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2015 Supreme(P&H) 265
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Naresh Kumar Sanghi
EP. No. 1 of 2012
Darbara Singh Guru
v.
Mohammad Sadique
{Decided on 07/04/2015}
For the Petitioner:Mr. S.P.Jain, Senior Advocate, with Mr. Dheeraj Jain, Advocate.
For the Respondent:Mr. Bhoop Singh, Advocate.
Headnote:Scheduled Castes--Only the Hindu, the Sikh or the Buddhist shall be deemed to be a member of a Scheduled Caste--Muslim cannot derive any benefit of Scheduled Caste.
Election--Legislature Assembly Seat reserved for Scheduled Caste--Respondent being Muslim cannot derive any benefit of belonging to scheduled caste—Mere going to Gurudwara, performing Sikh rituals and doing path would not confer him the status of being a Sikh to contend that he had embraced Sikhism.
(A) Constitution (Scheduled Castes) Order, 1950, S.3--Scheduled Castes--Only the Hindu, the Sikh or the Buddhist shall be deemed to be a member of a Scheduled Caste--Muslim cannot derive any benefit of Scheduled Caste.
(B) Constitution (Scheduled Castes) Order, 1950, S.3--Legislature Assembly Seat--Reserved for Scheduled Caste--Respondent won the elections--Petitioner contended that respondent being Muslim cannot derive any benefit of belonging to scheduled caste--Respondent contended that before filing of nominations he had embraced Sikhism and he belonged to ‘Doom’ caste which is recognized as Scheduled Caste and a Caste Certificate has been issued to him to this effect--Result of Election in favour of respondent set aside on following grounds:-
(i) Respondent admitted that his forefathers and his wife were following Islam and even in admission form of schools for his daughters it was mentioned as Muslmaan;
(ii) Respondent admitted that he was not wearing five ‘Kakkars’ i.e. kachh, karha, karpan, kangha and kesh, which was mandatory for a sikh to wear all the time--Mere going to Gurudwara, performing sikh rituals and doing path would not confer him the status of being a sikh;
(iii) Respondent admitted in an interview that he was following Islam;
(iv) Caste Certificate issued to him was already cancelled;
(v) Even if it is presumed that respondent embraced Sikhsim, then how can it be also presumed that he was a Scheduled Caste and would carry his caste along with him at the time of conversion--Representation of People Act, 1951, S.80 to 83.
(C) Civil Procedure Code, 1908, O.6 R.15--Election Petition--It cannot be rejected merely on ground that there was some defect in the verification clause--Representation of People Act, 1951, S.100. (Para 60)
Mr. Naresh Kumar Sanghi, J.: - PRAYER IN THE ELECTION PETITION
1. Prayer in this election petition, filed by the petitioner, Darbara Singh Guru, under Sections 80-83 read with Section 100 of the Representation of the People Act, 1951 (for brevity, ‘the 1951 Act’) and all other enabling provisions in this behalf, is for setting aside the election of the respondent, Mohammad Sadique, to the Punjab Legislative Assembly, from 102-Bhadaur (Scheduled Caste) Assembly Constituency (for brevity, ‘Bhadaur Constituency’), the result of which was declared on 06.03.2012 and further to order fresh election for the said Constituency.
FACTS
2. Brief facts as culled out from the petition filed by the petitioner are that the general elections to the Punjab Legislative Assembly were held in January, 2012. As per Section 3 of the Constitution (Scheduled Castes) Order, 1950 (for brevity, ‘the 1950 Order’), no person who professes a religion different from the Hindu, the Sikh or the Buddhist shall be deemed to be a member of a Scheduled Caste. As per Section 5(a) of the 1951 Act, the qualification to be elected to the Legislative Assembly from a seat reserved for the ‘Scheduled Castes’, the person must belong to one of the ‘Scheduled Castes’ specified for the said State.
3. The election schedule for the Punjab Legislative Assembly was announced in December, 2011. As per the election schedule, the nomination papers were to be submitted on or before 12.01.2012. The scrutiny of the nomination papers was to be held on 13.01.2012 and the last date for withdrawal of the candidature was 16.01.2012. The polling was held on 30.01.2012. The votes were counted on 06.03.2012 and on the same day the result was declared.
4. The Bhadaur Constituency was reserved for the Scheduled Castes in the State of Punjab. The petitioner, Darbara Singh Guru, had filed his nomination papers as a candidate of Shiromani Akali Dal while the respondent Mohammad Sadique was a candidate from Indian National Congress. There were total 19 candidates.
5. On 14.01.2012, one Badal Singh submitted a representation to the Returning Officer, Bhadaur Constituency, alleging that the nomination papers filed by the respondent, Mohammad Sadique, had to be rejected on the premise that he (Mohammad Sadique) was a Muslim and, as such, did not belong to the Scheduled Caste. The said Badal Singh had also approached this Court by way of Civil Writ Petition No. 985 of 2012, titled “Badal Singh v. State of Punjab and others”, with a prayer for issuance of directions to the Returning Officer, Bhadaur Constituency, to decide the representation/objections, dated 14.01.2012. The said petition was dismissed as not pressed since remedy of filing an election petition was available. The said Badal Singh had also sent a representation to the Election Commission of India alleging that the respondent, Mohammad Sadique, being a Muslim could not contest the election from Bhadaur Constituency and requested the Election Commission for issuance of necessary direction/orders to stop/prevent him (Mohammad Sadique) from contesting the election from the said Constituency. The Election Commission of India vide its letter dated 29.01.2012, requested the Chief Electoral Officer, Punjab, to send a factual report in that regard. Badal Singh also submitted a similar representation, dated 31.01.2012, to the Chief Electoral Officer, Punjab. Few more persons had represented to the Deputy Commissioner-cum- Election Officer, District Barnala, to cancel the nomination papers of the respondent, Mohammad Sadique, on the premise that Mohammad Sadique being a Muslim, could not avail the benefits available to the Scheduled Castes. In turn, the Deputy Commissioner-cum-Election Officer, District Barnala, forwarded the said representation to the Returning Officer, Bhadaur Constituency, for inquiry and necessary action as per rules. However, nothing has come on record as to what happened to the various representations presented before
