Gurjit Singh v. Election Tribunal and others

In the background of the aforesaid admitted facts, the provision of Section 38(2) of the Act is to be considered. Section 38(2) of the Act reads as under: -

Section 38(2) : - In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill FAO No.4292 of 2008 (O&M) -5- that seat unless his nomination paper contains a declaration by him specifying the particular caste of which he is a member and the area in relation to which that caste is a Scheduled Caste of the State.

Learned counsel for the appellant has referred to the judgment of the Supreme Court in which somewhat similar controversy was involved. In that case of Ganu Ram (Supra), the Supreme Court had interpreted the provisions of Section 33(2) of the Representation of People Act, 1951 (for short ‘the Act of 1951’) which reads as under: -

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.

Apparently, Section 33(2) of the Act of 1951 and Section 38(2) of the Act are pari materia.

In the case of Ganu Ram (Supra), Section 33 (2) of the Act of 1951 was in question. The facts were that general elections to the Himachal Pradesh Vidhan Sabha were held in May, 1982. Ganu Ram (appellant), Rikhi Ram Kaundal (first respondent) and three others contested the 23-Gehrwin Assembly Constituency seat reserved for Scheduled Castes only. In the said election, appellant-Ganu Ram was elected. His election was challenged by Rikhi Ram Kaundal by way of an election petition in which his first ground was that the nomination paper filed by Ganu Ram was not in order inasmuch as it did not contain any declaration specifying the particular caste of which Ganu Ram was the member and the area in relation to which the said caste has been declared to be a Scheduled Caste. The second objection was that since the FAO No.4292 of 2008 (O&M) -6- appellant-Ganu Ram had not made any declaration in the nomination paper regarding the particular Scheduled Caste to which he belonged, he should be deemed to be disqualified in view of Section 33(2) of the Act of 1951.

In this background, Section 33(2) of the Act of 1951 was interpreted by the Supreme Court with following observations: - “It is not disputed that in the nomination form filed by the appellant and his proposer, no written declaration had been made specifying the caste to which the appellant belongs and the area in relation to which that caste is a scheduled caste of the State. But it is common ground that along with the nomination paper the appellant had filed as annexure thereto a certificate issued by the Sub- Divisional Magistrate, Ghumarwin certifying that the appellant belonged to a scheduled caste namely 'Lohar'. The said certificate was appended to the nomination paper obviously with the sole purpose and intention of making it known to the Returning Officer and all others concerned that the appellant is filing his nomination as a candidate belonging to a scheduled caste namely 'Lohar' and it was in proof of that assertion and for eliminating doubt or controversy in the matter that the Sub Divisional Magistrate's certificate was produced.

The High Court has taken the view that since section 33 of the Act requires that the nomination paper must be in the prescribed form and Form 2B is a self- contained one, the filing of any enclosure or certificate along with the Form is not contemplated. We are unable to agree with this view. When the nomination paper has been made in the prescribed form there is no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of writing them out in the form itself. This is FAO No.4292 of 2008 (O&M) -7- very often done in the matter of filing returns of Income-tax, Wealth-tax etc. In such cases the annexure appended to the form should be treated as part of the nomination paper. We are therefore of opinion that the certificate which was produced by the appellant as an annexure to the nomination paper has to be treated as forming part nomination paper and the declaration contained therein that the appellant belongs to the scheduled caste of 'Lohar' must be understood and treated as a declaration by the appellant in the nomination form within the meaning of sub-section (2) of section 33.

We have to remember that we are dealing with nomination papers pertaining to candidates belonging to scheduled castes and scheduled tribes, who, for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally comparison with other sections of our people. It is manifest that the legislative purpose underlying Sub section (2) of section 33 of the Act is that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belongs and the area in relation to which that caste or tribe is a scheduled caste or scheduled tribe of the State. This requirement is fully satisfied in the present case because by producing the certificate of the Sub-Divisional Magistrate as an annexure to his nomination paper the appellant had clearly made it known that he was filing the nomination as a candidate belonging the 'Lohar' caste, which is admittedly a scheduled caste in the entirety of the area of the FAO No.4292 of 2008 (O&M) -8- State of Himachal Pradesh.

It is also significant that no objection whatever was raised against the nomination filed by the appellant at the time of scrutiny. The Returning Officer had published a notice of nominations under section 35 of the Act and in the said notice it was expressly stated that the appellant had filed his nomination a candidate belonging to the scheduled caste namely 'Lohar'. Having regard to all the facts and circumstances of the case and the legal position as explained above, we consider that the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning Officer was improper.” With the aforesaid observation, the judgment of the High Court of Himachal Pradesh was ultimately set aside by the Supreme Court. To my mind, the facts of the case are quite similar to the case of Ganu Ram (Supra) because in this case also while filing nomination paper in Form IV prescribed under Rule 9(1) of the Rules, the appellant had specifically mentioned his caste as ‘Balmiki’. He also appended his Scheduled Caste certificate duly issued by the State Government.

Thus, the judgment of the Supreme Court in the case of Ganu Ram (Supra) applies with full force to support the case of the appellant, consequently, the impugned order passed by the Election Tribunal is found to be patently illegal. Hence, while deciding the question of law proposed in this appeal in favour of the appellant it is held that in case where nomination paper is filed by candidate on the prescribed Form IV prescribed under Rule 9(1) of the Rules in which his caste is specifically mentioned and the nomination form filed under Form IV-A prescribed under Rule 9(2) of the Rules in which his caste is omitted to be mentioned but the form is accompanied by a Scheduled Caste certificate duly issued by the State Government, the said nomination form shall be valid and cannot be rejected or discarded by the Returning Officer. FAO No.4292 of 2008 (O&M) -9- In view of the above discussion, the election of respondent No.2 is hereby set aside and the appellant is declared to have been elected as the Panch of Gram Panchayat, Baran. However, in the peculiar facts and circumstances of the case, parties are directed to bear their own costs. December 01, 2010 Vivek (RAKESH KUMAR JAIN) JUDGE