Madhya Pradesh High Court
Brajesh Singh vs Ram Prasad Deharia on 28 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
W.P. NO. 29557 OF 2023
BETWEEN :-
BRAJESH SINGH S/O SHRI RAJENDRA
SINGH, AGED ABOUT 53 YEARS,
OCCUPATION: MEMBER, ZILA
PANCHAYAT SEONI R/O VILLAGE
SANGAI, POST KAARIRAAT, POLICE
STATION LAKHANWADA, DISTRICT
SEONI` (MADHYA PRADESH)
.... PETITIONER
(BY SHRI SHASHANK SHEKHAR - SENIOR ADVOCATE WITH SHRI
ROHIT SOHGAURA - ADVOCATE)
AND
1. RAM PRASAD DEHARIA S/O SHRI
SWARUPCHANDRA DEHARIA, AGED
ABOUT 63 YEARS, R/O VILLAGE
SIMARIYA, POST BEEJHAWADA, TEHSIL
AND DISTRICT SEONI (MADHYA
PRADESH)
2. BASANT BAGHEL S/O SHRI
JAGESHWAR PRASAD BAGHEL, AGED
ABOUT 34 YEARS, VILLAGE JAITPUR
KALAN POST JAITPUR KALAN TEHSIL
AND DISTRICT SEONI (MADHYA
PRADESH) .
2
3. GYANCHANDRA CHOUDHARY
(GYANI) S/O SHRI SEKAM CHOUDHARY,
AGED ABOUT 45 YEARS, R/O VILLAGE
AND POST BANKI P.S. BANDOL TEHSIL
AND DISTRICT SEONI (MADHYA
PRADESH)
4. MANISHA BAGHEL W/O SHRI
MANISH BAGHEL, AGED ABOUT 35
YEARS, R/O VILLAGE SANGAI POST
KAARIRAAT P.S. LAKHANWADA
DISTRICT SEONI (MADHYA PRADESH)
5. RAMCHARAN S/O SHRI PATIRAM,
AGED ABOUT 56 YEARS, R/O VILLAGE
AND POST SAADAK SEONI TEHSIL
CHAPARA DISTRICT SEONI (MADHYA
PRADESH)
6. RAMRAJ GUJAR @ SANTOSH
DEHARIA S/O SHRI SONELAL, AGED
ABOUT 38 YEARS, R/O VILLAGE
CHEETAPAR POST BHOMA P.S.
KANHIWADA TEHSIL AND DISTRICT
SEONI (MADHYA PRADESH).
7. SUNIL BAGHEL S/O SHRI JAGDISH
BAGHEL, AGED ABOUT 46 YEARS, R/O
NAVNEET COLONY BEEJHAWADA
TEHSIL AND DISTRICT SEONI (MADHYA
PRADESH)
8. UTTAM SINGH KURWE S/O SHRI
JEEWANLAL KURWE, AGED ABOUT 50
YEARS, R/O VILLAGE NAKTIA POST
CHANDORI KHURD P.S. BANDOL TEHSIL
AND DISTRICT SEONI (MADHYA
PRADESH).
9. COLLECTOR/ RETURNING
OFFICER ZILA PANCHAYAT ELECTION
SEONI DISTRICT SEONI (MADHYA
PRADESH)
....RESPONDENTS
(BY SHRI K.C. GHILDIYAL SENIOR ADVOCATE WITH SHRI SANJAY
SARWATE - ADVOCATE)
(RESPONDENT NO. 9 BY SHRI MANOJ KUMAR JHA- ADVOCATE)
3
-------------------------------------------------------------------------------------
Reserved on : 06/12/2023
Pronounced on : 28/12/2023
-------------------------------------------------------------------------------------
This petition having been heard and reserved for
judgment/order, coming on for pronouncement this day, this Court
passed the following:
ORDER
The present petition under Article 226 of the Constitution of
India has been filed challenging the order dated 16.11.2023
(Annexure P-16) passed by the Commissioner, Jabalpur Division,
Jabalpur (MP), whereby the election of the petitioner to the post of
Member, Zila Panchayat, has been set aside by allowing the
election petition filed by the present respondent No.1.
2. The said election has been set aside on the ground that the
seat in question was reserved for Scheduled Caste (SC) and the
petitioner is not a member of SC community, hence, is
disqualified to be elected from a reserved seat for that category.
Further, fresh election has been ordered in the constituency.
3. The learned senior counsel appearing for the petitioner,
while assailing the order of the Election Tribunal of the
Commissioner, states that the petitioner is a member of Bagdi
Caste, which is duly notified Scheduled Caste for the State of
Madhya Pradesh, and is entered at Sr. No. 2 for the list of SCs for
the State of Madhya Pradesh.
4. The learned counsel submits that though the petitioner had
not submitted a copy of the caste certificate, but that was for the
reason that the caste certificates of Bagdi caste members are not
being issued by the authorities in Seoni and the petitioner cannot
be put to a fault for this. It is also submitted that his cousin
brothers namely Pramod Singh Baghel and Satyendra Singh
Baghel have duly been issued the caste certificate of Bagdi caste,
annexed at page 49 and 50 of the petition. It is also submitted that
earlier the petitioner was issued the temporary caste certificate by
the Naib Tehsildar, however, no permanent certificate could be
isued due to the stubborn attitude of the authorities in not issuing
fresh certificates of Bagdi Caste in Seoni District.
5. The learned counsel for the petitioner further submits that
there is no statutory requirement that a member of reserved
community should file copy of his caste certificate in Panchayat
election in State of Madhya Pradesh. The learned counsel refers to
Rule 40-A of M.P. Panchayat Nirvachan Niyam 1995, to state that
if it comes to notice of the Returning Officer that the nomination
paper of any candidate has been accepted for a seat reserved for
SC, ST or OBC, though the said person prima-facie does not
appear to be a member of such community, then the Returning
Officer shall ask the candidate to file an affidavit to that effect that
he is member of such category, and then no further enquiry will be
held. The learned counsel further submits that there is no
provision of any enquiry at any later stage during the election
process to that effect. Thus, it is the contention of the learned
counsel for the petitioner, that the question gets buried for the
purpose of election and a person, merely by submitting affidavit of
being member of a reserved community, can very well contest the
election, though he may not be having caste certificate of that
reserved category. The learned senior counsel submits that the
proposition may seem outrageous, but that is what the rule
provides.
6. It is the further case of petitioner that merely submitting a
certificate of being a member of reserved category is sufficient,
and that the election tribunal also cannot conduct an enquiry to the
aspect of caste status, as that jurisdiction is vested only in the
Higher Level Committee as per the judgement in case of Kumari
Madhuri Patil Vs. Addl. Commissioner Tribal Development &
Ors; 1994 (6) SCC 241. It is the case of the petitioner that the
Election Tribunal, while carrying out enquiry into the caste status
of the petitioner, has acted contrary to the aforesaid judgement of
the Supreme Court, and has assumed the jurisdiction of the Higher
Level Committee, and decided a question, for which it was not
having the technical expertise.
7. The learned counsel for the petitioner further submits that
the earlier instructions issued by the State Election Commission
on 05.12.2014 (page 73 of the petition) were directed to be
followed for the Panchayat election being conducted in 2022 also,
and vide letter annexed at page No.71 dated 13.12.2021, the State
Election Commission has duly circulated the earlier circular dated
05.12.2014 for application to Panchayat Elections being held in
2021-22.
8. It is the further case of the petitioner that the said circular
dated 05.12.2014 clearly postulates that in terms of Rule 40-A of
the Panchayat Nirvachan Niyam 1995, the State Election
Commission has decided that it is desired from the candidate
filing nomination against reserved seat, that he will file a copy of
his caste certificate. However, in case of non-availability of caste
certificate, the candidate shall be given an opportunity to submit
an affidavit to the effect that he is member of a particular reserved
category. Once such affidavit is submitted, then his nomination
shall not be cancelled.
9. The learned senior counsel thus, submits that the said
circular relaxes the requirement even going further to Rule 40-A.
As per Rule 40-A, the requirement of the candidate not being
prima facie member of reserved category, has been diluted and
specific case of non-production of caste status certificate has been
provided by the State Election Commission. It is his case that now
no person claiming to be member of reserved community, is
required to submit caste status certificate and the affidavit of the
person concerned is conclusive proof of his caste status. This is
the final conclusion and it cannot be questioned even in election
petition, as argued on behalf of the petitioner.
10. The learned senior counsel for the petitioner also argued that
the Election Tribunal ought not to have given the finding that the
persons claiming themselves to be Bagdi in Seoni District are
actually not Bagdis. It is submitted that once the Presidential order
applies SC status to Bagdi Caste throughout the State, no different
interpretation could be made by the Election Tribunal.
11. Per contra, the learned senior counsel for the respondent
No.1 has stated that the petitioner was not in possession of his
caste status certificate, and the person contesting election from a
reserved seat claiming to be member of a reserved category, must
produce his caste certificate.
12. It is stated by the learned counsel that the provisions of Rule
40-A are only temporary provisions applicable at the time of
scrutiny of nomination papers and do not travel beyond that. It
does not denude of the jurisdiction of the Election Tribunal. It is
also stated that the Election Tribunal would not be helpless in such
cases where the elected representative not even having caste
certificate, wins from a reserved seat.
13. The learned senior counsel for respondent No.1 also states
that the State Election Commission had issued instructions to the
Returning Officers in the July 2020, which is available at page
140 of the paper book of the writ petition. It is argued that as per
clause 10.14 and 10.25 of the said instructions, it is provided that
filing caste certificate is mandatory alongwith the nomination
papers. Thus, it is argued that the petitioner was bound to file a
copy of caste certificate.
14. It is also argued by the respondent No.1 that the Returning
Officer would be required to get an affidavit filed only if the
person prima facie does not seem to be member of reserved
category, despite producing a caste certificate. The provision of
Rule 40-A cannot be construed in the manner that even in absence
of caste certificate, the person would be allowed to contest the
elections merely on basis of his affidavit.
15. The learned counsel for the respondent No.1 has cited the
following judgements in support of his contentions -
a. Vineshkumar Mavjibhai Parmar Vs. Dethali
Gopalak Vividh, reported in 2017 (1) SCC 273, to argue
that any interpretation of law should be avoided that leads
to absurdity.
b. Sushila Aggarwal Vs. State, reported in 2020 (5)
SCC 1, to argue that the Court should follow plain and
literal interpretation of statute.
c. Gurudevdutta VKSSS Vs. State of Maharashtra,
reported in 2001 (4) SCC 534, to argue that law cannot
be allowed to result in absurdity.
d. Standard Chartered Bank Vs. Directorate of
enforcement, reported in 2005 (4) SCC 530, to argue
that law cannot be allowed to result in absurdity.
e. State of Jharkhand Vs. Jitendra Kumar
Shrivastava, reported in 2013 (12) SCC 210, to argue
that administrative instructions can supplement the statutory
rules by taking care of these situations where the rules are
silent.
16. The learned counsel for the petitioner, in his rejoinder
submissions, submitted that the executive instructions of July 2020
would not prevail over the force of Rules of 1995. It is argued that the
executive instructions will not over-ride statutory rule 40-A. In support
of his contentions, the leaned counsel for the petitioner relied on the
following judgments -
a. Punjab Water Supply and Sewage Board Vs.
Ranjodh Singh, reported in 2007 (2) SCC 491, to state
that any executive instructions cannot prevail over statutory
rules.
b. C.L. Verma Vs. State of Madhya Pradesh, reported
in 1989 Supp. SCC 473, to state that any executive
instructions cannot prevail over statutory rules.
c. Kalka Prasad Vs. Ramji Lal & Ors., reported in
2002 (3) MPLJ 121, to state that the Election Tribunal
ought to have allowed parties to adduce evidence and
proper procedure has not been followed.
d. Lalamdas Vs. Vidyawatim, reproted in 2007 (1)
MPLJ 410, to say that the Election Tribunal ought to
have allowed parties to adduce evidence and proper
procedure has not been followed.
e. Omkar Mahle Vs. State of M.P. & Ors., reported in
2017 (2) MPLJ 715, to state that to say that the Election
Tribunal ought to have allowed parties to adduce evidence
and proper procedure has not been followed.
f. Kailash Kumar Parmanand Vs. State of M.P. &
Ors. Reported in 1999 (2) MPLJ 722, on the question
of opportunity of hearing.
g. State of Maharashtra Vs. Milind & Ors., reported
in 2001 (1) SCC 4, on the question that no Court or
authority can carry out an enquiry and interpret the
Presidential Order in a particular manner, once the entry itself
is unqualified is clear.
h. Harikrishna Lal Vs. Babu Marandi, reported in
2003 (8) SCC 613, to state that the status of a duly
election person cannot be lightly interfered with.
i. Dipak Babaria Vs. State of Gujarat, reported in
2014 (3) SCC 502, to state that once the statute requires
a particular thing to be done in a particular manner, it has to
be done in that manner only, and none else.
j. K. Lubna Vs. Beevi, reported in 2020 (2) SCC 524,
to state that a pure question of law can be determined at any
stage, even before the High Court.
17. Heard the learned counsel for the parties and perused the record.
18. The case involves three questions requiring determination :
a. Whether Rule 40-A of the M.P. Panchayat Nirvachan
Niyam 1995, requires the reserved category candidate
seeking nomination on a reserved seat, to submit the caste
certificate at the time of nomination, or not ?
b. What is the effect of executive instructions issued by
the State Election Commission dated 05.12.2014 and of
July 2020 ?
c. If submission of caste certificate is not mandatory,
whether the Election Tribunal would be denuded of its
jurisdiction to rule on the caste status of the candidate even
after election and mere submission of affidavit would be
sufficient for all times to come ?
19. On a query of the Court, that a person undisputedly of upper
caste, can contest election posing himself to be a Tribal or any reserved
category person, merely on basis of his own affidavit, and even the
Election Tribunal would be helpless in the matter, the learned senior
counsel submits that this in fact, is how the rule works out itself.
20. Now proceeding to discuss the questions before the Court.
Requirement of submission of Caste certificate
Rule 40-A of the Nirvachan Niyam 1995 is in question in the
present case. The said Rule 40-A states as under :-
40A. Stay on elections in certain cases.- (1)
Notwithstanding anything contained in these rules, if it
comes lo the notice of the Returning Officer at any time prior
to the date of poll that the nomination of any candidate
who,prima facie, does not belong to a Scheduled Caste,
Scheduled Tribe or Other Backward Class, has been
accepted for a seat which is reserved for Scheduled Castes,
Scheduled Tribes or Other Backward Classes as the case
may be, through oversight or want of objection or for any
other reason, he shall forthwith issue a notice to such
candidate, asking him to file an affidavit that he belongs to
the category for which the seat is reserved.
(2) In case the candidate concerned files an affidavit, the
Returning Officer shall make no further inquiry into the
matter and treat the nomination as valid.
(3) In case the concerned candidate fails to file an affidavit
on or before the date specified in the notice, it shall be
presumed that he does not belong to the category for which
the seat is reserved and the Returning Officer shall report
full facts to the following competent authority, as the case
may he and seek its permission to review his own order,
regarding the validity of the nomination, namely :-
(i) Sub-Divisional Officer (Revenue) in case of
election of a Panch or Sarpanch of a Gram
Panchayat;
(ii) Collector in case of election of a member of
Janpad Panchayat; and
(iii) Divisional Commissioner in case of a member
of Zila Panchayat.
(4) The Competent Authority, shall immediately, dispose off
every case referred to it under sub-rule (3), and
communicate its order to the Returning Officer, as soon as
possible.
(5) After receiving the permission of the Competent
Authority, the Returning Officer, may review his own order
and exclude the name of the concerned candidate from the
list of validly nominated candidates prepared under Rule 35
and from the list of contesting candidates, if such list has
already been prepared and published the Returning Officer
shall prepare a revised list of contesting candidates and
publish it in accordance with the provisions of Rule 40 :
Provided that if the concerned candidate has in the
meanwhile submitted an affidavit in response of the notice
issued under sub-rule (1), the Returning Officer shall not
review his order.
(6) If the Competent Authority fails to dispose off the case
referred to it under sub-rule (3) at least five days before the
day of poll or the mistake in acceptance of nomination as
specified in sub-rule (1),comes to the notice of the Returning
Officer on a day where-after a period of less than seven
days is left for the day of poll, the Returning Officer shall
postpone the election of such seat and report the matter to
the Commission through the District Election Officer.
(7) The Commission shall, after satisfying itself that the
Returning Officer has duly reviewed his order, issue revised
time schedule for completion of election for the seat in
question.]
21. If the entire Rule 40-A is seen, it is clear that the said rule
operates once after receiving nomination, a dispute is raised as to caste
status. Thus, the applicability of this rule starts on occurence of a
dispute as to caste status after receiving nomination, and not at the time
of accepting nomination. This Rule only bars the Returning Officer
from entering into a question of caste status of the candidate. This rule
does not operate that what will be the requirement of a valid
nomination. This rule does not lay down in either way, whether
submission of caste certificate at the time of making nomination is
mandatory, or not. This Rule 40-A is only for the Returning Officer to
act at the time of scrutiny of nominations, and nothing else.
22. The nomination of candidates in provided under Rule 31 and 32.
It is provided in Rule 31 that the nomination shall be in statutory forms
as mentioned in Rule 31. The statutory form of nomination of member
of Zila Panchayat will be in form 4 appended to the said Rules.
23. It appears that certain confusion was created after insertion of
Rule 40-A in the Rules of 1995, whether it is mandatory for a reserved
seat candidate to file caste certificate alongwith nomination form, or
not. This seems to have been created by the executive instruction of the
State Election Commission dated 05.12.2014.
24 There has been subsequent amendment in the Rules of 1995 and
the statutory form of nomination has been replaced vide amendment
notification dated 24.4.2019, amending the Rules of 1995. The said
amendment notification is as under :-
25. It is clear from a bare perusal of the aforesaid statutory form,
that a candidate is required to enclose certain documents with the
nomination form, and last date is laid down for each of such documents
to be presented. The extract of the relevant portion of the form is as
under :-
Details of documents enclosed with the nomination paper, for
which receipt is provided to the candidate -
Sr. Details of documents If not enclosed, then time
No. limit for submission of the
particular document to the
Returning Officer
2. copy of caste certificate issued Before fixed date and time of
by competent authority of scrutiny
Government of Madhya Pradesh
in case of a member of reserved
category
(Note- Exact form not reproduced here. It is already part of notification
reproduced in preceding pages of this order)
26. Thus, it is clear as noon day that the copy of caste certificate in
case of candidate of reserved category is mandatorily to be filed
alongwith the nomination form. If not filed with the nomination, it
should at the most be filed before the fixed date and time for
nomination.
27. The requirement of Rule 40-A starts at the time of scrutiny. If at
the time of scrutiny a question arises in the matter of caste status of a
candidate, then that Rule 40-A merely bars the Returning Officer from
conducting an enquiry into the fact of caste status. It may be due to the
objection as to actual caste status of the candidate, or may involve the
question whether the certificate itself is forged. Thus, to avoid starting
of enquiry as to caste status at the stage of nomination, this provision
seems to be engrafted.
28. Thus, from the perusal of Rule 40-A as also the statutory form of
nomination, the legal position that can be culled out is, that caste
certificate is required to be filed with the nomination, and in any event,
before the start of scrutiny of nomination papers. This is a mandatory
condition.
29. Affect of executive instructions dated 05.12.2014 and July
2020 :-
30. The parties have argued at length as to the interpretation and
enforceability of the two executive instructions of 05.12.2014 and July
2020. These instructions have been issued by the State Election
Commission. The instructions of 2014 have further been circulated for
being followed in 2021-22 elections, vide letter dated .13.12.2021.
31. The relevant portions of the said two instructions are as under :-
a. Instruction dated 05.12.2014 -
^^5- vr,o fopkjksijkUr vkjf{kr oxZ ds inksa ls fuokZpu
yMus okys vH;fFkZ;ksa ds fy;s tkfr izek.k i= ds laca/k esa vk;ksx us fuEu
fu.kZ; fy;k gS&
¼i½ iapk;r fuokZpu esa vkjf{kr in ls fuokZpu yMus okys vH;FkhZ ls ;g
vis{kk jgsxh fd og ukefunsZ'ku i= ds lkFk e/;izns'k 'kklu ds l{ke
izkf/kdkjh }kjk tkjh 'kklu }kjk fu/kkZfjr fofgr izk:i esa tkfr izek.k&i=
layXu djsA
¼ii½ ;fn vH;FkhZ ds ikl ukefunsZ'ku i= Hkjrs le; tkfr izek.ki=
miyC/k ugh gS rks vH;FkhZ dks bl oxZ dk lnL; gksus ds ckcr] ftlds fy;s
LFkku vkjf{kr gS] viuk tkfr laca/kh 'kiFk i= ukefunsZ'ku i= dh laoh{kk
izkjaHk gksus ds iwoZ fjVfuZax vkfQlj ds le{k izLrqr dj ldsxkA
¼iii½ e/;izns'k 'kklu ds l{ke izkf/kdkjh }kjk tkjh tkfr izek.k i=
izLrqr u djus vFkok vkjf{kr oxZ dk lnL; gksus ckcr~ 'kiFk i= izLrqr
ugh djus dh fLFkfr esa vH;FkhZ dk uke funsZ'ku i= fujLr fd;k tk;sxkA**
b. Instruction of July 2020
^^10-14- ukefunsZ'ku i=&
vc lHkh ukefunsZ'ku i= ftyk iapk;r ds lnL;] tuin iapk;r
lnL;] ljiap ,oa iap ds fuokZpu ds ekeys esa uohu izk:i&4 esa gksxkA
lE;d :i ls Hkjk gqvk vkSj vH;FkhZ }kjk gLrk{kfjr ;k vaxwBk
fu'kku yxk gqvk ukefunsZ'ku i= vH;FkhZ Lo;a ;k izLrkod ds ek?;e vkidks
izLrqr djsxkA e/;izns'k iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 dh
/kkjk&14] 27¼2½¼d½ ds vuqlkj izR;sd O;fDr] ftldk uke fdlh xzke dh
ernkrk lwph esa lfEefyr gS] ml iapk;r ftlds vUrxZr og xzke vkrk gS]
ds inkf/kdkjh ds :i esa fuokZfpr fd, tkus ds fy, vfgZr gS] ;fn og
vU;Fkk fujgZ u gksA bl vf/kfu;e dh /kkjkvksa dk m)j.k layXud&8 esa gSA
ukefunsZ'ku i= ds lkFk vkjf{kr oxZ dk lnL; gksus dh n'kk esa e/;izns'k
'kklu ds l{ke izkf/kdkjh }kjk tkjh tkfr izek.ki= dh izfr layXu djuk
vko';d gSA**
^^10-25- vuqlwfpr tkfr] vuqlwfpr tutkfr ;k vU; fiNM+s oxZ ds vH;FkhZ
ds fy;s ukefunsZ'ku&i= esa lqlaxr LFkku ij viuh tkfr@oxZ] tkfr ds
fy, vf/klwfpr ftys ds uke lfgr Li"V mYys[k djuk vko';d gSA dsoy
vuqlwfpr tkfr ;k tutkfr ;k fiNM+s oxZ dk lnL; tkfr ds fy,
vf/klwfpr ftys dk uke gksuk fy[k nsuk ;k iz:i esa eqfnzr bu 'kCnksa ds
lkeus dsoy lgh dk fu'kku ¼½ yxk nsuk i;kZIr ugha gSA okLrfod
tkfr@oxZ] tkfr ds fy, vf/klwfpr ftys ds uke dk ;fn mYys[k u fd;k
x;k gks] rks ,slk djus dks dgk tk,A vkjf{kr oxZ dk lnL; gksus dh n'kk
esa e/;izns'k 'kklu ds l{ke izkf/kdkjh }kjk tkjh tkfr izek.ki= dh izfr
layXu djok yh tk;sA**
32. It is settled in law that Executive Instructions cannot over-ride
the statutory law. The State Election Commission traces its existence to
Article 243-K of the Constitution of India. Nowhere in the Constitution
or in the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam 1993, any
power has been vested in the State Election Commission to dilute any
provision of the Act and the Rules framed thereunder.
33. The instruction of 05.12.2014 seems to have been framed before
amendment in statutory form of nomination and thus, did not run
contrary to the Rules of 1995. The Executive Instruction of July 2020
seems to be correctly issued in line with the statutory form of
nomination replaced in 2019 by amendment in Rules of 1995.
However, it seems that the State Election Commission compounded the
confusion by circulating the old instruction of 2014 for 2021-22
elections vide letter dated 13.12.2021.
34. It is settled in law that an executive instruction contrary to law
cannot operate and an instruction not authorised by law is not binding
even on the authority issuing it. In the present case, the circular of the
State Election Commission dated 13.12.2021 was clearly unauthorised
because it could not circulate an executive instruction of 2014 for
2021-22 elections, after the Rules were amended in 2019.
35. A constitution Bench of the Supreme Court in the case of State
of Maharashtra Vs. Milind & Ors., reported in 2001 (1) SCC 4, has
held in para - 33 as under :-
"..................... the circulars/ resolutions/
instructions issued by the State Government from time to
time, some times contrary to the instructions.
issued by the Central Government, are of no
consequence. They could be simply ignored as the State
Government had neither the authority nor the competency to
amend or alter the Scheduled Tribes Order .................
36. Thus, I have no hesitation in holding that the circular dated
13.12.2021 issued by the State Election Commission whereby the
executive instructions of 05.12.2014 were circulated to be followed for
2021-22 election, was clearly unauthorised insofar as the requirement
to file copy of caste certificate with nomination paper is concerned.
This is because it runs contrary to the 2019 amendment in the Rules of
1995 whereby the form of nomination was replaced. Thus, the
candidates did not get any immunity from filing copy of caste
certificate alongwith the nomination form. The Returning Officer could
at the most accept a copy of the caste certificate before the start of
scrutiny, and not later than that.
37. As in the present case, the petitioner did not have copy of the
caste certificate, his nomination paper itself was faulty and the
Returning Officer ought to have rejected the same at the time of
scrutiny itself. Affidavit can be accepted only from those reserved
category candidates who have otherwise filed caste certificate and then
objections are raised as to their caste status.
38. Therefore, in my opinion, the Election Tribunal has not erred in
holding the nomination form of the petitioner to be liable to be
rejected.
Whether the Election Tribunal would be denuded of its
jurisdiction to rule on the caste status of the candidate even after
election and mere submission of affidavit would be sufficient for all
times to come ?
39. This question is only of academic interest once it has been held
above that filing of caste certificate at the time of nomination is
mandatory requirement for Panchayat Elections. The Election Tribunal
could not have entered into enquiry of caste status because the
nomination itself was illegal, being filed without caste status
certificate.
40. In those cases where there is no requirement to file caste
certificate, then the Tribunals may have the limited jurisdiction to
decide the question of caste status to ascertain whether the candidate
was qualified to be chosen to the seat. It has been held by a 3-Judge
bench of the Supreme Court that any order of Election Tribunal ruling
on the caste status will not have any further effect, and would have
effect only as regards that particular election. It will not even have
effect on future elections. It will not declare a caste status of the person
in rem for all times to come for all purposes. In the case of Satru
Charla Vijaya Rama Vs. Nimmaka Jaya Raju, reported in 2006 (1)
SCC 212, it has been held in para - 6 & 21 as under :-
6.First, we will deal with the contention based on the
adjudication in EP No. 13 of 1983. That was an election petition
relating to an earlier election in respect of the same assembly
constituency filed by a voter challenging the eligibility of the
appellant to contest as belonging to Scheduled Tribe. The
learned Judge noticed that the election petitioner had not
examined anyone belonging to the "Kshatriya" community to
show that the appellant had been accepted as a "Kshatriya" and
had also not led adequate evidence to show that the appellant
was not accepted as a member of the "Konda Dora" tribe. In his
view, the explanation of the appellant that they had claimed the
status as "Kshatriyas" only for prestige was adequate to wipe
out the effect of the consistent admissions contained in some
documents and the entry in the secondary school-leaving
certificate. It was thus held that the election petitioner therein,
had not chosen to lead any evidence worth the name to show that
the appellant was a "Kshatriya" and he had only tried to pick
holes in the evidence adduced on the side of the appellant. In the
light of the evidence on the side of the appellant, it had to be held
that the appellant belonged to the "Konda Dora" tribe and that
his nomination was rightly accepted.
21. What we are left with is the high evidentiary value that may
be attached to the judgment in EP No. 13 of 1983. It is true that
some of the documents produced in the present election petition
were also available before the Judge assigned to try the previous
case. But ultimately the conclusion in the previous case was
based on an appreciation of the evidence adduced in that case.
Some evidence may be common. But,since it is not possible to
accept the contention that the earlier judgment is a judgment in
rem or that it would operate as res judicata, we can at best
proceed on the basis that on an earlier occasion, it was
adjudicated that he was not shown to be disqualified to contest
from a reserved constituency. But as emphasised by learned
counsel for the respondent election petitioner, that was a
conclusion arrived at based on an appreciation of the evidence in
that case and once that judgment could not be held to be a
judgment in rem binding on the whole world or a
judgment that bars the trial of the issue in the present election
petition or would operate as res judicata between the parties,
that judgment by itself is not sufficient to rebut the evidence
available in the present case based on which the finding has been
rendered.
41. However, this issue need not be dealt with further, because this
court has already held above, that the nomination form of the petitioner
was defective as it was filed without a copy of caste certificate.
42. The other grounds raised by the learned counsel for the
petitioner, regarding the framing of issues and procedure followed by
the Election Tribunal, do not require consideration once this Court has
held that the nomination form itself was not proper, being filed without
caste certificate.
43. Before parting with the case, it is to be held that the finding of
the Election Tribunal, that the Bagri people in Seoni District are not
actually Bagri of SC category, as mentioned in para 6.7 of the
impugned order annexure P-16, is transgression of its jurisdiction by
the Tribunal. This line is as under :-
^^flouh ftys esa ckxjh@ckxM+h tkfr dks 'kklu }kjk vuqlwfpr tkfr ds
lnL; ds :i esa ekU; ugha fd;k x;k gSA vr% bl vk/kkj ij fjVfuZax
vkfQlj ¼ftyk iapk;r½] flouh dk budk uke funsZ'ku i= dks fujLr
fd;k tkuk FkkA**
44. The Election Tribunal could not give such finding which goes
contrary to Presidential Order, because the Presidential Order does not
restrict the caste status of Bagri people to particular district (s) of the
State. The question whether a particular person is a genuine Bagri and
is belongs to SC category or not, has to be decided on the case to case
basis. Thus, the aforesaid line in para 6.7 is quashed. The petitioner if
he applies for the caste certificate, his application would be considered
without being influenced by any observation made in the order
annexure P-16 as to caste status of the petitioner and the right of Bagri
people of Seoni District to be recognised as Bagri of SC category as
commented upon in para 6.7 of order Annexure P-7 and quoted above.
45. In the result, the petition fails and is dismissed, however, with
the observation as made in the preceding para.
(VIVEK JAIN)
JUDGE
MISHRA
ARVIND KUMAR MISHRA
2023.12.28 19:23:33 +05'30'
