FAO No.4292 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.4292 of 2008 (O&M) DATE OF DECISION: 01.12.2010 **** Gurjit Singh . . . . Appellant Vs. Election Tribunal and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.P.S. Dhaliwal, Advocate for the appellant. Mr.Anish Garg, Advocate for respondent No.2. **** RAKESH KUMAR JAIN J. The important question involved in this appeal is “as to whether a nomination paper duly filed in Form IV prescribed under Rule 9(1) of the Punjab State Election Rules, 1994 (for short ‘the Rules) reflecting the caste of the candidate can be rejected / discarded if the said caste is not mentioned in Form IV-A prescribed under Rule 9(2) of the Rules but it is accompanied with a caste certificate duly issued by the State Government? This appeal is filed at the instance of the election petitioner against the order dated 15.10.2008 passed by the Election Tribunal-cum- Deputy Commissioner, Patiala (for short ‘the Tribunal’) by which election petition filed by the appellant assailing the election of respondent No.2 (Baljinder Singh) to the post of Panch of the Gram Panchayat Baran, Tehsil and District Patiala, has been dismissed. In brief, there are 9 seats of Panches in the Gram Panchayat, Baran which are bifurcated as under: - (i) 5 seats for General (Man) (ii) 2 seats for General (Woman) (iii) 1 seat for Scheduled Caste (Man) (iv) 1 seat for Scheduled Caste (Woman) FAO No.4292 of 2008 (O&M) -2- The elections were held on 28.5.2008. The appellant contested for the post of Panch in the Scheduled Caste (Man) category. He deposited `50/- towards election fee in terms of Rule 9(5) of the Rules. The following were the election symbols and polled votes of the appellant, respondent No.2 and respondent No.5: Sr. No. Name of the candidate Election symbol Votes polled (i) Gurjit Singh (appellant) Salet 142 (ii) Baljinder Singh (respondent No.2) Kohara 103 (iii) Labh Singh (respondent No.5) Tara 2 When the appellant came to know that respondent No.1 has been declared elected as a Panch from the Scheduled Caste (Man) category in connivance with the Returning Officer, he filed the election petition, alleging therein, that since he had secured the highest votes, therefore, respondent No.1 could not have been elected in his place. The election petition, however, was dismissed by the Tribunal observing as under: - “I have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the petitioner has reiterated the points taken up in the petition. The learned counsel for respondent No.1 denied the assertions made by the counsel for the petitioner. Therefore, I thought it fit to examine the nomination papers submitted by the Returning Officer. Accordingly, I have carefully scanned Form No.4-A under Rule 9 (2) which is to be filled by the candidate and this form is meant for scheduled FAO No.4292 of 2008 (O&M) -3- caste/backward candidates. Gurjit Singh candidate has not mentioned his caste in this Form. He has not mentioned in the form whether he is a scheduled caste candidate or backward class candidate. Therefore, he could not have been declared as a successful candidate out of scheduled caste category candidates. Evidently, I find no force in the petition and the same is ordered to be dismissed.” Aggrieved against the aforesaid order of the Tribunal, the present appeal was filed by the appellant, which was admitted on 25.03.2009 and was ordered to be heard within three months. Learned counsel for the appellant has submitted that in the nomination Form IV prescribed under Rule 9(1) of the Rules, he had specifically mentioned his caste as ‘Balmiki’ which of course is not mentioned in Form IV-A prescribed under Rule 9(2) of the Rules but Form IV-A was filed along with a certificate of Scheduled Caste issued to him by the Tehsildar, Patiala. He also submits that in terms of proviso to Rule 9 (5) of the Rules, nomination fee of `50/- was deposited which is meant for the candidate belonging to Scheduled Caste and Backward Class, which was duly received vide receipt dated 16.5.2008. It was, thus, submitted that merely because the caste was not mentioned in Form IV-A prescribed under Rule 9(2) of the Rules would not render his nomination paper redundant or liable to be rejected. He further submits that the learned Tribunal has erred in not appreciating provisions of Section 38(2) of the Punjab State Election Commission Act, 1994 (for short ‘the Act’) while rejecting the nomination paper of the appellant. In support of his submission, he has relied upon a judgment of the Supreme Court in the case of “Ganu Ram Vs. Rikhi Ram Kaundal and others” AIR 1984 Supreme Court 1513. In reply, learned counsel for respondent No.2 has submitted that no doubt the appellant had filed his nomination paper in Form IV prescribed under Rule 9(1) of the Rules in which his caste has been duly FAO No.4292 of 2008 (O&M) -4- filled in but nomination Form IV-A prescribed under Rule 9(2) of the Rules was incomplete as he had failed to declare his caste in terms of Section 38 (2) of the Act. He further submits that there is no error committed by the Tribunal in dismissing the election petition. He, however, did not refer to any precedent in support of his submission. In this case, from the pleadings and the evidence available on record, the following facts are undisputedly established: (i) The appellant had filed nomination Form IV prescribed under Rule 9(1) of the Rules in which he has specially mentioned his caste as ‘Balmiki’ in the column “Whether candidate is a member of Scheduled Caste or Backward Class”. (ii) The appellant had deposited and returning officer had accepted `50/- as election fee in terms of Rule 9(5) of the Rules. (iii) The appellant was allotted election symbol ‘Slate’. (iv) The appellant contested the election and polled highest votes. (v) There was no objection from anyone at the time of scrutiny of the nomination paper of the appellant. (vi) Caste ‘Balmiki’ was not filled up by the appellant in nomination Form IV-A prescribed under Rule 9(2) of the Rules but it was filed along with Scheduled Caste certificate issued by the State Government. In the background of the aforesaid admitted facts, the provision of Section 38(2) of the Act is to be considered. Section 38(2) of the Act reads as under: - “Section 38(2) : - In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill FAO No.4292 of 2008 (O&M) -5- that seat unless his nomination paper contains a declaration by him specifying the particular caste of which he is a member and the area in relation to which that caste is a Scheduled Caste of the State.” Learned counsel for the appellant has referred to the judgment of the Supreme Court in which somewhat similar controversy was involved. In that case of Ganu Ram (Supra), the Supreme Court had interpreted the provisions of Section 33(2) of the Representation of People Act, 1951 (for short ‘the Act of 1951’) which reads as under: - “Section 33(2) : - In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.” Apparently, Section 33(2) of the Act of 1951 and Section 38(2) of the Act are pari materia. In the case of Ganu Ram (Supra), Section 33 (2) of the Act of 1951 was in question. The facts were that general elections to the Himachal Pradesh Vidhan Sabha were held in May, 1982. Ganu Ram (appellant), Rikhi Ram Kaundal (first respondent) and three others contested the 23-Gehrwin Assembly Constituency seat reserved for Scheduled Castes only. In the said election, appellant-Ganu Ram was elected. His election was challenged by Rikhi Ram Kaundal by way of an election petition in which his first ground was that the nomination paper filed by Ganu Ram was not in order inasmuch as it did not contain any declaration specifying the particular caste of which Ganu Ram was the member and the area in relation to which the said caste has been declared to be a Scheduled Caste. The second objection was that since the FAO No.4292 of 2008 (O&M) -6- appellant-Ganu Ram had not made any declaration in the nomination paper regarding the particular Scheduled Caste to which he belonged, he should be deemed to be disqualified in view of Section 33(2) of the Act of 1951. In this background, Section 33(2) of the Act of 1951 was interpreted by the Supreme Court with following observations: - “It is not disputed that in the nomination form filed by the appellant and his proposer, no written declaration had been made specifying the caste to which the appellant belongs and the area in relation to which that caste is a scheduled caste of the State. But it is common ground that along with the nomination paper the appellant had filed as annexure thereto a certificate issued by the Sub- Divisional Magistrate, Ghumarwin certifying that the appellant belonged to a scheduled caste namely 'Lohar'. The said certificate was appended to the nomination paper obviously with the sole purpose and intention of making it known to the Returning Officer and all others concerned that the appellant is filing his nomination as a candidate belonging to a scheduled caste namely 'Lohar' and it was in proof of that assertion and for eliminating doubt or controversy in the matter that the Sub Divisional Magistrate's certificate was produced. The High Court has taken the view that since section 33 of the Act requires that the nomination paper must be in the prescribed form and Form 2B is a self- contained one, the filing of any enclosure or certificate along with the Form is not contemplated. We are unable to agree with this view. When the nomination paper has been made in the prescribed form there is no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of writing them out in the form itself. This is FAO No.4292 of 2008 (O&M) -7- very often done in the matter of filing returns of Income-tax, Wealth-tax etc. In such cases the annexure appended to the form should be treated as part of the nomination paper. We are therefore of opinion that the certificate which was produced by the appellant as an annexure to the nomination paper has to be treated as forming part of the nomination paper and the declaration contained therein that the appellant belongs to the scheduled caste of 'Lohar' must be understood and treated as a declaration by the appellant in the nomination form within the meaning of sub-section (2) of section 33. We have to remember that we are dealing with nomination papers pertaining to candidates belonging to scheduled castes and scheduled tribes, who, for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally in comparison with other sections of our people. It is manifest that the legislative purpose underlying Sub section (2) of section 33 of the Act is that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belongs and the area in relation to which that caste or tribe is a scheduled caste or scheduled tribe of the State. This requirement is fully satisfied in the present case because by producing the certificate of the Sub-Divisional Magistrate as an annexure to his nomination paper the appellant had clearly made it known that he was filing the nomination as a candidate belonging to the 'Lohar' caste, which is admittedly a scheduled caste in the entirety of the area of the FAO No.4292 of 2008 (O&M) -8- State of Himachal Pradesh. It is also significant that no objection whatever was raised against the nomination filed by the appellant at the time of scrutiny. The Returning Officer had published a notice of nominations under section 35 of the Act and in the said notice it was expressly stated that the appellant had filed his nomination as a candidate belonging to the scheduled caste namely 'Lohar'. Having regard to all the facts and circumstances of the case and the legal position as explained above, we consider that the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning Officer was improper.” With the aforesaid observation, the judgment of the High Court of Himachal Pradesh was ultimately set aside by the Supreme Court. To my mind, the facts of the case are quite similar to the case of Ganu Ram (Supra) because in this case also while filing nomination paper in Form IV prescribed under Rule 9(1) of the Rules, the appellant had specifically mentioned his caste as ‘Balmiki’. He also appended his Scheduled Caste certificate duly issued by the State Government. Thus, the judgment of the Supreme Court in the case of Ganu Ram (Supra) applies with full force to support the case of the appellant, consequently, the impugned order passed by the Election Tribunal is found to be patently illegal. Hence, while deciding the question of law proposed in this appeal in favour of the appellant it is held that in case where nomination paper is filed by candidate on the prescribed Form IV prescribed under Rule 9(1) of the Rules in which his caste is specifically mentioned and the nomination form filed under Form IV-A prescribed under Rule 9(2) of the Rules in which his caste is omitted to be mentioned but the form is accompanied by a Scheduled Caste certificate duly issued by the State Government, the said nomination form shall be valid and cannot be rejected or discarded by the Returning Officer. FAO No.4292 of 2008 (O&M) -9- In view of the above discussion, the election of respondent No.2 is hereby set aside and the appellant is declared to have been elected as the Panch of Gram Panchayat, Baran. However, in the peculiar facts and circumstances of the case, parties are directed to bear their own costs. (RAKESH KUMAR JAIN) December 01, 2010 JUDGE Vivek