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MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
R.C.Mishra, J.
Ram Lal Kol - Appellant
Versus
Moti Kashyap @ Motilal - Respondent
E.P. No. 20-2009
Decided On : 10-04-2013
Election Petition - Badwara Legislative Assembly Constituency - Representation of the People Act, 1951, Section 100 - The judgment discusses the authenticity of the caste certificate, the qualification of the candidate, and the improper acceptance of the nomination. The court found that the caste certificate submitted by the respondent was forged, the respondent was not a member of the Scheduled Tribe, and the election was materially affected by the improper acceptance of the nomination.
Fact of the Case:
The petitioner challenged the election of the respondent to Badwara Legislative Assembly Constituency No. 91 on the grounds of the respondent's caste qualification and the improper acceptance of the nomination. The petitioner alleged that the respondent's caste certificate was fake and that the election result was affected by the improper acceptance of the nomination.
Finding of the Court:
The court found that the caste certificate submitted by the respondent was forged, the respondent was not a member of the Scheduled Tribe, and the election was materially affected by the improper acceptance of the nomination. The court also held that the election of the respondent from Badwara Legislative Assembly Constituency No. 91 was declared as void and set aside.
Issues: The issues included the authenticity of the caste certificate, the qualification of the candidate, the improper acceptance of the nomination, compliance with mandatory provisions of the Act, and relief and costs.
Ratio Decidendi: The court held that the burden of proving the improper acceptance of a nomination lies upon the petitioner, but where the person whose nomination has been improperly accepted is the returned candidate himself, such would be the obvious conclusion. The court also emphasized that the election petition is not a suit between two persons but is a proceeding in which the Constituency itself is the principal party interested.
Final Decision: The petition was allowed, and the election of the respondent from Badwara Legislative Assembly Constituency No. 91 was declared as void and set aside. No order as to costs was issued.
JUDGMENT
In this petition, election of the returned candidate viz. the respondent to Badwara Legislative Assembly Constituency No. 91 has been called in question on the grounds mentioned in clause (a) and sub-clause (i) of clause (d) of sub-section (1) of Section 100 of Representation of the People Act, 1951 (hereinafter referred to as 'the Act').
2. Following facts are not in dispute-
(i) In Part VIII of the Constitution (Scheduled Tribes) Order, 1950, Majhi was shown at Serial No. 29 as one of the Scheduled Tribes in relation to the erstwhile State of Madhya Pradesh and by virtue of Entry 9 to the Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, Majhi was recognized as a Scheduled Tribe in the State of Vindhya Pradesh which, ultimately, became part of a new State of Madhya Pradesh formed by the State Reorganisation Act, 1956. However, it was with effect from 27th July 1977, that Majhi was notified, under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 1976, as a Scheduled Tribe throughout the new State.
(ii) In the years 1980, 1985, 1990, 1993 and 2003, the respondent contested the election to Panagar Legislative Assembly Constituency as a member of Majhi [wrongly spelt as Manjhi in the pleadings] Scheduled Tribe and was also declared elected to the Legislative Assembly in the elections held in 1990, 1993 and 2003.
(iii) In the Assembly Election of 2008, the Badwara Constituency was notified as reserved for Scheduled Tribes. Along with his nomination paper, the respondent had submitted a caste certificate dated 11.6.1993 (Ex.D-7), said to have been issued by the Tahsildar, Jabalpur, showing that he belonged to Majhi Scheduled Tribe.
(iv) A similar petition, registered as Election Petition No. 4/94, laying challenge to the validity of respondent's election to Panagar Legislative Assembly Constituency No. 193 in the year 1993, was filed by his nearest rival namely Shankar Arakh. It was dismissed, vide order-dated 4.7.1995 passed by a coordinate Bench of this Court, as having abated.
3. According to the petitioner, the election deserves to be declared as void simply because the respondent was not having requisite qualification within the meaning of Section 5(a) of the Act, for being chosen to the seat, that was reserved for the Scheduled Tribes of Madhya Pradesh. Alleging categorically that the caste certificate submitted by the respondent in support of his candidature was a fake and fabricated document, he has further pleaded that result of the election was materially affected by an improper acceptance of the nomination. To substantiate the charge, he has averred that-
(i) Respondent belongs to Dheemar caste, which is notified as an Other Backward Class (OBC) in the State of Madhya Pradesh.
(ii) During the period from 29.5.53 to 30.4.60, the respondent had studied in Kasturchand Hitkarni Sabha Bahu Uddeshiya Uchchtar Madhyamik Shala, Jabalpur and in the School Record, his caste was written as Dheemar.
(iii) On 22.12.1993, Education Department of Municipal Corporation, Jabalpur had issued a copy of the Transfer Certificate reflecting that caste of the respondent was Dheemar.
(iv) Deeptibala, the daughter of respondent and a student of Bengali Kanya Higher Secondary School Marhatal, Jabalpur, received scholarship from the Tribal Welfare Department as member of an OBC only.
(v) In the record of the Municipal Corporation, name of the respondent, the owner of a house, located in Phootatal Ward, Jabalpur, has been mentioned as Motilal, son of Mewalal Kashyap and the surname viz. Kashyap is one of the surnames commonly used by members of Dheemar caste.
(vi) The caste certificate dated 11.6.1993 said to have been issued by the Tahsildar, Jabalpur is apparently a fake and fabricated document for the reason that it does not bear any case number.
(vii) By way of the Order No. F-21-6/25-5/92 dated 29.8.1992, Majhi was deleted from the list of socially and economically backward classes in relation to t
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