birth Register in respect of respondent No. 2 unambiguously show that his father as well as his profession and the document is ancient. It is presumed that all the documents of caste-claim of respondent No. 2 are duly verified by the Caste scrutiny Committee before admitting the claim of respondent No. 2. It is admitted that the name of father of respondent No. 2 is Tukaram and his grandfathers name is Ganpat. It is presumed that all the documents of caste-claim of respondent No. 2 are duly verified by the Caste scrutiny Committee before admitting the claim of respondent No. 2. It is admitted that the name of father of respondent No. 2 is Tukaram and his grandfathers name is Ganpat. It is submitted that the petitioner be put to strict proof of his claim particularly when the extract of birth produced by the petitioner shows the name of son born on 22-2-1953 as "enka?" and extract of the same filed by respondent No. 2 from the records of Nagar Parishad Achalpur city indicates profession of father of respondent No. 2 as weaving and there is no entry as regards the name of the child born. Extract also indicates caste of father of respondent No. 2 as Halbi. Contention in the paragraph 7 of the petition have been denied. It is denied that the acceptance of nomination paper of respondent no. 2 was improper. There is no logical basis for the contention of the petitioner that he would have got more than 10,000 votes secured by the respondent No. 2 had the nomination of respondent No. 2 not been accepted by the Returning officer. It is therefore, contended that there is no merit in the claim of the petitioner to declare the election results as void. Contents of paragraphs No. 11, 12, 13, 14, 15, 16, and 18 and 19 of the petition have been denied to the extent they are adverse to the respondent No. 2. It is prayed that the petition be dismissed. ( 12 ) ON the basis of the pleading of the parties to this petition, this Court has framed issues vide Exhibit 20. However, the learned counsel for the petitioner has restricted challenge to the two issues only. Therefore, the parties went on trial to the restricted grounds of objection. The issues for my consideration with my findings thereon are as under : ( 21 ) THERE is no quarrel over the proposition that the success of winning candidate at election should not be lightly interfered with. Therefore, the parties went on trial to the restricted grounds of objection. The issues for my consideration with my findings thereon are as under : ( 21 ) THERE is no quarrel over the proposition that the success of winning candidate at election should not be lightly interfered with. In case of improper acceptance of nomination paper of a candidate other than the elected candidate, the election of the returned candidate cannot be set aside on that ground, unless the election petitioner further establishes that as a consequence of such improper acceptance, the result of the election has been materially affected. The Apex court in 1954 AIR SC 513, Vashist Narain Sharma, Appellant vs. Dev Chandra and others, Respondents while construing words "result of election has been materially affected" has held that result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidates. The onus of proving itlies on the person who challenges the election and in case satisfactory evidence is not adduced the result of the election would not be interfered with. This decision has been cited with approval in catena of subsequent decisions [see Santosh Yadao vs. Narender Singh, (2002) 1 SCC 160 ] it has again been reiterated by the Apex court that the success of a winning candidate at election should not be lightly interfered with. This is all more so when the election of a successful candidate is sought to be set aside for no fault of his but of some one else. It is also clear in mind that the scheme of section 100 of the Representation of People Act, especially clause (d) of sub-section (i) thereof clearly prescribes that inspite of availability of grounds contemplated by sub-clause (i) to (iv) of clause (d) the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns to a returned candidate was materially affected. ( 22 ) IN the instant case, there is no evidence to show material effect on the election of respondent No. 1 assuming that the nomination paper of respondent no. ( 22 ) IN the instant case, there is no evidence to show material effect on the election of respondent No. 1 assuming that the nomination paper of respondent no. 2 was improperly accepted. It is true that the votes secured by respondent no. 2 are almost three times more than difference of votes secured by respondent no. 1 and petitioner, but then in the absence of any material on record, it would be just by way of speculation to assume that entire votes secured by respondent no. 2 could have been secured by the petitioner, in case the nomination of respondent No. 2 were to be rejected. The possibility of respondent No. 1 having some more votes of the votes secured by respondent No. 2 cannot be ruled out. That is why it is said by the Apex Court that mere increase or decrease of votes secured by the candidate is not itself a criteria even to have speculation that the candidate who has lost election would have secured all the votes which were secured by the candidate whose nomination was improperly accepted. Therefore, it cannot be concluded that the election of respondent No. 1 would be materially affected as a result of improper acceptance of the nomination paper of respondent no. 2. As such issue No. 2 is answered in the negative. ( 23 ) AS regards the issue relating to the improper acceptance of nomination taking into consideration the documents filed by the respondent No. 2 it has to be said that no error is found in validating his caste claim by the Caste Scrutiny committee declaring him to be belonging to Scheduled Tribe. It is significant to note that the documents on which the Caste Scrutiny Committee has placed reliance undoubtedly showed that the petitioner was belonging to "halbi" caste. It is true that the Apex Court in the decision in 2001 (1) Mh. L. J. 1 (supra) has held that the caste Halba Koshti is not Scheduled Tribe. However, that decision is of no avail so far as respondent No. 2 is concerned inasmuch as the Caste scrutiny Committee has validated his caste claim on the basis that he is belonging to "halbi" which is declared as Scheduled Tribe. L. J. 1 (supra) has held that the caste Halba Koshti is not Scheduled Tribe. However, that decision is of no avail so far as respondent No. 2 is concerned inasmuch as the Caste scrutiny Committee has validated his caste claim on the basis that he is belonging to "halbi" which is declared as Scheduled Tribe. That apart the claim of respondent No. 2 as to his caste as Scheduled Tribe is validated by the Caste scrutiny Committee, further fortified by decision of our High Court in Writ petition No. 539/2002 relied upon by the counsel for the respondent No. 2. Apart from that decision of the Apex Court in 2001 (1) Mh. L. J. 1 (SC) (supra) dated 28- 11-2002 cannot invalidate the caste claim of the respondent No. 2 which was duly accepted by the Caste Scrutiny Committee and that is much more so, petitioner has not at any time challenged that caste claim of respondent No. 2. In other words in my opinion at the time when the Returned Officer scrutinized the nomination paper of candidates contesting the election in view of the law laid down by the Apex Court as also by this Court, the caste claim of the respondent no. 2 was valid and therefore, it has to be said that acceptance of nomination paper by the Returning Officer was proper and legal. Therefore, I do not find that returning Officer committed an error in accepting the nomination paper of respondent No. 2. ( 24 ) AS a consequence of recording finding on issue Nos. 1 and 2 accordingly, petitioner is not entitled to the declaration sought for. It is found that the declaration of election of respondent No. 1 is not materially affected as a result of acceptance of nomination of respondent No. 2. Therefore, the petitioner is not entitled to the declaration sought for. Petition, therefore, has to be dismissed. ( 25 ) THE learned counsel for respondent No. 2 has submitted that petitioner has produced fabricated documents to substantiate his claim. He therefore, urged that action be taken against the petitioner for fabrication of documents. In the absence of any evidence, it is very difficult to hold that the documents on which the petitioner has placed reliance relating to caste claim of respondent No. 2, are fabricated. He therefore, urged that action be taken against the petitioner for fabrication of documents. In the absence of any evidence, it is very difficult to hold that the documents on which the petitioner has placed reliance relating to caste claim of respondent No. 2, are fabricated. Therefore, no such direction for prosecution of petitioner can be given to the respondent No. 2. It is however, made clear that respondent No. 2 is at liberty to initiate proceedings against petitioner in that regard if permissible in law. Hence the order. Petition is dismissed with no order as to cost. Petition dismissed.