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Rajasthan High Court · body

2013 DIGILAW 2180 (RAJ)

Devi Lal Khant v. State

2013-12-04

MOHAMMAD RAFIQ

body2013
Hon'ble RAFIQ, J.—This writ petition has been preferred by petitioner-Devi Lal Khant inter alia with the prayer that all the certificates issued to candidates or any other candidate belonging to 'Meena' community be declared beyond the purview of Scheduled Tribes notification dated 20.9.1976 and further that action of the respondents in allowing any such candidate to participate in the election be declared illegal and treating candidates belonging to 'Meena' community as member of the Scheduled Tribe being declared null and void. It is further prayed that respondents be directed to make strict compliance of the notification dated 20.9.1976 and not to allow persons belonging to 'Meena' community to contest elections scheduled to take place on 1.12.2013 at Bamanwas constituency. 2. According to the averments in the petition, petitioner is resident of Nawa Ghara and his name is included in the voter list of Vidhan Sabha Constituency, Gadhi. He belongs to Scheduled Tribe category, being 'Bhil' by caste. Petitioner filed nomination for contesting elections of Member, Rajasthan Legislative Assembly scheduled to take place on 01.12.2013 from Bamanwas constituency, District Sawaimadhopur. He has been set up as a candidate of Samajwadi party. Nine other candidates are also contesting elections from the said constituency as per the list published on the website of Election Commission of India by Chief Election Officer, Rajasthan. 3. Shri Sanjeev Prakash Sharma, learned senior counsel for the petitioner has argued that the Government of India has issued a notification dated 20.09.1976 wherein, it has notified Scheduled Tribe castes in the State of Rajasthan, which includes 'Mina' at S.No.9 and not 'Meena'. Even in Hindi version of the notification dated 20.9.1976 ' ehuk ' and not ' ehuk ' has been included as member of Scheduled Tribe. Learned senior counsel invited attention of the Court towards both English and Hindi versions of the aforesaid notification which are placed at Annexure-4 and 5. It is contended that Ministry of Tribal Affairs, Union of India in reply to the Writ Petition No.1862/ 2013, titled Captain Gurvinder Singh & Ors. vs. State of Rajasthan & Ors. filed before this Court at page 708 has clarified this position that 'Meena' community is not listed in the list of Scheduled Tribes of Rajasthan. In fact, 'Mina' community has been notified as Scheduled Tribe and appeared at S.No.9 of the notification in the State of Rajasthan. vs. State of Rajasthan & Ors. filed before this Court at page 708 has clarified this position that 'Meena' community is not listed in the list of Scheduled Tribes of Rajasthan. In fact, 'Mina' community has been notified as Scheduled Tribe and appeared at S.No.9 of the notification in the State of Rajasthan. Copy of the reply to the aforesaid writ petition has been placed on record. Learned senior counsel further contended that petitioner has obtained reply to the query made under Right to Information Act from Union of India, Ministry of Tribal Affairs dated 26.10.2013 wherein he has been informed that in State of Rajasthan 'Meena' is not a Scheduled Tribe. Learned senior counsel has in support of his arguments relied on the constitution bench judgment of the Supreme Court in State of Maharashtra vs. Milind & Ors. - (2001) 1 SCC 4 and argued that it is not permissible to hold an inquiry or letting in any evidence to decide or declare that any tribe or tribal community or part of, or group within, any tribe of tribal community is included in the general name mentioned in an entry even though it is not specifically mentioned in the Constitution (Scheduled Tribes) Order, 1950. The Scheduled Tribe Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. It is not open to the State Governments or courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. 4. Learned Senior counsel then argued that the State Government contrary to the Scheduled Tribes Order has issued Scheduled Tribe certificates to members of the 'Meena' community, which is wholly unconstitutional. Reference is made to certificate issued to one Brajraj Meena of Tagore Nagar, Tehsil Ladpura District Kota. Reference is also made to the certificate dated 18.4.2013 issued by Tehsildar, Kathumar to one Munesh Kumar Meena describing as 'Mina', wherein name of his father has been mentioned as Ram Dayal Meena. Reference is made to certificate issued to one Brajraj Meena of Tagore Nagar, Tehsil Ladpura District Kota. Reference is also made to the certificate dated 18.4.2013 issued by Tehsildar, Kathumar to one Munesh Kumar Meena describing as 'Mina', wherein name of his father has been mentioned as Ram Dayal Meena. Learned senior counsel submitted that person who are from 'Meena' community are being shown in the official list published by Chief Election Officer, Rajasthan on his website as those who are contesting election from the Bamanwas constituency as Scheduled Tribe candidate. The certificates issued to as many as ten candidates describing themselves as 'Meena' have been collectively placed on record at Annexure-11. It is contended that petitioner has submitted representation to the Returning Officer and the District Election Officer for rejection/cancellation of nomination of the persons belonging to 'Meena' community, but the same has not been adjudicated till date and the nomination of persons not belonging to Scheduled Tribe category were accepted for contesting election. 5. Shri Sanjeev Prakash Sharma, learned senior counsel for the petitioners has argued that Article 191 of the Constitution of India provides that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State; inter alia, apart from other disqualifications, also if he is so disqualified by or under any law made by Parliament. Learned senior counsel then also referred to Article 193 of the Constitution of India, which provides for a penalty for sitting and voting before making oath or affirmation under Article 188, when a person knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from doing so by the provisions of any law made by Parliament. 6. Learned senior counsel argued that this Court can entertain the present writ petition even when the process of election has commenced following issuance of notification by the Election Commission of India to hold elections to the Rajasthan Legislative Assembly because the candidates belonging to 'Meena' community do not possess the basic qualification to acquire membership of the legislative assembly from the constituencies reserved for Scheduled Tribe. Learned senior counsel in this connection referred to Section 5 of the Representation of the People Act, 1950. Reliance is placed on the judgment of Supreme Court in K. Venkatachalam vs. A. Swamickan & Anr. Learned senior counsel in this connection referred to Section 5 of the Representation of the People Act, 1950. Reliance is placed on the judgment of Supreme Court in K. Venkatachalam vs. A. Swamickan & Anr. (1999) 4 SCC 526 to argue that the bar contained in Section 329(b) of the Constitution of India does not apply to entertainment of the writ petition by this Court under Articl3 226 of the Constitution, which is wide enough to cover all provisions of law and Constitution because at this stage recourse cannot be had to other remedies provided under law. It is argued that in the situation when the Returning Officer has not rejected the nomination of the candidates lacking in basis qualification to contest from Scheduled Tribe Constituencies, writ petition under Article 226 of the Constitution of India is the only efficacious remedy available to the petitioner. It is therefore, prayed that the writ petition be allowed in the terms prayed for. 7. This Court called upon Shri S.N. Kumawat, learned Additional Advocate General to address the Court on the questions of law involved in this case. 8. Shri S.N. Kumawat, learned Additional Advocate General submitted that once the process of election has started, all courts, including this Court, would cease to have jurisdiction to entertain any lis, which tend to interfere with the process of election. The only remedy available to the petitioner in the present case would be to file election petition, once the result of the election is declared. Learned Additional Advocate General placed reliance on the constitution bench judgments of Supreme Court in N.P. Ponnuswami vs. The Returning Officer- AIR 1952 SC 64 and Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner (1978) 1 SCC 405 . 9. Shri S.N. Kumawat, learned Additional Advocate General further argued that only way a certificate of Scheduled Tribe lawfully issued by the competent authority, can be disputed, is to approach the State Level Screening Committee constituted by the State Government in terms of the law laid down by the Supreme Court judgment in Kumari Madhuri Patil & Anr. vs. Addl. Commissioner, Tribal Development & Ors. (1994) 6 SCC 241 . 10. I have given my anxious consideration to the rival submissions and perused the material on record. 11. vs. Addl. Commissioner, Tribal Development & Ors. (1994) 6 SCC 241 . 10. I have given my anxious consideration to the rival submissions and perused the material on record. 11. Indisputably, the process of election for electing Members of the Rajasthan Legislative Assembly has commenced with the issuance of notification by Election Commission of India on 5th November, 2013. The polling is scheduled to take place on 1.12.2003 and the counting of the votes shall take place on 8.12.2013. The process of election should be taken to have commenced on the date of issuance of notification and would culminate when the result of election is announced. It is in this respect that Article 329(b) of the Constitution of India provides that "no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature". 12. The Constitution Bench of Supreme Court in N.P. Ponnuswami, supra as far back as in 1952 dealt with this issue. Their Lordships held that the word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature and its wide meaning taken to have embrace the whole procedure which consists of several stages and embraces many steps whereby an "elected member" is returned and rejection and acceptance of a nomination paper is included in the term "election" and such rejection or acceptance cannot be called in question under Article 226 of the Constitution of India. It was so held by their Lordships in para 8 and 9 of the report in the following terms: "8. The next important question to be considered is what is meant by the words "no election shall be called in question". A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The next important question to be considered is what is meant by the words "no election shall be called in question". A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The law with which we are concerned is not materially different, and we find that in Section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a nomination paper. 9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are recti-fied, there will be no meaning in enacting a provision like Art. 329(b) and in setting up a special Tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an indepen-dent body, at the stage when the matter is brought up before it." 13. In Mohinder Singh Gill, supra, the decision of Election Commission for ordering re-poll was challenged before the High Court. The Supreme Court while dealing with the bar created under Article 329(b) of the Constitution of India held that this would amount to "calling in question" an election, for re-poll is "anything done towards the completion of election proceedings". The Supreme Court while following the judgment in N.P. Ponnuswamy, supra and dismissing the petition observed in para 35 of the report as under: "A poll is part-a vital part-of the election but with the end of the poll the whole election 15 not over. Ballots have to be assembled, scrutinized, counted recount claims considered and result declared. The declaration determines the election. The conduct of the election thus ripens into the elector's choice only when processed, screened and sanctified, every escalatory step upto the formalized finish being unified in purpose, forward in movement, fair and free and its temper. Article 329(b) halts judicial intervention during this period, provided the act possesses the pre-requisites of 'election' in its semantic sweep. That is to say, immunity is conferred only if the act impeached is done for the apparent object of furthering a free and fair election and the protective armour drops down if the act challenged is either unrelated to or thwarts or taints the course of the election." 14. It is trite that the right to elect or to be elected or to challenge the election is neither a fundamental right, nor a common law right, but a statutory right. It is trite that the right to elect or to be elected or to challenge the election is neither a fundamental right, nor a common law right, but a statutory right. As such, the law enacted by Parliament namely; the Representation of the People Act, 1950, which is a complete code in itself. This Act provides a remedy for challenging the election by way of petition u/Sec. 80 of the Representation of People Act, 1950 on the ground of improper acceptance of any nomination as one of the grounds specified in Section 100(1)(d)(i) of the said Act. 15. In C. Narayanaswamy vs. C.K. Jaffer Sharief & Ors. - 1994 Supp. (3) SCC 170, their Lordships in para 19 of the report held as under: "It is true that-right to elect or to be elected in pure and simple a statutory right and in the absence of the statutory provision neither a citizen has a right to elect nor has he a right to be elected, because such right is neither a fundamental right nor a common law right. The same is the position so far as the right to challenge an election is concerned. It flows from the provisions of the Act itself. As such the right of a person to question the validity of an election is dependent on the conditions prescribed in the different sections of the Act and the rules framed thereunder xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" 16. Similarly, in Gajanan Krishnaji Bapat & Anr. vs. Dattaji Rathobaji Meghe & Ors.- (1995) 5 SCC 347 , their Lordship in para 12 of the report held as under: "The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the Act". 17. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the Act". 17. In Jyoti Jyoti Basu vs. Debi Ghosal (1982) 1 SCC 691 also, the Supreme Court has held as under: "A right to elect, fundamental though it is to democracy, is, anomalously neither a fundamental right nor a Common Law Right. It is a statutory right. So is the right to be elected, and right to dispute an election. Outside of statute, there is no right to elect, no right to be elected, and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket". 18. The judgment of Supreme Court in K. Venkatachalam, supra does not afford any assistance to the petitioner because the fact situation in that case was entirely different. No doubt, the appellant in that case incurred disqualification prior to the election and he knew about it and, therefore, Article 191 and 193 of the Constitution of India of India were attracted. After the election was over, the respondent rival candidate after scrutinizing the entire electoral rolls of Lalgudi Assembly constituency and that he in a blatant and fraudulent manner represented to be an elector of that constituency while using the similarity in the name of another person. This act of the appellant in that case made him liable to face criminal prosecution under the law of the country. Recourse was taken to writ jurisdiction under Article 226 of the Constitution of India before the High Court by the defeated candidate. This act of the appellant in that case made him liable to face criminal prosecution under the law of the country. Recourse was taken to writ jurisdiction under Article 226 of the Constitution of India before the High Court by the defeated candidate. The High Court while giving the declaration against the appellant went into wider issues and examined the impact of Article 193 of the Constitution which provides the penalty for sitting and voting, when a person is not qualified to be a Member of the Legislative Assembly. The writ of quo warrant to was filed after lapse of one year by the defeated candidate. The High Court interfered because in its view the appellant lacked basic qualification under clause 173(c) of the Constitution read with Section 5 of the Representation of People Act, which mandated that a person to be elected from an Assembly constituency has to be an elector of that constituency. The appellant thus being disqualified for becoming MLA of Tamilnadu Assembly. He, in fact, in his nomination form impersonated himself to be another person of the same name. The limitation for filing election petition has expired long back. It was in those facts that the Supreme Court while upholding judgment of the High Court held that Article 226 is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court, its powers under Article 226 can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to be provisions of the Act for the appropriate relief. 19. Such are not the facts in the present case as the petitioner is himself contesting the election for Bamanwas constituency. He has only vaguely stated in para 16 of the writ petition that he submitted a representation to the Returning Officer and District Election Officer for canceling nomination of the persons belonging to 'Meena' community, but the same has not been adjudicated till date. Neither any copy of such objection submitted to the Returning Officer or the District Election Officer has been placed, nor the particulars given as to on which date, it was submitted. When the process of election has been started and nominations are received by the Election Officer, a mere representation would have no meaning. Neither any copy of such objection submitted to the Returning Officer or the District Election Officer has been placed, nor the particulars given as to on which date, it was submitted. When the process of election has been started and nominations are received by the Election Officer, a mere representation would have no meaning. Petitioner was required to raise objections to the nomination submitted by each candidate separately. Making of representation generally in such manner in report of all other candidates, except the petitioner himself would have no legal sanctity. Indisputably, the petitioner himself is contesting the elections from the same constituency. Obviously, therefore, he would have the right to challenge the election of any of the 'Meena' candidates from the said constituency, if eventually, he himself is not elected. The fact situated in the case of K. Venkatachalam, supra and that of the present case are thus entirely different. Ratio of that judgment cannot therefore be applied to the present case. 20. In view of above, the present writ petition is dismissed. However, if and when the result is declared, the petitioner would have the remedy of filing election petition under Section 80 of the Representation of People Act, 1950 on the ground of improper acceptance of nomination, which he has raised herein. The writ petition is accordingly dismissed as not maintainable.