Mohinderpal Singh Pakho vs Balvir Singh

V.S. Aggarwal, J.—Denzing Municipal Art Museum was very proud of its collection of art. Amongst them hung two paintings by famous artists, Breughel and Van Dyck, that is until the Breughel mysteriously fell off the wall in 1972. To the consternation of the museum staff, it was found that it was not the famous original, but a picture cut from a magazine. After a panic examination, it was found that the Van Dyck was also reproduction from a magazine.

It remained a mystery as to when the pictures were switched, though a scientific examination of the frames and magazine cuttings showed that they had been hanging in the gallery for about 10 years before the theft was discovered. Indeed, these are some of the fantastic facts.

This, in fact, is the basic controversy in the present election petition filed by Mohinderpal Singh, hereinafter described as "the petitioner" against Balvir Singh s/o Nahar Singh, hereinafter described as "the respondent".

The relevant facts that give rise to the abovesaid controversy are that the Governor of Punjab u/s 15 of the Representation of People Act, 1951 (for short ''the Act'') issued a notification which was published in the official gazette of the Punjab State on 13.1.1997. On the recommendations of the Election Commission of India, all the assembly constituencies in the State of Punjab were called upon to elect the members in accordance with the provisions of the Act and all the rules and orders made thereunder. The last date for making the nomination was 20.1.1997. The date of scrutiny of nomination was 21.1.1997. The last date for withdrawal of the candidatures was 23.1.1997. The date on which the polls were to be held was 6.2.1997 and the date on which the election was to be completed was 12.2.1997. The Election Commission by a subsequent notification had changed the date of poll from 6.2.1997 to 7.2.1997 in the State of Punjab. The petitioner filed the nomination papers on 20.1.1997 before the Returning Officer i.e. Sub Divisional Officer (Civil), Barnala. He was a candidate of the Indian National Congress from Bhadour (Reserved) Constituency. It has been reserved for those candidates who belonged to Scheduled Castes as per the Constitution (Scheduled Caste) Order, 1950 as amended from time to time and applicable to the State of Punjab. The petitioner even had applied and submitted a certificate that he is a member of the Scheduled Caste and had deposited the security amount. The respondent alongwith some other persons had also submitted their nomination papers. The respondent filed his nomination papers having been enrolled in the electoral of year 1995 in village Ghunas, Tehsil Barnala. In village Ghunas he is recorded to be the son of Nahar Singh.

Petitioner''s claim is that the respondent claims himself to be a member of Ramdasia community. The said caste has been declared as Scheduled Caste in the Constitution (Scheduled Castes) Order, 1950, in respect of the State of Punjab. He field his nomination paper as a member of the Scheduled Caste for seeking election from Bhadour constituency. He was an official candidate of Shiromani Akali Dal. The respondent appended a certificate of being a member of the Scheduled Caste. It was issued to him by Tehsildar, Barnala, on his application dated 16.1.1997. He even filed his affidavit declaring himself to be a Ramdasia Sikh and gave his father''s name as Sant Nahar Singh. Tehsildar, Barnala, issued certificate dated 16.1.1997 that respondent belonged to a community called Ramdasia Sikh and is a Scheduled Caste Sikh. After scrutiny of nomination papers, some names were rejected. The polls were held on 7.2.1997. After the counting, the respondent, was declared elected having obtained 33207 votes, while the petitioner had obtained 21680 votes.

The claim of the petitioner is that the election of respondent Balvir Singh is vitiated and deserves to be set aside. The respondent has proclaimed himself to be the son of Sant Nahar Singh. Sant Nahar Singh was not a Scheduled Caste, therefore, the respondent could not be a Scheduled Caste. Plea was raised that the swiftness and promptness with which respondent No. 1 moved the application for issuance of the certificate is indicative of the fact that it was procured. Sant Nahar Singh was a Jat Sikh and his sub-caste was Mann. Thus, the said certificate is a procured one.

The petition as such was contested by the respondent Balvir Singh (at times also described as Balvir). Preliminary objection has been taken that the present petition has been filed on 29.3.1997 at 4.10 p.m. Office time for filing such a petition is till 4.00 p.m. Thus, it is bared by time because the time limited expired at 4.00 p.m. on 29.3.1997. It was further asserted that the petition has not been properly signed and verified.

On merits, the factum that the respondent had obtained a certificate from the Tehsildar of his being a member of the Scheduled Caste was not disputed. But it was denied that the same is procured or a false certificate. It was denied that the father of respondent is a Jat Sikh. Respondent''s precise defence is that he was born in village Jharon, Tehsil Sunam, District Sangrur. The real name of his father is Ghula Singh alias Nahar Singh s/o Late Gujjar Singh. The respondent shifted to village Ghunas in the year 1983. The name of his mother was Hardayal Kaur and not Satwant Kaur. The father of the respondent was also a voter from village Jharon. The respondent studied upto IIIrd class at Jharon. The respondent had shifted to village Ghunas and joined the Dera of Gurdwara/Dera Sant Attar Singh Gunsawale. At that place one Sant Nahar Singh was the Mahant. The respondent was the Chela of Sant Nahar Singh. Even in the ration card, he has been shown as a Chela of Sant Nahar Singh. Sant Attar Singh was unmarried. He belonged to village Seman Kalan, Tehsil and District Bathinda. Earlier, one Sant Ishar Singh was the Mahant of said Gurdwara. At the age of 60 years, Sant Nahar Singh married. He left the Dera arid thereafter the respondent has been looking after the Gurdwara. The respondent was made Mahant of the Gurdwara by the people of the area in the year 1991. It was the custom of the Gurdwara that only unmarried person could be the Mahant of the Dera. The pedigree table produced by the petitioner was not correct and did not pertain to the respondent. The respondent insisted that he belonged to Ramdasia community.

Rejoinder was filed by the petitioner and the pleas taken la the petition were reiterated.

From these pleadings of the parties, following issues were framed:-

Whetter the present petition is barred by time?

Whether the present petition is liable to be dismissed to have not been properly verified?

Whether the election of respondent No. 1 is liable to be declared as void under the Representation of People Act?

Relief.

Issue No. 1

As per respondent, the petition is barred by time because it was asserted that on the last date when limitation was to be expire, the petition could only be presented till 4.00 p.m. It was presented at 4.10 p.m. However, the said contention of the respondent must fail because the petitioner examined Shri Jaswant Kumar, Senior Assistant,'' Election Branch, Punjab and Haryana High Court, Chandigarh as PW4. He deposed on oath that the timings for filing the election petition in the Court are from 10 a.m. to 5 p.m. Since the said petition was filed at 4.10 p.m., it must be held that it was within time. The said argument so much thought of on behalf of the respondent, therefore, loses all significance. The issue is decided in favour of the petitioner.

Issue No. 2

This issue has not been pressed during the course of arguments and thus it is decided against the respondent.

Issue No. 3

The main controversy, in the present case is, as already spelt above, as to if the respondent is a member of the Scheduled Caste or not? The petitioner claims that the respondent is recorded to be the son of Sant Nahar Singh from village Ghunas. Sant Nahar Singh was a Jat Sikh and so would be the respondent. On the contrary, the respondent''s case, as already spelt above, is that he hails from village Jharon. His father''s name is Ghula Singh alias Nahar Singh. He is Ramdasia Sikh.

It is not in controversy that u/s 5 of the Act, the qualification and eligibility to contest the election has been provided. A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly in case of a seat reserved for Scheduled Caste if he is not a member of that caste or tribe.

The evidence of the petitioner revolved around the fact respondent Balvir Singh is recorded as son of Sant Nahar Singh from village Ghunas. He produced Ajaib Singh, Tehsildar, who was posted at Barnala at the relevant time. He had stated that he gave the certificate Exhibit PA to the respondent which is signed by him. The application filed by the respondent for such a certificate was proved as Exhibit PB accompanied by affidavit Exhibit PC. The report of the patwari was proved as Exhibit PD on the basis of which this certificate was issued. The affidavit of the respondent was attested by Harbax Singh, Advocate, at Barnala, who appeared as PW3. The petitioner himself stepped into the witness box as PW5. His statement in this regard reads as under:-

".....Earlier he was a resident of Maur Mandi, District Bhatinda. Sant Balvir Singh-respondent when submitted his nomination papers, had also filed a certificate to the effect that he is a Scheduled Caste. The above-said certificate of Sant Balvir Singh had been given by Tehsildar Barnala. I had obtained the certified copy of the certificate pertaining to respondent-Balvir Singh and that of the affidavit alongwith his application and other record. The certified copies of the above-said documents have been appended with my election petition. I had also obtained the certified copy of the voters list (Exhibit PG) with respect to Ghula Singh son of Gujjar Singh. After the results were declared, there was a general discussion amongst the residents that respondent Sant Balvir Singh is the son of Nahar Singh and that he is a Jat Sikh and not a ''Ramdasia''. It was also being discussed in the village that he had obtained a false certificate to be a member of the Scheduled Caste. Thereupon, I enquired into it,...."

In this process, the edifice was built by the petitioner by asserting, as already pointed above, that the respondent has been recorded as the son of Sant Nahar Singh of village Ghunas who is a Jat Sikh. The said application and the certificate have been proved on the record. In these documents referred to above, particularly certificate Exhibit PA, the respondent has been described to be the son of Sant Nahar Singh. The translation of the same reads as under:

"This is to certify that Shri/Smt./Kumari Sant Balvir Singh son/daughter/ grand-daughter/of Shri Sant Nahar Singh resident of village/City Ghunas, State Punjab belongs to Ramdasia Sikh Caste/tribe which has been accepted as Scheduled Caste/Scheduled Tribe in THE CONSTITUTION (SCHEDULED CASTE) ORDER 1955 Sh./Smt./Kumari Sant Balvir Singh and he himself or his family resides in village/City Ghunas, Tehsil Barnala (District Sangrur) Division Patiala, State of Punjab.

The verification has been done through the Field Officer and Welfare Officer, Barnala vide No. __________dated________."

In the similar terms is the affidavit of Balvir Singh respondent which reads as under:-

I, Sant Balvir Singh s/o S. Nahar Singh, Village Ghunas, Tehsil Barnala (District Sangrur) do solemnly affirm and declare as under:- 1.I solemnly declare that I want to get my Caste Certificate prepared.

2.I further solemnly declare that I have not got prepared any Caste Certificate earlier.

3.I solemnly declare that I belong to "Ramdasia Sikh" caste.

I solemnly declare that I am resident of village Ghunas, Tehsil Barnala (District Sangrur) Division Patiala (Punjab).

Verified that my above mentioned statement is true and correct, nothing is wrong or false."

Strong reliance is being placed on the pedigree table copy of which is Exhibit PH. It shows that Nahar Singh is son of Dhanna Singh.

One thing is apparent from these documents produced by the petitioner that at times the respondent describes himself as son of Sant Nahar Singh and at times only as Nahar Singh.

The law on the subject as to the mode of proof is well settled. The burden lays heavily always on the petitioner. In the case of Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, it was held that the burden of proof is on the petitioner and he is to discharge the said onus. In the case of Rahim Khan Vs. Khurshid Ahmed and Others, , the same principle was highlighted and in paragraph 9 of the judgment, the Supreme Court held as under:-

"However, we have to remember another factor. An election once held is not to be treated in a light-hearted manner and defeated candidates or discharged electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is, therefore, heavy on him who assails an election which has been concluded."

More recently, in the case of Laxmi Narayan Nayak v. Ramratan Chatruvedi and Ors. : AIR 1991 S.C. 2001 : 1990(2) S.C.C. 173, Supreme Court after dealing with a catena of authorities formulated certain essential tests with respect to the nature of pleadings and evidence in an election petition. It was held as under:-

"(1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi and Kona Prabhakara Rao v. M. Seshagiri Rao.

(2) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh, Kona Prabhakara Rao v. M. Seshagiri Rao and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi.

(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void u/s 100 vide Jamuna Prasad Mukariya v. Lachhi Ram and Rahim Khan v. Khursid Ahmed.

(4) The evidence produced before the Court in support of the pleadings must be clear, cogent satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh.

(5) it is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed, M. Narayana Rao v. Venkata Reddy, Lakshmi Raman Acharya v. Chandan Singh and Ramji Prasad Singh v. Ram Bilas Jha.

(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed, Mohan Singh v. Bhanwarlal and Ramji Prasad Singh v. Ram Bilas Jha.

The said principles have been approved by the Supreme Court in the case of Quamarul Islam v. S.K. Kanta and Ors., Judgments Today 1994(1) SC 452. Thus, it is clear that the burden lay heavily on the petitioner to establish that, in fact, respondent Balvir Singh is not a Scheduled Caste.

A perusal of the statement of the petitioner which has been referred to above shows that he himself is not sure as to if the respondent is a member of the Schedule Caste or not. He stated that after the result was declared there was general discussion amongst people that respondent Balvir Singh is a Jat Sikh and not a Ramdasia and that the respondent has obtained a false certificate. Thereafter, he made enquiries. Seemingly, no enquiry has been made at village Jharon. The respondent has stated that he was born and studied at village Jharon.

Balvir Singh respondent appeared as RW1. His statement was as already referred to above mentioned in the written statement. The crux of the same was that he was born in village Jharon. His natural father is Ghula Singh alias Nahar Singh. He had shifted to village Ghunas where Sant Nahar Singh was managing the affairs of Gurdwara. His own father was baptised in 1982 and his name was changed to Nahar Singh. He denied that when a person is baptised in Budha Dal, his father''s name is described as Guru Gobind Singh. In this regard, the respondent produced a large number of witnesses from village Ghunas to support his claim. Dalip Singh, RW2, is agriculturist from village Ghunas. He stated that Sant Nahar Singh was issueless. Sant Nahar Singh is Jat by caste. So far as respondent is concerned, he is from village Jharon and his father''s name is Ghula Singh alias Nahar Singh. Same are the statements made by Bhola Singh, RW3, agriculturist from village Ghunas; Amar Singh, RW4, Lambardar of village Ghunas; Gurdev Singh RW5, another Lambardar from Village Ghunas; and Hardev Singh RW6, a Panch of the village Ghunas for the past 4-5 years. Mohinder Singh, RW8, is Head Sewadar of Gurdwara of village Jharon. He also stated that the respondent hails from village Jharon. He is Ramdasia by caste. RW16 Gurtej Singh had been the President of Municipal Committee, Maur Mandi. He made the statement that Sant Nahar Singh was issueless.

Similarly, a large number of witnesses were from village Jharon and, in fact they stated that respondent Balvir Singh is the son of Ghula Singh alias Nahar Singh who is a Ramdasia Scheduled Caste. RW7 Narang Singh made such a statement supported by RW9 Kartar Singh, and RW10 Maan Singh. The sum and substance of their testimony is that the respondent is the son of Ghula Singh alias Nahar Singh of village Jharon. He had shifted to village Ghunas and became the Chela of Sant Nahar Singh. When Sant Nahar Singh left the Gurdwara, he became Sant Balvir Singh.

The evidence on the record certainly, as mentioned above, establishes that respondent Balvir Singh at times has been described as the son of Sant Nahar Singh. In the documents referred to above, he gave his father''s name as Sant Nahar Singh. But the important fact is that in the pedigree table produced by the petitioner himself, Sant Nahar Singh is issueless. It is not the case of the petitioner that the respondent had been adopted by Sant Nahar Singh. On the contrary, evidence on the record indicate that Sant of the Gurdwara had to be a bachelor. When Sant Nahar Singh married, he left the village and the Gurdwara. In any case, when he was issueless, he could not be the father of the respondent.

The evidence of the respondent was assailed on the ground that all the witnesses produced are political workers of the respondent and, therefore, they have come to support the case of the respondent. Partly the said statement can be accepted to be correct but one hasten to add that only they would know the parentage of the respondent. When their testimonies are not shaken in the cross-examination, it must be taken that they cannot be ignored.

The most important evidence in this regard is of Ghula Singh alias Nahar Singh, RW18, real father of the respondent. He stated that he hails from village Jharon. He had five children. Respondent Balvir Singh is one of his sons. He is Ramdasia by caste. He added that he was known as Ghula Singh but after being baptised his name was changed to Nahar Singh. The respondent had studied uptil class IV. Thereafter he stated learning Kirtan etc. There was no suggestion given to the witness that, in fact, he is not the father of the respondent and that he is not a Ramdasia by caste. It makes one conclude that respondent is Ramdasia by caste because the testimony of his father as such had not been shaken.

Another important evidence in this regard is the statement of Bir Singh, RW20. He is a retired teacher. Earlier, as per his statement, from 1965 to 1982 he was a teacher in village Jharon. Respondent Balvir Singh s/o Ghula Singh alias Nahar Singh was his student. Entry RW12/B pertaining to respondent Balvir Singh is in his hand. The old teacher thus made a statement recognising the respondent as his student. It cannot be ignored unless shown to be false. In the present case, it has not been shown to be false.

The net result of the said evidence would be that the petitioner''s claim was that the respondent is the son of Sant Nahar Singh. Sant Nahar Singh, admittedly, is a Jat Sikh and not a member of the Scheduled Caste. Sant Nahar Singh was issueless as per pedigree table produced by the petitioner. Therefore, the respondent could not be the son of Sant Nahar Singh. The evidence of the father of the respondent and the school teacher establishes that respondent hails from village Jharon. His father''s name is Ghula Singh alias Nahar Singh and is Ramdasia by caste. Ramdasia must be taken to be a member of the Scheduled Caste. This question had been considered by this court in the case of Didar Singh Cheeda Vs. Sohan Singh Ram Singh and Others, . In paragraph 13 of the judgment, a Division Bench of this Court held as under-

"Coming now to the dictionaries and the publications like the ''Punjab Castes'' by Ibbetson, ''Glossary of Tribes'' and ''Census of India (1891)'' etc., they do not seem to me to furnish sufficiently clear and cogent material for holding that Rehtia is a distinct and separate caste and Ramdasi in the sense that it is not possible to conceive of a Ramdasi being also called a Rehtia. In this part of the country, the position regarding the Backward Classes like chamars etc., some of whom not infrequently take to weaving and who may choose to take amrit in order to elevate their social status, seems to have been traditionally in a fluid state insofar as their description goes. The expressions Ramdasi, Ramdasia or Ravidasia also do not seem to possess or convey any clear-cut or crystalised distinctive characteristics. The result of the researches apparently made by various authors does not seem to me to justify the submission that these expressions respectively carry precise exact and distinctive meanings excluding the possibility of some individuals ultimately using any one of these epithets interchangeably. The distinction seems to me to have recently assumed importance in the eyes of the politically conscious individuals as a result of the special representations given to some castes under Article 341 of the Constitution. The publications to which reference has been made at the bar are accordingly of little assistance to the respondent; indeed, they only serve to fortify the view that the position has all along been somewhat confused and certainly unprecise."

The answer is clear. Therefore, the petitioner has failed to establish and discharge the onus that the respondent is not a member of the Schedule Caste. The confusion regarding the name of respondent has not been cleared by the petitioner. What was alleged to be not genuine, in fact, is not so proved.

Accordingly, the issue is decided against the petitioner.

Relief.

In view of the findings on Issue No. 3, the election petition being without merit must fail and is accordingly dismissed.