BENI PRASAD Vs. NARBADA PRASAD

JUDGEMENT

(1.) The appellant filed an election petition challenging the election of the respondent from 208 Gotegaon Legislative Assembly Constituency of madhya Pradesh. The respondent had contested the election on the premise that he belonged to the Scheduled Caste being a "kumhar" residing in shahdole District which caste was declared a Scheduled Caste by thepresidential Notification issued in exercise of powers conferred by clause (1 of Article 341 of the Constitution of India. The Constitution (Scheduled castes) Order, 1950 insofar as relevant for our purposes provides that the. castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXII of the Schedule to this order shall, in relation to the States to which these parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those parts of that Schedule. Part IX of the Schedule deals with the State of Madhya Pradesh. Entry at Serial No. 35 reads as "kumhar in Chhatarpur, Datia, Panna, Reva, Satna, Shahdole, Sidhi and Tikamgarh districts". It would thus be seen that the residents of these districts who are "kumhar" are entitled to be treated as Scheduled Castes for the purposes of this order. The appellant Beni Prasad was a candidate from 208 Gotegaon legislative Assembly Constituency (Scheduled Castes) and he contested the election against the respondent Narbada Prasad. The latter was declared elected having secured 42,645 votes as against the appellant who secured 29,862 votes. Gotegaon Legislative Assembly Constituency No. 208 was reserved as Scheduled Caste Constituency and as such only persons belonging to the Scheduled Castes were eligible to contest the election. When the respondent filed his nomination for election from the said constituency the appellant Beni Prasad raised an objection before the returning Officer contending that he was not a resident of Shahdole and that he was a "kumhar" whose forefathers had settled in the adjoining area of narsinghpur in the other district where they own moveable and immovable properties. It was contended that the respondent's father Sant Ram was a permanent resident of Narsinghpur and that the respondent himself was born at Narsinghpur in 1958. The respondent contested this contention and the returning Officer after examining the objection rejected the same and the name of the respondent was cleared for contesting the election. Prior thereto the name of the respondent was entered in the voters' list for the constituency in question on the ground that he was ordinarily resident in shahdole District; that was sometime in the year 1985. Thereafter the respondent's name continued to be on the voters' list and he also contested elections on the strength thereof. The question which the High court was required to consider was whether in the circumstances mentioned above the election of the respondent could be challenged by the defeated candidate. It appears, there was an earlier petition, EP No. 9 of 1985 Filed by one Umrao singh before the High court and therein also this very question was considered and resolved in favour of the respondent. However, since the petitioner in the said proceedings was a different person, the present appellant contends that the said decision had no binding effect so far as he is concerned. It is not necessary for us to consider whether that decision operates as res judicata so far as the present proceedings are concerned, as, in our opinion, the contention raised by the appellants in this appeal is without merit.

(2.) It appears from the discussion in para 19 of the impugned judgment that the question regarding the status of the Respondent In Shahdole District was considered on facts by the High court and the High court referred to the evidence which was recorded in this behalf earlier in point of time and after considering the evidence, the High court reached the conclusion that the respondent had succeeded in proving that he was an ordinary resident of shahdole District and also satisfied the test for being recognised as a "kumhar" in Shahdole District and was, therefore, eligible to contest the election on that basis. The High court came to the conclusion that the earlier enquiry undertaken for enrolment of his name in the voters' list for the constituency in question had become final and could not be questioned in the election petition and that when the dispute was raised earlier in point of time evidence was recorded and on the basis of that evidence a decision was taken that the respondent was a "kumhar" in Shahdole District. The learned counsel for the respondent also took us through the salient aspect of the oral evidence led in this behalf to satisfy us that the stand taken by the respondent was well founded. RW 1, A. D. Srivastava was examined as a witness in the High court and he stated that he was an Assistant Registration officer, Nagar Palika, Shahdole and that he had brought the record pertaining to objections filed against the respondent. He has further stated that after making the necessary enquiry he rejected the objection on the strength of the evidence of the witnesses who deposed before him and that the panchnama was prepared by him. The learned Judge in the High court, as stated earlier, had made a brief reference to the evidence in this behalf in paras 19 and 20 of the impugned order and had come to the conclusion that the name of the respondent having been entered in the voters' list pursuant to an enquiry on the premise that he was an ordinary resident of Shahdole district, that part of the proceedings had terminated and could not be reopened. We also found that in the earlier proceedings after an elaborate enquiry by RW 1 it had been found that his family had been ordinarily residing in Shahdole District till 1952 when he shifted to the neighbouring narsinghpur area where the respondent was born and thereafter the respondent had shifted to Shahdole District in 1969 and his name had been entered in the voters' list in 1985 and he had been residing there since then and had also contested elections earlier in point of time all of which went to show that he was an ordinary resident of that district. The fact that he was a "kumhar" was not in question and as stated earlier that question was concluded in favour of the respondent. If he was a "kumhar" in the narsinghpur area the only question was whether he could get the benefit of belonging to the "kumhar" community in Shahdole area also. It was not contended that he did not specify the requirements of being recognised as a "kumhar" in the Shahdole District but what was contended was that he should have been a "kumhar" in Shahdole District in 1950 when the presidential Notification was issued. That contention does not appear to be correct because in that case those who are born after the Presidentialnotification would be rendered ineligible for being considered as belonging to the Scheduled Castes.

(3.) For the above reasons we do not see any merit in this appeal and dismiss the same but make no order as to costs.