Judgment:
ORDER
Ram Mohan Reddy, J.
1. The petitioner and 26 others including the 1st respondent herein contested from the Closebern constituency reserved for Scheduled Caste, of the Kadagadalu Gram Panchayath in the election held on 27.2.2005 whence the petitioner was declared elected having secured the highest number of votes while the 1st respondent secured the second highest number. The 1st respondent while calling in question the said declaration sought to be declared as the duly elected candidate, by filing Election Petition No. 1/2005 before the Prl. Civil Judge (Jr.Dn.) Madikeri, invoking the provisions of the Karnataka Panchayath Raj Act, 1993, for short the Act. The specific case of the election petitioner was that the declared candidate did not belong to Scheduled Caste and had, by furnishing a false caste certificate contested the election, though did belong to Bharathiya Hindu Malayali' caste, not a declared scheduled caste. That petition was opposed by the declared candidate arraigned as the 2nd respondent contending that being an unmarried woman belongs to 'Pulayan' caste, a recognized scheduled caste, supported by a certificate dated 9.12.1997 Ex.R-1 issued by the Tahsildar of the Hosadurga of Kasargodu District, Kerala State. Although the other unsuccessful candidates in the said elections were arraigned as party respondents-3 to 26 in the election petition, nevertheless, none of them opposed the petition by filing statement of objections, while were placed exparte. Before the Election Tribunal, the election petitioner was examined as PW-1 and two other witnesses as PWs.2 and 3, marked 11 documents as Ex.P-1 to P-11, as also the evidence of CW-1 whence documents were marked as Ex. C1 and C2. For the respondents, four witnesses were examined as RW-1 to RW-4 and five documents were marked as Ex.R-1 to R-5. The Election Tribunal having regard to the material on record, the evidence both oral and documentary held that the petitioner belongs to Bharathiya Hindu Malayali caste, not a notified scheduled caste and that the caste certificate enclosed to the nomination form for contesting the election, certifying that she belongs to a Schedule Caste, was false and accordingly, declared the election of the returned candidate as void, and as the petitioner had secured the second highest number of votes in the election was declared to have been duly elected to the membership of Kadagadalu Gram Panchayath from Closebern Reserved Constituency, by order dated 12th December, 2006 Annexure A. Hence, this petition.
2. Learned Counsel for the petitioner advances the following contentions:
(1) that the caste certificate dated 9.12.1997 Ex.R-1 discloses that the petitioner belongs to 'Pulayan' caste, a recognized scheduled caste, and that Ex.P-8 caste certificate issued by PW-3 Tahsildar, too certifies her caste as Holeya' or Harijan'. According to the learned Counsel, rejection of the said two documents, as false is perverse and unsustainable;
(2) the rejection of the oral testimony of RW-3 and RW-4 the brother and maternal uncle respectively, of the declared candidate supported the case of the petitioner that she belong to 'Pulayan' caste, a declared scheduled caste coupled with documentary evidence such as cumulative record, caste certificate issued by the Tahsildar, Ex.R-4 and R-5 is without legal basis, and perverse;
(3) the Election Tribunal fell in error in declaring the election petitioner as duly elected to the membership of the Kadagadalu Gram Panchayath from Closebern Reserved Constituency, supported by the decision of a Division Bench of this Court in T.S Patil v. The Joint Registrar of Co-operative Societies and Ors. reported in : ILR 2007 Kar. 491.
Though respondents are served, are un-represented.
3. Having heard the learned Counsel for the petitioner, the question for decision making is, 'Whether in the facts and circumstances of the case, the judgment and award impugned is, legal and proper ?'
4. Before the Election Tribunal, the election petitioner produced a certificate Ex.P-1 disclosing that the petitioner- elected candidate was admitted to the Govt. Higher Primary School of Kadagadalu, Kodagu as per Admission No. 1/83-84 recorded the date of birth as 14-12-76, daughter of K K Kunziram and caste as Bharathiya Hindu Malayali Thiyar.' In the nomination form Ex.P-7 the petitioner was shown as the daughter of late Kunziram. The certified copy of form No. D dated 14.2.2005 Ex.P8 issued by Madikeri Taluk Tahsildar, states that the petitioner belongs to Holeya (schedule caste).' The application dtd. 22.2.05 of the election petitioner marked as Ex.P-10 filed before the Asst. Commissioner, while making reference to the caste certificate produced by the elected candidate disclosing her caste as 'Harijana (Holeya)' while the caste recorded in the school records was Thiyar', requested the rejection of the nomination filed by the petitioner to contest the election. The declaration in the form of a certificate Ex. P11 filed by the declared candidate disclosed that she studied in Kerala State and that her caste is 'Holeya.'
5. The oral testimony of CW-1 the Head Master of Kadagadalu Higher Primary School is in the direction of establishing the school records in which the caste of the declared candidate is recorded as 'Bharathiya Hindu Malayali' and that the words Tiya' was erased in the extract Ex.C-1 (a). Ex.C-2(a) said to be another school record, as testified by CW-1, is that the caste of the declared candidate was shown as 'Bharathiya Hindu Nayar-Malayali.' CW1 in cross examination admits that the declared candidate belongs to 'Bharathiya Hindu Nayar-Malayali' as recorded in the school register and the admission register.
6. The oral testimony of PW-2 the District Officer, Backward Class, testifies that the caste Thiya' is listed under the other backward community, and the caste 'Nayar' does not fall under the Backward community and normally in the case of an unmarried woman, the caste to which father belongs, would be considered as the caste to which she belongs. So also PW-3, the Tahsildar who issued the caste certificate Ex.P-8 deposed that he did not enquire into or verify from the school records the caste of the declared candidate. According to PW-3, if a woman is not married caste certificate will be based on the caste of her father and that when Ex.P-8 was issued there was no time to hold enquiry in that regard.
7. RWs 1 to 4 testified that the declared candidate belongs to 'Pulayan' caste a scheduled caste in the State of Kerala and as certified by the Tahsildar of Hosdurga, Kasargod District in the caste certificate dated 9.12.1997 Ex.R-1.
8. In the light of the evidence both oral and documentary let-in before the Election Tribunal, as considered and animated in the order impugned, there can be no more doubt that the declared candidate failed to place before the Tribunal substantial legal evidence of the fact that she belongs to a declared scheduled caste either 'Pulayan' or 'Holeya' nor 'Harijan'. No clinching evidence was adduced to establish that the petitioner belongs to 'Holeya (Harijana)' caste. In fact, Ex.R-2 certificate issued by the School and Ex.R-3 certified copy of the Transfer Certificate discloses that the elected candidate belong to 'Hindu-Malayali.' The documents spoken to by CW1, the Headmaster of Kadagadalu Higher Primary School as well as Ex.R-2 and R-3 the certificate issued by the school and the certified copy of T.C., respectively, clearly disclose that the petitioner belongs to 'Hindu Malayali.' No exception can be taken to the findings, reasons and conclusions arrived at by the Election Tribunal.
9. There is considerable force in the submission of the learned Counsel for the petitioner that the Election Tribunal fell in error in declaring the election petitioner as duly elected from the Closebern Reserved Constituency to Kadagadalu Gram Panchayath, Kodagu District
10. Section 20 of the Act relevant for the purpose reads thus:
Grounds on which a candidate other than the returned candidate may be declared to have been elected :- (1) if any person who has filed an election petition has, in addition to calling in question the election of the returned candidate, claims a declaration that he himself or any other candidate has been duly elected and the (Civil Judge (Junior Division)) is of opinion:
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes;
the (Civil Judge(Junior. Dvn)) shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
(2) The decision of the (Civil Judge (Junior. Dvn)) shall be final.
11. Section 101 of the Representation of Peoples Act, 1951 read thus:
Grounds for which a candidate other than the returned candidate may be declared to have been elected:
If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion:
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes,
the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
12. Section 20 of the Act is para materia with that of Section 101 of the Representation of Peoples Act, 1951 and therefore, the principles laid down by the Courts under Section 101 of the Representation of Peoples Act apply to Section 20 of the Act.
13. In Vishwanatha Reddy v. Konappa Rudrappa Nadgouda and Anr. reported in : AIR 1969 SC 604 the Apex Court having regard to the provisions of Section 101 of the Representation of Peoples Act observed thus:
When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidates may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification and no fresh poll is necessary. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.
14. The Division Bench of this Court in T.S. Patil's case (Supra) in almost identical facts as in the present case that the elected candidate was disqualified to be elected as member of the co-operative union followed the decision in Vishwanath Reddy's case (Supra) and held that when there were more than two candidates in the field for a single seat and only one was disqualified, the voters not being aware of the disqualification, and even if they were aware of the disqualification, it cannot be assumed that they would have voted for the unsuccessful candidate or that they would not have voted only for the disqualified candidate. It is further held that if the voters had cast their votes in favour of unsuccessful candidate, certainly, that candidate would have got more votes than the disqualified candidate and therefore, in such circumstances, merely because the election of the disqualified candidate was set aside, it need not necessarily follow that the next candidate who had polled the highest number of votes is entitled to be declared duly elected.
15. Applying the very same principles to the facts of this case, in the absence of relevant material to establish that the voters would have cast their votes in favour of the election petitioner if the declared candidate was known to have been disqualified, the Election Tribunal was wholly unjustified in declaring the election petitioner as duly elected.
In the result, the writ petition is allowed in part. The order impugned in so far as it relates to declaring the 1st respondent election petitioner as duly elected to the membership of the Kadagadal Gram Panchayath from the Closebern Reserved Constituency, is quashed.