Judgment sc-1984-1985-1-63-69

The Judgment of the Court was delivered by - BALAKRISHNA ERADI, J. This being an election appeal filed under section I l 6A of the Representation of the People Act, 1951 (hereinafter called 'the Act') calling for urgent determination, H as soon as the hearing of arguments in the appeal was completed we announced our decision by passing the following order :

-- GANU RAM 1'. RISH! RAM (B. Eradi J .)

"We are of the view that for reasons which we shall state 65

A later the nomination paper of the appellant was validly acce;ted by the Returning Officer and we acc0rdingly . allow the appeal and set aside the order of the Hig~ Court mvah- I· dating the election of the appellant. There will be no order as to costs of the appeal." B We now proceed to set out our reasons for reaching the afore- said conclusion.

- General Elections to the Himachal Pradesh Vidhan Sabha were held in May, 1982. Ganu Ram, the appellant c herein Rikhi Ram Kaunda! (first respondent) and three others had conte:ied the 23 Gehrwin Assembly Constituency seat which is a seat reserved for scheduled caste candidates only. Tl;e 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. • 1he result of the election was announced on May 22, 1982 and the D appellant was declared elected form the said reserved constituency by reason of his having secured 7477 votes as against his nearest rival Rikhi Ram Kaunda! (first respondent) who had polled only 6901 votes.

E On July 3, 1983 Rikhi Ram Kaunda! filed an election petition in the High Court under sections 81, 100 and IOI 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 declaratio,; by !lie appellant specifying the particular F caste of v.hich, he is a member and •he 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 1egarding the pirticular scheduled caste to which he belonged, he should be deemed.to be disqualified for being chosen to fill the seat in question G

.-23- Gehrwin reserved constituency-in view of the mandatory pr.ovisions contained in sub·section (2) of section 33 of the Act. The thicd ground of objection put forward was that the appellant ·did not. as a n1'tter of fact, belong to any of the castes which had •.been decfared as sch :'duled castes in relation to the State of •H

66 SUl'REME COURT REPORTS (1985] I s.c.H. A Himachal Pradesh and hence he was not qualified to stand sa a candidate from the aforesaid reseved constituency. - ' Th.e Hig~ .court upheld the first two objections raised by the elect1on-pcht1oncr which related to the question of validity of the nomination p<.per and set aside the election of the appellant B 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 whicht he said

c caste is a ~cheduled 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 considetation of the evidence - adduced in the case that the appellant did, in fact, belong to the 'Lobar' 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 D 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 1s relevant for our present purpose reads : E "(2) In a costitucncy 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 be is a member and the area in relation to which th't caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled 1ribe of the State."

It is not disputed that in the nomination form filed by the appellant aiid his pr,oposer, 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 an 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 ' ll and all others concerned that the appellant is filing bis nomination

GANU R~ilf v. RISlll RAM (B. Eradi, J.) 67

- as a candidate belonging to a scheduled caste namely 'Lohar' and it A was in proof of that assertion and for eliminating doubt or contra· versy in the matter that the Sub Divisional Magistrate's certificate was prod•iced. 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. B We are unable to agree with this view. When the nomination paper has been Ihade 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 retnrns of Income-tax, Wealth-tax etc. Jn such cases the annexure appended c 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' nomimtion 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 comparaison with other sections of our people. In s11ch a context. we consider that the Court has to place a liberal and benevolent interpretation on the provisions contained in eection 33 (2) -_.I of the Act rather than adopt a narrow, rigid, technical and· purely ·1\teral construction Tn S. Sivaswami v. V. Ma/aikannan and Oihers,' 11 F ·which was also a case arising under the Act, one of us speaking on hchalf.of a three Judge Bench of this Court had occasion to make the following observations 1 which are apposite to the present context also: · •

"Jn this context it is necessary to remember that nearly 90 per cent of the electorate in this country consists of illite- G rate and uneducated rural.folk totally unacquainted with the intricacies of the rules & technicalities of procedure pertain- ing to elections. Even if the best of endeavour is made to explain to them such complicated rules and procedures they . ' "' may not be capable of grasping and fully understanding all ihe implications and" actually carrying them into effect (I) [1984] t sec 296, H llll' r .

6S SUPREME COURT REPORTS [1985] l s.c.R.

A while exercising their franchise. If the right conferred on the people to choose their representatives to the State Legis- latures and the Parliament through t.he proces 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 B of the particular candidate is clearly indicative of the identity of the candidate for whom the vote is cast has tq be respected and given its full effect."

"c It is manifest that the legislative purpose underlying sub- section (2) of section J3 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 ca>te 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 D the State. This requirement is fully satisfied in the present case because by producing the certificate of the Sub-Divisional Magis- trate 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 Hima- E chal 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 F as a eandidate belonging to the scheduled caste namely 'Lobar'. 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 G 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 'Lobar' is erroneous and unsupported ff by the evidence but we sec no merit at all in the said contention·

GANV RAM v. RISH! RAM (B. Eradi, J) G9' -. The said finding recorded by the High Court is hereby coufirmed. A

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 thnt this appeal has to be B al owed and the order of the High Court invalidating the election of the appellant has to be set aside.

H.S.K. • Appeal allowed.