This petition is filed under Section 81 r/w Section 100 (1)(a) and (d) (i) of the Representation of People Act, 1951 (for short 'the Act 1951') to declare the election of the 1st respondent to 006 Khanapur (S.T.) Assembly Constituency to be null and void and set aside the same and further declare that the petitioner has been duly elected as Member of 006 Khanapur (S.T.) Assembly Constituency under Section 84 of the Act 1951.

2. Brief facts, that are necessary for disposal of the present petition may be delineated as follows:

The election petitioner is a contesting candidate to 006 Khanapur (S.T.) Assembly Constituency. In the said election, the petitioner was fielded from Indian National Congress Party and the 1st respondent was fielded from Telugu Desam Party. The election to the said Assembly Constituency was held on 16-04- 2009. The 1st respondent polled 56,014 votes and she was declared as Member of 006 Khanapur (S.T.) Assembly Constituency. The petitioner got 29,582 votes and he came second in the election. Respondents 2 to 9 are the other contesting candidates from different parties and as independents. The result to the said election was declared on 16-05-2009.

The petitioner belongs to Lambada Tribe which is included in the schedule under the Schedule Tribes Order, 1976 and he is a schedule tribe in relation to the State of Andhra Pradesh. 1st respondent belongs to Banjara Caste. Her parents hail from Jaroor Tanda Village, Kinwart Taluk, Nanded District, Maharashtra State. She was born and brought up in Maharashtra State and was residing at Jaroor village till her marriage. They belong to Banjara Caste which is included in the list of other backward classes as far as the State of Maharashtra is concerned. As per the resolution CBC, 1361-M of Government of Maharashtra, dated 21-11-1961 in Schedule 1 to the list of Vimukta Jatis of Maharashtra, the caste Banjaras is shown as a synonym to the caste Laman which is shown at Sl.No.7 of the list. She got married to Ramesh Rathod, who is a resident of Tadihatnoor village, Narnoor Mandal, Adilabad District. The family of the said Ramesh Rathod belongs to Lambada Tribe, which is included in the schedule under the Schedule Castes and Schedule Tribes Orders (Amendment) Act, 1976. The 1st respondent belongs to Banjara Caste which is included in the list of other backward classes, whereas her husband belongs to Lambada Tribes which is included in the scheduled tribes. For the purposes of the Constitution of India, as far as the State of Andhra Pradesh is concerned, the 1st respondent does not belong to Schedule Tribe. The petitioner obtained school admission register relating to 1st respondent, wherein she is shown as belonging to Banjara Caste. Under Section 5 (a) of the Act, 1951, 1st respondent is not qualified to be chosen to fill a seat in a Legislative Assembly in the State of Andhra Pradesh, since she is not a member of any of the tribes in the State of Andhra Pradesh and contested in a seat reserved for the schedule tribes. Since the 1st respondent is declared to be elected as Member of Legislative Assembly of 006 Khanapur (S.T.) Assembly Constituency to which she is disqualified from contesting, her election has become null and void. Article 366 (25) of the Constitution of India describes who are the schedule tribe. According to the said definition 'schedule tribe' means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be schedule tribes for the purposes of this constitution. Under Article 342 (1) of the Constitution of India, the President may with respect to any State and where it is a State after consultation with the Governor thereof, by public notification specify the tribes or tribal communities or parts of or groups within the tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State.

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