FAO No.1292 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.1292 of 2009 (O&M) Date of decision : 2.2.2010 Dilawar Khan ..Appellant. Vs. Ravinder Kumar and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Mansur Ali, Advocate for the appellant. Mr.Vipul Dharmani, Advocate for the respondents. RAKESH KUMAR JAIN, J. (Oral) This appeal is directed against order dated 6.1.2009 passed by Deputy Commissioner-cum-Election Tribunal, Rupnagar by which election of the appellant was set aside and the next candidate was directed to be declared in the category of Scheduled Caste whosoever had procured maximum votes. Briefly stated, the facts of the case, are that election of Gram Panchayat of village Raipur was held on 26.5.2008, which comprises of seven Panches in which one post was reserved for Scheduled Caste (for short `SC') (Male). The appellant (Dilawar Khan) and respondent No.1 (Ravinder Kumar) contested against the said post claiming themselves to be belonging to the SC. The appellant was declared elected having secured 43 votes as against 36 votes polled by respondent No.1. His election was challenged by respondent No.1 on the ground that he professes Muslim faith FAO No.1292 of 2009 -2- and since Muslims are not covered by The Constitution (Scheduled Castes) Order, 1950 (for short `the order of 1950') therefore, he cannot contest election in the reserved category of SC. In reply, the appellant had alleged that he contested the election in the category of Scheduled Caste (Male) on the strength of SC Certificate No.1481 dated 23.11.2007 issued by Tehsildar, Nangal as he belongs to Jullaha caste which is recognised as a Scheduled Caste. Thus, the question involved in this case was whether the appellant is a Muslim or not and if he is a Muslim, whether he is covered by the order of 1950. The learned Tribunal found that though appellant is a Jullaha by profession yet he belongs to Muslim community and is thus not covered by the order of 1950, therefore, his election was set aside. Aggrieved against the said order, the present appeal has been preferred in which learned counsel for the appellant has submitted that learned Tribunal has committed a serious error of law as the election petition has not been decided in accordance with Section 81 of The Punjab State Election Commission Act, 1994 (for short `the Act'). It is argued that learned Tribunal should have, on the pleadings of the parties, framed issues and allowed the parties to lead their evidence. In this regard, he has relied upon a single Bench judgment of this Court delivered in the case of Ajaib Singh Vs. Arjun Singh 2000(3) RCR (Civil) 24 and a Division Bench judgment of this Court delivered in the case of Pardaman Singh Vs. State of Punjab 1996(3) RCR (Civil) 35. It is further submitted that the appellant has not contested the election by concealing something rather he has contested the election on the basis of a SC Certificate issued by the State, FAO No.1292 of 2009 -3- which has neither been withdrawn nor cancelled. He further submits that until and unless that certificate is withdrawn or cancelled, the Tribunal has no jurisdiction to declare his candidature to be illegal. He further argues that for the purposes of withdrawal or cancellation of a SC certificate, opportunity has to be given. In this regard, he relies upon a judgment of the Supreme Court in the case of Rampal Vs. State of Haryana and others AIR 2009 SCW 5140. As against this, learned counsel for the respondents has submitted that if the appellant is not a Muslim, he has no case against him but if he is a Muslim though Jullaha by profession, he cannot be treated to be SC. He further submitted that SC certificate has been issued on the basis of he being a Jullaha in which it is not mentioned whether the appellant is a Muslim or not. His name sounds like a Muslim name but it is not provided in the Scheduled Caste Certificate that he professes Islam. He further submits that insofar as Section 81 of the Act is concerned, though law provides that issue should have been framed but it also provides that the Court should follow the procedure, as nearly as may be, which means that it is not required that always issues have to be framed if the matter is of such a nature, which can be decided on the basis of examination of a document which is patently illegal and debars a candidate to contest. During the course of hearing, the Court had asked learned counsel for the appellant to file an affidavit of his client as to whether the appellant is a Muslim or not but learned counsel for the appellant has very fairly and candidly denied to file an affidavit and has rather stated at the bar that the appellant professes Islam. Once it is not disputed that the appellant is a Muslim and FAO No.1292 of 2009 -4- professes Islam, then in my view, he is not covered by the Order of 1950 which provides that “Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh or Buddhist religion shall be deemed to be member of Scheduled Caste.” Insofar as precedents which have been cited by the counsel for the appellant are concerned, there is no quarrel with the law laid down in those judgments which are based upon its own facts and insofar as cancellation of the SC certificate is concerned, the law will take its own course. Thus, the fact remains that the appellant is not an SC and has illegally contested for the office of Panch meant for SC candidate. Hence, I do not find any infirmity in the order of the learned Tribunal and as such, the appeal is dismissed. No costs. (RAKESH KUMAR JAIN) 2.2.2010 JUDGE Meenu