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2017 Supreme(Chh) 41
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Goutam Bhaduri, J.
Dr. Thaneshwar Patila S/o Dhanesh Patila - Petitioner
Versus
Smt. Sarojani Banjare W/o Jivan Banjare and Ors. - Respondents
EP No. 6 of 2014
Decided On : 18-05-2017
For the Petitioner: S.C. Verma, Shri Rajat Agrawal and Shri Durgesh Goyal
For the Respondent: R.K. Kesarwani, Ravish Verma, B.P. Sharma
Headnote:
Representation of People Act 1951 - Section 5(a) and 33 - Chhattisgarh Scheduled Castes, Scheduled Tribes and other Backward classes (Regulation of Social Status Certification) Act, 2013 - Section 10 - Election Petition - Nomination - Caste certificate – Qualification - Whether respondent No.1 has wrongly utilized Caste Certificate in nomination paper claiming that she belonged to Scheduled Caste and on such basis, she was not eligible to contest election ? “Not proved” - Whether acceptance of nomination paper of respondent no.2 can be questioned in present election petition on ground of misjoinder of cause of action and election petition is liable to be dismissed ? “Not proved” - Petition is filed by one of contesting candidates whose candidature was sponsored by Indian National Congress and candidature of returned candidate/respondent No.1 was sponsored by Bhartiya Janta Party - Respondent No.1 was declared elected as returned candidate and she secured 67158 votes whereas petitioner secured 66474 votes and other respondents secured different number of votes - It is contended that filing of nomination on basis of invalid caste certificate itself is bad, consequently election which was contested by respondent No.1 on basis of caste certificate was a nullity and against provisions of section 5(a) of Act 1951 - Held, The interpretation would fall out that reservation made in respect of Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under Constitution in that State - Considering same, even if a person is born and brought up in another State it will not have any benefit to claim privileges of Scheduled Caste and Scheduled Tribe except linkage to birth and roots, therefore, Issue No.2 is answered in negative - Not a single document has been placed on record by either of parties to adjudicate validity of acceptance of nomination papers of respondent therefore, there being no evidence, issue cannot be adjudicated on its own merits - Entire evidence and pleading, election of respondent no.1 cannot be set aside only on such presumptive evidence and adverse inference can be drawn against petitioner for non-filing of necessary documents - Consequently petitioner is not entitled to any relief sought in petition – Court view that petitioner has miserably failed to prove that respondent no.1 cannot get benefit of Scheduled Caste in State of Chhattisgarh rather it has proved case of respondent - Election petition dismissed.
1. The present election petition is concerned with the election held in the year 2013 for the Chhattisgarh State Legislative Assembly Area No.74 of Dongargarh constituency and the result of the election was declared on 08.12.2013 and respondent No.1 Smt. Sarojani Banjari was declared as returned candidate.
2. The present petition is filed by one of the contesting candidates Dr. Thaneshwar Patila whose candidature was sponsored by the Indian National Congress and the candidature of returned candidate/respondent No.1 Smt. Sarojani Banjare was sponsored by Bhartiya Janta Party. Respondent No.1 was declared elected as returned candidate and she secured 67158 votes whereas the petitioner secured 66474 votes and the other respondents secured different number of votes. The constituency was reserved for the category of Scheduled Caste.
3. The challenge to the election of respondent No.1 Smt. Sarojani Banjari is made on the ground that since the seat was reserved for S.C. Category, as such, the nomination which was filed by her could only have been accompanied with a valid caste certificate. It is contended that filing of nomination on the basis of invalid caste certificate itself is bad, consequently the election which was contested by respondent No.1 on the basis of caste certificate was a nullity and against the provisions of section 5(a) of the Representation of People Act 1951. It is further contended that the State of Chhattisgarh has promulgated the Chhattisgarh Scheduled Castes, Scheduled Tribes and other Backward classes (Regulation of Social Status Certification) Act, 2013 (henceforth called as “The Act of 2013”) in the Gazette on 29.04.2013 and the rules are made prescribing the procedure to obtain the caste certificate.
4. (i) Shri S.C. Verma, learned counsel appearing for the petitioner would further submit that Section 10 of the Act, 2013 contemplates Penal Provision and in the instant case, the caste certificate which was issued on 23.10.2013 was issued without following the procedure prescribed in such Act of 2013. It is further contended that earlier on 16.11.2009 the respondent returned candidate was issued a temporary caste certificate from Dongargarh, therefore, issuance of second caste certificate was completely invalid. It is further contended that respondent No.1 was born and brought up at Maharashtra and used the caste certificate which was issued at Maharashtra. Therefore, holding a certificate already at Maharashtra, the another certificate could not have been issued by the State of Chhattisgarh. It is stated that though respondent No.1 obtained the benefit on the basis of the caste certificate at Maharashtra yet while contesting the election at Chhattisgarh she suppressed the fact of earlier position of the caste certificate, consequently the fresh certificate from the State of Chhattisgarh could not have been permitted to be issued on which Respondent No.1 contested the election. In the result, it is submitted that respondent No.1 (for short “R-1”) was not qualified to contest the election for the Assembly Constituency which was reserved for the scheduled caste candidate.
(ii) Referring to the document Ex.P-3 which is a College leaving/Transfer certificate issued by Binzani Nagar Mahavidyalaya, Nagpur, it was contended that in the certificate respondent No.1 was shown as Satnami by caste and in Ex.P.4 also respondent No.1 was shown as Satnami by caste and it is further stated that Ex.P.5 was the application filed at Nagpur with necessary enclosures which would be evident at the back page of such certificate and on the basis of the said caste certificate respondent No.1 obtained the benefit of scholarship as evident from Annexure P-6. It is further submitted that after coming to Chhattisgarh, similar state of affairs was repeated and Ex.P-7 was issued as a temporary caste certificate despite the fac
