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PETITIONER: GANU RAM

       Vs.

RESPONDENT: RIKHI RAM KAUNDAL AND ORS.

DATE OF JUDGMENT17/07/1984

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) BHAGWATI, P.N.

CITATION:  1984 AIR 1513            1985 SCR  (1)  63  1984 SCC  (3) 649        1984 SCALE  (2)1

ACT:      Representation  of   the  People   Act,  1951-s.  33(2) Requirements  of  valid  nomination  paper-Candidate  filing nomination paper without making declaration prescribed by s. 33(2) on  the  nomination  form  but  annexing  there  to  a certificate to  the effect  that he  belonged  to  scheduled caste-Whether requirements  of  s.  33(2)  satisfied-Whether nomination paper valid.      Representation of  the People Act 1951-s. 33(2) Must be given liberal and benevolent interpretation.

HEADNOTE:      S. 33(2)  of  the  Representation  of  the  People  Act requires 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 belonged and the area in relation to which that caste or tribe was a scheduled caste or scheduled tribe of the  State. The  appellant, in  order  to  contest  State assembly election  filed his nomination paper without making the declaration  in the nomination paper itself but filed as annexure thereto  a certificate issued by the Sub Divisional Magistrate certifying  that  the  appellant  belonged  to  a scheduled caste  namely ’Lohar’.  The nominating  paper  was accepted  by   the  Returning   Officer  and  the  appellant successfully contested  the election.  The  respondent,  who lost  in  the  election,  challenged  the  election  of  the appellant on  the ground  inter alia  that in the absence of the  requisite  declaration  prescribed  by  s.  33(2),  the nomination paper  of  the  appellant  was  invalid  and  was wrongly accepted. The High Court took the view that since s. 33 of  the Act required that the nomination paper must be in the  prescribed   form  the   filing  of  any  enclosure  or certificate along with form was not contemplated. Hence this appeal.      Allowing the appeal, ^      HELD: 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 64

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writing them  out in  the form itself. The annexure appended the form  should be treated as part of the nomination paper. [67 B-C]      While 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, the  Court has  to place  a liberal  and  benevolent interpretation on  the provisions  contained in  s. 33(2) of the Act  rather than  adopt a  narrow, rigid,  technical and purely literal construction. [67 E-F]      S. Sivaswami  v. V. Malalkannan and other, [1984] 1 SCC 296, referred to.      In the  instant case  the requirement  of s.  33(2)  is fully satisfied.  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 ’Lohar’  caste which  is admittedly a scheduled caste in the entirety  of the  area concerned, must be understood and treated as  a declaration by the appellant in the nomination form within  the meaning  of sub-s.  (2) of s. 33. Therefore 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. [68D-E; G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION:  Civil  Appeal  No.  515 (NCE) of 1983.      From the Judgment and Order dated the 7th January, 1983 of the  Himachal Pradesh High Court in Election Petition No. 6 of 1982.      V. K.Chitre and B. R. Agrawala for the Appellant.      Dr. N. M. Ghatate for the Respondent.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. This  being an  election  appeal filed under section 116A of the Representation of the People Act, 1951  (hereinafter called ’the Act’) calling for urgent determination, as  soon as  the hearing  of arguments in the appeal was  completed we  announced our  decision by passing the following order: 65      "We are  of the  view that  for reasons  which we shall      state later,  the nomination paper of the appellant was      validly  accepted  by  the  Returning  Officer  and  we      accordingly allow the appeal and set aside the order of      the  High   Court  invalidating  the  election  of  the      appellant. There  will be  no order  as to costs of the      appeal."      We now  proceed to set out our reasons for reaching the aforesaid conclusion.      General Elections  to the Himachal Pradesh Vidhan Sabha were held  in May,  1982. Ganu  Ram, the  appellant  herein, Rikhi Ram  Kaundal (first  respondent) and  three others had contested the 23 Gehrwin Assembly Constituency seat which is a seat  reserved for  scheduled caste  candidates only.  The nominations filed  by all  these five  candidates  had  been accepted as  valid by  the Returning Officer and the polling took place  on May  19, 1982. The result of the election was announced on  May 22,  1982 and  the appellant  was declared elected form the said reserved constituency by reason of his having secured 7477 votes as against his nearest rival Rikhi

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Ram Kaundal  (first respondent)  who had  polled  only  6901 votes.      On July  3, 1983  Rikhi Ram  Kaundal filed  an election petition in the High Court under sections 81, 100 and 101 of the Act  challenging the  validity of  the election  of  the appellant on  three grounds. The first ground urged was that the nomination paper filed by the appellant was not in order inasmuch as  it did  not  contain  any  declaration  by  the appellant specifying  the particular  caste of which he is a member and  the area in relation to which the said caste has been declared  to be a scheduled caste in the State. On this basis it  was contended  that the  nomination paper  of  the appellant had  been improperly  accepted  by  the  Returning Officer. The  second ground  of objection  raised  was  that since the  appellant 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 for being  chosen to  fill the  seat in  question 23 Gehrwin reserved constituency-in  view of  the mandatory  provisions contained in  sub-section (2)  of section 33 of the Act. The third ground of objection put forward was that the appellant did not  as a  matter of  fact, belong  to any of the castes which had  been declared  as scheduled castes in relation to the State of 66 Himachal Pradesh  and hence he was not qualified to stand sa a candidate from the aforesaid reserved constituency.      The High  Court upheld  the first two objections raised by the  election-petitioner which related to the question of validity of  the nomination paper and set aside the election of the  appellant holding  that the  nomination paper of the appellant could not be regarded as valid in view of the fact that it  did not  contain a  declaration  by  the  appellant specifying the  particular caste of which he is a member and the area  in relation  to which he said caste is a scheduled caste in  the State. The third contention by the respondent- election petitioner  was however, rejected by the High Court since the  Court found  on a  consideration of  the evidence adduced in  the case that the appellant did, in fact, belong to the  ’Lohar’ caste  which has been declared as a schedule caste in  the State  of Himachal  Pradesh. Aggrieved  by the judgment of  the High  Court setting  aside his election and unseating him,  the appellant has come up to this Court with this appeal.      Section  33   of  the  Act  deals  with  the  topic  of presentation of  nomination paper  and  requirements  for  a valid nomination.  Sub-section (2) of the said section which alone is relevant for our present purpose reads:           "(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."      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

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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 67 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 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. In  such a context we consider that the Court has to place  a   liberal  and  benevolent  interpretation  on  the provisions contained  in section  33 (2)  of the  Act rather than adopt  a narrow,  rigid, technical  and purely  literal construction In S. Sivaswami v. V. Malaikannan   and others, which was  also a  case arising  under the  Act, one  of  us speaking on  behalf of a three Judge Bench of this Court had occasion to make the flowing observations which are apposite to the present context also:           "In this  context it is necessary to remember that      nearly 90  per cent  of the  electorate in this country      consists  of   illiterate  and  uneducated  rural  folk      totally unacquainted  with the intricacies of the rules      & technicalities  of procedure pertaining to elections.      Even if  the best  of endeavour is made explain to them      such complicated  rules and  procedures they may not be      capable of  grasping and  fully understanding  all  the      implications and actually carrying them into effect 68      while  exercising   their  franchise.   If  the   right      conferred on the people to choose their representatives      to the  State Legislatures  and the  Parliament through      the process  of  free  and  fair  elections  is  to  be      meaningful   the    will   of    the   illiterate   and      unsophisticated voter  expressed through  a marking  on      the ballot  paper which  though not strictly inside the      column  of   the  particular   candidate   is   clearly      indicative of  the identity  of the  candidate for whom      the vote is cast has to be respected and given its full      effect."      It is  manifest that the legislative purpose underlying subsection (2)  of section  33 of  the Act  is that  when  a

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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  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.      A faint  attempt was  made before  us  by  the  learned counsel appearing  on behalf of the first respondent to make out that  the finding  entered by  the High  Court that  the appellant does,  in fact,  belong  to  the  scheduled  caste ’Lohar’ is  erroneous and unsupported by the evidence but we see no merit at all in the said contention. 69 The said  finding recorded  by  the  High  Court  is  hereby confirmed.      The  conclusion   that  emerges   from  the   foregoing discussion is  that the  High Court  was  not  justified  in setting aside  the election  of the  appellant on the ground that  the  nomination  paper  filed  by  the  appellant  was invalid. It  follows that  this appeal has to be allowed and the order of the High Court invalidating the election of the appellant has to be set aside. H.S.K.                                       Appeal allowed. 70