Sandipan Bhagwant Thorat vs Ramdas Bandu Athavale
2001 Latest Caselaw 669 Bom

ORDER

D.K. Deshmukh, J.

1. This petition has been filed under the provisions of section 81 of the Representation of the People Act, 1951, challenging the election of the respondent as a member of the Lok Sabha from the Pandharpur constituency, which is reserved for the candidates belonging to the scheduled caste. The result of the election was declared on 7-10-1999. The petitioner and the respondent were candidates at the election. The respondent had claimed, in his nomination paper that he belongs to Mahar caste, which is a scheduled caste.

2. The petitioner, in the petition, claims that the respondent does not belong to Mahar caste. He claims that the respondent does not belong to scheduled caste, therefore, he was not eligible to be a candidate from the Pandharpur Constituency. According to the petitioner, the date on which Act No. 15 of 1990, which amends the Constitution (Scheduled Castes) Order, 1950 came into force, the respondent was already professing Buddhist religion, therefore, he cannot claim that he belongs to the scheduled caste.

3. The respondent opposes the petition. He claims that he belongs to Mahar caste. He submits that in support of his claim he had submitted a caste certificate issued by competent authority and therefore the returning officer accepted his nomination paper. He submits that because he belongs to Mahar caste, which is a scheduled caste, though he professed Buddhist religion, he is entitled to contest from the Pandharpur constituency, because of the amendment brought about by Act No. 15 of 1990 in the Constitution (Scheduled Castes) Order, 1950. He claims that this a frivolous petition, therefore, the petition should be dismissed with exemplary costs.

4. The petitioner, apart from examining some witnesses for production of documents, has examined himself as a witness. The respondent has not led any oral evidence.

5. From the rival pleadings and documents following issues arise.

 (i)     Does the petitioner prove that the respondent does not belong to Mahar caste?
 

 (ii)    Does the petitioner prove, even assuming that the respondent belongs to Mahar caste, that he cannot claim to be belonging to the Scheduled caste, because he was professing Buddhist religion before the commencement of Act No. 15 of 1990?
 

 (iii)   Does the respondent prove that the petition should be dismissed with exemplary costs? 
 

6. Issue No. 1 : In the petition, the petitioner claims that the respondent does not belong to Mahar caste. The only evidence that he has led is that, the respondent in his biographical sketch submitted as a member of the 12th Lok Sabha, had claimed that he was born on 25-12-1959 at village Agalgaon. The petitioner, therefore, applied for a copy of the birth certificate of the respondent with the authorities, but the authorities informed him that they do not have any record showing that the respondent was born at Agalgaon on

25-12-1959. Therefore, the petitioner claims that the respondent does not belong to Mahar caste. In the face of the fact that the respondent had submitted caste certificate of competent authority certifying that he belongs to Mahar caste, the evidence led by the petitioner does not show that the respondent does not belong to the Mahar caste. The burden of leading evidence, to prove that the respondent does not belong to Mahar caste, was on the petitioner. He has not at all discharged that burden. It appears from the material on record that in the who's who of the 12th Lok Sabha, the date of birth was mentioned as 25-12-1959, while according to the respondent his correct date of birth is 25-12-1949. The petitioner applied for copy of the birth certificate of the respondent on the basis of the date 25-12-1959. The authorities informed him that they do not have the record and from this the petitioner jumped to the conclusion that the respondent does not belong to Mahar caste. This is clear from the following statement made by the petitioner in his deposition.

"I have filed this petition claiming that the respondent does not belong to Mahar caste only on the basis that I did not find the entries about the respondent's birth in the office at Kauthe Mahankal".

The answer to the issue No. 1, is therefore, in the negative.

7. Issue No. 2 : It is submitted by the petitioner that though the respondent belongs to Mahar caste, he professes Buddhist religion, therefore, as per the provision of the Constitution (Scheduled Castes) Order 1950, he is not entitled to claim that he belong to scheduled caste. It is further submitted that because of the amendment brought about by Act No. 15 of 1990, in the 1950 Order a person professing Buddhist religion can also belong to the Scheduled caste, but that person should either be from or converted to Buddhist religion after the commencement of Act No. 15 of 1990. It is submitted that the benefit of Act No. 15 of 1990 is not available to the persons who were already professing Buddhist religion, when Act No. 15 of 1990 came into force. It is submitted that as per the provision of Article 330 of the Constitution, the number of seats reserved for the scheduled castes in a State should, as nearly as may be, bear same proportion to the total number of seats allotted to that State in Lok Sabha, as the population of the scheduled caste in that State to the total population of that State. In other words, the number of seats to be reserved from a State depends on the population of the scheduled castes in that State. It is submitted, initially from the State of Maharashtra 6 Lok Sabha seats were reserved for scheduled castes. In 1956, a large population of persons belonging to the castes which were scheduled castes in the State of Maharashtra, converted to Buddhism, as a consequence, these persons ceased to be scheduled caste as per the provision of 1950 Scheduled Castes Order, therefore, the number of seats reserved for scheduled castes from Maharashtra was reduced from 6 to 3. It is submitted that if the amendment brought about by Act No. 15 of 1990 is taken to mean that even the persons who had converted to Buddhism, before 1990 are also

entitled to claim that they belong to the scheduled caste, then the number of seats reserved for scheduled castes from the State of Maharashtra would have to be increased, but that has not been done after Act No. 15 of 1990 was enacted. Therefore, according to the petitioner, the benefit of Act No. 15 of 1990 is not available to the persons who were already converted to Buddhism when Act No. 15 of 1990 came into force.

8. It is clear that the submissions has no substance and perusal of following provisions makes that obvious :

Article 330(1) and (2) of the Constitution of India reads as under:

330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. --(1) Seats shall be reserved in the House of the People for -

 (a)    the Scheduled Castes;
 

 (b)    the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and
 

 (c) the Scheduled Tribes in the autonomous districts of Assam. 
 

(2) The number of seats reserved in any State (or Union territory) for the Scheduled Castes or the Scheduled Tribes under Clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State (or Union territory) in the House of the People as the population of the Scheduled Castes in the State (or Union territory) or of the Scheduled Tribes in the State (or Union territory) or part of the State (or Union territory), as the case may be, in respect of which seats are so reserved, bears to the total population of the State (or Union territory).

Article 341 of the Constitution of India reads as under : Scheduled Castes. -- (1) The President (may with respect to any State) (or Union territory), and where it is a State*** after consultation with the Governor*** thereof,) by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purpose of this Constitution be deemed to be Scheduled Castes in relation to that State (or Union territory, as the case may be).

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Article (2) and (3) of the Constitution (Scheduled Castes) Order, 1950 after amendment reads. -

(2) Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in (Parts to

(XXII) of the Schedule to this order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule,

(3) Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu (the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.)

Articles (2) and (3) of the Constitution (Scheduled Castes) Order, 1950 before amendment reads, --

(2) Subject to the provisions of this Order, the castes races or tribes or parts of, or groups within, castes or tribes specified in (Parts to (XXII) of the Schedule to this order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.

(3) Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.)

Section 3 of the Representation of the People Act, 1950 :--

Allocation of seats in the House of the People. -- The allocation of seats to the States in the House of the People and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of each State shall be as shown in the First Schedule.

9. It is apparent from the above quoted provisions that Article 330 lays down the principle on the basis of which the seats in the Lok Sabha are to be reserved for the scheduled castes, however it vests in the Parliament the power to make the law providing for reservation of the actual number of seats in each State. The number of seats to be reserved for Scheduled castes depends on the population of the scheduled castes in the State. Now, if the Parliament does not increase the number of seats reserved for the scheduled castes in the State, it does not mean that in fact there is no increase in the population of scheduled castes in the State. It is clear from the provisions of the Constitution (Scheduled Castes) Order, 1950, before the 1990 amendment that a person who belongs to a caste which is included in the list of scheduled castes in the 1950 Order was not entitled to claim that he belongs to the Scheduled caste, if he professed Buddhist religion, but as a result of the 1990 amendment he can do so. The language of the 1990 amendment is clear.

There is nothing in that provision which would even suggest that, if a person who belongs to a caste mentioned in the list of scheduled castes in the 1950 Order was professing Buddhist religion on the date of the commencement of the amendment is not entitled to claim that he belongs to the Scheduled caste.

The respondent belongs to Mahar caste, which is mentioned in the list of

scheduled castes given in the Constitution (Scheduled Caste) Order, 1950 and was professing Buddhist religion on the date on which 1990 amendment came into force, therefore, he is entitled to claim that he belongs to scheduled caste. Therefore, issue No. 2 is answered in the negative.

10. Issue No. 3. -- It is clear from the material on record that the petitioner filed this petition for two reasons namely (1) that on the basis of the date of birth of the respondent mentioned in who's who of the 12th Lok Sabha he could not get a copy of the birth certificate of the respondent and (2) the parliament did not increase the number of seats reserved for the Scheduled castes in Lok Sabha from Maharashtra after the 1990 amendment in the Scheduled Castes Order. Looking at the matter from any point of view, it cannot be said that these two reasons are enough for anybody to file a petition in the High Court challenging the election of a member of Lok Sabha, who is elected by a large majority. Though, in the petition it is claimed that the respondent is not Mahar by caste, no attempt was made to lead any evidence to establish the same. The petitioner himself was the member of the Lok Sabha, when Bill No. V of 1990 to amend Clause 3 of the Constitution (Scheduled Caste) Order, 1950 was considered by the Lok Sabha. The statement of objects and reasons of the Bill reads as under:--

STATEMENT OF OBJECTS AND REASONS

"Neo-Buddhists" are a religious group which has come into existence in 1956 as a result of a wave of conversions of the Scheduled Castes under the leadership of Dr. Babasaheb Ambedkar. Upon conversion to Buddhism, they became ineligible for statutory concessions like reservation in services and of seats in Parliament and State Assemblies and non statutory concessions like educational scholarship. Various demands have been made, from time to time, for extending all the concessions and facilities available to the Scheduled Castes to them also on the ground that change of religion has not altered their social and economic conditions. As a matter of fact, non-statutory concessions of the Central Government available to the Scheduled Castes have been extended to Neo-Buddhists. As they objectively deserve to be treated as the Scheduled Castes for the purpose of various reservations, it is proposed to amend the Presidential Orders to include them therein.

2. Hence this Bill.

It is reasonable to assume that as a member of Lok Sabha, at the relevant time, who himself belongs to Scheduled Caste, the petitioner knew that the 1990 Amendment was brought about to extend the benefits which are available to the members of the scheduled castes to the people like the respondent. Still he filed this petition. The conduct of the petitioner of filing this petition and pursuing it, cannot be said to be either reasonable or bona fide. It is basic tenet of democracy that the verdict of the people expressed

through the ballot box is to be respected. The respondent has been elected by a large majority. The remedy provided by the statute to challenge the election cannot be resorted to, unless the person filing the petition has a genuine reason to do so. The remedy cannot be resorted to casually or lightly. In these circumstances, therefore, when court finds that a person has filed the petition without a reasonable cause, casually, it becomes the duty of the Court, not only to dismiss the petition, but also to make such order, as would discourage the others from filing such petitions in Court. The power to impose exemplary costs has been vested in the Court for that purpose. Before the hearing of the petition commenced, on finding that the petition appears to be lacking substance, I had made it clear to the petitioner that he should make all efforts to lead evidence to substantiate his case stated in the petition and if he fails to do so, he will have to pay heavy costs. Still the petitioner, as observed above, did not make even an attempt to lead evidence to prove that the respondent does not belong to Mahar caste. In this background, therefore, in my opinion, exemplary costs are to be imposed on the petitioner. The costs are quantified at Rs. 25,000/-.

The petition is, therefore, dismissed with costs as directed above.