DESHRAJ v. BODHRAJ

Citation: [2007] 12 S.C.R. 757

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN

Case summary

DESHRAJ v. BODHRAJ.pdf

Judgment text

, f DESHRAJ v. BODHRAJ NOVEMBER 30, 2007 [K. G. BALAKRISHNAN, CJ AND R. V. RAVEENDRAN, J. ] Representation ofthe People Act, 1951: ss. 5 and JOO(l)(a)-Election in State Assembly Constituency reserved for Scheduled castes-Election ofreturned of candidate challenged on the ground that he did not belong to Scheduled Caste- HELD: In view of ss. 5 and JOO(l)(a) r/w Article 173 of the Constitution, if a candidate, who contests election from the Constituency reservedfor Scheduled Castes, is shown in aproceeding challenging his election, as not belonging to a Scheduled Caste, his ,. election is liable to be declared as void:_Onfacts, from the oral and documentary evidence adduced by the election-petitioner, it has been established that the returned candidate did not belong to 'Lahar' Scheduled Caste as claimed by him, but was of'Tarkhan 'caste which was not a Scheduled Caste in the State and, as such, his election is declared to be void-Constitution ofIndia, 1950-Article 173.

Evidence Act, 1872: s. 72-Relevancy ofentries inpublic recordmade inperformance ofduty-School admission andwithdrawal registers, Pariwar Registers and Birth Register showing the caste ofthe candidate andhisfamily- HELD: All these public records were produced by authorities of respective Government Institutions duly summoned and examined by court as PWs-Entries in these records in regardto age, caste etc. are consideredas relevant and admissible-High Court erred in ignoring entries in these documents-Punjab Police Rules, 1934-rr. 22. 45 and 22. 66-Representation ofthe People At, 1951-ss. 5 and lOO(l)(a). s. 90-Presumption as to documents thirtyyears old-Application for admission given to Government Secondary School showing the caste ofthe candidate and his family-HELD: Documents are thirty years old and attract the presumption u/s 90-Punjab Police Rules. 1934-rr. 22. 45 and 22. 66-Representation ofthe People At, 1951-ss. 5and100(l)(a).

\>- Judicial Notice-Caste certificate issued by Executive Magistrate-HELD: Such caste certificates are not given after a thorough investigation-~When school records show aparticular caste, the caste certificates issued to the candidate and his relatives by Executive Magistrate showing a different caste should be ignored-· Social status certificates. The appellant and the respondent both, claiming themselves to be members of Scheduled Castes, contested election for Member of Legislative Assembly from 35-Gangath (SC) Assembly Constituency in the State ofHimachal Pradesh held on 26. 2. 2003, and the respondent having secured the highest number of votes was declared as elected. The appellant challenged the election of the respondent in an election petition before the High Court on the ground that he did not belong to 'Lobar' caste, as claimed by him through a caste certificate dated 16. 12.

1991 issued by the Executive Magistrate, but belonged to 'Tarkhan' Caste which was not a Scheduled Caste in the State. The respondent resisted the election petition on the ground that he was' Lobar' which was a Scheduled Caste, and as such, was eligible and qualified to contest the election Y' from the Constituency concerned. The High Court held that the election petitioner failed to prove that the returned candidate did not belong to Scheduled Caste (Lobar) and, as such, dismissed the election petition. In the instant appeal filed by the election petitioner under s. 116of the Representation of the People Act, 1951, the question for consideration was: Whether the appellant-election petitioner proved that the respondent-returned candidate did not belong to 'Lobar' caste- a Scheduled Caste in the State ofHimachal Pradesh? DESHRAJv. BODHRAJ 759 Allowing the appeal, the Court HELD:l. 1.

In view of Sections 5 and lOO(l)(a) of the Representation ofthe People Act, 1951 read with Article 173 of the Constitution oflndia, ifa candidate who contests election from the constituency reserved for Scheduled Castes, representing himself as belonging to a Schedule Caste, is shown in a proceeding challenging his election, as not belonging to a Schedule Caste of the State, his election is liable to be declared as void. [Para SJ [764-D, E) 1. 2. In the instant case, the oral evidence of the witnesses examined by the appellant election-petitioner (PWs 7, 8, 9 and 10), who all belonged to the village to which the respondent-returned candidate belonged, clearly shows that they knew the respondent and his family well and that he belonged to 'Tarlrnan' caste. Their 1 cross-examination has not brought out anything significant to disbelieve their evidence. On the other hand, the evidence of the witnesses of the respondent (RWs 1, 4, 6, 7, 8 and 11) has been to ,,;;.

highlight the occupation ofrespondent and his relatives. They have all stated that because the respondent's family and relatives were doing the job of'Lohars', they belong to the caste of'Lohar'. In fact, the elder brother of the appellant in his examination-in-chief has ---. _ significantly stated that they and their relatives were 'Lohars' by occupation. The respondent was evasive in his evidence about his date ofbirth and particulars of his relatives in the village, to avoid being linked to the caste mentioned in the school records. The I y residents ofa village have more familiarity with the 'caste' ofa covillager, than his date of birth. Several villagers who knew the respondent and his father, including a cousin ofthe respondent have been examined and they have stated the caste ofthe respondent as 'Tarkhan'. [Para 13 and 20) [767-F, G; 768-A; 771-B, CJ 2. 1. The election petitioner also produced documentary . -{ evidence, namely, Ext.

PW-2/A (admission and withdrawal register ofthe Government Priman' School), Ext. PW3/A (application form for admission given to Government Secondary School by father of the respondent), Ext. PW3/B (Admission Register ofGovernment Middle School), Ext. PW 4/A, Ext. PW-4/B, Ext. PW-4/C (the Pariwar Registers for the years 1976, 1977, 1982-89 and 1990 onwards respectively) and Ext. PW6/A (extract ofBirth Register maintained by the Police Station). All these documents are the public records maintained as per Rules in the usual course ofdischarge ofofficial functions. These records show the family of the respondent as of 'Tarlrnan' Caste. In thePariwar Register for the years 1976to1989 against the column 'whether scheduled caste or scheduled tribe', the entry was 'Tarlrnan' which was struck offand substituted by the entry 'Lobar'. The correction was not attested.

In the absence of any satisfactory explanation ofthe caste 'Tarkhan' being struck off and substituted by 'Lohar', the conclusion is that the corrections were all done subsequent to 1990 when respondent became the Up- Pradhan. (Para 14, 15, 16, 17, 19 and 24] [768-C, E, G; 770-D; 773-F, G; 775-C, F] 2. 2. The High Court erred in rejecting all these documents as either not proved or not of any evidentiary value. It committed an error in ignoring the entries in these documents. It may be seen that all these Government records were produced by the authorities of the respective Government Institutions duly summoned and examined by the Court as PWs. Having regard to the provisions of Section 35 of the Evidence Act, 1872, entries in school admission registers in regard to age, caste etc. , have always been considered as relevant and admissible. Besides, the entries in the School Registers were made nearly 40 years prior to filing of the election petition. Ext.

PW-3/A being a document more than 30 years old attracts the presumption under Section 90 ofthe Evidence Act, 1872. It gives the caste as 'Tarkhan'. It has to be treated as clinching evidence. [Paras 19, 20, 23 and 24) (770-E; 771-D, E; 772-C, HJ Umesh Chandra v. State ofRajasthan, (1982] 2 SCC 202; State ofPunjab v. Mohinder Singh, (2005] 3 SCC 702 and Kumari Madhuri Patil v. Add!. Commissioner, (1994] 6 SCC 241, relied on. Birad Mal Singhvi v. Anand Purohit, AIR (1988) SC 1796, referred to. 3. 1. The evidence let in by the appellant clearly establish that DESHRAJv. BODHRAJ 761 (a) the respondent was born in and is a resident ofMotli village. His date ofbirth is 2. 5.

1956; (b) respondent is the fifth and the last child ofhis parents; (c) respondent was a student of government primary and middle schools, Motli; School Registers show the caste of the respondent as 'Takhan' on the basis ofparticulars furnished by his father; (d) in the birth register maintained in the jurisdictional Police Station as per the Punjab Police Rules, his date of birth was registered as 2. 5. 1956 and the caste of his parents was shown as 'Tarkhan'; and that (e) in the Pariwar Registers maintained by the Gram Sabha between 1976 and 1989, the caste of his family was shown as 'Tarkhan' and sometime thereafter it was struck off and shown as 'Lohar'. The evidence of the residents of respondent's village (PWs. 7 to 10) support the same. There is nothing in the crossexamination ofPWs. 7 to 10 to disbelieve their statements that the respondent belonged to Tarkhan caste. However, even ifthe entire ' i oral evidence is excluded, the documentary evidence produced by ..

the appellant, clearly demonstrates that the respondent's father and his family members including the respondent had always held out to be and accepted as persons belonging to 'Tarkhan' caste. Itwas only after 1990, the respondent tried to show that he belonged to 'Lobar' caste. [Para 25) [775-B, C, D, E, F, G; 776-A) 3. 2. In so far as the caste certificate Ex. RW-5/A issued by the Executive Magistrate and, relied on by the respondent, suffice it to say, such caste certificates are not given after a thorough investigation. When the caste ofthe respondent is in issue and when 'f ' primary evidence regarding caste is led by the appellant, and the attempt of the respondent to claim to be a 'Lobar' from 1990 is evident, the caste certificate issued by the Executive Magistrate on 1. 12. 1991 cannot be taken as evidence to prove the caste of the respondent.

It has been observed by this Court that when school records show a particular caste, the caste certificate issued to the candidate and his relatives by the Executive Magistrate showing a A different caste should be ignored. [Para 26) [776-E, F, G] Kumari Madhuri Patilv. Addi. Commissioner, [1994) 6 SCC 241, relied on. r - 4. The appellant-election petitioner has clearly established that the respondent and his family belong to 'Tarl -· the school records show a particular caste, the caste certificates issued to the candidates and his relatives by the Executive Magistrate showing a different caste should be ignored. Reference was also made to the caste certificate oftwo relatives. But they are also ofthe period subsequent to 1990 when respondent started showing that he belonged to Lohar caste. _,, I They have to be ignored as observed by this Court in Madhuri Patil (supra). 27.

In view ofthe above, we are ofthe view that the appellant has clearly established that the respondent and his family belong to Tarkhan caste which is not a scheduled caste in Hirnachal Pradesh. It is also clear that from around 1990, the respondent has made efforts to show his caste as 'Lobar', a scheduled caste. Consequently, we hold that the respondent who did not be~ong to a Scheduled Caste, was not qualified to be chosen to fill a seat in the Legislative Assembly reserved for Scheduled Castes. 28. Therefore, we allow this appeal, set aside the judgment ofthe High Court and declare the election ofthe returned candidate (Bodh Raj) from 35-Gangath Assembly Constituency in the 2003 Election, to be void. Parties to bear their respective costs. RP. Appeal allowed. t r