*THE HON’BLE SRI JUSTICE K.C.BHANU +ELECTION PETITION No. 11 OF 2009. %22-11-2010 # Ajmeera Hari Naik …Petitioner Vs. $ Suman Rathod and nine others ….Respondents !Counsel for the Petitioner: Mr. Bojja Tarakam ^Counsel for the Respondent No.1:Mr.K.Ramakrishna Reddy <Gist : >Head Note: ? Cases referred: 1. 2006 (4) SCC 98 19. (1997) 9 SCC 631 2.1994 (1) SCC 359 20. (2009) 2 SCC 109 3.1969 (3) SCC 238 21. (2007) 14 SCC 491 4. (2009) 10 SCC 541 22. (2005) 11 SCC 66 5. (2001) 8 SCC 233 23. (2010) 1 MPH 177 6. 1987 (Supp) SCC 93 24. AIR 2001 SC 393 7. 1984 (1) SCC 390 25. (1994) 5 SCC 244 8. (1996) 1 SCC 169 26. (1990) 3 SCC 130 9. (1999) 1 SCC 666 27. (1996) 3 SCC 545 10. (2002) 2 SCC 410 28. (2005) 2 SCC 244 11. (2005) 5 SCC 46 29. (2002) 5 SCC 568 12. AIR 1964 SC 1200 13. (1999) 9 SCC 386 14. (2000) 1 SCC 481 15. (2004) 1 SCC 46 16. (2003) 2 ALD 304 17. (2006) 1 SCC 344 18. (2000) 2 SCC 20 THE HON’BLE SRI JUSTICE K.C.BHANU ELECTION PETITON NO.11 OF 2009 DATED: 22nd DAY OF NOVEMBER, 2010 Between Ajmeera Hari Naik … Petitioner And 1.Smt.Suman Rathod and nine others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU ELECTION PETITON NO.11 OF 2009 JUDGMENT: 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: 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. 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. 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. 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. 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. 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