IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 3- 3-2011 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(NPD)No.3991 of 2008 Sannasi ... Petitioner Vs. 1) The Election Officer, (Block Development Officer) Bethanaickenpalayam Panchayat Union, Bethanaickenpalayam, Attur, Salem District. 2) The District Election Officer/ The District Collector Salem, Salem District. 3) The Chief Election Commissioner Tamil Nadu State Election Commission Chennai. 4) Tamilarasi ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the judgment and decree dated 22.10.2008, passed in Election O.P.No.121 of 2006, on the file of the Additional District Court/Fast Track Court No.II, Salem. For Petitioner : Mr.N.Manokaran For Respondents 1 to 3 : Ms.R.Revathy For Respondent – 4 : Mr.C.Selvaraj, Senior Counsel for S.Mani O R D E R The petitioner in E.O.P.No.121 of 2006, is the revision petitioner herein. 2. The revision petitioner filed the above election petition, challenging the election of the fourth respondent and https://hcservices.ecourts.gov.in/hcservices/ prayed for a declaration that the election of the fourth respondent is illegal and to declare the revision petitioner as the elected candidate for the post of President of the Village Panchayat, in respect of Palaniyapuri Village, Attur Taluk and to take criminal action against the fourth respondent. 3. The case of the revision petitioner was that the post of President, in respect of the Palaniyapuri Village, Attur Taluk, was reserved for Scheduled Tribe Community, and a notification under Section 57 of Tamil Nadu Panchayats Act, 1994, was also issued reserving the said post for the Scheduled Tribe Community. The revision petitioner belongs to Hindu Malai Kuruvan Community, which is a notified Scheduled Tribe. Therefore, the revision petitioner applied for the above said post and the fourth respondent also applied for the said post and both of them filed nomination and while scrutinizing the nomination papers, the revision petitioner raised objection stating that the fourth respondent does not belong to Scheduled Tribe Community and she belongs to Hindu Vaniyar Community. The revision petitioner's objection was not properly considered by the Returning Officer and the fourth respondent was allowed to contest the election for the reserved post and as she has secured maximum number of votes, she was declared as the successful candidate. 4. According to the revision petitioner, the fourth respondent belongs to Hindu Vaniyar Community and she does not belong to Scheduled Tribe, as claimed by her. Therefore, the declaration of election of the fourth respondent as a successful candidate has to be set aside and the revision petitioner must be declared as the successful candidate for the post of President for the Palaniyapuri Village. 5. The fourth respondent filed a counter affidavit, denying the allegations made by the revision petitioner stating that she belongs to Hindu Scheduled Tribe and her ancestors were natives of Thenkasi, Thirunelveli District and they belonged to Palliyan Community, which is a Scheduled Tribe and four or five decades earlier, the family of the fourth respondent migrated towards north and the fourth respondent's parents and relatives resided in Kallanatham area. The family of the fourth respondent was a rich one and therefore, the husband of the fourth respondent married her with a hope of getting good dowry and other gifts. Eventhough, her husband belongs to Hindu Vaniyar Community , she continued to be a Hindu Scheduled Tribe woman and therefore, she is eligible to contest for the post of President, reserved for Scheduled Tribe. 6. Both the revision petitioner and the fourth respondent filed nomination and the revision petitioner was given ' Lock and Key' symbol and the fourth respondent was given 'Electric https://hcservices.ecourts.gov.in/hcservices/ Bulb' symbol. During scrutiny of nomination, no objection was raised by the revision petitioner and the revision petitioner also did not produce any proof to show that the fourth respondent does not belong to Scheduled Tribe Community. Therefore, the nomination of the fourth respondent was accepted and as she has secured maximum number of votes, she was declared as the successful candidate. The Court below, dismissed the petition filed by the revision petitioner on the ground that the revision petitioner has not proved that the fourth respondent does not belong to Scheduled Tribe Community, and hence, this Revision Petition. 7. It is submitted by Mr. N.Manokaran, the learned counsel appearing for the revision petitioner that admittedly, the Village Panchayat post was reserved for Scheduled Tribe Community and the revision petitioner produced a certificate to the effect that he belongs to that Community and there is no dispute about the same. The revision petitioner also filed Exs.P.12 and 13, to prove that the fourth respondent belongs to Hindu Vaniyar Community and also examined witnesses to prove the same. 8. Evenafter, a dispute was raised by the revision petitioner regarding the community of the fourthrespondent, the fourth respondent has not produced any certificate to prove that she belongs to Scheduled Tribe Community and admittedly, her husband belongs to Hindu Vaniyar Community and therefore, all these facts would cumulatively prove that the fourth respondent is only a Hindu Vaniyar and she does not belong to Scheduled Tribe Community, as claimed by her. The Court below wrongly placed the burden on the revision petitioner and dismissed the petition filed by him, holding that the revision petitioner has not proved that the fourth respondent does not belong to Scheduled Tribe Community. 9. According to the learned counsel appearing for the revision petitioner, it is within the special knowledge of the fourth respondent to which Community she belongs to and therefore, it is her duty to prove that she belongs to Scheduled Tribe Community and when she has not proved the same, adverse inference ought to have been taken and also relied upon the judgment reported in (2003) VIII S.C.C. 673 in the case of ( Sushil Kumar Vs. Rakesh Kumar ) 10. Mr.C.Selvaraj, the Learned Senior Counsel appearing for the fourth respondent submitted that as per Form 2B, prescribed under Rules 25 and 27 of the Tamil Nadu Panchayats (Election) Rules, 1955, ( for short 'Rule'), the fourth respondent has filed nomination and at the time of filing the nomination there is no necessity to produce community certificate and as per Form 2B, a declaration has to be given by the https://hcservices.ecourts.gov.in/hcservices/ candidate that she belongs to Scheduled Tribe Community and that declaration was given by the fourth respondent and the same was validly accepted by the Returning Officer. 11. The Learned Senior Counsel appearing for the fourth respondent further submitted that the revision petitioner has not objected to the filing of nomination of the fourth respondent and even while nominations were scrutinized, he kept quiet and at the later stage, it is not open to the revision petitioner to raise the same issue by filing the Election Petition. 12. According to the learned Senior Counsel, once the nomination has been validly accepted and when there is no requirement under the said Rules to produce the community certificate at the time of filing the nomination, the Returning Officer has rightly accepted the nomination. Therefore, it is not open to the revision petitioner to contend that the fourth respondent does not belong to Scheduled Tribe Community. It is his further submission that the Court below rightly rejected Exs.P12 and 13 on the basis of the evidence of P.W.3, who produced those Exhibits and P.W.3, has stated that in his School, during the year 1986 -1992, there were many students having the name of Tamilarasi, and father's name as Ponnusamy and he cannot identify, whether the person named in Exs.P.12 and 13, is the fourth respondent and therefore, it cannot be stated that the revision petitioner has proved that the fourth respondent does not belong to the Scheduled Tribe Community. 13. The learned counsel appearing for the respondents 1 to 3 submitted that as per the provisions of the said Rules, the nomination papers were scrutinized and accepted and the revision petitioner has not produced any document to show that the fourth respondent does not belong to the Scheduled Tribe Community. Therefore, the nomination of the fourth respondent was accepted and there is no illegality in accepting the same. 14. The only point that falls for determination in this Revision Petition is whether the fourth respondent belongs to Scheduled Tribe Community or she belongs to Hindu Vaniyar Community as contented by the revision petitioner. 15. It is not in dispute that the revision petitioner belongs to the Scheduled Tribe Community. It is the specific case of the revision petitioner that the fourth respondent belongs to Hindu Vaniyar Community and she does not belong to Scheduled Tribe Community. This allegation is disputed by the fourth respondent. It is also not in dispute that the post of President of Palaniyapuri Village, is reserved for Scheduled Tribe Community. As per Rule 26 (3) of the said Rules, if the seat is reserved for the caste of Scheduled Caste or Scheduled Tribe, a https://hcservices.ecourts.gov.in/hcservices/ candidate shall furnish a declaration, in the nomination form specifying the caste or tribe of which he/she is a member and the area in relation to which the cast or tribe is notified as a Scheduled Caste or Scheduled Tribe. 16. A perusal of the Form 3 would also make it clear that the declaration has to be given by the candidate, as stated in Rule 26 (iii). Apart from the declaration, there is no necessity for a candidate to given his/her certificate to prove that he/she belongs to Scheduled Tribe Community. Nevertheless, while scrutinizing the nomination, as per Section 29, the Returning Officer shall consider all objections and may reject the nomination, if he comes to the conclusion that the candidate does not belong to such category. As per Rule 29 (2), objection can be made either orally or in writing. 17. In the present case on hand, it is stated by the revision petitioner that at the time of scrutinizing the nomination papers, he raised objection and also made written representation, which is disputed and refuted by the fourth respondent. The Returning Officer in his counter has stated that while scrutinizing the nomination papers, no objections were raised by the revision petitioner and the nomination papers were scrutinized on 28.09.2006 and till 30.09.2006, the revision petitioner has not produced any proof to the effect that the fourth respondent does not belong to Scheduled Tribe Community in evidence. The Returning Officer admitted that when an objection is raised about the Community of a particular candidate, a production of community certificate must be insisted and evenafter, the objection raised by the revision petitioner, he did not demand the community certificate from the fourth respondent. 18. Therefore, a reading of the counter filed by the first respondent and his evidence would make it clear that objection was raised by the revision petitioner about the community of the fourth respondent stating that she does not belong to Scheduled Tribe Community and evenafter, such objection was raised, he did not insist upon the fourth respondent to produce her community certificate. 19. As per Rule 29 3(d) , power is given to the Returning Officer to reject any nomination when the candidate does not belong to Scheduled community or Scheduled tribe. Therefore, eventhough as per Form 2B, a candidate is not required to produce the community certificate, when objection was raised by one of the candidates against the other candidate about the community, a duty is cast upon the Returning Officer to insist upon the production of community certificate. Unfortunately, in this case, the Returning Officer did not insist upon the fourth https://hcservices.ecourts.gov.in/hcservices/ respondent to produce the community certificate, despite objections were raised by the revision petitioner. 20. However, when the revision petitioner challenged the election of the fourth respondent stating that she does not belong to Scheduled Tribe, the onus is cast on the four respondent to prove that she belongs to Scheduled Tribe Community and the revision petitioner cannot be excepted to prove that the fourth respondent does not belong to Scheduled Tribe Community. In the judgment reported in (2003) VIII S.C.C. 673 (supra), the Hon'ble Supreme Court has dealt with the same issue and in that case, the dispute was with regard to the age of the candidate. In that case, it was contended that a person, who was declared as elected for the Legislative Assembly has not completed 25 years of age, which is the minimum requirement for conducting the Assembly election and while dealing with the same, the Hon'ble Supreme Court has held as follows:- “ ...28. It is not 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. 29. 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. 30 . 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 the that fact shall lie on any particular person. 31. 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." 21. During the course of argument, in this revision petition, the fourth respondent's Counsel was asked whether the fourth respondent can produce her community certificate to prove that she belongs to Scheduled Tribe Community and the Learned Senior Counsel was not able to produce such certificate. 22. Therefore, as per the judgment of the Hon'ble Supreme Court, the initial burden is on the revision petitioner to prove https://hcservices.ecourts.gov.in/hcservices/ that she does not belong to Scheduled Tribe Community and that burden has been discharged by the revision petitioner the by production of Exs.P12 and 13. Eventhough, P.W.3, who produced Exs.P.12 and 13, has stated in evidence that there are many many students having the name of Tamilarasi, and father's name as Ponnusamy, in that School during the year 1986-1992, having regard to the fact that the fourth respondent's father's name is Ponnusamy, and documents were produced by the revision petitioner and the husband of the fourth respondent is admittedly belongs to Hindu Vaniyar Community, I hold that the revision petitioner has discharged the initial burden. 23. Further, whether the fourth respondent belongs to Scheduled Tribe Community or not is within the exclusive knowledge of the fourth respondent and it cannot be proved by the petitioner. As held by the Hon'ble Supreme Court in the aforesaid judgment, when the fact is within the knowledge of a person, the burden is on him to prove that fact and if he does not prove that fact, he is not entitled to any other relief or benefits. 24. In the case on hand, even during the trial, no document was produced by the fourth respondent to prove that she belongs to Scheduled Tribe Community and even during Revision, no such certificate was produced by the fourth respondent. Therefore, it leads to the presumption that the fourth respondent does not belong to Scheduled Tribe Community and that was the reason the certificate was not produced by her. 25. One more issue against the fourth respondent is that her husband admittedly, belongs to Hindu Vaniyar Community. Further, no other acceptable evidence was produced by the fourth respondent to prove that she belongs to Scheduled Tribe Community, by examining her Community people to fortify her stand. 26. Therefore, I am of the opinion that the Court below wrongly placed the burden on the revision petitioner and dismissed the election petition holding that the revision petitioner has not proved that the fourth respondent does not belong to Scheduled Tribe Community. As stated supra, when objection was raised by the revision petitioner, the burden shifts to the fourth respondent to prove her Community and as she has not proved the same. Therefore, I hold that she does not belong Scheduled Tribe Community and therefore, she is not qualified to contest the election for the post of President of the Palaniyapuri Village. Hence, the election of the fourth respondent is held to be illegal and it is set aside. 27. The revision petitioner also prayed for declaring him as a successful candidate. Admittedly, for the post of President, https://hcservices.ecourts.gov.in/hcservices/ only the revision petitioner and the fourth respondent contested the election. As per Rule 32 (1) (a), if there is only one contesting candidate, the Returning Officer shall declare such candidate as duly elected. In this case, it is held that the fourth respondent does not belong to Scheduled Tribe Community and therefore, she is not eligible to contest for the said post. Once the fourth respondent is disqualified, the petitioner is the only candidate, who contested for the said post and therefore, as per Rule 32 (1) (a), the Election Officer ought to have declared the revision petitioner as a successful candidate. 28. As stated supra, when objection is raised by a candidate, about the Community of the other candidate, a duty is cast upon the Returning Officer to insist upon the production of community certificate. Had it been done so, the nomination of the fourth respondent would have been rejected, as the fourth respondent could not have produced her community certificate. In that event, the revision petitioner alone contested the election and therefore, he is entitled to be declared as a successful candidate. 29. Before parting with the case, I would like to make one suggestion to the State Government to incorporate in the Tamil Nadu Panchayats (Election) Rules, 1955, a clause for the production of Community Certificate at the time of scrutinizing the nominations, as it would avoid such litigation and would also prevent the people, who do not belong to the reserved community from contesting the election by giving false declaration. 30. In the result, this Civil Revision Petition is allowed and the order of the Court below is set aside and the revision petitioner is declared as the successful candidate for the post of President of the Palaniyapuri Village. No costs. Consequently, connected Civil Miscellaneous Petition is closed. sd Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District Judge (Fast Track Court No.II) Salem. 2.The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. S. Mani, Advocate SR No.15501 + 1 cc to Spl Government Pleader, SR No.15570 + 1 cc to Mr. N. Manokaran, Advocate SR No.15850 JRG(CO) SR/31.3.2011 Order made in C.R.P.(NPD)No.3991 of 2008 https://hcservices.ecourts.gov.in/hcservices/