Dippala Suri Dora vs V.V. Giri and others

Manohar Pershad, J.—In the 1957 General Elections, the following persons, (1) Shri R. Satyanarayana Dora, (2) Shri D. Suri Dora, (3) Shri V. V. Giri and (4) Shri V. Krishnamoorthy Naidu, contested the elections for the Parliamentary Constituency of Parvatipur in the State of Andhra, a double-member constituency, one seat of which was reserved for the scheduled tribes, the other seat being general. Of the four, numbers 1 and 3 were the candidates of the Congress Party and numbers 2 and 4 were of the Socialist Party.

Their nominations were filed on 28-1-1957 and sifter scrutiny of the nominations, polling in the aforesaid constituency took place between 25-2-1957 and 19-3-1957. The votes polled were as follows:

Shri B. Satyanarayana Dora....1,28,792

Shri D. Suri Dora....1,24,604

Shri V. V. Giri....1,24,039

Shri V. Krishnamoorthy Naidu....1,18,968 The result of the elections was declared on 19-3-1957, whereby Shri B. Satyanarayana Dora was declared elected for the reserved seat and Shri D. Suri Dora for the general seat. Shri V. V. Giri respondent 1 herein, filed an election petition before the Election Commission, New Delhi on 16-4-1957, challenging the election of Shri D. Suri Dora on the ground that the election of the aforesaid candidate was materially affected by non-compliance with the provisions of the Representation of the People Act, 1951 and the rules framed thereunder, in that:

(1) The returned candidate has been declared elected for the general seat without his filing nomination for the general seat, as required by S. 32 of the Act;

(2) Section 54 of the Act does not authorise grouping of the contestants for the General Seat with Scheduled Tribes candidates, who never filed nomination, nor contested for the general seat, for the purpose of determining who has secured the largest number of votes for the General Seat, and that if that section be construed to authorise such grouping, it is ultra vires, void and illegal;

(3) The result of the election of Shri D. Suri Dora, was materially effected by non-campliance with the provisions of the Constitution of India, Part III of the Constitution, and in particular, Arts. 14 and 15 thereof;

(4) The result of the election of the returned candidate has been further materially affected by the improper acceptance of his nomination in that-

(i) He falsely declared himself to be a member of the Scheduled tribes of Mukka Doras in his nomination paper, whereas in fact he was and is not a member of any Scheduled Tribe and was a Kshatriya; and

(ii) As Shri D. Suri Dora was not a member of the Scheduled Tribes he could not be deemed to have been duly nominated because his deposit of Rs. 250/- only does not comply with S. 34 of the Act.

Shri V. V. Giri therefore prayed that the election of Shri Suri Dora be declared void and he be declared to have been duly elected for the general, or non-reserved seat, having received the majority of the valid votes. On receipt of this petition, its copy was published in the Official Gazette, as required by sub-s. (1) of S. 86 of the Representation of the People Act, 1951 and notices were issued to the respondents.

After the notices were served, an Election Tribunal, constituting of Shri W. S. Krishnaswami Naidu, a retired Judge of the Madras High Court was appointed for the trial of the petition (sic) Hyderabad was selected as the place of the tr(sic) Parties: appeared through their counsel. Sri D. S. Dora, the first respondent, filed a counter to (sic) petition by Shri V. V. Giri, which counter was (sic) adopted by the third respondent.

He has therein stated that his nomination (sic) not for the reserved seat, but was with respect (sic) the constituency, that the declaration of his ha(sic) been duly elected for the general seat was le(sic) valid and was in conformity with S. 54 read (sic) Ss. 4 and 5 of the Act, that the illustration to S(sic) (4) was in conformity with the Section and (sic) neither void nor illegal, that S. 54 does not (sic)travene Arts. 14 and 330 of the Constitution, (sic) it was not open to the Tribunal to go into (sic) vires of S. 54 and also into the questions not r(sic) before the Returning Officer, that non-compliance with the provisions of the Constitution does (sic) affect the result of the elections, that the Representation of the People Act was within legis(sic) competence of the Parliament, and that neither (sic) Act nor S. 54 offended any of the provisions o(sic) Constitution.

He inter alia denied that he was a Ksha(sic) and stated that the decision in E. P. 7/55 (sic) conclusive and that he was a person belonging to the scheduled tribe of Mukka Dora. Lastly, i(sic) stated that in any case the petitioner could be declared elected when he had become Gov(sic) On these allegations, the Tribunal has framed (sic) following eight issues:

(1) Whether the respondent Dippala Suri (sic) did contest only for the reserved seat and did (sic)ing take place on that footing and whether h(sic) by his conduct, waive his rights, if any, to c(sic) for a general seat?

(2) Has the election of Dippala Suri Dora (sic) materially affected by non-compliance with th(sic) visions of the Representation of the People(sic) 1951 and the rules framed thereunder as alleged (sic) the petition?

(3) Whether the procedure followed b(sic) Returning Officer in declaring the first resp(sic) elected in preference to the petitioner for the (sic)ral seat valid according to S. 54 of the Representation of the People Act, 1951?

(4) Is S. 54 (4) of the Representation (sic) People Act 1951 ultra vires, illegal and v (sic) being opposed to the provisions of the Consti(sic) Is the petitioner entitled to raise this plea a(sic) the Election Tribunal no jurisdiction to entert(sic) same?

(5) Whether the result of the election (sic) first respondent has been materially affected (sic) compliance with the provisions of the Cons(sic) of India, viz., Part III of the Constitution (sic) particular Arts. 14 and 15 of the Constitution.

(6) Whether Dippala Suri Dora is a K(sic) and not a member of the scheduled tribe as(sic)ed by him and whether his nomination t(sic) not valid?

(7) Whether the petitioner is estoppe(sic) questioning first respondent''s nomination as(sic)duled tribal candidate in view of the petition (sic) having raised the objection at the time of t(sic) tiny of the nomination?

(8) To what relief or reliefs, if any, is t(sic)tioner entitled?

Evidence documentary and oral (sic) by the parties. On a consideration of the e(sic) the Tribunal has held that the nomination (sic) contest by Sri D. Sua Dora was for the (sic)at, that S. 54 was superfluous after the Delimita-(sic)lon Act of 1952, that the Section was opposed to (sic)rts. 14 and 330 of the Constitution of India, that (sic)lustration to S. 54 (4) was opposed to the section, (sic)nat the result of the elections was materially affect-(sic)d by non-compliance with the provisions of the (sic)onstitution, that the respondent ceased to be a (sic)ember of the Scheduled tribe; that the declaration (sic) concerning the first respondent having been elected (sic) the general seat was void and illegal, that it was (sic)en for the Tribunal to go into the questions of (sic) altra vires; and that the petitioner was not disquali-(sic)d from being declared elected on the ground of (sic)s having been appointed Governor later.

In the result, the Tribunal allowed the petition of Sri V. V. Giri, declaring the election of the (sic)st respondent void and holding Sri V. V. Giri, the petitioner as duly elected. It is this order of the tribunal that is now challenged in appeal by Sri (sic)ppala Suri Dora.

Sri Ram Reddy, the learned counsel for the appellant has advanced various arguments. He has intended that the learned Judge has erred in hold-(sic) that the appellant has filed nomination paper (sic)y for the reserved seat, that separate nomination (sic) necessary, that a candidate who has not filed (sic)omination paper for the general seat could not (sic) declared elected to the seat after the pass-(sic) of the Delimitation Act, 1952, the provisions (sic) S. 54 were superfluous, that S. 54 was opposed Arts. 14 and 330 of the Constitution, that the (sic)unal had the jurisdiction to decide ultra vires of (sic)54, that the appellant was not a member of the scheduled tribe, that the decision in the earlier election petition No. 7 of 1955 was not conclusive, that (sic) appellant had ceased to be a member of the scheduled tribe and that non-compliance with the provisions has affected the result of the election. He (sic) formulated the above points into the following (sic)tion form:

(1) Is the appellant''s nomination, campaign (sic) contest only for the reserved seat; even so, is (sic) the declaration that he is duly elected for the (sic)ral seat correct?

(2) Is S. 54 superfluous after the Delimitation (sic) 1952 and not applicable to the present case (sic) is the illustration opposed to section itself?

(3) Is it open for a Tribunal constituted under (sic)ct to declare the provisions of the Act as ultra (sic) If not, can the High Court sitting in ap-(sic)over the Tribunal''s judgment, having the same (sic)rs, do so?

(4) If S. 54 is found applicable, and if it is (sic) for the Tribunal and the High Court to go (sic) the question of vires, is S. 54 opposed to Arts, (sic)d 330 and S. 8 of the Delimitation Act and is (sic) in any case saved by Art. 15 (4)?

(5) Has the Tribunal jurisdiction to decide that (sic)ination was improperly accepted on grounds, (sic) could have been raised but not raised before (sic) Returning Officer?

(6) Granted that there is non-compliance of the (sic) is provisions of the Act and rules, has the (sic) compliance materially affected the result of the (sic) on?

(7) Was riot the Tribunal bound by the earlier (sic) on in Election Petition No. 7/55 that the ap-(sic)t was a scheduled tribes man?

(8) Did the appellant cease to be a Mukka (sic) on the nomination date?

(9) Even if he had ceased to be a member of (sic) filed tribes, could he not be declared elected (sic) Central Seat?

(10) Even if the appellant''s election is void, could the first respondent be declared as duly elected?

(11) Is the first respondent entitled for the declaration even after the supervening disqualification in view of his having become a Governor?

Shri Namhiar, the learned counsel for Shri V. V. Giri has contended that the Tribunal had rightly held the appellant''s nomination and campaign to be only for the reserved and not for the general seat. He has further contended that the Tribunal had rightly held separate nomination for every seat to be necessary, under Ss. 32 and 33 of the Representation of the People Act. Adverting to argument relating to S. 54 (4) and its.illustration, he has contended that S. 54 (4) was not only opposed to Arts. 14 and 330 of the Constitution, but that it had become superfluous after the Delimitation Act of 1952. It is further urged that illustration to. S. 54 (4) was opposed to the Section. As regards the question whether it was open for the Tribunal to go into the Section being ultra vires, he has contended that it was within the Tribunal''s competence to decide.

Adverting to the argument relating to non-compliance with the provisions of the Constitution, it is contended on behalf of the first respondent that non-compliance thereof had materially affected the result of the election. As regards the question whether the appellant was still a member of the scheduled tribe, it has been argued that having regard to the appellant''s declaration and the materials on record, the Tribunal has rightly held the appellant as having ceased to be a member of such a tribe.

As regards the disqualification of Shri V. V. Giri due to his later having become a Governor, it is contended that the Tribunal has rightly held that at the time when the election took place he was not a Governor and by his becoming a Governor later, he was not disqualified from being declared elected. Lastly, it is contended that the legislature cannot disregard the constitutional qualification of the seats into general and reserved, a candidate has to be declared elected either to a particular general seat or to a reserved seat, and an essential prerequisite for the election to a particular general seat is the filing qf a valid nomination to that particular seat.

In this connection, the learned Counsel for The first respondent has drawn bur attention to Arts. 81, 82, 84, 101, 326, 327, 329 and 330 of the Constitution as well as to Ss. 32, 33, 36, 53, 54 and 55, R. 68 and Form 24 of the Representation of the People Act.

In order to appreciate the view.points involved, it is necessary to refer to the relevant Articles, of the Constitution and the relevant provisions of the Representation of the People Act. I would first refer to the relevant Articles of the Constitution. Composition of the House of the People is provided by Art. 81 which reads:

Article 81:

(1) Subject to the provisions of Art. 331, the House of the People shall consist of

(a) Not more than five hundred members chosen by direct election from territorial constituencies in the States; and

(b) Not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide.

(2) For the purposes of sub-cl. (a) of Cl. (1)-

(a) there shall be allotted to each State a number of seats in the House of the People in such, manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States; and

(b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State.

Article 84 refers to the qualification for membership of Parliament and reads thus:

Article 84: "A person shall not be qualified to be chosen to fill a seat in Parliament unless he-

(a) is a citizen of India;

(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of seat in the House of the People, not less than twenty five years of age; and

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.

Article 325 provides one joint electoral roll for every constituency for election and is as follows:

There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.

Article 326, directs the elections to be on the basis of adult suffrage and provides:

The elections to the House of the People and to the Legislative Assembly of every state shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

Article 327 of the Constitution relates to the power of Parliament to make provision with respect to elections to legislatures and enacts:

Subject to the provisions of this Constitution Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due Constitution of such House or Houses.

Article 330 pertains to the reservation of seats for the Scheduled Castes and Scheduled Tribes in the House of the People and is to the following effect:

(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 Tribal areas 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 Cl. (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 ar(sic) so reserved, bears to the total population of the (sic) State or Union territory.

It is clear from these Articles that (sic) have no separate electorates, based on religion, rac(sic) caste or sex; but joint electorates; and the vote (sic) are to elect directly members to the House of t(sic) People. For this purpose States are divided (sic) formed into several territorial constituencies ar(sic) the number of members to be allotted to each co(sic) stituency is determined according to its population.

It follows that the Constitution has treated ea(sic) adult-Indian in the Country as a citizen, witho(sic) taking into consideration his or her caste, cree(sic) religion etc. He or she is a voter, because he (sic) she is a citizen of India and not because the person belongs to any caste or any community, (sic) further follows that a member of the Scheduled Caste or Scheduled tribe is an elector and can (sic) a member of Parliament, there being no distinct(sic) between him and any other person not belong(sic) to the Scheduled caste or tribe.

Moreover, if the voters of constituencies (sic) desire, all the members to the House of the Peo(sic) can belong to the scheduled castes and scheduled tribes. But the scheduled tribes and Scheduled castes were backward in education and their economic conditions were so bad that they could (sic) come up to the level of other citizens unless s(sic) provision was made to help them to come up (sic) that level.

It is on this basis that the provision contained in Art. 330 was made for them in the Constitution. It only means that the Constitution secured for (sic) Scheduled Castes and Scheduled Tribes the minimum number of seats according to their population. The Constitution has not created any separate (sic)torates for them by reserving the seats for t(sic) nor has it created any separate constituencies (sic) them. It therefore does not preclude them (sic) getting more seats as citizens of India.

The two Acts of Parliament that deal (sic) the allotment of seats and fixing the number of (sic) served seats as also other matters pertaining to (sic)tion are the Representation of the People Act, (sic) (Act 43/51) and the Delimitation Commission (sic) of 1952 (Act 8W52). We would first refer to (sic) relevant provisions of the Representation of (sic) People Act. Section 4 refers to the qualification for membership of the House of the People (sic) says:

A person shall not be qualified to be ch(sic) to fill a seat in the House of the People.....(sic) unless

(a) In the case of a seat reserved for Scheduled Castes in any State, he is a member of a(sic) Scheduled Castes whether of that State or any (sic) State, and is an elector for any Parliamentary constituency.

(b)....

(c)....

(d) In the case of any other seat, he is an (sic)tor for any Parliamentary Constituency.

Section 7 relates to the disqualification for membership of Parliament or of a State Legislature, S. 32 provides for the nomination of (sic) dates for election and reads thus:

Any person may be nominated as a can(sic) for election to fill a seat if he is qualified (sic) chosen to fill that seat under the provisions (sic) Constitution and this Act.

Section 33 dials with the presentation (sic) nomination paper and requirements for a (sic) nomination. Clause 1 of that Section provi(sic)

On or before the date appointed under Cl. (a) (sic)S. 30, each candidate shall either in person or (sic)his proposer between the hours of 11 O''clock in forenoon and 3 O''clock in the afternoon deli(sic)to the Returning Officer at the place specified (sic) this behalf in the notice issued under S. 31 a nomination paper completed in the prescribed form (sic) signed by the candidate and by an elector of (sic) Constituency as proposer.

(sic)use (2) of that section runs:

In a constituency where any seat is reserved, candidate shall not be deemed to be qualified to (sic) chosen to fill that seat unless his nomination (sic)er contains a declaration by him specifying the (sic)icular caste or tribe of which he is a member (sic) the area in relation to which that caste or (sic) is a scheduled caste or, as the case may be, Scheduled tribe of the State;.....Sub-section (6) of that Section runs as follows:

Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper for election in the same Constituency.

(sic) on 34 relates to the question of deposits and (sic) the following effect:

(1) A candidate shall not be deemed to be (sic) nominated for election from a constituency (sic)s he deposits or causes to be deposited-

(a) In the case of an election from a Parlia-(sic)ary Constituency, a sum of Rs. 500, or where (sic) candidate is a member of a scheduled caste and Scheduled tribe a sum of Rs. 250/-;....

Section 36 deals with the scrutiny of the (sic)ations. S. 55, which refers to the eligibility (sic)e members of the Scheduled caste or Scheduled tribe to seats not reserved for those castes or (sic) enacts:

For the avoidance of doubt, it is hereby de(sic) that a member of the scheduled caste or of the Scheduled tribe shall not be disqualified to hold (sic)t not reserved for the members of this caste (sic)be, if he is otherwise qualified to hold such (sic) under the Constitution and this Act.

Section 54 lays down the special proce-(sic)it elections in the constituencies, where seats reserved for scheduled castes or scheduled tribe sub-s. (1) thereof runs thus:

The provisions of this section shall apply in (sic)n to any election in a constituency, where the (sic)o be filled include one or more seats reserved for the scheduled castes or for the scheduled tribes (hereinafter referred to as reserved seats'').

The relevant provision of this section (sic) applies to the present case is "sub-s. (4) and (sic) follows:

(sic)f the number of contesting candidates quali-(sic) be chosen to fill the reserved seats exceeds (sic) member of such seats and the total number of (sic)ing candidates also exceeds the total number (sic) to be filled, a poll shall be taken; and after (sic) has been taken, the Returning Officer shall (sic)clare those who, being qualified to be chosen (sic)the reserved seats, have secured the largest (sic) of votes, to be duly elected to fill the reserved seats, and then declare such of the remaining candidates as have secured the largest number (sic)s to be duly elected to fill the remaining (sic)ion to this sub-section is to the following (sic).

(sic)istration: "At an election in a constituency (sic) our seats of which two are reserved, there (sic) contesting candidates A B C D E and F (sic)y secure votes in descending order. A securing the largest number, B, C and D, are qualified to be chosen to fill the reserved seats, while A, E. and F are not so qualified. The Returning Officer will first declare B and C duly elected to fill the two reserved seats and then declare A and D (not A and E) to fill the remaining two seats

We would next refer to the provisions of the Delimitation Commission Act, 1952. Section 8 deals with the manner of making readjustment and. delimitation. S. 8, Cl. (2) which is relevant for the present case provides:

(a) All constituencies shall be either single member constituencies or two member constituencies;

(b) Wherever practicable, seats may be reserved! for the scheduled castes or for the scheduled tribes in single member constituencies;

(c) In every two member constituency, one seat shall be reserved either for the scheduled castes or for the scheduled tribes, and the other seat shall not be so reserved.

In the light of these provisions, we will now proceed seriatim with the arguments of the learned counsel for the appellant and the first question that falls for determination is whether the nomination, campaign and contest of the appellant was only for the reserved seat

Rule 4 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, which deals with the form and language of the electoral rolls runs thus:

Electoral roll for each constituency shall be prepared in such form and in such language or languages as the Election Commission may direct.

In pursuance of the said Rule, nomination of a candidate has to be in Form 2 (A). One portion of the Form has to be filled by the proposer nominating the candidate. The other portion has to be filled by the candidate accepting the nomination. This form further contains a provision for the declaration in the case of a nomination filed by a member of the scheduled caste or scheduled tribe that he must declare himself a member of such caste or tribe.

It is pointed out that there need not be a separate form of nomination for a reserved seat or for other seat and that a common form is used for both. It is not denied that the appellant could be nominated as a candidate for election to any of the two seats in the constituency, but the contention is that if a candidate contests for the reserved as well as the general seat, there should be thus separate nomination papers, one for the reserved and the other for the seat which is not reserved. In the instant case, admittedly there is only one nomination paper, Ex. P-1 (A) dated 28-1-1957. It begins with the words:

I hereby nominate Dippala Suri Dora as a candidate for election from the Parvathipuram (reserved) Parliamentary Constituency.

There are two other nomination papers, Exs. P-1 (b) and P-1 (c) proposing the name of the appellant for election in terms similar to Ex. P-1 (A) The contention of the appellant is that the nomination is filed only with respect to a constituency and not with respect to a particular seat. It is further contended that the nomination and contest of the appellant was not only for the reserved seat and there is nothing in the nomination paper to exclude his application to the general seat, for which, the appellant was admittedly qualified.

The contention of the other side is that the appellant was not only in fact nominated as a candidate to fill the reserved seat, but his campaign & con- test was all along for the reserved seat, that he presented the nomination paper for the reserved seat and paid the concession deposit of Rs. 250/-. The argument is that Exs. P-1 (A), P-1 (B) and P-1 (C) dispel any doubts arising from the form of nomination paper that it does not provide for the nomination for any particular seat, inasmuch as the appellant by his nomination paper has clearly expressed that he is standing for the reserved seat.

Excepting for the word ''reserved'' appearing in Parvathipuram (reserved) Parliamentary Constituency'', there is nothing in the Form to indicate that the candidate was contesting for the reserved seat alone. ''Further reliance is placed on Exs. P-15 and Ex. P-l6 to show that the appellant had contested for the reserved seat alone.

Ex. P-15 is the hand bill requesting the voters to give their votes to Shri Krishnamurthy for the general seat and to Shri D. Suri Dora for the reserved seat. Ex. P-16 is a wall poster to the same effect. On the assumption that these documents show the campaign and propaganda on behalf of the appellant to have been carried for his being candidate to the reserved seat, the other question that falls for consideration is whether on the appellant''s failure to be elected for the reserved seat, the nomination paper by him could be accepted as one for the general seat, for which he was eligible also and whether he could be declared elected to that seat as has been done by the Returning Officer.

The allotment of symbols does not carry the matter further. So also, the declaration by the appellant in the nomination form that he belongs to the scheduled tribe; for, the contention of the appellant is that since there is no specific provision in the Representation of the People Act that there should be a separate nomination for a reserved and unreserved seat, there is no bar for his being declared elected to the general seat if he succeeds in polling the highest number of votes.

It is contended against this argument that conceding that the appellant was eligible for general seat, since he had not filed a separate nomination paper, which is necessary under the provisions of the Representation of the People Act, the Returning Officer could not have declared him elected for the general seat.

Therefore, it becomes necessary to ascertain whether such a separate nomination paper is necessary under the provisions of the Representation of the People Act. The Tribunal relying on Ss. 32, 33, 34, 35, 54 (4) has held that a separate nomination paper is necessary. Section 32 deals with the nomination of a candidate for election.

The contention is that though it deals with the nomination of a candidate for election, yet the nomination could be only to fill ''a seat'' and that seat may be ''reserved'' or it may be the other seat. It is urged that it contains a declaration for the reserved seat and it would not amount to the candidate having applied for the two seats, because it is doubtful whether a person can apply for two seats in the same constituency.

The idea in our opinion, is not for applying for two seats, but for applying for one seat or the other. In other words, it is ''either'' ''or'' and not both. S. 33 (1) and (2) which provide for filing of nomination paper and a declaration specifying a particular case or tribe would mean not that the nomination paper will be invalid for the seat which is not reserved without the declaration, but that for making it valid for a reserved seat it must contain a declaration.

Sub-section (6) of S. 33 which provides (sic) more than one nomination paper applies to a sin (sic) member constituency also and a candidate can h(sic) more than one nomination paper. S. 33 has to (sic) read as a whole and its Cl. (2) clearly shows t(sic) there can be one application for either of the t(sic) seats, reserved seat and the seat which is not (sic) served. In short, the candidate can say, he is qualified for the reserved seat as well as the seat whether is not reserved and he wants to get elected for (sic) of the two according to the will of the voters.

It is not denied that the appellant can do (sic) but the contention is that he must file two sepa(sic) nomination papers for it. The form of the n(sic) nation paper that has been prescribed is for ei(sic) of the two seats and to us also it appears to(sic) the correct form. If as it is urged that mere sh(sic) be two separate forms, it would amount, to (sic) that the candidate who is contesting for the (sic) served seat as well as the general seat will (sic) to file the two forms that he is seeking the ele(sic) for either of the two seats.

That is what exactly the present form is (sic) accepting these two provisions, we could not (sic) any direct provision to the effect that there sh(sic) be separate nomination papers in the same constituency for the reserved as well as the unreserved seat. The learned Counsel for the respondent rightly conceded that there was no specific (sic)sion, but relying on the word ''a seat'' used in va(sic) provisions of the Constitution and the Representation of the People Act and the Constitutional classification of the seats has contended that (sic) essential, prerequisite for a declaration of an (sic)tion to a particular seat was the filing of a (sic) nomination paper for the particular seat.

In this connection, learned counsel drew (sic) attention to Arts. 81, 82, 84, 101, 119, 326, (sic) 328, 330 and Ss. 4, 32, 33, 36, 53, 54 and (sic) the Representation of the People Act, R. 68. (sic) 24 and Art. 101, sub-s. (c) (1) to (3). No dou(sic) the aforesaid provisions, the word ''seat'' is use this does not advance the argument of the learned counsel any further.

We are doubtful whether a candidate ca(sic) (sic)ply for two seats in the same constituency, b(sic) idea, as stated earlier, is not applying for two (sic) but applying for one seat or for the other; in (sic) words, it is ''either'' ''or'' but not both and a (sic) date can say T am qualified for the reserved (sic) well as the seat which is not reserved and (sic) to get elected for one of the two.

The Returning Officer has followed the (sic)dure laid down in S. 54 (4) of the Representation of the People Act, where seats are reserved (sic) Scheduled caste and a Scheduled tribe a(sic) declared the appellant elected for the gener(sic) The Tribunal has now accepted the view (sic) Returning Officer and has held that the (sic) of the Act seems to be that the r(sic) seat is treated as a separate entity and S. (sic) or its illustration was not applicable to (sic) where there was a reserved seat in the (sic) member constituency.

It has further held that S. 54 in its (sic) becomes superfluous after the Delimitation C(sic)sion Act of 1952 and the section does not (sic) serve any purpose. We are unable to acce(sic) view of the Tribunal for so long as double (sic) constituencies exist, S. 54 in its entirety ca(sic) held as having become a superfluity particu(sic) view of the provisions of sub-section 1 of (sic) which says:

The provisions of this section shall apply in (sic)lation to any election in a constituency where the seats to be filled include one or more seats reserved (sic)r the scheduled castes or for the scheduled tribes hereinafter referred to as ''reserved seats'').

It follows that the Section is applicable even where (sic)ere are two seats, one being reserved for the scheduled caste or for the scheduled tribe. There is nothing in the Delimitation Act which conflicts with the provisions of S. 54, because the former Act still shows two member constituencies where a seat is reserved for scheduled caste or for the scheduled (sic)e.

The next question that arises is whether the (sic)stration to S. 54 (4) is opposed to the section (sic)elf. The contention of the appellant is that it is (sic) opposed but is in conformity with the sub-section. On the other side, it is urged that the words ''remaining seats'' or ''remaining candidates'' in S. 54 (sic) must refer to those, who have not only been (sic) over after those who have been declared elect-(sic) but only such seats or candidates as pertain to (sic) non-reserved seats and the word ''remaining'' seat be read in the context and could only mean ''seat'' or ''candidate'' other than those reserved.

It is further argued that that could be the (sic)er and reasonable meaning to be put on the (sic)ds "remaining'''' and "remaining candidates" taking into account the scheme of the Act, where it (sic)sages to distinguish the categories of seats and (sic) distinct classes of candidates viz., reserved seat (sic) the remaining seat, and the scheduled caste or Scheduled tribe candidate who stood for the reserved (sic) and the other candidate who contested the other remaining seats.

We are reluctant to accept the contention of learned counsel for the respondent. The language of S. 54 (4) is clear and it does not admit the (sic)truction that is sought to be put upon it by (sic) respondent. Nor do we think the legislature has (sic)by shown any intention of departing from the (sic)ral rule that the person having secured the (sic)st number of votes should be elected after the reserved seat has been filled.

Illustration to S. 54(4) simply exemplifies the (sic)al idea conceived in S. 54 (4). We may at this (sic) point oat that the Tribunal has not accepted (sic) interpretation of sub-section, which is sought by the respondent. We therefore repel the contention (sic) illustration to S. 54(4) is opposed to the main (sic)sion. It is further contended on behalf of the respondent that if S. 54 (4) is made applicable and (sic)ation to the section is held not opposed to (sic) provision, the illustration and even clause (iv) (sic) 54 are ultra vires, illegal and void as being (sic)ed to the provision of the Constitution, in (sic)ular Articles 330 and 14 of the Constitution.

In other words it is contended that the appellant gets a chance to both the seats while the respondent gets a chance for only one seat which is reserved. We do not see any force in this (sic)ent. Article 330 of the Constitution does not (sic) a person belonging to the scheduled tribes (sic) seeking election for a seat which is not reserved a provision enabling him to do so is not (sic)able evasion of any constitutional provision.

The learned Counsel for the respondent admits (sic)int that the appellant can contest the elec-(sic)ut urges that he should file two applications (sic)two separate nomination papers. We have (sic)above that it is not necessary. Therefore (sic) no force in the contention that S. 54 (4) is (sic)d to Art. 336 of the Constitution, when it is admitted that a scheduled tribe candidate could compete for the general seat.

Article 330 only means that the Constitution has made provision for the scheduled caste or scheduled tribe by fixing the number of seats according to their population. We also do not find any force in the other contention that the provision offends Art. 14 of the Constitution. What is contended is that any legislation which has the effect of reducing the number of non-reserved seats by being filled by persons belonging to scheduled caste or scheduled tribes has the effect of infringing Art. 14 of the Constitution.

We are not prepared to accept this contention. Article 14 of the Constitution provides that a State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India and has been held not to exclude reasonable classification for the purpose of legislation. Discriminatory legislation is therefore not invalid provided it has a reasonable basis and has a rational relation to the object that is sought to be secured by the legislation in question.

We have not been convinced how Art. 14 which secures to a citizen equality before the law and equal protection of laws is infringed when a citizen is allowed the benefit of the general rule of being elected when he has secured the largest number of votes. Moreover, Art. 15 enjoins on the State that there could be no discrimination against a citizen on grounds of religion, race, class, sect or place of, birth or any of them, but Cl. (iv) of Art. 15 empowers the State to make special provision for socially backward classes of citizens or for the scheduled caste or for the scheduled tribe.

Therefore any special provision in favour of the scheduled caste or the scheduled tribes would have the sanction of the Constitution. What is contended is that under the colour of securing to the scheduled castes or scheduled tribe, the representation in the legislatures in proportion to the weightage of their population, the rights and interests of the sections or community who do not belong to the scheduled caste or scheduled tribe have been interfered with and thus there is discrimination. This argument is devoid of force.

The impugned provision has treated every person alike and there is no discrimination against any citizen on grounds of religion, caste or sect or place of birth or any of them. It has provided that each adult person as a citizen of India can be elected on his getting the majority of votes and there is nothing discriminatory therein. If such a person in addition to this common right has some other right, that is because the Constitution confers such a right on him.

In short, the Constitution has removed all distinctions of caste, creed or community but has allowed some advantages to members of scheduled castes or scheduled tribes. Therefore if the law allows him the right of contest, it cannot be held unconstitutional. If the voters of all the constituencies in the whole of India, so desire, all the members of the House of People can belong to the scheduled caste or scheduled tribe.

Article 330 of the Constitution means that the constitution secures for the scheduled castes or scheduled tribes the minimum number of seats according to their population and that does not prevent them from getting more seats as citizens of India. But for true exception there is no distinction between them and the other citizens. The Constitution has not created any separate electorate for them by reserving seats for them, nor has it created any separate constituency for them.

There is therefore, in our opinion, no discrimination, and the Returning Officer has rightly declared the appellant to be elected to the general seat.

In view of this finding, it is unnecessary for us to go into the other questions raised by the appellant i.e., whether it was open for the tribunal constituted under the Act to declare the provisions of the Act as ultra vires, whether the High Court sitting in appeal had the powers to do so, whether the Tribunal had jurisdiction to decide that a nomination was improperly accepted on grounds that were not raised before the Returning Officer, whether non-compliance with the provisions of the Act has materially affected the result of the election, but as the learned counsel for the parties have argued them at length, we would discuss them and give our finding.

There is no force in the argument of the learned counsel for the appellant that the tribunal was not competent to decide the vires of the provisions of the Representation of the People Act. The respondent Sri V. V. Giri had not contended that the entire Act was ultra vires, but a particular provision viz., S. 54(4) contravenes the provisions of the Constitution and has interfered with the fundamental rights guaranteed under it.

It is only when the entire Act is challenged that the Tribunal constituted under the Act would be without power to go into the question. The case relied upon by the learned counsel viz., V.M. Syed Mohamed and Co. and Another Vs. The State of Madras and Another, and The The Bengal Immunity Company Limited Vs. The State of Bihar and Others, do not help the contention of the learned counsel.

They state the general principle that it would not be open to contend before the Tribunal constituted under an enactment that the Act creating it is ultra vires as the Tribunal owes its existence to the enactment. As stated above, in the instant case it is only one of the provisions of the Act and not the entire Act that is challenged.

There is equally no force in the contention of the learned counsel for the appellant that the High Court has no power to decide the question of ultra vires in appeal having regard to the scope and the limitations. In this connection, our attention was drawn to S. 116A of the Representation of the People Act and S. 107 C. P. C, which deal with the powers of the appellate Court.

We may in this connection point out that the powers of the High Court sitting in appeal are not restricted and limited only to S. 107 or S. 116A. The High Court sitting as a Court of Appeal has got powers apart from the aforesaid provisions. To accept the contention of the learned counsel for the appellant amounts to this that neither the Tribunal nor the High Court can go into the question of the vires of the Act.

It would follow therefore that that question has to be left undecided and the part challenging the vires of the provisions has to go without any redress. On our questioning the learned counsel for the appellant whether that was the correct position, he in reply stated that though the respondent could not challenge the vires of the Act under Art. 226 or 227 of the Constitution of India, still he can move the Supreme Court under Art. 136 of the Constitution of India.

We are doubtful whether this is possible. But we do not wish to enter into a. detailed discussion as we are of the opinion that the High Court has powers to go into the question. The case relied i(sic) Karuppayya Nadar through his authorised agent Ratnasami Nadar Vs. Ponnuswami Nadar and Another, This is an appeal under Letters Patent and the question arose whether the High Court has power to grant an injunction under its inherent powers in cases not governed by O. 39, C. P. C.

It was held that in light of S. 21 of the Letters Patent, the High Court has got power to grant any injunction. With due respect to the learned Judges, we do not agree with this view.

We next turn to the argument whether the Tribunal had jurisdiction to decide that a nomination was improperly accepted on the ground then it could have been raised but not relied before the Returning Officer. In this connection, we may point out that Issue No. 7 was framed by the Tribunal for this purpose and it appears from the order of the Tribunal that the appellant''s counsel gave up the issue.

When the issue was given up, we fail to understand how this point can be argued again in appeal. The learned counsel for the appellant has contended that the question raised was a legal one and the mere fact that the counsel for the appellant (sic) not urge that point in the lower Court would (sic) act as an estoppel. It is further urged that the appellant was not estopped from urging this p(sic) as an additional ground in the appeal.

It is no doubt true that on questions of l(sic) there cannot be any question of estoppel and (sic) appellant can raise this as a ground of object (sic) in the appeal, but when the appellant as a ma(sic) of fact had given up this point, he cannot, in (sic) opinion, be allowed to agitate the same. We therefore repel the contention and we do not wish to go into a detailed discussion on the question.

The decision in G. Raja Nainar v. Velusw(sic) Thevar, W. P. 675 and 676 of 1957: (AIR 1958 (sic) 198) (D), decided by a Bench of the Madras (sic) Court on 21-10-1957 does not help the conten(sic) of the learned counsel because that was a (sic) where the learned Judges were discussing the (sic)tion of a candidate whose nomination was rejected and that was not a case of the returned candidate whose nomination was improperly accepted.

It follows therefore that so far as the poin(sic) question is concerned, this has not been consid(sic) by the Bench.

The next question that has to be d(sic) mined is whether there has been non-compliance with the various provisions of the Acts and (sic) and if so has it materially affected the result. (sic) noncompliance alleged is that only one nomination paper was filed when the Act provides that (sic) should be separate nomination papers for sep(sic) seats.

We have already held that there is no sp(sic) provision in the Representation of the People (sic) for filing of separate nomination papers. So (sic) question of non-compliance does not arise. (sic) conceded on behalf of the parties that mere (sic) compliance of the provisions is not sufficient (sic) it is shown that non-compliance has materially affected the result of the election.

What meaning has to be given to the (sic) "materially affected" has been the subject of (sic)ous judicial decisions. It depends on the fact(sic) each case. In the case of Vashit Narain Sharma Vs. Dev Chandra and Others, their (sic)ships of the Supreme Court have held that words "result of the election has been materially affected" indicate that the result should n(sic) judged by the mere increase or decrease in the (sic) number of votes secured by the returned cand out by proof that the votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.

It is further observed that it cannot be held that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner.

Should the petitioner fail to adduce satisfactory (sic)dence to enable the Court to find in bis favour (sic)e inevitable result would be that the Tribunal could not interfere in his favour and would allow (sic)e election to stand.

In another case, Jumuna Prasad Mukhariya and Others Vs. Lachhi Ram and Others, it has been observed (sic) their Lordships that it must be proved that but (sic) the votes obtained by the returned candidates (sic) corrupt or illegal practices......such other candidate would have obtained a majority of valid (sic)es.

Yet in anther case, T.C. Basappa Vs. T. Nagappa and Another, (sic) the question as to what meaning should be en to the words "materially affected" came up (sic) consideration. Dealing with the point, Mukerjee (sic) as he then was, observed at page 264 (of SCR): (sic) p. 446 of AIR) thus:

There was evidence undoubtedly to show (sic)t some of the voters went away as the polling (sic) not commence at the scheduled time, but the (sic)ct number of these persons is not known and (sic)re could not be any positive evidence to show (sic)to how many of them would have voted for the (sic)ellant.

If the Tribunal had on basis of these facts (sic)e declared the appellant to be duly elected, candidate, holding that he could have secured more (sic)s than respondent-1, obviously this would have (sic) an error apparent on the face of the record, (sic) such conclusion would rest merely on surmises (sic) nothing else.

It follows from this that an Election Tribunal (sic)ld not act on surmises, but its conclusion should (sic) on positive evidence.

In the case of Vinjamuri Parthasarathi Vs. P. Ramachandra Rao and others, identical question had arisen and a (sic) Bench of the Andhra High Court held:

In order to invalidate the election the petitioner has to prove how many of the voters have (sic) complied with the terms of rule 17 and how (sic) result of the election has been materially affected thereby.

(sic)ng on these authorities, it is contended on (sic)f of the appellant that in the absence of any (sic) on behalf of the respondent, Sri V. V. Giri (sic) he would have secured more votes, had the (sic)llant not given a false declaration, it cannot (sic)id that the result of the election has been materially affected.

It is no doubt true that if the party challeng-(sic) (sic)he declaration comes forward with the allega-(sic) of mal-practices and such other acts, the bur-(sic)f proof is on that person and unless he proves (sic)ad it not been for the mal-practice, he would secured more votes, he would not have suc-(sic)d and it could have been then said that the (sic) of the election was not materially affected.

But in the instant case, the challenge is not on any mal-practice but non-compliance with the provisions of an Act. If the respondent succeeds in establishing the non-compliance in other words, if the respondent had succeeded in proving, that separate nomination paper was necessary, the declaration of the Returning Officer that he is elected for the general seat would naturally amount to materially affecting the result which deprives the respondent from being declared elected.

In this view of the matter, we do not wish to enter into a detailed discussion of the authorities cited by the learned counsel for the appellant.

The next important question that arises is whether the appellant ceased to be a Moka Dora on the nomination date. Issue 6 related to this. Evidence was led by the parties and the Tribunal on the evidence has held that the appellant and his family had cut themselves away from the Moka Dora hill-tribes and given up their ordinary avocation as well as the tribal customs and manners and has ceased to be a member of the scheduled tribe and for all practical purposes was acting as a Kshatriya on the date of his nomination.

This issue arises "from the allegation by the respondent Shri V. V. Giri that the appellant declared himself to be a member of the scheduled tribe of Mokka Doras in his nomination paper, whereas in fact he was not and is not a member of any scheduled tribe and was a Kshatriya. The appellant denies that he has ceased to be a Moka Dora and was a Kshatriya. The burden was on the respondent.

He has relied on a number of documents filed on his behalf and on the oral testimony of P. Ws. 3, 8, 10, 11, 15, 16, and 17. As against this the appellant also has filed a number of documents and has examined a number of witnesses including himself. It is unnecessary for our purpose to go into the question of the origin of caste in Hindu Society and conversion of a person belonging to one caste to another within the fold of Hindu Society, but we would concentrate our attention on the question as to whether a member belonging to a scheduled tribe could cease to belong to that tribe.

The Tribunal has not only gone into this question but has considered the other aspect also that a member of a scheduled tribe or a scheduled baste can raise himself to the status of a Kshatriya and become a Kshatriya by adopting their manners and customs. The learned counsel for the respondent also had advanced the argument, but we think it is unnecessary for our purpose to go into that question and discuss that aspect. We therefore confine ourselves to the point in issue viz., whether the appellant has ceased to be a member of Moka Dora. The documents relied upon are Exs. P-4. P-7, P-8, P-9, P-10, P-11, P-12, P-13. P-19. P-21. P-23, and P-24.

Ex. P-4 is the national register, where he is mentioned as belonging to the Kshatriya caste. Exs. P-7 to 9 are voters'' lists, where the appellant is described as a Kshtriya. Exs. P-10 and P-11 are loan application and security bond Respectively wherein the appellant describes himself as Kshatriya. Ex. P-19 is an agreement entered into with the Government Agriculture Department executed as late as 1956 wherein he describes himself as a Kshatriya. Ex. P-21 is the mining lease obtained by the appellant in 1953 where he describes himself as a Kshatriya. Ex. P-23 is a certified copy of the appellant''s deposition before the Sub-Divisional Magistrate of Parvathipuram where his caste is shown as ''Kshatriya''. Ex. P-24 is the certified copy of the mortgage bond dated 30th June 1948 where again the appellant has described himself as a Kshatriya.

As against this documentary evidence of the respondent, there are a number of documents filed on behalf of the appellant wherein he and his ancestors are described as Moka Doras or Honda Doras. Some of the documents are ancient documents, R-3 to R-9 being of the years 1885, 1895, 1892, 1894, 1897 and 1900 and 1912 respectively. Apart from the ancient documents there are other documents filed on his behalf viz.. R-13, R-14 and R-15 which are extracts from the suit registers in O. S. 417/1892, 397/36 and 49/32 respectively, where the appellant''s father and brothers are described as Moka Doras.

Yet other documents R-17, R-18 and R-19 possessory mortgage deeds of 1912, 1910 and 1911 also describe the appellant''s ancestors as Moka Doras. Ex. R-20 an extract from the Death Register also shows the elder brother of the appellant as a Moka Dora on 25-3-1941. R-2 the Admission Register of the Elementary School of Thenam village, Sariki Taluk shows that the appellant was admitted as pupil in the school in 1926 and his caste is mentioned as Moka Dora.

The documentary evidence produced on behalf of the appellant shows that from l885 upto the date of the election, the appellant belonged to the Moka Dora tribe. The documents of the respondent which date from 1928 show that the appellant and his family members as Kshatriyas. The respondent has not hied any documents prior to 1928.

If the documents of the respondent are taken into account, it would follow that it covers only a period of about 30 years i.e., from 1928 onwards showing the appellant and the family members as Kshatriyas. It follows therefore that prior to 1928 the appellant was a Moka Dora. The documentary evidence of the parties being conflicting on the basis of that alone, it is difficult to come to any conclusion.

Now we have to see whether the oral evidence produced on behalf of the parties is sufficient to establish that the appellant ceased to be a Moka Dora. The oral evidence relating to this consists of the depositions of P. Ws. 3, 8, 10, 11, 15, 16 and l7. P. W. 3 is a non-gazetted Tahsildar of Jaipur. He proves the register endorsement in Exs. P-12 and P-13 and says to his knowledge the first "respondent was a Kshatriya & that he has been observing the customs and manners of Kshatriyas of Pachipenta, In cross-examination, he says that the Dippala family belong to the Kshatriyas caste and not Moka Doras and Moka Dora family owns Mukasa of Sanki. These mukasas call themselves as Kshatriyas. The witness admits that he is not aware of the customs distinguishing the two communities excepting that the ladies of Moka Doras come out and work and Kshatriya ladies do not come out.

He further admits that he has not attended any religious ceremonies of cither of these two families. P. W. 8 was the Diwan of Salur and the Chairman of the Municipality. He is admittedly a Kshatriya. He says that the zamindars of Pachipenta Thonam and Mamidipalli are Kshatriyas and speaks of the marriage relationships between those families and that of the Kshatriyas and the families of Chikati, Darkota and other families.

He speaks of the manners and customs of the Kshatriyas and says that Moka Doras do not wear sacred thread, upanayanam is not existent among Moka Doras, pollution is observed during the child birth and death and marriage ceremonies are reduced to one day and those are not observed among the Moka Doras. He goes on further an (sic) says that Kshatriyas have Brahmin priests who off (sic)ciate during religious ceremonies, but Moka Dora (sic) do not have their priests but have their own hea(sic) men who act as priests.

He speaks of the relationship between Jalam(sic) and Pachipenta families. In cross-examination (sic) says he does not know any girl of Talmuri family married to Dippala family, and he does not know the ceremonies of any family of Moka Dora cas(sic) and that he has not gone to Moka Doras hour(sic) since he had no need to go, that no girl of Dippala was married to his family as they belong to the same Gotra.

He says further that Thyada, Pasupetty family, Ganathnri family, Dippala family are not Mo(sic) Doras, that all of them previously were mukasada before their estates were abolished by legislation P. W. 10 is an Abkari contractor. He says that he knows the appellant as a Kshatriya because he w(sic) related to Pachipenta and Mamidipalli families. P. W. 11 is a member of the old zamindar of Pachipenta.

He speaks of the relationship of Thyadapu (sic)pati family consisting of Mamidiapally, Pachipe(sic) and Thonam families and die Kshatriya fami(sic) and Chikati, Takali and Yayapatnam etc. In cross examination, he says that some of the zamind(sic) were Kouda Doras and Moka Doras, but they (sic) themselves Kshatriyas because they are zaminc(sic) though they do not own any estate.

He further says that the Zamindar of Thon(sic) is related to him and a Kshatriya of the Pachipenta family. P. W. 15 refers to the inter-marriage between the several families some, of whom were originally Moka Doras, but later recognised as Khatriyas with the Kshatriya families. P. W. 16 i(sic) brahmin purohit who says that he is a purohit (sic) the appellant''s family and he speaks of the appellant family adopting Kshatriya customs and no(sic) Moka Doras and observing pollution etc.

He further says that they wear sacred thr(sic) and perform homams in marriage. He admits (sic) he has not officiated as purohit Tor any Moka D(sic) P. W. 17 is a relation of the zamindar of Salur(sic) is admittedly a Kshatriya. He says he knew (sic) appellant and the sister of the appellant was m(sic) ed to his wife''s brother and the appellant''s se(sic) daughter was given in marriage to his other brother-in-law. He also says that Moka Doras were d(sic) road work and bringing fire-wood, but he has (sic) gone to attend any function in the Moka (sic) family.

Against this evidence of the respondent, (sic) appellant has exarqined R. Ws. 1, 2, 3, 5, 7 (sic) himself on the question as to whether he w(sic) Moka Dora or not. P. W. 1 who is a Moka (sic) states that the appellant was a Moka Dora and (sic) witness''s maternal uncle''s daughter was give(sic) marriage to the appellant''s elder brother Gang(sic) Dora. Then he speaks of customs, he says that(sic) was wearing a sacred thread and some of (sic)bers of his community were wearing sacred th(sic).

But in cross-examination when he was (sic) to point out the sacred thread he said he di(sic) wear it and said wealthy people wear sacred t(sic) in the community and poor people do not. H(sic) (sic)ther admits that he did not attend any marriage (sic) dinner in the house of the appellant. R. W. (sic) also a Moka Dora who says that his daughter the wife of the appellant''s brother, but in (sic) examination, he corrects himself and says t(sic) was his brother''s daughter and not his own daughter. He further says that

for the last 40 or 50 years mukasadars who (sic) themselves Moka Doras do not mix with us, nor (sic)e and dine with us or do they marry.

R. W. 3 is a Konda Dora. He says that (sic)kasadars of Thonam, Sariki, Kurukuti, Dandi-(sic) Mamidipalli and Pachipenta are Moka Doras (sic) there is difference in the manners and customs between Konda Doras and Moka Doras. He is a (sic)ol Manager and speaks of the admission of (sic) appellant and says that the appellant''s family (sic) adopting the same old customs. R. W. 5 is a Kshatriya and he says he came in contact with the appellant but did not attend the marriage function (sic) his family. He says there is no relationship between Moka Doras and Kshatriyas. In cross-examination, he speaks of the appellant wearing sacred thread, that his brother also (sic)s sacred thread, that they began to wear it (sic) the time of the marriage. R. W. 7 is a (sic)asadar or Kurukutti and is a Moka Dora. He (sic) that the appellant was his mother''s brother (sic) not related to Kshatriyas. He speaks of the (sic)ms of the Moka Doras and says that Suri Dora (sic)s sacred thread from the time of their ances-(sic) and his family followed Moka Doras customs (sic)hat Kshatriya families also wear sacred thread. He also speaks about the marriage of the appellant with the sister of Mukasaar of Mamidipalli. (sic) appellant in his statement deposes that he is a Mokadasar of Sariki, that he is a Moka Dora by (sic) and a hill-tribe and that Mokasadars of Nandi-(sic) Mamidipalli, Kurukuti are within the Zamindar of Pachipenta and they are Moka Doras and (sic) Zamindar of Pachipenta is related to caste (sic) Korra Ontanadora.

He denies that he is adopting any of the man-(sic) and customs of Kshatriyas but sticks to his (sic)ibal custom. He admits that Salur, Chikati, (sic)re are Kshatriya families, but says there is no (sic)nship between them and the other zamindars. (sic)rther says that there is no caste distinction (sic)en Moka Doras and Konda Doras and the dis-(sic)n is in the economic status, (sic)o behalf of the appellant, it is contended (sic) he Tribunal itself accepted the deposition of respondent''s witnesses only to the extent of esta-(sic)g the relationship & as none of the witnesses (sic)t the appellant and his family members have (sic) up their custom and adopted the Kshatriya (sic)s this evidence, he urges, is not sufficient to (sic)that the appellant has ceased to be a Moka (sic).

(sic) is next contended that the respondent''s wit-(sic) say that the appellant and his family mem-(sic)e Kshatriyas because they have marriage con-(sic)s and relationship with Panchipeta and (sic)ipalli families, but admittedly both the families (sic) Moka Doras. Relying on the case of Maha-(sic) Kolhapur v. Sundaram Iyer, AIR 1925 Mad (sic), it is contended that caste is the result of (sic)nd not of choice or volition and though a (sic) may lose caste, he cannot by any act of (sic) to a higher caste.

(sic) further urges, mere performance of cere-(sic) which are performed by the twice-born (sic) would not elevate the scheduled tribe or (sic)ed caste man to the status of the twice-born It is next urged that even if the evidence (sic) respondent is taken at its face value, it only (sic)hat for the last 20 or 30 years the appellant (sic)d his family members were following the (sic) of Kshatriyas, but this period of 20 or 30 (sic) urges would not be sufficient to hold that appellants who were originally members of a tribe had accepted Hinduism and come within its fold.

In this connection, learned counsel drew our attention to the cases of AIR 1923 21 (Privy Council) and Chunku Manjhi and Others Vs. Bhabani Majhan and Others, . Lastly, it is urged that in the face of the President''s order and the earlier decision of the Tribunal, in Election Petition 7/55, that the appellant was a tribesman, it cannot be held that the appellant had ceased to be a member of the Moka Doras.

On behalf of the respondent, it is contended that admittedly P. Ws. 8 and 17 are Kshatriyas and they not only admit the appellant to be belonging to their fold, but mention various customs common to them. Relying on the Madras District Gazetteer, Vizagapatam, Vol. 1, P. 95, the Imperial Gazetteer of India, Vol. 1, Caste and Tribes of Southern India by E. Thuraton, Mayne''s Hindu Law, 11th Edition, para 64 and the case of Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and Others, , it is contended that it is not correct to say that caste is the result of the birth and not of choice or volition, and a member of a ''scheduled'' tribe or a scheduled caste can by adopting the manner and customs rise in status of the twice-born class.

Adverting to the argument relating to the President''s order and the earlier decision in the Election Petition, it is contended that the President''s order is based on the declaration of the appellant himself and the respondent not being a party to earlier Election Petition 7/55 the President''s order and the earlier decision will have no effect.

It is universally acknowledged that caste-is the result of birth and not of choice or volition. The mere performance of a ceremony which is performed by the twice-born class would not elevate a Sudhra or the fourth class with the status of a twice-born class, but it may be said that as times are changing and there is very little importance to caste or creed and there is a tendency to inter-mix or intermarry this thing may disappear.

We do not deny that it is possible that a member of a scheduled tribe may in course of time adopt certain customs and practices in vogue among the Hindus, but in order to bring them within the fold of Hinduism it would take generations. Even if they come within the fold of Hinduism, question would arise whether they have formed separate sect among themselves, or they would belong to the 4th class, or to the twice-born class.

This will again depend on circumstances and different considerations. That apart the mere performance of the ceremonies or adopting the ceremonies would not be enough to remove them from the fold of the original tribe unless, as has been observed by their Lordships of the Supreme Court in Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and Others, reactions of the old body, the intentions of the individual himself and the rules of the new order are shown.

It is not disputed that originally the appellant belonged to Moka Dora tribe. In order to prove that he ceased to be a member of that tribe, there should be first of all, evidence of intention, the reactions of the old body and that of the new body. Viewed in the light of these observations, the evidence discussed above, in our opinion, falls short of the test.

The evidence only discloses that for the last 20 to 30 years the appellant and his family members were following the manners and customs of the twice-born.

This alone, in our opinion, is not sufficient to hold that the appellant or his family members had ceased to be Moka Doras. There is no evidence of the reactions of the old tribe. There is also no evidence as regards the reactions of the new fold, excepting that some of the Kshatriyas recognise the appellant as Kshatriya. We can understand this if this has been the result of generations, but the acceptance of the appellant as a Kshatriya by one or two families would not in our opinion, be sufficient.

We therefore do not agree with the view of the Tribunal that the appellant has ceased to be a member of the Moka Doras. After this, the question whether he is recognised as a Kshatriya does not arise for consideration. In view of this, we do not also wish to go into a detailed discussion as to what was the origin of the appellant.

There is no force in the contention of the learned counsel for the appellant that the fact that the respondent has later become a Governor disqualifies him from being declared elected because the crucial period is the nomination time and admittedly the respondent was not a Governor then, but we need not discuss this point any further, as this question does not arise in view of the above discussion. The other contention also that if the appellant''s election is void could the respondent be declared elected becomes unnecessary.

We are therefore of the opinion that as two separate nomination papers were not necessary the declaration by the Returning Officer that the appellant was elected should stand.

The appeal is allowed with costs against respondent 1, the order of the Tribunal is set aside and that of the Returning Officer restored. Counsel''s fee Rs. 250/-.