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2009 DIGILAW 253 (BOM)

Rajendra Gavit v. Manisha M. Nimkar

2009-02-24

S.J.VAZIFDAR

body2009
Judgment : Oral Judgment: The following issues are framed : ISSUES 1). Whether the Election Petition is not maintainable and liable to be dismissed for non-compliance of Section 81 of the Representation of People Act and Rules, 1957 as alleged in paragraph 6 of the written statement ? 2). Whether the Election Petition is not maintainable and as such liable to be dismissed for want of necessary particulars as alleged in paragraph 2 of the written statement ? 3). Whether the Petitioner proves that the Respondent does not belong to the Mahadeo Koli Tribe recognized as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order, 1950 as alleged in the Petition ? 4). If the answer to issue No.3 is in the affirmative whether the Respondent was ineligible to file a nomination in Palghar Constituency No.62 which is reserved for candidates belonging to Scheduled Tribe as alleged in the Petition ? 5). Whether on the date of the said election the Respondent was not qualified or was disqualified to be chosen to fill the seat in question as alleged in the Petition ? 6). Whether the election of the Respondent to the Maharashtra Legislative Assembly from Legislative Assembly Constituency, Palghar No.62 is liable to be set aside or to be declared as null and void ? 7). What order ? 2. The only dispute between the learned counsel pertains to issue No.3. Mr.Patil submitted that the onus of proving the issue is on the Respondent. Mr.Kankaria on the other hand submitted that the onus of proving the issue is on the Petitioner. 3. ThePetitioner has filed this Election Petition for a declaration that Respondent No.1 was not entitled to file a nomination for 62 Palghar Constituency which was reserved for Schedule Tribe candidates as she does not belong to Mahadeo Koli Caste (Scheduled Tribe) and for a declaration that her election as a member of the Maharashtra Legislative Assembly from the said constituency in the election held in October, 2004 is void and for an order setting aside the same. 4. In Ch. Razim Ram v. Ch. Jaswant Singh Chouhan & Ors., (1975) 4 SCC 769 , the Supreme Court held in paragraphs 117 and 118 as under :- "117. 4. In Ch. Razim Ram v. Ch. Jaswant Singh Chouhan & Ors., (1975) 4 SCC 769 , the Supreme Court held in paragraphs 117 and 118 as under :- "117. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act - which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant/respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent. In the present case, the carriage of voters free of charge, was obviously known to several persons other than the appellant. No less than thirteen voters were named by PWs 9, 10 and 12 who were alleged to have travelled in this truck. Besides others, this fact would be fully known to them. The petitioner could, if he so desired, examine at least some of them to prove this fact. But none was produced by him. ....................................... 118. Secondly, even if the nature of the trial of an election petition is not the same in all respects as that of a criminal trial, the burden of proving each and every ingredient of the charge in an election petition remains on the petitioner. If a fact constituting or relevant to such an ingredient is preeminently within the knowledge of the respondent, it may affect the quantum of its proof but does not relieve the petitioner of his primary burden. The petitioner must adduce prima facie proof even of such a fact. That is to say he must establish such other relevant facts and circumstances which, if unrebutted or left unexplained by the opposite party, would raise a presumption as to the existence of such fact in issue. But in the instant case, no evidential foundation was laid, nor any factual premises were established by the petitioner, from which any inference as to the free carriage of voters could be raised. Apart from the petitioner’s formal derivative statement of his case - which on this fact could be no better than hearsay - not a scintilla of evidence on this material fact had been brought on record by the petitioner. .................." (emphasis supplied) 5. Apart from the petitioner’s formal derivative statement of his case - which on this fact could be no better than hearsay - not a scintilla of evidence on this material fact had been brought on record by the petitioner. .................." (emphasis supplied) 5. In Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673 , the Supreme Court held in paragraphs 28 to 32 as under :- "28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner. 29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner. 30. In terms of Section 103 of the Indian Evidence Act, however, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute. (See Orissa Mining Corpn. v. Ananda Chandra Prusty.) 32. The age of a person in an election petition has to be determined not only on the basis of the materials placed on record but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of the onus of proof becomes academic [see Union of India v. Sugauli Sugar Works (P) Ltd. (SCC para 14) and Cox and Kings (Agents) Ltd. v. Workmen (AIR para 36)]. It is also trite that when both parties have adduced evidence, the question of the onus of proof becomes academic [see Union of India v. Sugauli Sugar Works (P) Ltd. (SCC para 14) and Cox and Kings (Agents) Ltd. v. Workmen (AIR para 36)]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established." 6. Mr.Patil submitted that facts necessary to determine whether Respondent No.1 belongs to the Mahadeo Koli tribe is exclusively within the knowledge of Respondent No.1. The burden therefore of proving this fact according to him must be on Respondent No.1. 7. Mr.Patil’s submission is not well founded. The judgments apply to the present case. When an Election Petition is based on the contention that the successful candidate was ineligible to contest the election on the ground that she does not belong to a tribe recognized as a Scheduled Tribe, it must be presumed that the contention is based on some information, belief, ground and for some reason. Otherwise the contention would not have been raised. Surely the Petitioner cannot be heard to say that though he has no reason to believe that a person is so ineligible he has merely made the assertion and that by itself must place the burden on the Respondent. The quantum of the evidence necessary to discharge of shift this burden would vary from case to case. 8. TheRespondent would obviously be in possession of evidence to substantiate her case that she belongs to the said tribe if in fact she does. That however by itself does not relieve the Petitioner of the initial burden of proving his case. There is no warrant for the presumption in such cases that the Petitioner would not have any evidence or would not be in a position to adduce any evidence in this regard. 9. In the circumstances, it must be held that the initial burden of proving that the Respondent does not belong to a tribe recognized as a Scheduled Tribe under the Constitution (Scheduled Tribe) Order, 1950 is on the Petitioner. 10. S.O. to 6.3.2009.