Ramlal Kol Vs. Moti Kashyap @ Motilal - Court Judgment

SooperKanoon Citationsooperkanoon.com/1053937
CourtMadhya Pradesh High Court
Decided OnApr-10-2013
AppellantRamlal Kol
RespondentMoti Kashyap @ Motilal
Excerpt:
high court of madhya pradesh : jabalpur election petition no.20/2009 ramlal kol, son of ramsharan kol, aged about 36 years, resident of village hirwara, tahsil mudwara, distt. katni ...petitioner versus moti kashyap @ motilal, son of late mewalal, resident of 1220, durga chowk, phootatal, ravindra ward, p.o. gurundi bazar, jabalpur ...respondent ------------------------------------------------------------------------------------------------------------ shri arvind shrivastava, advocate for petitioner. shri g.s. baghel, advocate for respondent. ------------------------------------------------------------------------------------------------------------ date of hearing :10. 1.2013 date of judgment :10. 4.2013 judgment in this petition, election of the returned candidate viz. the respondent.....
Judgment:

HIGH COURT OF MADHYA PRADESH : JABALPUR Election Petition No.20/2009 Ramlal Kol, son of Ramsharan Kol, aged about 36 years, resident of village Hirwara, Tahsil Mudwara, Distt. Katni ...Petitioner Versus Moti Kashyap @ Motilal, son of Late Mewalal, resident of 1220, Durga Chowk, Phootatal, Ravindra Ward, P.O. Gurundi Bazar, Jabalpur ...Respondent ------------------------------------------------------------------------------------------------------------ Shri Arvind Shrivastava, Advocate for petitioner. Shri G.S. Baghel, Advocate for respondent. ------------------------------------------------------------------------------------------------------------ Date of Hearing :

10. 1.2013 Date of Judgment :

10. 4.2013

JUDGMENT

In this petition, election of the returned candidate viz. the respondent to Badwara Legislative Assembly Constituency No.91 has been called in question on the grounds mentioned in clause (a) and sub-clause (i) of clause (d) of sub-section (1) of Section 100 of Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’).

2. Following facts are not in dispute – (i) In Part VIII of the Constitution (Scheduled Tribes) Order, 1950, Majhi was shown at Serial No.29 as one of the Scheduled Tribes in relation to the erstwhile State of Madhya Pradesh and by virtue of Entry 9 to the Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956, ::

2. :: Election Petition No.20/2009 Majhi was recognized as a Scheduled Tribe in the State of Vindhya Pradesh which, ultimately, became part of a new State of Madhya Pradesh formed by the State Reorganisation Act, 1956. However, it was with effect from 27th July 1977, that Majhi was notified, under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 1976, as a Scheduled Tribe throughout the new State. (ii) In the years 1980, 1985, 1990, 1993 and 2003, the respondent contested the election to Panagar Legislative Assembly Constituency as a member of Majhi [wrongly spelt as Manjhi in the pleadings]. Scheduled Tribe and was also declared elected to the Legislative Assembly in the elections held in 1990, 1993 and 2003. (iii) In the Assembly Election of 2008, the Badwara Constituency was notified as reserved for Scheduled Tribes. Along with his nomination paper, the respondent had submitted a caste certificate dated 11.6.1993 (Ex.D-7), said to have been issued by the Tahsildar, Jabalpur, showing that he belonged to Majhi Scheduled Tribe. (iv) A similar petition, registered as Election Petition No.4/94, laying challenge to the validity of respondent’s election to Panagar Legislative Assembly Constituency No.193 in the year 1993, was filed by his nearest rival namely Shankar Arakh. It was dismissed, vide order-dated 4.7.1995 passed by a co-ordinate Bench of this Court, as having abated. ::

3. :: Election Petition No.20/2009 3. According to the petitioner, the election deserves to be declared as void simply because the respondent was not having requisite qualification within the meaning of Section 5(a) of the Act, for being chosen to the seat, that was reserved for the Scheduled Tribes of Madhya Pradesh. Alleging categorically that the caste certificate submitted by the respondent in support of his candidature was a fake and fabricated document, he has further pleaded that result of the election was materially affected by an improper acceptance of the nomination. To substantiate the charge, he has averred that – (i) Respondent belongs to Dheemar caste, which is notified as an Other Backward Class (OBC) in the State of Madhya Pradesh. (ii) During the period from 29.5.53 to 30.4.60, the respondent had studied in Kasturchand Hitkarni Sabha Bahu Uddeshiya Uchchtar Madhyamik Shala, Jabalpur and in the School Record, his caste was written as Dheemar. (iii) On 22.12.1993, Education Department of Municipal Corporation, Jabalpur had issued a copy of the Transfer Certificate reflecting that caste of the respondent was Dheemar. (iv) Deeptibala, the daughter of respondent and a student of Bengali Kanya Higher Secondary School Marhatal, Jabalpur, received scholarship from the Tribal Welfare Department as member of an OBC only. (v) In the record of the Municipal Corporation, name of the respondent, the owner of a house, ::

4. :: Election Petition No.20/2009 located in Phootatal Ward, Jabalpur, has been mentioned as Motilal, son of Mewalal Kashyap and the surname viz. Kashyap is one of the surnames commonly used by members of Dheemar caste. (vi) The caste certificate dated 11.6.1993 said to have been issued by the Tahsildar, Jabalpur is apparently a fake and fabricated document for the reason that it does not bear any case number. (vii) By way of the Order not F-21-6/25-5/92 dated 29.8.1992, Majhi was deleted from the list of socially and economically backward classes in relation to the State of M.P. Taking an undue advantage of the situation, members of Dheemar caste, who were using surnames like Raikwar, Batham, Nishad, Mallah, Kashyap etc., started claiming themselves to be members of Majhi Scheduled Tribe. A Writ Petition filed by Radhavallabh Choudhary in the nature of Public Interest Litigation and numbered as M.P. No.4639/1989, was dismissed by a Division Bench of this Court, vide order-dated 25.9.1990, holding that Kewat, Mallah, Dhimar, Nishad, Bhoi and Kahar etc. were not included in the Scheduled Tribe Majhi.

4. In his written statement, the respondent, while specifically denying petitioner’s averments as to his caste, has asserted that he belongs to Majhi caste, recognized as a Scheduled Tribe of the State and, therefore, was eligible and qualified to contest the election. In support of the assertion, he has set out the following particulars - ::

5. :: Election Petition No.20/2009 (i) Being a Majhi, he has been contesting Assembly Elections since 1980 from the seats reserved for Scheduled Tribes of the State. (ii) His surname Kashyap does not denote his caste and has been adopted by members of several other castes. (iii) Initially, on 1.5.1948, showing his caste to be Majhi, he was admitted to Class 1 in the Government Primary School (Boys), Phootatal, Jabalpur, where he had studied up to 16.12.1948. His caste was not recorded as Dheemar in Kasturchand Hitkarini Sabha Bahu-uddeshiya Uchchatar Madhyamik Shala, Jabalpur also. (iv) His daughter Deeptibala also pursued her studies at M.B. Bengali Higher Secondary School, Jabalpur as a member of Majhi Tribe. The document reflecting that she had obtained scholarship meant for an OBC student, is not a genuine one. (v) Scrutiny of his nomination paper was conducted by the Returning Officer in accordance with the summary procedure prescribed under Section 36 of the Act. Amongst the objectors to his nomination, Rajesh Nayak, who had also withdrawn his objection, and Vishnu Bajpai were not present at the time of scrutiny whereas Balwan Singh and Suresh Kol had submitted their objections after the scrutiny was over. In such a situation, his nomination paper supported by the caste certificate-dated 11.6.1993 issued by the competent authority, that was valid and still in force, was rightly accepted. ::

6. :: Election Petition No.20/2009 5. In addition to these factual aspects of the matter, the respondent has also raised the legal plea to the effect that the election petition is liable to be dismissed – (a) for want of compliance with the statutorily mandatory provisions of Section 81(a) and Section 83(1)(a) of the Act inasmuch as the un-amended petition did not disclose petitioner’s elector number and particulars of relevant part of the electoral roll and the corresponding amendment, though permitted to be incorporated, was barred by limitation and (b) simply because genuineness of the caste certificate cannot be examined under the provisions of the Act.

6. On the basis of the pleadings, the following issues have been framed. The respective finding is noted against each one of them - not Issues Finding 1 Whether the caste certificate submitted by the respondent in Yes support of his nomination form was a forged document ?. 2 Whether the respondent, who was not entitled to contest the election from No 91, Badwara Constituency, is a member of Scheduled Tribe namely Majhi ?. 3 Whether the election, in so far it concerns the respondent, has been Yes materially affected by the improper acceptance of his nomination ?. 4 Whether this Court has no jurisdiction to examine genuineness of the caste No certificate ?. ::

7. :: Election Petition No.20/2009 5 Whether the petition is liable to be No dismissed for want of compliance with the mandatory provisions of the Act ?. 6 Relief and Costs ?. Petition allowed with no order as to costs. REASONS FOR THE FINDINGS ISSUE NO.5 7. Placing reliance on the following precedents - (i) Hardwari Lal v. Kanwal Singh AIR 197.SC 51.(ii) Manphul Singh v. Surinder Singh AIR 197.SC 215.- learned counsel for the respondent has submitted that the petition deserves dismissal due to non-compliance with the mandatory provision of Section 83(1)(a) of the Act, requiring the petition to state all the material facts. According to him, since omission of a single material fact tends to an incomplete cause of action, absence of electoral number and other relevant details in the petition was sufficient to dismiss the same and the defect was not curable after expiry of the period prescribed for filing an election petition. However, this aspect of the matter has already been dealt with while considering the amendment application moved by the petitioner. Relevant part of the order-dated 6.10.2009, whereby the petitioner was permitted to incorporate his electoral number etc. may be reproduced as under - ::

8. :: Election Petition No.20/2009 “… the fact of the matter is that in the Para 1 of the election petition, the petitioner has already averred that he was an elector. The criteria for distinguishing material facts from material particulars has been explained in a series of decisions including the one rendered in Shri Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511.Accordingly, it can safely be concluded that, by way of the proposed amendment, only material particulars relating to the petitioner’s identity as an elector named in the electoral rolls prepared for the Assembly as well as corresponding Parliamentary Assembly have been sought to be included. However, taking into consideration the legislative mandate contained in Section 86(7) of the Representation of the People Act, 1951 and the fact that the amendment has been proposed in light of the objection raised by the respondent in his application (I.A. No.75/2009), under Order VII Rule 11 and Order VI Rule 6 of the Code of Civil Procedure read with 86(1) of the Act, the I.A. No.81/2009 is allowed subject to payment of cost of Rs.200/-. Necessary amendment be carried out within a period of 3 days from today.”

8. Thereafter, this Court, by way of the order-dated 25.1.2010, also proceeded to dismiss the respondent’s application, under Order VII Rule 11 of the Code of Civil Procedure, wherein the following contraventions of procedural requirements were highlighted – (i) Copy of the election petition furnished to him contained names of 18 other respondents. (ii) The copy of the election petition, which was served upon him, was not properly attested as required under Section 81(3) of the Act. ::

9. :: Election Petition No.20/2009 (iii) The verification of the pleadings was not in conformity with the requirements of Order VI Rule 15 of the Code of Civil Procedure.

9. Since correctness of the order-dated 6.10.2009 (above) was not challenged by the respondent, it has already attainted finality. As such, he cannot be permitted to raise the issue. This apart, the Special Leave Petition preferred against the order-dated 25.1.2010 (supra) wherein note of the amendment to incorporate the voter number and part number of the voter list was also taken, has already been dismissed by the Apex Court vide order- dated 26.2.2010 passed in SLP(Civil) No.5068/2010.

10. For the reasons assigned in the both the orders i.e. 6.10.2009 and 25.1.2010, the Issue No.5 is answered in the negative. ISSUE NO.4 11. Making reference to the decision of the Supreme Court in Kumari Madhuri Patil v. Addl. Commr., Tribal Development (1994) 6 SCC 241.learned counsel for the respondent has contended that the genuineness of the caste certificate can only be examined by the State Level Scrutiny Committee and therefore, the same cannot form subject matter of an election petition. However, the contention is apparently misconceived for the reason that an election petition is intended to bring into focus any illegality attached to an election. Dealing with this aspect of the matter, in Satrucharla Vijaya Rama Raju v. ::

10. :: Election Petition No.20/2009 Nimmaka Jaya Raju AIR 200.SC 543.the Supreme Court has made the under-mentioned illuminating observations - “An election petition under Section 80 of the Representation of the People Act, 1951 cannot be held to lead to an adjudication which declares, defines or otherwise determines the status of a person or a jural relation of that person to the world generally. It is merely an adjudication of a statutory challenge on the question whether the election of the successful candidate is liable to be voided on any of the grounds available under Section 100 of the Representation of the People Act, 1951. It is not an action for establishing the status of a person. … The purpose of reservation of constituencies is to ensure representation in the legislatures to such tribes and castes, who are deemed to require special efforts for their upliftment. The person seeking election from such constituencies must be the true representative of that tribe”..

12. In this view of the matter, scrutiny as to authenticity of the caste certificate furnished by the returned candidate before the Returning Officer is not beyond scope of an election dispute. The issue no.4 is, accordingly, answered in the negative. ISSUE NOS.1 AN”

13. Stating emphatically that the respondent is a Dheemar by caste and does not belong to Majhi Tribe and that the caste certificate in question was not issued by Tahsildar, the petitioner Ramlal (PW1) has proposed to rely on certain documents, filed by Shankar Arakh (since dead) ::

11. :: Election Petition No.20/2009 in support of his petition (Election Petition No.4/1994), calling in question respondent’s election to Panagar Legislative Assembly Constituency No.193 held on 27th of November, 1993. These documents are – (i) Certified copy of the Transfer Certificate (Ex.P-1) said to have been issued by Education Department of Municipal Corporation upon leaving the school on 11.4.1952 wherein the respondent was shown as Dheemar by caste. (ii) Certified copy of the entry of Tax Assessment Register (Ex.P-2), reflecting that as owner of the House No.1219/A, name of the respondent was shown as Motilal, son of Mewalal Kashyap. (iii) The certificate (Ex.P-3) given by Tahsildar (Nazul) to the effect that the caste certificate-dated 11.6.1993 (Ex.D-7) was not issued by any court concerning Nazul.

14. Learned counsel for the respondent has strenuously contended that the documents (Ex.P-1C to P-3C), being photocopies, are not admissible in evidence. However, as rightly pointed out by learned counsel for the petitioner, he was not in a position to obtain certified copies as none of the documents could be exhibited in evidence in Shankar Arakh‘s case. According to him, the photocopies can easily be compared with the originals forming part of the record of the Election Petition No.4/1994. ::

12. :: Election Petition No.20/2009 15. In order to support the assertion that the caste certificate is not a genuine document, the petitioner has also examined – (a) P.K. Sen Gupta (PW4) who came forward to depose, on the basis of record of case no.441/13/12/9-10, registered upon an application for an enquiry into the authenticity of the certificate, that amongst the Readers of the Revenue Courts, two had informed that the corresponding case was not found registered whereas another Reader had intimated that even the register was not available. (b) Deepak Kumar (PW5), working as Head Copyist in the Collectorate, who clearly stated that the advance deposited in connection with application, presented by Ayodhya Prasad, Advocate for copy of the respondent’s caste certificate dated 11.6.1993 said to have been issued in Case No.2956/93 had to be returned as the related case was not found deposited in the Record Room. (c) Satish Namdeo (PW2), a practising Advocate, who categorically affirmed that the certificate (Ex.P-3) indicating that the caste certificate dated 11.6.1993 was not issued by any Nazul Court was obtained by him only by filing an application on 15.12.1993 as per instructions given by his client Late Shankar Arakh. (d) Vishnu Vajpayee (PW6), an Advocate by profession, who testified that he had raised objection to nomination form submitted by the respondent before the Returning Officer on the ground that the ::

13. :: Election Petition No.20/2009 Caste Certificate and School Transfer Certificate filed therewith were forged and fabricated documents. (e) Chandrakant Singh (PW3), an Assistant Commissioner in the Tribal Welfare Department, who testified that record corresponding to grant of scholarship to Deeptibala has already been eliminated in accordance with the relevant rules.

16. Satish Namdeo has further deposed that upon instructions given by his client Late Shankar Arakh, he has also obtained a certificate (Ex.P-4) from Tribal Welfare Department to the effect that in the year 1988-89, Deeptibala had received scholarship as an OBC student.

17. Even though Vishnu Vajpayee (PW6) has clearly deposed that Ravi, the son of co-brother of the respondent, has been able to secure job in a Bank as member of an OBC yet, in absence of corresponding evidence, his statement does not assume any significance. Nevertheless, the other evidence brought on record by the petitioner was sufficient to cast a doubt as to the veracity of the caste certificate relied upon by the respondent.

18. Law regarding burden of proof in an election petition based on any disqualification of the returned candidate as on date of nomination is well settled. There are other such decisions, but the following two will suffice - (i) Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204.which concerned disqualification as to the caste. ::

14. :: Election Petition No.20/2009 (ii) Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673.which related to disqualification as to the age.

19. In Punit Rai’s case, while considering the effect of Section 106 and illustration (g) appended to Section 114 of the Evidence Act, it was observed that adverse inference has to be drawn if evidence regarding fact especially within the knowledge of any person, is not produced by such person. As elucidated further in Sushil Kumar’s case, - “It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner. In terms of Section 103 of the Indian Evidence Act, however, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute. (See Orissa Mining Corpn. v. Ananda Chandra Prusty AIR 199.SC 2274)”.. However, a note of caution was also sounded in the following terms – ::

15. :: Election Petition No.20/2009 “The election Tribunal while determining an issue of this nature has to bear in mind that Article 173(b) of the Constitution of India provides for a disqualification. A person cannot be permitted to occupy an office for which he is disqualified under the Constitution. The endeavour of the court shall therefor should be to see that a disqualified person should not hold the office but should not at the same time, unseat a person qualified therefor. The court is required to proceed cautiously in the matter and, thus, while seeing that an election of the representative of the people is not set aside on flimsy grounds but would also have a duty to see that the constitutional mandate is fulfilled”..

20. Items of evidence adduced by the respondent which seem to have bearing on the question may be appreciated under the following heads - SURNAME 21 No serious dispute has been raised as to the statement made by the respondent Moti Kashyap (DW1) that surname Kashyap is common to various castes. To bring home the point, he has also examined Prashant Kashyap (DW2) and Rakesh Kumar Kashyap (DW3), who belong to Lodhi and Kushwaha caste respectively and exhibited the magazine Kushwaha Vikas (Ex.D-4) wherein name of Rakesh figures with his photograph. All this evidence is sufficient to establish that surname Kashyap, by itself, cannot give rise to presumption that the respondent belongs to a caste other than Majhi. ::

16. :: Election Petition No.20/2009 REPORT OF CENSUS OF INDIA”

22. The report (Ex.D-6) authored by R.V. Russell, I.C.S., the then Superintendent of Census Operations, and sought to be exhibited by calling Jai Shahdadpuri (DW4), the Assistant Director, contains reference to Manjhi as a caste at Sl. No.626 included Dhimar of Balaghat, Raipur, Bilaspur, Bastar and Kewat in Sakti. It only indicated that Manjhi (not Majhi) was one of the castes of Central Provinces, classified for the purpose of census. INSTITUTIONAL RECORD AND CERTIFICATES OTHER THAN THE CASTE CERTIFICATE IN QUESTION 23 While denying that he is a Dheemar by caste, the respondent (DW1) has made reference to – (a) Copy of the School Leaving Certificate (Ex.D-3), said to have been issued by the Head Master, Govt. Primary School, Phootatal on 16.12.1948. (b) Copy of Scheduled Tribe Certificate (Ex.D-1) issued by the Naib Tahsildar/Executive Magistrate dated 26.9.1989 and (c) Copy of order-sheet-dated 12.8.1998 (Ex.D-2) scribed by the then Naib Tahsildar, Jabalpur in Case No.18519/B/21/97-98 reflecting that upon the application moved by him, a temporary certificate indicating his caste as Majhi was issued on the basis of earlier caste certificate and the Revenue Records for the years 1977-78 and 1978-79, showing his caste as Majhi. ::

17. :: Election Petition No.20/2009 24. Copy of the certificate (Ex.D-3) only shows that it was issued on 30.12.2007 by the then Head of the institution, whose evidence was utmost essential not only to prove that in the aforesaid certificate, respondent’s caste was wrongly spelt as Manjhi [which as per the Census Report (Ex.D-6) includes Dheemar also]. in place of Majhi but also to disprove contents of the School Leaving Certificate (copy of which was brought on record as Ex.P-1) suggesting that in the school record, his caste was mentioned as Dheemar. It is relevant to note that in both the documents (Ex.P-1 and D-3), date of birth of the respondent was written as 1.4.1940 only. In Madhuri Patil’s case (ibid), the Supreme Court observed that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and certificates are issued on its basis. In this view of the matter, non-examination of the official concerned to prove authenticity of the contents of the certificate (Ex.D-3) is sufficient to draw an adverse inference under illustration (g) of Section 114 of the Evidence Act.

25. Copy of the certificate (Ex.D-1) reflecting that the respondent is a member of Majhi Tribe could not be a proof of his caste and as indicated already, contents of the order- sheet 12.8.1998 (Ex.D-2) clearly discloses that the temporary caste certificate was issued on the basis of the Revenue Record as well as earlier caste certificate-dated 11.6.1993 viz. the certificate in question. Still, the fact that the revenue records pertaining to the years 1977-78 and 1978-79 were produced in support of the application was suggestive of the inference that it was only after the year ::

18. :: Election Petition No.20/2009 1976 (in which by virtue of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, ‘Majhi’ was recognized as a Scheduled Tribe in respect of the whole State of Madhya Pradesh) that the respondent had started claiming status of a member belonging to Majhi Scheduled Tribe.

26. For these reasons, I am inclined to hold that the respondent has not been able to produce any authentic document to show that he belongs to Majhi Scheduled Tribe. CASTE CERTIFICATE 27 S.D. Dwivedi (DW6), who remained posted as Tahsildar, Jabalpur during the period from 29.2.1992 to 3.7.1993, has not accepted the suggestion that the caste certificate-dated 11.6.1993 (Ex.D-7) was issued by him only. As per his statement, he is not able to say with certainty that the initials on the certificate above the seal of Tahsildar, Jabalpur were put by him. After being declared hostile, he was cross-examined at length by learned counsel for the respondent but nothing favourable could be elicited. He categorically denied the suggestion that the caste certificates were being issued even without registration of corresponding cases. According to him, as per the prescribed procedure, any case based on application for issuance of caste certificate had to be registered in Revenue Register not B-121. Besides this, he has clearly admitted that in the light of the guidelines issued by the State Government by way of Circular not F-7-1/1/191 dated ::

19. :: Election Petition No.20/2009 20th of February, 1991, the Authority issuing caste certificate was required to – (a) indicate his full name, date of issuance and the despatch number. (b) preserve the record of the case. It also came in his evidence that no officer other than him was posted as Tahsildar, Jabalpur on 11.6.1993, the date of issuance of caste certificate in question.

28. Statement of S.D. Dwivedi gathered ample support from the evidence of Shahid Khan (DW5), the Tahsildar, who had the occasion to inquire into the genuineness of the caste certificate. According to Shahid Khan, he had found that no case was registered on 11.6.1993 in the Register not B-121 for issuance of caste certificate in favour of the respondent. While admitting that in the report suggesting that the short signature on the certificate appeared to be that of the then Tahsildar, he had not mentioned that any register was checked by him. As pointed out earlier, genuineness of the caste certificate (Ex.D-7) has been challenged inter alia on the ground that it does not bear any case number.

29. On being shown the copies of the entries (Ex.D-9) in the Register, Shahid Khan has further admitted that – (a) Entries relating to the Month of July, 1993 were made on 7.7.1993 from Sl. No.762 onwards. (b) Entries at Sl. No.772 and 774 were recorded on 21.7.1993. ::

20. :: Election Petition No.20/2009 (c) Entry at Sl. No.773, seen by him for the first time regarding issuance of certificate on 11.6.1993, appears to have been made on 19.6.1993.

30. A bare perusal of the abovementioned entries would reveal that they were not recorded by the same person and the dates of registration as well as disposal of the case were interpolated to make the dates falling within 16th and 21st of July, 1993 as 19.6.93 and 11.6.1993 respectively with a view to causing it to be believed that the caste certificate (Ex.D-7) was issued on 11.6.1993 but the corresponding entry was made in the register on 19.6.1993. In the light of these glaring features of the fabrication of the public record, anybody would say that Entry at Sl. No.773 is not genuine. This finding lends assurance to the conclusion that the caste certificate in question does not bear initials/short signature of S.D. Dwivedi and the same is a forged and fabricated document. OTHER EVIDENCE 31 The criteria for determining tribal character of a community as laid down by the Ministry of Tribal Affairs are as follows - (a) Indications of primitive traits (b) Distinctive culture (c) Geographical isolation (d) Shyness of contact with the community at large (e) Backwardness ::

21. :: Election Petition No.20/2009 32. The respondent, all along, had knowledge as to (a) his native place (b) caste of his parents (c) birth register and school record and (d) points of distinction between Majhi and Dheemar Caste in relation to trade, deity, ritual, custom, mode of marriage, death ceremonies and mode of burial etc. but he failed to lead cogent evidence regarding these facts.

33. Thus, the other evidence led by the respondent is also not sufficient to trace out his anthropological and ethnological history in accordance with the method prescribed in Madhuri Patil’s case (supra).

34. In Geeta v. State of M.P. (2008) 8 SCC 590.cancellation of caste certificate by the Screening Committee on the ground that no documents whatsoever could be produced to show that the appellant belonged to Majhi Tribe was upheld by the Supreme Court with the observation that reliance could not be placed on documents not prepared by the competent authority.

35. To sum up, neither the documentary evidence produced by the respondent not the oral evidence adduced by him is sufficient to substantiate his claim that he is a member of Majhi Scheduled Tribe. The fact that he was permitted to contest the earlier elections to the seat reserved for Scheduled Tribe is of no consequence as the authenticity of the caste certificate has not been examined on the judicial side so far. Even otherwise, as explained by the Apex Court in Satrucharla Vijaya Rama Raju’s case (above) - ::

22. :: Election Petition No.20/2009 “An adjudication in an election petition does not operate as res judicata. Every election furnishes a fresh cause of action for a challenge to that election. Res judicata is nothing but the merger of a cause of action in a decree, transit in rem judicatum. So, even if the cause of action in the earlier election petition merged in the final adjudication therein, since the subsequent election furnishes a fresh cause of action, the merger of the earlier cause of action with the decision therein cannot bar the trial of the fresh cause of action arising out of subsequent election. An election petition filed, though it abates on the death of the petitioner therein, could be pursued by another person coming forward to prosecute that election petition as enjoined by S. 112 of the Act. But that does not make an election petition a representative action in the sense in which it is understood in law. Therefore, normally, the adjudication in an election petition, not inter-parties, cannot operate as res judicata in a subsequent election petition challenging that subsequent election.

36. To conclude, on one hand, the petitioner has been able to establish his case by a preponderance of probability indicating that the respondent is a Dheemar by caste as well as that the caste certificate (Ex.D-7) is not a genuine document and on the other, the respondent has not been able to discharge the onus shifted on him in view of the fact that he had special knowledge in respect of the caste to which he claims to belong. It is trite that election petition is not a suit between two persons but is a proceeding in which Constituency itself is the principal party interested. ::

23. :: Election Petition No.20/2009 37. Since the certificate showing caste of the respondent as Majhi has been found to be a forged document, it is held that he was not qualified to be chosen to fill seat in the constituency reserved for the Scheduled Tribes. Accordingly, the Issue No.1 is answered in the affirmative whereas Issue No.2 is decided in the negative. ISSUE NO.3 38. As explained by R.C. Lahoti, C.J., speaking for the majority on the Constitution Bench in K. Prabhakaran v. P. Jayarajan AIR 200.S C 688.though in a different context - “The question of qualification or disqualification of a returned candidate within the meaning of S. 100(1)(a) of the Representation of the People Act, 1951 has to be determined by reference to the date of his election which date, as defined in S. 67-A of the Act, shall be the date on which the candidate is declared by the returning officer to be elected. Whether a nomination was improperly accepted shall have to be determined for the purpose of S. 100(1)(d)(i) by reference to the date fixed for the scrutiny of nomination, the expression, as occurring in S. 36(2)(a) of the Act. … Under sub-Cl. (i) of Cl. (d) of sub-sec. (1) of S. 100 of the RPA the improper acceptance of any nomination is a ground for declaring the election of the returned candidate to be void. This provision is to be read with S. 36(2)(a) which casts an obligation on the returning officer to examine the nomination papers and decide all objections to any nomination made, or on his own motion, by reference to the date fixed for the scrutiny of the nominations. Whether a candidate is qualified or not qualified or is disqualified for being chosen to fill the seat, has ::

24. :: Election Petition No.20/2009 to be determined by reference to the date fixed for the scrutiny of scrutiny of nomination”..

39. As the genuineness of the caste certificate filed by the respondent along with the nomination paper was questioned, the returning officer ought to have verified as to whether such a certificate was at all issued. Needless to say that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but where the person whose nomination has been improperly accepted is the returned candidate himself, such would be the obvious conclusion. This issue is, therefore, also answered in the affirmative. ISSUE NO.6 40. For the reasons aforementioned, the petition stands allowed and the election of the respondent from Badwara Legislative Assembly Constituency No.91 is declared as void. Consequently, the same is set aside.

41. A copy of this judgment be forwarded to the Election Commission as well as to the Speaker of the State Legislative Assembly. There shall be no order as to costs. Petition allowed. (R.C. Mishra) JUDGE 10 4.2013