Ajmeera Hari Naik Vs Suman Rathod and Nine Others - Citation 907351 - Court Judgment

Judgment:
:

1.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:

2.1.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.

2.2. 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.

2.3.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.

2.4.In the schedule part-1 relating to the State of Andhra Pradesh, under the Schedule Castes and Schedule Tribes orders (Amendment) Act, 1976, the caste Banjara is not included. In the Annexure -1 to the Andhra Pradesh (SC, ST and BC) Regulation of issue of community Certificate Act,1993, the list of Schedule Tribe community is enumerated. In the said list, the caste Banjara is not included. Thus, the caste Banjara cannot be treated as Schedule Tribe as far as the State of Andhra Pradesh is concerned. Hence, the 1st respondent is not qualified to contest an election for the Legislative Assembly of Andhra Pradesh from a Constituency which is reserved for Scheduled Tribes. As such the election of the 1st respondent to 006 Khanapur (S.T.) Assembly Constituency is null and void and the same is liable to be set aside. The 1st respondent earlier contested in a by-election held for the same Khanapur (S.T.) Assembly Constituency in the year 2008 claiming herself as belonging to Scheduled Tribe. The petitioner came to know that some of the contested candidates in the said election objected to her nomination from the said constituency on the ground that she does not belong to Scheduled Tribe. But her nomination was accepted. The petitioner further came to know that several complaints were made to the District Collector of Adilabad District requested him to conduct enquiry into the social status of the 1st respondent. One Sri Govind Naik, former M.L.A. from the said constituency also filed complaint before the Commissioner for Scheduled Tribes and the District Collector, Adilabad against 1st respondent in relation to her social status. Sri Soyam Bapu Rao, who was M.L.A. for Boath Constituency which is reserved for Scheduled Tribes in the District of Adilabad also lodged complaint before the District Collector in the same matter. The District Collector initiated enquiry into the social status of the 1st respondent and the same is pending. Hence, the petition.

3. The 1st respondent filed counter affidavit denying the averments in the election petition. She took the preliminary objection with regard to maintainability of the election petition on the ground that the petitioner neither raised any specified grounds as required under Section 81 r/w 100 of the Act, 1951 nor pleaded material facts and particulars and verification of pleadings as required under Section 83 of the Act, 1951 for constitution of cause of action, in seeking declaration of her election as returned candidate from 006 Khanapur (S.T.) Assembly Constituency as void. It is settled law that pleading the grounds specified in Section 100 of the Act, 1951 is mandatory requirement under Section 81 of the Act, 1951 while questioning the election of the returned candidate and further it is a condition precedent for filing of the election petition. In the absence of material facts, substantiating the said grounds under Section 83 r/w 100 of the Act, 1951, the election petition is liable to be dismissed in limini. It is true that she belongs to Banjara Caste and her parents hail from Jaroor Tanda village, Nanded District of Maharashtra State, but denied that she was born and brought up at Maharashtra. She was married to her family relative Mr.Ramesh Rathod, resident of Tadihatnoor village in Adilabad District at early age in the year 1971 as per the tribal customs and practices. In view of her marriage with Ramesh Rathod, she came to Tadihatnoor village to join her husband family and thus she was brought up in her husband family. It is true that Banjara Caste is included in the list of backward class in Andhra Pradesh. But, however, Banjara Caste was included in the Constitution (Schedule Tribe) Order, 1950 by inserting in Entry 29 Part I of Andhra Pradesh through the Schedule Caste and Schedule Tribe Orders (Amendment) Act, 2002 (Act 10 of 2003). In view of the said inclusion, Banjara Caste residing in the State of Andhra Pradesh was treated as Schedule Tribe w.e.f. 07-01-2003. The Sugalis, Lambadas and Banjara are synonyms and same class and group of schedule Tribes in the State of Andhra Pradesh and they were included in the Schedule Tribe Order, 1950 by way of Schedule Tribe Order (Amendment) Act, 1976. Banjara being the synonym of Sugali and Lambada, it is also the same group of Schedule Tribe in relation to State of Andhra Pradesh. Thus, she being the member of Banjara caste residing in the State of Andhra Pradesh, she is recognized as belongs to Schedule Tribe in relation to State of Andhra Pradesh.

3.1.It is stated that present Jaroor Tanda village in Nanded District and Tadihatnoor village in Adilabad Districts originally belong to the territory of former Hyderabad State, presently part of Andhra Pradesh. During the State re- organization in the year 1956, Jaroor Tanda village fallen to the Nanded District of State of Maharashtra, whereas Tadihatnoor village continued to be Adilabad District of State of Andhra Pradesh. Thus, Tadihatnoor and Jaroor Tanda villagers are border villages. The Tribals i.e., Banjara and Lambada, residing in both sides of border villages practice with the same tribal culture, custom and suffered same disabilities in the society. After her marriage with Ramesh Rathod, she continues to reside permanently as permanent abode of Tadihatnoor village and thus she became an ordinary resident in Khanapur ST Assembly Legislative Constituency in terms of Section 20 of the Representation of the People Act, 1950 (for short 'the Act 1950'). Therefore, she is qualified to be registered as elector in the said constituency. Accordingly, the election authorities registered her name as elector in the electoral roll of Khanapur ST Assembly Constituency, Adilabad District, Andhra Pradesh. She participated in the election and exercised the vote. Being an elector of the said constituency and a member of the Schedule Tribe community of Andhra Pradesh, she contested the by-election of Khanapur Schedule Tribe Reserved Legislative Assembly constituency in the year 2008 and in general elections in the year 2009 and got majority of votes and accordingly she was declared as Returned Candidate for the said constituency. Thus, she is continuing as member of the A.P. Legislative Assembly and hence, she is qualified to contest Schedule Tribe Constituency seat within the meaning of Section 5 (a) of the Act, 1951. Pursuant to the Act 10 of 2003, the State of Andhra Pradesh included Banjaras Caste in the list of SC, STs, AP (SC, ST & BC) Regulation of issue of Community Certificate Act, 1993 and the competent authority under the Act issued the Schedule Tribe certificates to the members of the Banjara community. The averment that Banjara Caste cannot be treated as Schedule Tribe as far as State of Andhra Pradesh is concerned, is misconception. The petitioner has made the said allegation without consultation of law and in ignorance of Act 10 of 2003. The allegation that she is not qualified to contest the election is incorrect and thus her election to Khanapur ST Assembly Constituency cannot be declared as void.

3.2.It is further stated that some political rivals opposing her in the election objected her nomination for contesting from Khanapur ST reserved Assembly Constituency in the year 2008 and 2009 before the Returning Officer, but the Returning Officer taking into provisions of Act 10 of 2003 and after satisfying that she being the member of Schedule Tribe community in the State of Andhra Pradesh, accepted her nomination and rejected objections raised by her political rivals. Notwithstanding the above, her political rivals viz., Sri Govind Naik, former MLA and others filed complaints for cancellation of her Schedule Tribe social status before the Government of Andhra Pradesh and the same was referred to the District Collector, Adilabad, who ignoring the legal position particularly under Act 10 of 2003, passed an order cancelling her social status certificate under the AP (SC, ST, BC) Regulation of Issue of Community Certificate Act, 1993. She filed W.P.No.22590 of 2009 questioning the said order and this Court was pleased to suspend the said order. The certificate issued under the AP (SC, ST, BC) Regulation of Issue of Community Certificate Act, 1993 is only for availing benefits under Article 15 (4) and 16(4) of the Constitution of India and the said certificate has no application for contesting the elections to fill the reserved seats in the Legislative Assembly. For contesting the elections to the Schedule Tribe Reserved Assembly Constituencies, the requirement of law is that the contesting candidate should be a member of Schedule community in terms of Schedule Tribe Order, 1950 in relation to that State. The petitioner has not made out any cause of action in terms of Section 100 of the Act 1951. Therefore, she prays to dismiss the election petition.

4. Basing on the above pleadings, the following issues are settled for trial: 1.Whether the Election Petition is maintainable on the ground of lack of material facts and particulars, proper verification, specified grounds in Section100 as required under Sections 81 and 83 of R.P.Act,1951? 2.Whether the returned candidate is disqualified to contest the election to the Khanapur Schedule Tribe Reserved Constituency under Section 5(a) of R.P. Act on the date of election? 3.Whether Banjara Caste is included in the list of Schedule Tribe in relation to State of Andhra Pradesh, on the date of election of the returned candidate? 4.Whether the returned candidate is a member of Schedule Tribe in relation to State of Andhra Pradesh on the date of her election?

Issue No.2 is recasted as follows:

"Whether returned candidate is not qualified to contest the election to the Khanapur Schedule Tribe reserved constituency under Section 5 (a) of R.P. Act, 1951 on the date of election?"

5. On behalf of the petitioner, P.Ws. 1 to 3 are examined and Exs.P1 to P19 are marked. On behalf of the 1st respondent, R.Ws. 1 to 5 are examined and Exs.R1 to R15 are marked.

6. Mr.Bojja Tarakam, learned senior counsel appearing for the petitioner contended that the 1st respondent belong to Banjara Caste, which is included in the list of other backward classes insofar as State of Maharashtra is concerned, that the marriage of the 1st respondent with Mr.Ramesh Rathod who is a resident of Tadihatnoor, Adilabad District was performed in the year 1983, that the family of the said Ramesh Rathod belongs to Lambada Tribe, which is included in the schedule tribe under the Schedule Castes and Schedule Tribes Orders (Amendment) Act, 1976, that 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 Tribes, that in view of her marriage with her husband Ramesh Rathod, her social status with regard to her caste would not be changed, that under Section 5 (a) of the Act,1951, the 1st respondent is not qualified to be chosen to fill a seat in the Legislative Assembly of State of A.P., that 006 Khanapur (ST) Assembly Constituency is reserved for Schedule Tribe candidates, that in view of the fact that the 1st respondent does not belong to Schedule Tribe community, she is not qualified from contesting the election that was held on 16-04-2009, that only the ground on which the election of the returned candidate is challenged is under Section 100 (1) (a) of the Act,1951, that as on the date of election of the returned candidate, she is not qualified in view of Section 5 (a) of the Act, 1951, that it is the case of the 1st respondent that she married Ramesh Rathod in the year 1971,but absolutely there is no documentary evidence to show that she is ordinarily residing in the village of Tadihatnoor, Adilabad District of Andhra Pradesh since then, that the documents produced by the 1st respondent would only go to show that she is ordinarily residing in a place in Adilabad District after 1989, that since she is born to parents who belong to Banjara Caste and her caste is recognized as other backward classes insofar as in the State of Maharashtra is concerned, her social status as backward class cannot be changed during her life time, that the marriage or adoption of a person would not change the social status, that in view of Article 342 (1) of the Constitution of India, the President may in respect to a State after consultation with the Governor specify the tribes of tribal communities for the purpose of constitution be deemed to be a Schedule Tribe in relation to that State, that Banjara Caste of parents of 1st respondent has not been shown as one of the tribals in the presidential notification issued insofar as State of Maharashtra is concerned, that therefore, she deemed to be a person belonging to backward class community and she is not qualified to contest the seat reserved for Schedule Tribe community, that the word 'ordinary resident' is defined in the Act, 1950 and that the said phrase is not defined under the Act,1951, that the definition of 'ordinarily resident' as defined under the Act, 1950 cannot be applicable to the Act, 1951, that even otherwise, the word 'ordinarily resident' referred to under Section 20 of the Act, 1950 is applicable only for the purpose of a person's registration of the electoral roll of that constituency, that under Section 84 of the Act,1951 besides seeking declaration that the election of the returned candidate is void, the petitioner can as well seek declaration that he himself has been duly elected, that under Section 101 of the Act, 1951, this Court has power that after declaring the election of the returned candidate be void, declare the petitioner to have been duly elected, that the petition contained the concise statement of material facts and the petition and affidavit have been duly verified in the manner as laid down in the Civil Procedure Code, 1908 (for short 'CPC'), that therefore, the election petition has to be allowed as prayed for declaring the election of the returned candidate as void and consequently to declare the petitioner has been duly elected as member of Legislative Assembly 006 Khanapur (S.T.) Assembly Constituency.

7. On the other hand, Mr.K.Rama Krishna Reddy, learned senior counsel appearing for the 1st respondent contended that the election petition does not contain any material facts so as to set aside the election of the returned candidate, that even all the allegations in the election petition do not make out a single material fact, that the averments in the election petition are vague, ambiguous, that unless a specific plea is taken in the pleadings, any amount of evidence is valueless, that the contents of the election petition are not in conformity with Section 83 of the Act, 1951, that the verification of pleading is not in accordance with the procedure as laid down under CPC, that the verification of the affidavit has not been properly verified in the manner provided under Order XIX Rule 2 CPC, that further the affidavit in lieu of chief-examination does not contain proper verification as required under Section 83 (1) (c) of the Act, 1951, that if the entire chief-examination of the petitioner is eschewed from consideration, the petitioner is not entitled for the relief claimed in the absence of any other evidence, that the statutory provisions of the Act, 1951 have to be strictly observed complied with and followed, that even though a single material fact is omitted, it is fatal to the case of the petitioner, that the verification of pleadings in terms of Order VI Rule 15 (2) CPC has not followed, that in the election petition, petitioner states in verification is to the best of his knowledge, but according to law it should be on personal knowledge, that in the absence of proper verification of election petition and affidavit thereon are liable to be rejected, that no where in the election petition, it is stated that as on the date of the election, the returned candidate was not qualified, that there is clear distinction between the words 'not qualified' or 'disqualified' under the Act, 1951, that Section 5 of the Act, 1951 deals with the person not to be qualified to be chosen from the Legislative Assembly of the State, whereas Section 8 of the Act,1951 deals with disqualification under certain circumstances as enumerated in the said section, that para 2 of the petition averments does not say that the 1st respondent was not qualified to contest the elections, that whereas in para 3 of the petition averments, it is stated that the 1st respondent is disqualified from contesting the elections, which is not applicable to the present facts of the case and the contents in para 3 of the petition are very vague, that no concise material facts as required to be stated under Sections 100 and 101 r/w 81 of the Act,1951 have not pleaded, that petitioner has not made out any case in terms of Section 83 (1) (a) of the Act, 1951, that there is no ground to declare the election of the 1st respondent as void, that the petition is lack of material facts and particulars and that the cause of action does not indicate that the 1st respondent is not qualified as on the date of election, that the petitioner did not specify as to on what ground the election petition is filed, that in view of the fact that the election of the returned candidate is challenged, the provisions under the Act, 1951 have to be strictly observed and followed, that the 1st respondent married Ramesh Rathod at an early age in the year 1971 and the practice of early marriage is in existence in the community of the 1st respondent and since then, she is ordinary resident of State of Andhra Pradesh leading marital life with her husband till today, that by the time of her marriage, Banjara Caste is not included in the list of Schedule Tribe in the State of Andhra Pradesh, that as she is ordinary resident of State of Andhra Pradesh from 1971 and in proof of the same, she filed verified copies of voters lists for the years 1983, 1988, 1995 and 2009, that since she is ordinarily resident of Andhra Pradesh, she is entitled to get social status of Banjara Caste which is a Scheduled Tribe in relation to State of Andhra Pradesh, that there is no allegation in the election petition that 1st respondent is not ordinary resident of Andhra Pradesh, that in view of inclusion of Banjara Caste in the list of Scheduled Tribe Order in the year 2003, she deemed to be a Scheduled Tribe community recognized by the presidential order after 2003, that the petitioner by ignorance of law filed the election petition on misconception that Banjara Caste is not Scheduled Tribe in relation to the State of Andhra Pradesh and hence, there is no cause of action for filing the election petition questioning the election of 1st respondent, that as a matter of fact she contested in the elections in the year 2008 for the same constituency, that the election petition does not disclose concise statement of material facts as required under the Act,1951, that the prayer of the petitioner in terms of Section 101 of the Act, 1951 is not to be considered and hence, he prays to dismiss the election petition.

8. Both the counsel relied upon several decisions, which will be referred to at appropriate time.

9. ISSUE NOS. 1 TO 4:

It is not in dispute that 006 Khanapur (S.T.) Assembly Constituency is reserved for members belonging to the Scheduled Tribe. The petitioner is one of the contesting candidates for the general elections held in the year 2009. The election to the said constituency was held on 16-04-2009. It is not in dispute that the petitioner is an ordinary resident of Lingapur village, Dandepalli Mandal, Adilabad District. According to the petitioner, he belongs to Lambada Tribe, which is recognized as Scheduled Tribe in the Scheduled Tribes Order, 1976. Therefore, he belongs to Scheduled Tribe community in relation to the State of Andhra Pradesh. It is also not in dispute that the 1st respondent belongs to Banjara Tribe, that the parents of the 1st respondent hail from Jaroor Tanda village of Nanded District of Maharashtra State. The Banjara Tribe is not included in the list of Scheduled Tribe in relation to State of Andhra Pradesh till 2003. By Act 10 of 2003 i.e., Schedule Caste and Schedule Tribe Orders (Amendment) Act, 2002 by inserting in Entry 29 Part I of Constitutional (Schedule Tribe) Order, 1950, the tribe 'Banjara' is included in the list as Scheduled Tribe in relation to the State of Andhra Pradesh under Article 342 (2) of the Constitution of India. It is also not in dispute that the present Jaroor Tanda village in Nanded District of Maharashtra State and Tadihatnoor in Adilabad District of Andhra Pradesh are originally within the territory of Hyderabad State. During the State re-organization in the year 1956, Jaroor Tanda village had fallen to the Nanded District of State of Maharashtra, whereas Tadihatnoor village continued to be in the Adilabad District of State of Andhra Pradesh. Thus, Tadihatnoor and Jaroor Tanda villages are border villages. It is also not in dispute that during the elections held on 16-04-2009, the 1st respondent was declared elected as member of Legislative Assembly from 006 Khanapur (S.T.) Assembly Constituency.

10. The word 'Schedule Tribe' is defined under Article 366 (25) of the Constitution of India, which 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 Scheduled Tribes for the purposes of this Constitution. Article 342 (1) of the Constitution of India reads that, the President may with respect to any State or Union Territory, 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 such tribes or tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes in relation to the State or Union Territory, as the case may be. The object of the above article is to provide additional protection to the members of the Schedule Tribe having regard to the economic, social and educational backwardness from which they suffer. To specify the tribes, the President is authorized to limit the notification applicable to the inclusion or exclusion of certain tribes. Therefore, the list of tribes or tribal communities is now contained in the Constitution (Schedule Tribe) Order, 1950 as amended from time to time has to be taken as final. Once the name of Tribes or Tribal communities is included in the presidential order in respect of tribes after consultation with the Governor by a public notification specifying the tribes or tribal communities which shall be for the purposes of constitution be deemed to be a Schedule Tribe in relation to that State. Once a particular Tribe is included in the list of presidential order and the law made by the Parliament, it is not open to any authority including Court or State Government to make any addition or subtraction of names of Tribes or Tribal communities from the list of tribes from the presidential order. On this aspect, learned counsel appearing for the 1st respondent relied on a decision reported in STATE OF MAHARASHTRA AND OTHERS V MANA ADIM JAMAI MANDAL 1, wherein it was held thus (para 9):

"IT is now well settled principle of law that no authority, other than the Parliament by law, can amend the Presidential Orders. Neither the State Governments nor the courts nor the Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe is included in Presidential Orders in one entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within presidential Orders when it is not so expressly included or exclude a particular caste or tribe or group of castes or tribes when they are expressly included"

11. Similarly, he relied on another decision reported in PALGHAT JILLA THANDAN SAMUDHAYA SAMRAKSHNA SAMITHI AND ANOTHER V STATE OF KERALA AND ANOTHER 2 wherein it was held thus (para 17):

"WE may usefully draw attention to the judgment of a bench of three learned Judges of this court in Srish Kumar Choudhury v. State of Tripura. This judgment considered the Constitution bench judgments in B. Basavalingappa v. D. Munichinnappa and Bhaiyalal v. Harikishan Singh and certain other judgments. It held that the two Constitution bench judgments indicated that any amendment to the Presidential Orders could only be by legislation. The court could not assume jurisdiction and order an enquiry to determine whether the terms of the Presidential Order included a particular community. A State government was entitled to initiate appropriate proposals for modification in cases where it was satisfied that modifications were necessary and, if after appropriate enquiry, the authorities were satisfied that a modification was required, an amendment could be undertaken as provided by the Constitution."

So, from the above decisions, it is clear that the tribes or tribal communities which are listed in the presidential order can alone be taken into consideration as the members belonging to the Schedule Tribe in relation to that State and therefore, it is not open to the Court to make addition or subtraction or interpretation of the list of tribes or tribal communities from the presidential order.

12. Though Banjara Tribe was not originally included in the Constitution (Schedule Tribe) Order, 1950 as Schedule Tribe, but by virtue of the amendment in the year 2002, Banjara Tribe was included in the list of Scheduled Tribes in the Constitution (Schedule Tribe) Order, 1950 by inserting in Entry 29 part I of State of Andhra Pradesh through Schedule Caste and Schedule Tribe Orders (Amendment) Act, 2002. In view of the said inclusion, the members of Banjara Tribe resident in the localities specified in the State of Andhra Pradesh have to be treated as persons belonging to Schedule Tribes w.e.f. 07-01-2003. The husband of the 1st respondent belongs to Lambada Tribe, which was included in the list of Schedule Tribe by virtue of Constitution (Schedule Tribe) Order, 1950 by way of Schedule Tribe Orders (Amendment) Act, 1976.

13. Under Section 80 of the Act, 1951, no election shall be called in question except by an election petition presented in accordance with the provisions of the part of Chapter 2. Section 81 of the Act, 1951 provides for presentation of election petition, which reads thus: "81 Presentation of petitions:- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 (High Court) by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates). Section 82 of the Act, 1951 deals with parties to the election petition, whereas Section 83 of the Act,1951 deals with contents of the election petition, which reads thus: "83 Contents of petition:- (1) An election petition- a) shall contain a concise statement of the material facts on which the petitioner relies; b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings.

Provided that where the petitioner alleges any corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. The only grounds to challenge the election of a returned candidate are prescribed in sub-section (1) of Section 100 and 101 of the Act, 1951. Clauses (1) and (2) of Section 83 of the Act, 1951 make it mandatory on the petitioner to furnish concise statement not only material facts necessary to constitute cause of action, but also the necessary particulars to put the returned candidate in notice of the details of the charge, he is calling upon to meet. If vague or bald statements are made in the election petition, they do not satisfy the requirements of the said provision. In other words, the allegations must be clear, explicit and unambiguous.

14. As seen from the arguments advanced by the learned senior counsel appearing for the petitioner, the only ground taken to challenge the election of the 1st respondent is under Section 100 (1) (a) of the Act, 1951, which reads thus:

"100. Grounds for declaring election to be void:- (1) Subject to the provisions of sub-section (2) , if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act; From the above provision, if the High Court is of the opinion that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under the Act 1951 or under the Government of Union Territories Act, 1963, it shall declare the election of the returned candidate to be void.

15. Learned counsel appearing for the 1st respondent contended that there is a clear distinction between the phrases, 'not qualified' and 'disqualified'. As rightly pointed out by the learned counsel for the 1st respondent there is a distinction has to be drawn between the words 'not qualified' and 'disqualified'. Section 5 and 5(a) of the Act, 1951 deal with persons who possess all the qualifications prescribed to fill a seat in the Legislative Assembly. Whereas Section 8 of the Act, 1951 deals with disqualification of a person with regard to the various categories of persons as mentioned therein. In view of the arguments of the learned counsel for the petitioner, the issue to be resolved in this case is qualification for the membership of the Legislative Assembly as required under Section 5 (a) of the Act, 1951. Violation of Section 100 (1) (a) of the Act, 1951 has to be established as a condition precedent to declare the election of the returned candidate as void.

16. Learned counsel for the 1st respondent relied on a decision reported in SAMANT N.BALKRISHNA AND ANOTHER V GEORGE FERNANDEZ AND OTHERS 3 with regard to showing in the election petition the concise statement of material facts with reference to Section 83 of the Act, 1951, wherein it was held thus: "The Section is mandatory and requires first a concise statement of material facts and then requires the fully possible particulars. What is the the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet." It was further held thus: "To begin with it must be realized that as is stated in Jagan Nath v Jaswal Singh and others, the statutory requirement of the law of Election in India must be strictly observed. It is pointed out in that case that an election contest is not an action at law or a suit n equity but a purely statutory proceeding unknown to common law and that the court possesses no common law power."

17. He also relied on a decision reported in RAM SUKH V DINESH AGGARWAL 4 on the ground that what are the material facts with reference to the election law, wherein it was held thus (para 15): "AT this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub- section (1) of Section 83. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. "particulars", on the other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise."

18. He also placed reliance on the decision reported in HARI SHANKAR JAIN V SONIA GANDHI 5 with regard to material facts on which election petition should contain, wherein it was held thus (para 23): "SECTION 83 (1 ) (a) of RPA, 1951 mandates that an election petition shall - contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well-settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of civil Procedure, 1908. The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V. S. Achuthanandan v. P. J. Francis and Anr. [jt 1999 (2) SC 347= (1999) 3 SCC 737], this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. "

19. He also placed strong reliance on the decision reported in DHARTIPAKAR MADAL LAL AGARWAL V RAJIV GANDHI 6, wherein it was held thus (para 14):

"BEFORE we consider various paras of the election petition to determine the correctness of the High Court order we think it necessary to bear in mind the nature of the right to elect, the right to be elected and the right to dispute election and the trial of the election petition. Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 1951. There is no fundamental or common law right in these matters. This is well settled by catena of decisions of this Court in N. P. Ponnuswami v. Returning Officer 1952 SCR 218: (AIR 1952 SC 14), Jagan Nath v. Jaswant Singh AIR 1954 SC 210, Jyoti Basu v. Debi Ghosal (1982) 3 SCR 318 : (AIR 1982 SC 983 ). These decisions have settled the legal position that outside the statutory provisions there is no right to dispute an election. The Representation of the People Act is a complete and self contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil Procedure Code are applicable to the extent as permissible by S. 87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questioned under the statute as provided by S. 80 on the grounds as contained in S. 100 of the Act. Section 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by S. 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under S. 100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner"

There is no dispute about the proposition of law laid down by the apex Court that election petition shall contain the concise statement of material facts on which the petitioner relies and if the averments are vague and general, it is not a proper or sufficient compliance within the meaning of Section 83 of the Act, 1951.

20. Similarly, he relied on another decision reported in CHARAN LAL SAHU V GIANI ZAIL SINGH AND ANOTHER 7,wherein it was held thus (para 24):

"THESE being only provisions of the Act under which the election of a returned candidate can be declared void the question as to whether the returned candidate is suitable for holding the office of the President is irrelevant for the purposes of this election petition. While dealing with an election petition filed under S. 14 of the Act this Court cannot inquire into the question whether the returned candidate is suitable for the office to which he is elected. The rights arising out of elections including the right to contest or challenge an election are not common law rights. They are creatures of the statutes which create confer or limit those rights. Therefore, for deciding the question whether an election can be set aside on any alleged around the courts have to consult the provisions of law governing the particular election. They have to function within the framework of that law and cannot travel beyond it" The above decision is not relevant for the purpose of deciding the issue in this petition as the provisions of Act, 1951 would govern to decide whether election of returned candidate is to be declared a void. The core issue in this petition is whether the returned candidate is qualified to contest as a member of Legislative Assembly from the Scheduled Tribe reserved constituency.

21. The decision relied on by the learned counsel for the 1st respondent reported in MANOHAR JOSHI V NITIN BHAURAO PATIL AND ANOTHER 8 has no application in view of the fact that, that is a case where election to be declared as void under Section 100 (1) (b) of the Act, 1951, but not under Section 100 (1) (a) of the Act, 1951.

22. The decisions relied on by the learned counsel for the 1st respondent reported in L.R.SHIVARAMAGOWDA AND OTHERS V T.M.CHANDRASEKHAR (DEAD) BY LRS AND OTHERS 9, KAMALNATH V SUDESH VERMA 10 and HARMOHINDER SINGH PRADHAN V RANJEET SINGH TALWADI AND OTHERS 11 have no application because the challenge of election in those cases was on the ground of corrupt practices.

23. He also placed reliance on the decision reported in JABAR SINGH V GENDA LAL 12 which has no application in view of the fact that that is a case where the election of the returned candidate was challenged on the ground of improper refusal of votes in favour of the appellant and proper rejection of votes in favour of the election petitioner therein.

24. Bearing the principles in mind which were enunciated in the above decisions which are relevant, it has to be seen whether the election petition contain any material facts so as to declare the election of the 1st respondent as void and further declaration that he has to be declared as elected. The only ground on which the election of the 1st respondent sought to be declared as void is that she belongs to Banjara Tribe, which is not included in the list of Schedule Tribe communities in the Constitution (Schedule Tribe) Order, 1950. Originally, the parents of the 1st respondent hail from Jaroor Tanda village, Kinwart Taluk, Nanded District of Maharashtra State. It is not in dispute that the parents of the 1st respondent belong to Banjara Tribe. As seen from Ex.P2, the central list of backward class as far as State of Maharashtra is concerned, it would disclose the tribal community of Banjara, Banjari is shown in Sl.No.9 as one of the castes of other backward classes. Though it is marked subject to objection, which is the copy, but Ex.P11 which is the original of Ex.P2 has not challenged. When P.W.1 has specifically stated that tribe of the family of the 1st respondent i.e., Banjara is included in the caste of other backward classes as far as state of Maharashtra is concerned, the same has not been denied or disputed in the cross-examination. Similarly, the evidence of P.W.1 would further go to show that Ex.P6 transfer certificate and Pupil registration certificate of Zilla Parishad Primary School shows the community of the 1st respondent as Banjara. Similarly, Ex.P7 which is the transfer certificate in Pupil Admission Register of the same school relating to the brother of the 1st respondent by name Eswar Kuwar Singh is shown as Banjara. Ex.P8 relates to another brother of the 1st respondent wherein the community of the brother of the 1st respondent was shown as Banjara. Though Exs.P7 and P8 are marked subject to objection as they are Photostat copies, but P.W.1 was recalled and certified copies of Exs.P16 and P17 were marked. No objection has been taken with regard to Exs.P2, P10 and P12 to P17.

25. Similarly, the evidence of P.W.2 would go to show that Banjara Tribe is included in the list of backward classes in Maharashtra State, that he belong to Banjara Tribe and that his fore fathers and family of 1st respondent are related. He also stated that the 1st respondent belongs to Banjara Tribe. Practically, the evidence of P.W.2 remained unchallenged. Except an omnibus suggestion that his evidence in the chief-examination is not correct, nothing has been elicited to discredit his evidence.

26. Similarly, P.W.3 who is the Head Master of Zilla Parishad Primary School, Jaroor Tanda village and who brought the admission register of the school, categorically stated that he issued Ex.P15 and it relates to Sindu Thai Kuwar Singh Chauhan. As per the record, the community of the said student is recorded as Banjara. He also issued Ex.P16 in respect of Chauhan Eswar Kuwar Singh, who is no other than the brother of the 1st respondent. His community is noted as Banjara. Similarly Ex.P17 relates to another brother of the 1st respondent. It is not in dispute that Chauhan Eswar Kuwar Singh and Chauhan Prakash Kuwar Singh are brothers of the 1st respondent. The evidence of P.W.3 and the recitals in Exs.P15 to P17 remained unchallenged as counsel for the 1st respondent reported no cross.

27. Even the 1st respondent who was examined as R.W.1 admitted that she was born to parents of Banjara Tribe of Jaroor Tanda village of Maharashtra State. Even in the cross-examination, she admitted that her father's community is Banjara and Exs.P7 and P8 relate to her brothers.

28. So, from the above evidence, it is established beyond all reasonable doubt that the parents of the 1st respondent belong to Banjara Tribe, which is included in Central list of other backward classes insofar as State of Maharashtra is concerned. It is also evident from the records and not disputed before this Court that Banjara Tribe is not included as one of the tribes in the Constitution (Scheduled Tribe) Order, 1950 in relation to the State of Maharashtra.

29. There cannot be any dispute that the petitioner has to aver the material facts which are primary or basic so as to seek declaration of the election of the returned candidate as void. As seen from the election petition, a specific plea has been taken that the 1st respondent belong to Banjara Tribe, that her parents hail from Jaroor Tanda village, Kinwart Taluk, Nanded District of Maharashtra State, that she was brought up in Maharashtra till her marriage and that the parents of 1st respondent belong to Banjara Tribe, which is included in the list of other backward classes insofar as State of Maharashtra is concerned. It is also specifically pleaded that the husband of the 1st respondent belongs to Lambada Tribe, which is included in the schedule under the Schedule Castes and Schedule Tribes Orders (Amendment) Act, 1976. It is also specifically pleaded that for the purpose of Constitution as far as State of Andhra Pradesh is concerned, the 1st respondent does not belong to Schedule Tribe. It is not specifically stated in the pleadings that by Act 10 of 2003 the Schedule Caste and Schedule Tribe Orders (Amendment) Act, 2002, Banjara Tribe is included in entry 29 of schedule of the Act. Since inclusion of Banjara Tribe in the schedule of the Constitution (Scheduled Tribe) Order, 1950 by virtue of the amendment, which came into effect in the year 2003 is a question of law, it can be raised at any time. Not raising the said plea in the election petition cannot be said to be a lack of material fact so as to throw away the case of the petitioner.

30. On the other hand, a positive case has been set up by the 1st respondent stating that Banjara Tribe was included in the Constitution (Scheduled Tribe) Order, 1950 in the second schedule part-I relating to State of Andhra Pradesh, in entry 29, through Scheduled Caste and Scheduled Tribe Orders (Amendment) Act, 2002 (Act 10 of 2003) and that in view of said inclusion, members of the Banjara Tribe residing in the State of Andhra Pradesh can be treated as Scheduled Tribe w.e.f. 07-01-2003 and that she belongs to the member of Banjara Tribe residing in the State of Andhra Pradesh and that she belongs to Schedule Tribe in relation to the State of Andhra Pradesh by virtue of Act 10 of 2003. She is entitled to contest from the Legislative Assembly constituency reserved for Scheduled Tribe. It is also stated that she became ordinarily resident of 006 Khanapur (S.T.) Assembly Constituency in terms of Section 20 of the Act, 1950 and that the election authorities registered her name as elector in the electoral roll of the said constituency. It is also stated that she participated in the election and exercised her vote. Being an elector of the said constituency and a member of Scheduled Tribe of Andhra Pradesh, she contested in the by-elections of the said segment in the year 2008 and again in the general elections in the year 2009 and got majority of votes and accordingly, she was declared as returned candidate from the said constituency. Those aspects have been specifically testified by R.W.1 who is the returned candidate and she also filed Ex.R2, letter furnishing certified copies of voters list 1983 and 1995 of Tadihatnoor village, that Ex.R3 is the certified copy of 1983 voters list of the same village, that Ex.R4 is the certified copy of the 1998 voters list of same village, that Ex.R5 is the certified copy of the extract of 1995 voters list, that Ex.R6 is the voters list of 2009 of Utnoor. So from these documents coupled with the evidence of R.W.1, it is clear that she is a registered voter of 006 Khanapur (S.T.) Assembly Constituency.

31. The contention of the learned counsel for the 1st respondent is that the election petition is not in accordance with Section 83 of the Act, 1951 as the pleadings have not been verified in the manner as laid down under CPC in the verification of pleadings. As seen from the election petition, the verification reads as follows: "I, Ajameera Hari Naik, s/o Fakeer Das Naik, aged about 43 years Occ; agriculturist, R/o Lingapur village and Post, Dandepalli Mandal, Adilabad District do hereby declare that the facts mentioned in paragraph 1 of the petition is to the best of my knowledge , the contents mentioned in paragraphs 2 and 6 are correct to the best of my information and the contents mentioned in paragraphs 3 to 7 and 7 to 12 are based on legal advise and believed to be correct, hence verified the same on this 29th day of June, 2009 at Hyderabad"

32. Order VI Rule 15 reads thus: " 15. Verification of pleadings- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. 2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. 3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. The object of this provision appears to be to fasten the party verifying or on whose behalf verification is made accountable for the statement that it contains and to ensure that the party is having full knowledge about the statement of facts stated in the pleadings. The provision ensures that false allegations are not made wantonly or wilfully. Verification of pleading assures those allegations are made in exercise of due care. Sub-rule 2 of Rule 15 of Order VI CPC provides that in all cases of verification of pleading, the party verifying must state what facts he is verifying on his personal knowledge and what facts he is verifying up on Information, which he believes to be true. Verification of pleading is a matter of great significance or importance as possessing fortification of being made under the sanction of a solemn declaration. A person making false verification will, therefore, render himself liable to prosecution, if an act or omission is made punishable. A defect in verification is merely an irregularity and not an illegality. If the defect in verification is shown, then it is curable. It is not so fatal so as to dismiss a plaint or petition on that ground. New Sub-rule 4 as added by the Code of Civil Procedure (Amendment) Act, 1999, which came into force with effect from 01-07-2002 requires the person verifying the pleading to furnish an affidavit in support of his pleading. That affidavit has been filed along with the petition.

33. According to the learned counsel for the 1st respondent, that verification affidavit does not contain the pleadings except mentioning that the facts mentioned in paragraph 1 of the petition are to the best of his knowledge, that contents mentioned in paragraphs 2 and 3 are correct to the best of his information and contents mentioned in paragraphs 3 to 5 and 7 to 12 are based on legal advice and believed to be true. No doubt, verification affidavit does not contain the same pleadings as averred in the election petition, but in the considered opinion of this Court, it is nothing but redundant or superfluous to reiterate in the affidavit. Since the affidavit is form part of petition, there is no reason to reiterate the pleadings again in the affidavit. Therefore, it cannot be said that the verification of pleading is not in accordance with the manner as provided in the CPC. Even in the insertion of new rule, it does not lay down that the contents of the petition shall have to be again incorporated in the affidavit. Because in the verification, the petitioner has categorically stated that a particular paragraph is based upon his knowledge and other paragraphs are correct to the best of his information and some other paragraphs are based upon legal advice. It is contended that words "to the best of my knowledge" and "to the best of my information" as stated in verification do not in conformity with Order VI Rule 15 of CPC. According to the learned senior counsel for the 1st respondent the verification should have been "true to my personal knowledge" and as to how he received the information to the verification of "best of his information". Order VI Rule 15 CPC contemplates that the person verifying shall specify, by reference to the numbered paragraphs of the pleading what he verifies of his own knowledge and he verifies upon information received and believed to be true. Therefore, it is a proper compliance within the meaning of Order VI Rule 15 CPC.

34. It is contended by the learned counsel for the 1st respondent that the affidavit filed in lieu of chief-examination is not in conformity with Order XIX Rule 3 CPC which reads thus: "The affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statement of his belief may be admitted. In view of the fact that the affidavit is not in accordance with Order XIX Rule 3 CPC, the contention of learned counsel for 1st respondent is that the entire chief-examination has to be eschewed from consideration. Affidavit is a written or printed declaration or statement of facts made voluntarily and confirmed under the affirmation before a person authorized to administer affirmation. In other words, it is solemn assertion or declaration, which can be substitute for an oath or instead of swearing. The 'affidavit' has been defined in sub-clause (3) of Section 3 of the General Clauses Act, 1897 to include "the affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing." Therefore, the essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorized either to administer oath or to accept the affirmation. Verification of affidavit is necessary to enable the Court to test the genuineness and authenticity of averments so that the Court can act safely on such affidavit. Sub-rule 1 of Rule 3 declares as to what an affidavit should contain. It requires the deponent to state in the affidavit such facts within his own knowledge which he is able to prove. Rule 4 of Order XVIII as amended by Amended Act 2002 indicates that the evidence (examination in chief of a witness) shall be an affidavit subject to cross-examination before the Court or before the commissioner appointed by the Court.

35. Learned counsel for the petitioner stated that certain model forms of affidavits have been appended in the appendix E in form 16-A (Order XXI Rule 41 (2) of CPC). The form reads "I ... of, state on oath/solemn affirmation as follows...". Similarly in appendix B form 11 of CPC shows as follows: "The affidavit of ... son of ... make oath/affirm and at the end of the affidavit, it has to be sworn/affirmed. On this aspect, learned counsel for the 1st respondent relied on a decision reported in JEET MOHINDER SINGH V HARMINDER SINGH JASSI 13, wherein it was held thus (Para 51): "Here itself, we may state that as per the affidavit filed in support of the election petition, the averments made in sub-paras (a) , (b) and (e) para 10 are stated to be true to the personal knowledge of the appellant while the contents of sub-paras (a), (d), (f) and (g) are stated to be based on information received from Pratipal Singh Bhindal and believed by the appellant to be true. The infirmity with which the averments made in the election petition suffer from is that the dates between which the poster's are alleged to have been distributed and pasted in the constituency are not mentioned in the election petition. From the averments made in the petition it cannot be deduced that the expenditure on account of the posters even if incurred by the respondent, was so incurred between the date of nomination and the date of declaration of result of the election. In the absence of the appellant having made a positive allegation of the alleged expenses having been incurred between the date of nomination of the respondent and the date of declaration of the result the applicability of sub-section (3) of Section 77 would not be attractive. " The above decision has no application to the present facts of the case because the election in the present is not being challenged under corrupt practice. Proviso to Section 83 of the Act, 1951 mandates filing of affidavit with regard to allegations of the corrupt practices which reads thus: " Provided that where the petitioner alleged any corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof " In the case of corrupt practices only the verification of affidavit shall contain the names of persons from whom election petitioner receives the information.

36. In this case, the election is under challenge as the returned candidate is not qualified in terms of Section 5 (a) of the Act, 1951. As seen from the affidavit in lieu of chief-examination, it reads thus: "I, Ajameera Hari Naik, s/o Fakeer Das Naik, aged about 43 years Occ; agriculturist, R/o Lingapur village and Post, Dandepalli Mandal, Adilabad District, having comedown to Hyderabad temporarily do hereby solemnly affirm and sincerely state on oath as under" " At the end of the chief-examination affidavit, it was signed before an Advocate, which reads "sworn and signed before me at Hyderabad on this 9th day of July, 2010". Rule 38 of the Andhra Pradesh Civil Rules of Practice and Circular orders, 1980 deals with before whom the affidavits have to be sworn which reads thus: "Affidavits intended to use in judicial proceedings may be sworn before any Court or Magistrate or a member of Nyaya Panchayat constituted under the A.P. Gram Panchayats Act, 1964, or a Sub-Registrar, Nazir, or Deputy Nazir or a member of the State Legislature or a Member of Parliament, or a Municipal Councilor or a member of Zilla Parishad or any Gazetted Officer in the service of the State Government or the Union Government or a Notary as defined in Notaries Act, 1952, or a retired Gazetted Officer receiving pension from Government or a commissioned Military Officer or an advocate who has been engaged in such proceedings or any Superintendent in the office of the Commissioner for the Andhra Pradesh Hindu Religious Institutions and Charitable Endowments." The above provision makes it clear that the affidavit can be sworn before an advocate other than the advocate who has engaged in such proceedings. It is not the case of the 1st respondent that the advocate who sworn the affidavit is the same advocate who is conducting the case. Rule 39 of the said Rules prescribes that officer before whom an affidavit is sworn or affirmed shall state the date on which, and the place where, the same is sworn or affirmed and sign his name and description at the end as in Form No.14, otherwise the same shall not be filed or read in any matter without the leave of the Court. Form No.14 reads thus: " Rule 39-Affidavit on solemn affirmation. (cause title) I, Madura Ramaswamy Pillai, s/o A.B and a Hindu....... Of.....years of age, solemnly and sincerely affirm (or make oath and say) as follows: 1. 2. Solemnly affirmed (or sworn) at the office of the Court of the District Munsif of ...this day of ..."

37. Therefore, the model of the affidavit form would go to show that it should be solemnly and necessarily affirm before the officer authorized to take the contents on oath and at the end of the affidavit, it shall be stated that deponent has solemnly affirm or sworn at the office on so and so date. In this case, the affidavit in lieu of chief-examination would go to show that it was solemnly affirmed and sincerely stated on oath and sworn and signed before the advocate at Hyderabad on 09th day of July, 2009. Therefore, the affidavit in lieu of chief examination filed by the election petitioner is in accordance with law.

38. Learned counsel for the 1st respondent relied on a decision reported in R.P.MOIDUTTY V P.T.KUNJU MOHAMMAD AND ANOTHER14, wherein it was held thus (Paras 33 and 35): "The affidavit filed by the petitioner in support of the election petition as required by Rule 94a also does not satisfy the requirement of proviso to sub- section (1) of Section 83 of the Act and Form No. 25 appended to the Rules. The several averments relating to commission of corrupt practice by the first respondent as contained in paragraphs 4 to 12 and 16 of the petition have been verified as true to the best of "my knowledge and information" - both, without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations were based on the information of the petitioner believed by him to be true. Neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to such facts as were not in his own knowledge. ALL the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by the Supreme Court in F. A. Sapa v. Singora, AIR 1991 SC 1557 : (1991 AIR SCW 1492), the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition; it can be cured In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried. For want of affidavit in required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings"

39. He also relied on a decision reported in REGU MAHESH ALIAS REGU MAHESWAR RAO V RAJENDRA PRATAP BHANJ DEV AND ANOTHER15, wherein it was held thus (Paras 12 to 14): "It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect. In F. A. Sapa's case (supra) it was held that even though ordinarily a defective verification can be cured and the failure to disclose the grounds or sources of information may not be fatal, failure to place them on record with promptitude may lead the Court in a given case to doubt the veracity of the evidence ultimately tendered. In R. P. Moidutty v. P. T. Kunju mohammad and Another (2000 (1) SCC 481)it was, inter alia, held as follows: "all the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is not disclosed. As observed by this Court in singora's case (supra) the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is not fatal to the petition, it can be cured (See Murarka radhey Shyam Ram Kumar v. Roop singh Rathore (AIR 1964 SC 1545 and a. S. Subbaraj v. M. Muthiah (5 ELR 21 ). In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should not have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition could not have been tried. "

40. He also relied on a decision reported in RAJENDRA PRATAP BHANJ DEO V REGU MAHESH 16, wherein it was held thus (Para 32 ): " VERIFICATION of pleadings or affirmation of affidavits has a definite purpose to serve. It binds the party to the averments made in it. Apart from putting the opposite party to a definite notice, it circumscribes the parties to the pleadings so that they cannot expand or embellish the same at a later stage. Unverified pleadings or unaffirmed affidavits are not at all acceptable in law. Certain defects as to verification or affirmation are curable, and others, not. It was held by the Supreme Court in Shipra v. Shanti Lal Khoiwal, AIR 1996 SC 1691, that 'defective portions can be struck off and other independent issues can be tried. " In view of the above decisions, it is clear that the petition has to be verified with regard to the allegations based on the information of the petitioner and his knowledge about the contents, but in this case as pointed out earlier, pleadings are in accordance with the provisions of CPC. Further, the affidavit in lieu of chief-examination filed by the petitioner is completely in accordance with the requirement of the CPC and rules framed there under. Therefore, the contention that the entire chief-examination affidavit of the petitioner has to be eschewed from consideration cannot be accepted as it is wholly devoid of merit and unsustainable.

41. From the pleadings and the evidence and the contentions raised by both the senior counsel appearing for the petitioner and the 1st respondent, two aspects have to be adjudicated viz., 1) whether the 1st respondent who belongs to backward class community in relation to State of Maharashtra for the purpose of Constitution, migrates to the State of Andhra Pradesh where the same nomenclature of tribe or tribal community is specified in the Scheduled Tribe order in relation to the State of Andhra Pradesh, is entitled to claim the privileges and benefits admissible to the persons belonging to the Scheduled Tribes in the State of Andhra Pradesh and 2) Whether the Constitution (Scheduled Tribe) Order, 1950 as amended in the year 2002 by way of Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 whereunder Banjara Tribe is included in entry 29 Part I of Constitution (Scheduled Tribe) Order, 1950, which came into effect from 07-01-2003 is applicable to the case of the 1st respondent.

42. The principles relating to reservation under Article 15 (4) and 16 (4) of the Constitution of India as laid down by the Apex Court should also be extended to the constitutional reservation of seats for Scheduled Tribe under Article 332 of the Legislative Assembly. The reason being the reservations should also constitutional reservations intending to benefit the really underprivileged. On this aspect, learned counsel for the petitioner relied on a decision reported in MEERA KANWARIA V SUNITA AND OTHERS17, wherein it was held thus (para 30): "Even then, this Court categorically laid down that the recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16 (4)of the Constitution for the reason that she as a member of the forward caste, had ah advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The high Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see no reason why the principle relating to reservation under Articles 15 (4) and 16 (4) laid down by this Court should not be extended to the constitutional reservation of a seat for a scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are also constitutional reservations intending to benefit the really underprivileged and not those who come to the class by way of marriage."

43. On the aspect of first point, learned counsel for the 1st respondent relied on a decision reported in UNION OF INDIA AND OTHERS V DUDH NATH PRASAD18, wherein it was held thus (Paras 14 and 18): "The word 'reside' has been defined in Oxford Dictionary as 'dwell permanently or for a considerable time; to have one's settled or usual abode; to live in or at a particular place'. The meaning therefore, converts not only the place where the person has a permanent residence but also the place where the person has resided for a 'considerable time'. Considering the facts of this case in the light of the statutory provisions contained in Section 20 of the Representation of the People Act, 1950 as also the provisions contained in para 5 of the 'instructions', since the parents of the respondent were admittedly residing in District Howrah for more than 30 years, they would be treated to be 'ordinarily residing' in that district and the mere fact that they held some property in a village in District Siwan in the State of Bihar would not affect their status" The issue raised in the above case is that the 1st respondent was a member of the Indian Administrative and Allied Services. He was appointed in 1968 against a reserved vacancy as he was treated to belong to the 'Nuniya' community which was declared to be a Scheduled Caste community in the State of West Bengal and not in the State of Bihar where the respondent was born and had his schooling throughout even up to graduate level. In that decision it was held that the respondent therein was treated to be ordinarily residing in the State of West Bengal and in the State of West Bengal, the President in exercise of his powers under Article 341 (1) r/w Article 366 (24) had already declared the 'Nuniya' caste as a Scheduled Caste and therefore, the respondent therein was rightly treated as Scheduled Caste candidate and was rightly appointed against reserved vacancy. In that decision, the proforma of caste certificate to be produced by Scheduled Caste and Scheduled Tribe candidates contained a note which reads as follows: "The term "ordinarily reside" used here will have the meaning as in Section 20 of the Act, 1950". But in this case the word "residents in the localities" as found in Constitution (Scheduled Tribe) Order, 1950 has to be applied. Hence the above decision has no application to the present facts of the case.

44. He relied on another decision reported in BENI PRASAD AND ANOTHER V NARBADA PRASAD19, wherein it was held thus: "We also found that in the earlier proceedings after an elaborate enquiry by RW 1 it had been found that his family had been ordinarily residing in Shahdole District till 1952 when he shifted to the neighbouring narsinghpur area where the respondent was born and thereafter the respondent had shifted to Shahdole District in 1969 and his name had been entered in the voters' list in 1985 and he had been residing there since then and had also contested elections earlier in point of time all of which went to show that he was an ordinary resident of that district. The fact that he was a "kumhar" was not in question and as stated earlier that question was concluded in favour of the respondent. If he was a "kumhar" in the narsinghpur area the only question was whether he could get the benefit of belonging to the "kumhar" community in Shahdole area also. It was not contended that he did not specify the requirements of being recognized as a "kumhar" in the Shahdole District but what was contended was that he should have been a "kumhar" in Shahdole District in 1950 when the presidential Notification was issued. That contention does not appear to be correct because in that case those who are born after the Presidential notification would be rendered ineligible for being considered as belonging to the Scheduled Castes" In that case on facts, it was found that the family of respondent therein was shown to be ordinary resident of Shahdole District till 1952 and later shifted to other District. This decision will not helpful to the 1st respondent.

45. He relied on another decision reported in SAI KUSUM V STATE OF MAHARASHTRA AND OTHERS 20, wherein it was held thus (para 16): "It is one thing to say that she, being not a permanent resident of the State would not be entitled to contest any election. If she is to be conferred the said status, she will be entitled to all the benefits to which members of the said caste are entitled to but would also be entitled to other benefit i.e., not the benefit to contest in the reserved categories of the election of the Panchayat alone but other benefits as well." In this decision, the ratio of Dudh Nath Prasad's case followed.

46. He relied on another decision reported in L.USHADEVI V UNION OF INDIA AND OTHERS21, wherein it was held thus (para 12): " The Act is a complete code by itself. "Appointment in public service" has been defined in Section 2(a) of the Act to mean a service or post under the State or the Central Government and includes appointment to any post of the State or the Central Government undertaking. A 'community certificate' has been defined as mean the certificate issued by the competent authority in the prescribed form indicating therein the caste or tribe to which he belongs, as the case may be. Section 2(l) of the Act assigns the same meaning to "Scheduled Castes" and "Scheduled Tribes" which have respectively been assigned to them in clause (24) and Clause (24) of Article 366 of the Constitution of India. " The issue therein was with regard to issuance of caste certificate by the Caste Scrutiny Committee. The relevant consideration for the purpose of issuing social status certificate is entirely different. Therefore, the above decision has no application to the present facts of the case.

47. He relied on another decision reported in BHAGAWAN DASS AND ANOTHER V KAMAL ABROL AND OTHERS22, wherein it was held thus (para 6): "The word 'resident' as defined in Oxford Dictionary is " to dwell permanently or for considerable time, to have one's stay or usual abode, to live in or at a particular place". Similarly, the Webster's Dictionary has defined it as " to dwell permanently and for any length of time" and words like dwelling place or abode are held to be synonymous. From the above it can De seen that the term 'residence' makes it clear that the word 'residents' includes two types which are: 1)a permanent residence and 2) a temporary residence. First type of residence form all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at a place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to a temporary living in a place. Hence, in one place the word 'residence' is interpreted in the strict sense to include only permanent living at a place which may be referred to a domicile and in the second place the word is interpreted flexible sense to show a temporary or tentative residence." That is a case with regard to allotment of dealership/distributorship of the LP Gas through notice published. The question falls for consideration before the Supreme Court is whether the eligibility criterion of being a resident of Kangra district has to be construed to be a permanent or de facto residence or temporary or de jure residence. Therefore, the decision cannot be made applicable to the facts of the present case.

48. He relied on another decision reported in SMT. AJEETA KHEDLE V STATE OF M.P.AND ANOTHER23, wherein it was held thus (para 14): "In view of the aforesaid, we are of the considered opinion that the appellants are entitled to caste certificate as their ancestors were 'dhobi' in the district of Sehore. They were born at Sehore and got educated and, therefore, they become residents of Sehore in view of the factum that they do not lose their caste because of shifting of their father for some years." " Following the ratio laid down in Dudh Nath Prasad's case (18 supra), a Division Bench held that the appellants therein are entitled to caste certificate as their ancestors are Dhobis in the District of Sehore. Basing on the above decision, it is stated that in view of the fact that the 1st respondent is ordinarily resident of Tadihatnoor village in Adilabad District for the last 30 years long prior to the inclusion of Banjara Tribe in the Constitution (S.T.) Order, 1950 w.e.f. 07-01-2003, she has to be treated as Scheduled Tribe community.

49. On the other hand, learned senior counsel appearing for the petitioner placed reliance on a decision reported in STATE OF MAHARASHTRA V MILIND AND OTHERS24, wherein the Constitution Bench of Supreme Court held thus (para 35): "IN the light of what is stated above, the following positions emerge :- 1. It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it s not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority. 4. It is not open to State Governments or Courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342. " The issue falls for consideration before the Supreme Court is whether 'Halba Koshti' caste is a sub-tribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes order relating to the State of Maharashtra, even though it is not specifically mentioned as such.

50. He also placed reliance on a decision reported in ACTION COMMITTEE ON ISSUE OF CASTE CERTIFICATE TO SCHEDULED CASTES AND SCHEDULED TRIBES IN THE STATE OF MAHARASHTRA AND ANOTHER V UNION OF INDIA AND ANOTHER25, with regard to action committee in issuance of caste certificate of Scheduled Caste and Scheduled Tribe in the State of Maharashtra, wherein the Constitution Bench of Supreme Court held thus (para 16): " WE may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under : "he asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them. . . . " Relying on this statement the Constitution bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin." The point that falls for determination in the aforesaid case is whether a person belonging to a caste or tribe specified for the purposes of Constitution to be a Scheduled Caste or Schedule Tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled Tribe in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/Scheduled Tribes in State B. Considering the same, it is held that when a class is specified by the President after consulting the Governor of State A, it is difficult to understand how that specification made in relation to that State can be treated as specification in relation to any other State whose Governor the President has not consulted. There is no dispute about the proposition of law laid down.

51. He also relied on another constitutional bench decision of the Supreme Court reported in MARRI CHANDRA SHEKHAR RAO V DEAN GETH G.S.MEDICAL COLLEGE AND OTHERS 26 wherein it was held thus (para 23): "HAVING construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribe in the States of origin when, because of transfer or movement of their father or guardians business or service, they move to other States as a matter of voluntary (sic involuntary) transfer, will they be entitled to some sort of protective treatment so that they may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to another is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the Scheduled Castes or Scheduled Tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has or migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to Scheduled Castes and Scheduled Tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. This is a matter which the State legislatures or the Parliament may appropriately take into consideration." The question that falls for consideration before the Supreme Court in that case is whether one who is recognized as a Scheduled Tribe in the State of his origin and birth continues to have the benefits or privileges or rights in the State of migration or where he later goes. In that context, it is held that it has to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere and that the petitioner therein is not entitled to be admitted to Medical College on the basis that he belonged to the Scheduled Tribe in Andhra Pradesh.

52. He also relied on a decision reported in MRS. VALSAMMA PAUL V COCHIN UNIVERSITY AND OTHERS 27, wherein it was held thus (para 34): "IN Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, (1995) 3 JT (SC) 563 : (1995 AIR SCW 2224); and R. Chandevarappa v. State of Karnataka, (1995)7 JT (SC) 93, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15 (3), 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institution, or in case of other economic benefits under Articles 15 (4) and 46 or in appointment to an office or a post under the State under Article 16 (4 ). Therefore, when a member is transplanted into the Dalits, Tribes and OBCs he/she must of necessity also undergo same handicaps, be subject to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15 (4) status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15 (4)and 16 (4) of the Constitution."

53. He also relied on a decision reported in SOBHA HYMAVATHI DEVI V SETTI GANGADHARA SWAMY AND OTHERS 28, wherein it was held thus :

"Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation."

From the above decisions, it is clear that when a Tribe is specified by the President after consultation with the Governor in relation to the State can be treated as a Scheduled Tribe and the same tribe cannot be treated as a Scheduled Tribe in relation to any other State. In view of the fact that Clause (1) of Article 342 is quite plain and unambiguous which clearly states that the President may specify the Tribes or tribal communities in relation to the each State or Union Territory after consulting the Governor of that State for the purposes of Constitution. Even if the nomenclature of a Tribe is synonyms in both the States, one cannot claim the status of tribe unless it is specifically mentioned in the entries of the Constitution (S.T.) Order, 1950.

54. In this case, the case of the petitioner is that Banjara Tribe is admittedly recognized as other backward classes in relation to State of Maharashtra. The same is not disputed by the 1st respondent. Admittedly, Banjara Tribe is not included in the Scheduled Tribe in any one of the entries of the Constitution (Scheduled Tribe) Order, 1950 till 07-01-2003, in relation to State of Andhra Pradesh. In view of the fact that after 2003, Banjara Tribe is included as one of the tribes in the Presidential Order, can the 1st respondent claim the status as a tribe in relation to the State of Andhra Pradesh. In view of the constitutional bench decision in the action committee's case, the issue of caste certificate while dealing with Article 341 and 342 of the Constitution of India and also Constitution (Scheduled Tribe) Order, 1950 categorically held that a Scheduled Tribe person who migrated from the State of origin to some other State for the purpose of education and employment etc., will be deemed to be a tribe of the State origin only and is entitled to derive benefits from that State and not from the State to which he had migrated. In this case also the 1st respondent migrated to Andhra Pradesh even according to the petitioner in the year 1983 not for claiming benefits under the provisions of the Act, but she married a tribe of Adilabad District. By virtue of the marriage or adoption or for some other purpose, the community of a person would not be changed. She has to carry the community throughout her life. Even the community people of her husband accepted her as a member of tribe, but for the purposes of Constitution, she cannot be treated as a Scheduled Tribe in the State of Andhra Pradesh because she derived the community from her parents. It is not in dispute before this Court that the principle of community is created by birth and is not ousted. In order to determine whether or not a particular tribe person is a Schedule Tribe within the meaning of Article 342, one has to look at the public notification issued by the President in that behalf. Therefore, this Court has no hesitation in holding that the 1st respondent does not belong to Scheduled Tribe insofar as State of Andhra Pradesh in view of the fact that her community is recognized as other backward classes in the State of Maharashtra where her community is duly included in the central list of other backward classes.

55. Second point is whether by virtue of her marrying a person in the State of Andhra Pradesh and living with him since a long time, can she acquire the status of Scheduled Tribe in pursuance of Act 10 of 2003. Article 332 of the Constitution of India provides reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assembly of the States. This is intended to benefit really underprivileged. Scheduled Tribe persons constitute protected class under constitution apart from other condition of backwardness. Scheduled Tribe is defined in Article 365 (25) of the Constitution of India. A notification be issued by the President under Article 342 of the Constitution of India. The object of Article 342 of the Constitution of India is to provide protection to the members of the Scheduled Tribe having regard to the economic and social backwardness from which they suffer. The Constitution (Scheduled Tribes) Order, 1950 reads thus: "In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, the President after consultation with the Governors and Raj Pramukhs of the States concerned is pleased to make the following order namely- 1. This order may be called the Constitution (Scheduled Tribes) Order, 1950. 2. The tribes or tribal communities or parts of or groups within tribes or tribal communities specified in (Part I) (XXII) of the schedule to this order shall in relation to the States to which those parts respectively relate be deemed be Scheduled Tribes so far as regards members thereof residents in the localities specified in relation to the respectively in those parts of that schedule. 3. Any reference in this order to State or to a District or other territorial division thereof shall be construed as a reference to the State District or other territorial division as constituted on the first day of May, 1976."

56. In this original order, 1950, Banjara Tribe is not included in the list of one of the tribes. By virtue of Scheduled castes and Scheduled Tribes (Amendment) Act, 2002, Act 10 of 2003 came into effect on 07-01-2003 which reads thus: "An Act to provide for the inclusion in the lists of Scheduled Tribes, of certain tribes or tribal communities or parts of or groups within tribes or tribal communities, equivalent, names or synonyms of such tribes or communities, removal of area restrictions and bifurcation and clubbing of entries, imposition of area restriction in respect of certain castes in the list of Scheduled Castes and the exclusion of certain castes and tribes from the list of Scheduled Castes and Scheduled Tribes, in relation to the State of A.P. etc.," 1. This Act may be called as Scheduled Castes and Scheduled Tribes (Amendment) Act, 2002. 2. In this Act, unless the context otherwise requires- a) 'Scheduled Castes Order' means the Constitution (Scheduled Castes) Order, 1950 made by the President under Article 341 of the Constitution. b) "Scheduled Tribes Orders' means the Constitution (Scheduled Castes) Order, 1950, the Constitution (Uttar Pradesh) Scheduled Tribes Order, 1967 and the Constitution (Sikkim) Scheduled Tribes Order, 1978 made by the President under Article 342 of the Constitution 3.Amendment of Scheduled Castes Order- The Scheduled Castes Order is hereby amended in the manner and to the extent specified in the First Schedule. 4.Amendment of Scheduled Tribes Orders- The Scheduled Tribes Orders are hereby amended in the manner and to the extent specified in the Second Schedule. First schedule contains inclusion and deletion of tribes in several Districts. Insofar as this petition, we are concerned with second schedule item (x) wherein, in Entry 29 at the end 'Banjara' is inserted. This Act did not specifically state as to the persons the amendment Act would apply. Therefore, one has to look for the main Constitution (S.T.) Order, 1950. So from the above clause (2), the said order apply to the members thereof the residents in the locality specified in relation to them respectively in those parts of that schedule. Then what does mean by the phrase 'residents in the locality' with reference to Constitution (Scheduled Tribe) Order, 1950. It would mean those tribes residing n the State of Andhra Pradesh as on the date o commencement of Constitution (S.T.) Order, 1950.

57. The contention of the counsel for the 1st respondent is that without foreseeing that the Act 10 of 2003 would be passed, the 1st respondent married to a person belonging to the State of Andhra Pradesh and by virtue of her marriage in the year 1973, she has been permanently residing with her husband and therefore, when she is resident in the locality specified in the Constitution (S.T.) Order, 1950. Consequently, Act 10 of 2003 would apply to the case of the 1st respondent.

58. On the other hand, learned counsel for the petitioner vehemently contended that Act 10 of 2003 would apply only to those persons belong to Banjara Tribes who were born and residing in the State of Andhra Pradesh as on the date of commencement of Constitution (S.T.), Order, 1950, but not to the persons migrated from the other States. No doubt, the 1st respondent has taken a plea that since the date of her marriage from 1973, she has been permanently residing in Tadihatnoor village within Khanapur Assembly Constituency. Except her oral evidence, there is no other evidence to show that she has been residing in the State of Andhra Pradesh from 1973. She filed certain documents Exs.R7 to R9 which would go to show that she has been residing in Tadihatnoor village from 1987. It is the specific case of the petitioner that 1st respondent married her husband in the year 1983 and thereafter, she gave birth to three children. In view of the admission made by the 1st respondent, it can safely be held that she has been residing in the State of Andhra Pradesh from 1983 onwards. The husband of the 1st respondent is examined as R.W.2. He stated that his marriage with the 1st respondent was performed in the year 1971 or 1972, but stated that he has no personal knowledge about the marriage and came to know through elders that the date of birth of 1st respondent is 30-08-1966. His eldest son was born in the year 1985. The Sarpanch of the village is examined as R.W.3. He stated that marriage of R.W.2 with R.W.1 was performed in the year 1971 or 1972. He is also closely related to R.W.2. He stated that there is no mandatory custom for performing marriages at the early ages in their community. He is aged about 60 years by the date of giving evidence before this Court. R.Ws. 1 to 3 have not stated that how the marriage was performed in what manner and in what place and the persons present at the time of marriage. So in the absence of convincing evidence, it cannot be said that the marriage of R.W.2 with R.W.1 was performed in the year 1971. On the other hand, version of the petitioner appears to be probable in view of the fact that her son was born in the year 1984, the marriage of 1st respondent might have taken place in the year 1983 and therefore, it is deemed that 1st respondent must have married her husband in the year 1982 or 1983 as contended by the learned counsel for the petitioner. When the marriage has taken place is not relevant for the purpose of deciding the point, the question is whether parents of 1st respondent or 1st respondent is a resident in the locality of the State of Andhra Pradesh within the meaning of the Constitution (S.T.) Order, 1950.

59. Learned counsel for the 1st respondent placed reliance on Dudh Nath Prasad's case (18 supra) to show that she has been residing in the State of Andhra Pradesh for more than 30 years and she is permanently resident of State of Andhra Pradesh and therefore, the Amended Act 10 of 2003 would be applicable to the 1st respondent. In Dudh Nath Prasad's case (18 supra), the respondent therein submitted the caste certificate as per the proforma prescribed. In para 5 of the instructions to the candidates contained in the pamphlet issued for the Indian Administrative service etc., a note was appended to the form of caste certificate, wherein it is stated that the term 'ordinarily reside' used therein will have the same meaning as in Section 20 of the Act, 1950. Similarly in the form of certificate to be produced by the candidate belonging to the Scheduled Caste or Scheduled Tribe also contain similar note. The phrase 'ordinarily reside' has been interpreted by the Supreme Court with reference to the Act, 1950. It is held that since the respondent therein was residing for more than 30 years, he would be treated as ordinarily residing in Howrah District, but the word 'ordinarily reside' has not been defined either in the Constitution (S.T.) Order, 1950 or Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 by Act 10 of 2003. But, the word 'residents in the localities" found in the Constitution (S.T.) Order, 1950.

60. The Central Government issued clarification with regard to the issuance of caste certificate for Scheduled Castes and Scheduled Tribes on 22- 03-1977. The relevant portion reads thus: "Thus, the residence of a particular person in a particular locality assumes a special significance. This residence has not been understood in the literal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality. Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case, say for example to earn a living or seek education etc., can also be regarded as Scheduled Caste or a Scheduled Tribe as the case may be, if his caste/tribe has been specified in that order in relation to his State/U.T. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order."

61. These clarifications have no application because Election Laws have to be scrupulously followed. In the original Constitution (S.T.) Order, 1950 or in the amended Act 10 of 2003, it is not specifically stated that the word 'residents in the locality' shall have the same meaning of the term 'ordinarily reside' used in Section 20 of the Act, 1950. Therefore, the Constitution (S.T.) Order, 1950 alone has to be taken into consideration as to whom that order would apply. A statute must be construed according to it plain language and neither should anything be added nor subtracted unless there are adequate grounds to justify. Clause (2) of the Constitution (S.T.) Order, 1950 indicates that it will apply to those members of the tribal or tribal communities who are resident in the locality of State of Andhra Pradesh immediately proceeding the said order come into force. Consequently, it is needless to observe that the offspring or progenies of those tribes or communities residing n a particular locality would also come under the category of Schedule Tribe by virtue of Act 10 of 2003. The word Banjara is included as one of the tribal communities in the list of Constitution (S.T.) Order, 1950 by virtue of Act 10 of 2003. No doubt, while interpreting the Constitution it has to be interpreted literally and harmoniously. While construing word in the absence of a definition, it must be given the same meaning which it receives in ordinary parlance or in sense in which people conversant with sub matter understand it. The conspicuous omission of the phrase 'residents of the locality' in the Act 10 of 2003 would indicate that amended Act would apply to those tribes and necessary corollary their offspring who are residing in the State of Andhra Pradesh when Constitution (S.T.) Order, 1950 come into force. In my considered opinion that Amended Act would not apply to those Banjara community people who are migrated after 1950 and are ordinarily residing in the State of Andhra Pradesh for a considerable length of period or preceeding the Act 10 of 2003. In the absence of any indication in the Act 10 or 2003 or by necessary implication as to whom the said amendment would apply, as a corollary the residents in the locality as mentioned in the Constitution (S.T.) Order, 1950 can be taken into consideration for the purpose of deciding whether particular tribal or tribal communities residing in the particular State when Constitution (S.T.) Order, 1950 come into operation. So in the considered opinion of this Court, the Amended Act 10 of 2003 is only applicable to those Banjaras whose ancestors or their offspring are residents of the locality in any part of the State of Andhra Pradesh as on the date of the Constitution (S.T.) Order, 1950 came into force. Such is the case, the parents of the 1st respondent are admittedly not residents in the locality in any part of State of Andhra Pradesh, when Constitution (S.T.) Order, 1950 came into force the Amended Act 10 of 2003 has no application to the case of the 1st respondent. Consequently, she is not qualified to contest 006 Khanapur (S.T.) Assembly Constituency in the State of Andhra Pradesh. The election of the 1st respondent has to be declared as void as she is not qualified to contest the elections in the year 2009 from the said constituency.

62. Now, it has to be seen whether the petitioner has to be declared as duly elected as a member of Legislative Assembly from 006 Khanapur (S.T.) Assembly Constituency under Section 84 of the Act, 1951 or not. Section 84 of the Act, 1951 provides for relief that may be claimed by the petitioner, which reads thus: "A petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."

The above provision provides for the reliefs for which the election petitioner can seek.

The question is whether the petitioner is entitled to seek further declaration that he himself has been duly elected. Section 101 of the Act, 1951 reads thus: "101. 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 practices 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.

63. A plain reading of the above provision makes it clear that under two circumstances only the High Court can give declaration in favour of the petitioner or such other candidate as the case may be to have been duly elected. So there is no provision brought to the notice of this Court by the learned counsel for the petitioner that in case when the election of the returned candidate is declared as void on the ground that the returned candidate is not qualified, the petitioner can seek further declaration to declare him to have been duly elected. On this aspect, learned counsel for the 1st respondent relied on a decision reported in PRAKASH KHANDRE V DR.VIJAY KUMAR KHANDRE AND OTHERS 29, wherein it was held thus (Para 14): "HOWEVER, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected." In view of the above decision, it is clear that unless the case of the petitioner falls under clause (a) or clause (b) of Section 101 of the Act, 1951, the relief to declare the petitioner to have been duly elected cannot be granted because the Act is silent on this aspect. Admittedly, it is not the case of the petitioner that the petitioner received majority of valid votes than the returned candidate or that the votes obtained by returned candidate by corrupt practices. Therefore, the case does not attract Section 101 of the Act, 1951 and consequently no further declaration can be granted.

64. Accordingly, the Election Petition is allowed granting the relief of declaration that the 1st respondent is not qualified to contest 006 Khanapur (S.T.) Assembly Constituency. In regard to the second prayer to declare the petitioner as duly to have been elected to 006 Khanapur (S.T.) Assembly Constituency is concerned, it cannot be granted legally. There shall be no order as to costs

Subject	Election
Court	Andhra Pradesh High Court
Decided On	Nov-22-2010
Case Number	Election Petition No. 11 of 2009
Judge	K.C.BHANU, J.
Acts	Representation of People Act, 1951 - Sections 81 r/w100 (1)(a) and (d) (i), 84, 5 (a), 83, 81,100; Constitution of India - Article 15 (4),16(4), 342 (2), 342
Appellant	Ajmeera Hari Naik
Respondent	Suman Rathod and Nine Others
Appellant Advocate	Mr. Bojja Tarakam, Adv.
Respondent Advocate	Mr.K.Ramakrishna Reddy, Adv.
Cases Referred	and R. Chandevarappa v. State of Karnataka

Ajmeera Hari Naik Vs. Suman Rathod and Nine Others - Court Judgment