Back
2007(8) Supreme 357
Supreme Court of india
(From Himachal Pradesh High Court)
K.G. Balakrishnan, CJI., R.V. Raveendran, J.
Desh Raj — Petitioner
versus
Bodh Raj — Respondent
Appeal (civil) 4676 of 2005
Decided on : 30-11-2007
(b)Indian Evidence Act, 1872 – Section 35 – Entries in school admission registers in regard to age, caste etc., have always been considered as relevant and admissible – They gain evidentiary value if corroborated by other oral and documentary evidence.(Para 20)
AIR 1988 SC 1796; (1982) 2 SCC 202; (2005) 3 SCC 702; (1994) 6 SCC 241 – Relied upon.
(c)Indian Evidence Act, 1872 – Section 90 – Entries in school admission registers in the application submitted by appellant’s father, containing his thumb mark, being a document more than 30 years old attracts the presumption under section 90 of evidence Act – The caste shown therein as ‘Tarkhan’ has to be treated as clinching evidence. (Para 21)
(d)Representation of People Act, 1951 – Section 5 – High Court erroneously not accepting he schools’ entries, Pariwar register entries and other evidences – Appellant establishing that respondent and his family belong to Tarkhan caste and not Lohar – Thus respondent did not belong to a schedule caste and was not qualified to be chosen to fill a seat in the Legislative Assembly reserved for Scheduled Castes Election of returned candidate (respondent) declared void.(Paras 27 and 28)
Facts of the case:
1.35-Gangath Assembly Constituency is reserved for scheduled castes. Appellant and the respondent, among others were candidates for election from the said constituency. In the said election held on 26.2.2003, the respondent secured the highest number of votes namely 24499 and was declared as elected.
2.The respondent had in his nomination paper declared that he belongs to a scheduled caste (Lohar) and in support of his claim, had produced a caste certificate dated 16.12.1991 issued by the Executive Magistrate, Indora, District Kangra certifying that he belonged to scheduled caste of Lohar.
3.Only a few days before the polling, the appellant learnt that respondent does not belong to Lohar caste but belongs to ‘Tarkhan’ caste which is not a scheduled caste in the State of Himachal Pradesh. According to Appellant, the respondent was disqualified to contest the election in the Assembly Constituency reserved for scheduled caste and therefore, the election of the respondent was void.
4.High Court dismissed the petition.
Findings of the Court:
Respondent does not belong to a scheduled caste and thus was not qualified to contest election to a reserved seat.
Result : Appeal allowed.
judgment
K.G. Balakrishnan CJI. —
This statutory appeal under section 116A of the Representation of People Act 1951, is filed by an Election Petitioner against the judgment dated 7.6.2005 of the Himachal Pradesh High Court dismissing his Election Petition No.1 of 2003 challenging the election of the respondent (Bodh Raj) as Member of Legislative Assembly from 35-Gangath (SC) Assembly Constituency.
2.The case of the appellant in brief is that 35-Gangath Assembly Constituency is reserved for scheduled castes, that he and the respondent, among others were candidates for election from the said constituency. In the said election held on 26.2.2003, the respondent secured the highest number of votes namely 24499 and was declared as elected. The respondent had in his nomination paper declared that he belongs to a scheduled caste (Lohar) and in support of his claim, had produced a caste certificate dated 16.12.1991 issued by the Executive Magistrate, Indora, District Kangra certifying that he belonged to scheduled caste of Lohar. Only a few days before the polling, the appellant learnt that respondent does not belong to Lohar caste but belongs to ‘Tarkhan’ caste which is not a scheduled caste in the State of Himachal Pradesh. According to Appellant, the respondent was disqualified to contest the election in the Assembly Constituency reserved for scheduled caste and therefore, the election of the respondent was void.
3.The respondent resisted the said election petition. In his written statement, he asserted that he belonged to Lohar caste (a Scheduled Caste) and was eligible and qualified to contest as a candidate for the reserved Assembly Constituency (35-Gangath). He also contended that he was not served a complete and attested copy of election petition and therefore, the petition was liable to be rejected.
4.Issues 1 to 3 framed by the High Court (relating to the respondent’s contention that he was not served a complete and attested true copy of the election petition) were treated and tried as the preliminary issues and held against the respondent by order dated 26.9.2003. Thereafter, evidence was led in regard to the issues (4) to (6) which read thus:
(4)Whether the respondent is not a member of Lohar Caste (SC) and was not qualified on the date of his election to fill the seat in the Assembly, from reserved Constituency for SC?
(5)Whether nomination paper of respondent has wrongly and improperly been accepted?
(6)Relief
After appreciating the oral and documentary evidence, the learned Single Judge of the High Court by Judgment dated 7.6.2005 held that the appellant failed to prove that respondent did not belong to a schedule caste (Lohar) and was not qualified to contest the election to the assembly seat reserved for scheduled caste. As a consequence, he dismissed the petition. The said judgment is under challenge in this appeal.
5.It is not in dispute that a person who does not belong to a scheduled caste, cannot offer himself as a candidate for election to a reserved constituency. Article 173 of the Constitution prescribes the qualification for membership of the State Legislature and provides that a person shall not be qualified to be chosen to fill a seat in the legislature of a State unless he is a citizen of India, not less than 25 years of age, and possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Section 5 of the Representation of People Act, 1951 (‘Act’ for short) made by the Parliament prescribes the qualification for membership of a Legislative Assembly. It provides that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State, reserved for the scheduled castes of that State, unless he is a member of any of those scheduled castes and he is an elector for any Assembly Constituency in that State. Section 100 of the Act enumerates the grounds for declaring an election to be void. Clause (a) of sub-section (1) thereof provides th
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
