Andhra HC (Pre-Telangana)
S. Ratnamma Alias S. Raheema Bee vs S. Shiva Prasad And Ors. on 6 December, 2001
Equivalent citations: AIR2002AP111, AIR 2002 ANDHRA PRADESH 111
ORDER
1. This petition is tiled questioning the election of the 1st respondent to Satyavedu (Scheduled Caste) Constituency of A. P. Legislative Assembly that took place on 5-9-1999. with a prayer to direct the Election Commission to conduct fresh election to that Constituency.
2. The case, in brief, of the petitioner is that she belongs to Scheduled Caste Community and during the A. P. General Assembly Elections scheduled to be held on 5-9-1999 to 136-Satyavedu (Scheduled Caste) Constituency, she filed her nomination on 18-8-1999 along with 'B' Form issued by Anna Telugu Desam Party, after fulfilling all the formalities. She also took oath on 18-8-1999, as required, as S. Ratnamma, wife of Chand Basha, enclosing the Marriage Certificate issued by Nayab-e-Government Kazi, Srikalahasti, a Caste Certificate etc. which all show her alias as Ratnamma. her maiden name. Though after her marriage with Chand Basha, she changed the name as Raheema Bee, she continues to belong to Mala Caste, which is a Scheduled Caste community. During scrutiny of nominations on 19-8-1999 (wrongly typed in the petition as 19-9-1999), even without providing her an opportunity to show that she is the Ratnamma alias Raheema Bee, the Returning Officer rejected her nomination on the ground that her name Ratnamma is not shown in the Electoral roll, though the name Raheerna Bee is found therein and though nobody disputed her identity as Ratnamma alias Raheema Bee. Since the 1st respondent was declared elected in the election that took place on 5-9-1999 and since her nomination was improperly rejected, the election of the 1st respondent to 136-Satyavedu (Scheduled Caste) Assembly Constituency may be declared as void.
3. 1st Respondent filed his written statement admitting that petitioner belongs to Scheduled Caste community and that she filed her nomination on 18-8-1999 along with 'B' Form issued by Anna Telugu Desam Party with her name as Ratnamma and that the receipt issued by the Returning Officer also shows that S. Ratnamma, wife of Chand Basha filed the nomination, and contending that since the name of Ratnamma is not found in the electoral roll, the nomination of the petitioner is rightly rejected by the Returning Officer.
4. Respondents 2 to 8 remained ex parte.
5. 9th Respondent filed his written statement contending that since the name of S. Ratnamma is not found in the electoral roll, the nomination of the petitioner was rejected after giving an opportunity to her.
6. The Election Commission, which was shown as 10th respondent in the petition was ordered to be deleted from the array of parties as per the orders of this Court dated 4-4-2000.
7. Basing on the above pleadings, the following issues were settled for trial:--
1. Whether the rejection of the nomination of the petitioner was not proper as contended by the petitioner?
2. Whether the election of 1st respondent is liable to be set aside because of the improper rejection of the nomination of the petitioner?
3. To what relief?
8. In support of her case, petitioner besides examining herself as P.W. 1. examined her husband as P.W. 2 and her father as P.W. 3 and marked Exs. A-1 to A-8. 1st Respondent did not adduce any evidence, either oral or documentary. On behalf of 9th respondent, two witnesses were examined as R.Ws. 1 and 2, but no documentary evidence was adduced on his behalf. Evidence of R.W. 1 was eschewed because after being examined in chief in part, he did not come into the witness box again. So, evidence of R.W. 2 i.e., the Election Deputy Collector. Chittoor, who was acting as the Returning Officer for 136-Satyavedu (Scheduled Caste) Assembly Constituency, alone is there on record for 9th respondent.
9. ISSUE NO. 1:
The identity of the petitioner, or her being a member of the Scheduled Caste community, is not denied or disputed by the 1st respondent. The short point for consideration in the petition is whether the rejection of the nomination of the petitioner, whose name is shown as Raheema Bee in the electoral roll, and who filed her nomination as Ratnamma can be said to be improper or not.
10. The evidence of P.Ws. 1 to 3 shows that petitioner belongs to Scheduled Caste community and that she is married to P.W. 2 and that after her marriage, she changed her name as Raheema Bee. P.W. 1 stated that in voters enumeration slip (Ex. A-4) she has shown her name as Shaik Raheerna Bee (Ratnamma alias), but only Shaik Raheema Bee is shown in the electoral roll omitting her alias. The evidence of R.W. 2 is that since the name of Ratnamma is not found in the electoral roll, and since the nomination filed by the petitioner contains name Ratnamma only, he rejected the said nomination after informing the reasons for the rejection to her.
11. The contention of the Mr. A. Sudershan Reddy, learned counsel for the petitioner is that the 9th respondent should have given opportunity to the petitioner as contemplated by Section 36(5) of the Representation of Peoples Act, 1951 (the Act), to prove her contention that Ratnamma and Raheema Bee are one and the same and are not different persons and since the nomination of the petitioner was rejected without giving opportunity, the rejection of nomination should be held to be improper and in any event since admittedly petitioner is Raheema Bee alias Ratnamma, mentioning or recording of her name in the electoral roll should be treated as misnomer or inaccurate description of her name and so by virtue of proviso to Sub-section (4) of Section 33 of the Act, rejection of her nomination is improper. He placed strong reliance on Sri Masood v. Bikram Singh. ; Rosamma Punnose v. Balakrishnan Nair, : K. Parthasarathy v. C. Nataraja Odayar. and Jagannath Ramchandra Nanekar v. Genu Govind Kadam, in support of his contention.
12. The contention of Mr. M. P. Chandra Mouli, learned counsel for the 1st respondent, is that since the name Raheema Bee alone appears in the electoral roll (which is not a Hindu name) and since Clause 3 of the Constitution (Scheduled Castes) Order. 1950 (the Order) lays down that no person who professes a religion different from Hindu, the Sikh or the Buddhists religion shall be deemed to be a member of Scheduled Caste, the rejection of nomination filed by the petitioner with the name of Ratnamma, which does not find place in the electoral roll cannot be said to be Improper. He relied on Brij Mohan v. Sat Pal. and Dharam Singh Rathi v. Hart Singh. M.L.A.. in support of his contention.
13. The name of petitioner is shown only as Raheema Bee in the electoral roll is not denied or disputed. It is no doubt true that Ex. A-4, said to be a copy of the enumeration slip, contains an entry reading "Shaik Raheema Bee (Ratnamma alias)", but the final electoral roll does not contain the later part i.e., (Ratnamma alias). It is the contention of the learned counsel for the 1st respondent that the entry (Ratnamma alias) found in Ex. A-4 beneath 'Shaik Raheema Bee' must have been subsequently added by the petitioner to impress on the Court that she had described her alias also in the enumeration slip. There appears to be some force in the contention of the learned counsel for the 1st respondent because the original name of the petitioner, admittedly, is Ratnamma, and even according to her only after her marriage with P.W. 2 did she assume the name Raheema Bee. So, Raheema Bee can only be the alias of Ratnamma, the original name of the petitioner. So in normal circumstances she would have described herself as Ratnamma alias Raheema Bee, but not Raheema Bee alias Ratnamma. Even assuming that the entry (Ratnamma alias) as found in Ex. A-4 was also made in the original enumeration slip, and that part of the name i.e., Ratnamma, is omitted in the electoral roll by mistake or omission, it was the duty of the petitioner, who wanted to contest the election, to have verifed the electoral roll to find out if her name is correctly recorded or not, and when she found that 'Ratnamma alias' mentioned by her in the enumeration slip was omitted, should have taken the necessary steps to get the defect in the electoral roll rectified as contemplated by the Rules 13(3) and 26 of Registration of Electoral Rules, 1960 read with Section 22 of Representation of People Act, 1950. Petitioner did not take any such steps. Rule 22(2) of the Registration of Electoral Rules, 1960. which relates to final publication of electoral roll.
"On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency."
Therefore, the Returning Officer would be bound by such electoral roll, because Sub-section (4) of Section 33 of the Act read--
"On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls."
Section 36(2) of the Act reads: "the Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary reject any nomination on any of the following grounds:
(a) ........
(b) that-there has been a failure to comply with any of the provisions of Section 33 or Section 34. ......".
It is thus clear that Section 33(4) read with Section 36(2)(b) mandates rejection of the nomination of a candidate if the name of the candidate as entered in the nomination paper is not the same as that entered in the electoral rolls.
14. In this case, the name of the petitioner, as entered in the electoral rolls, is Raheema Bee. Her name in the nomination papers is Ratnamma. Significantly petitioner did not even mention her name in the nomination as 'Ratnamma alias Raheema Bee'. In view thereof Returning Officer (R.W. 2) not granting time to the petitioner to adduce proof or evidence to show that she is Raheema Bee alias Ratnamma is of no consequence. The Returning Officer, as R.W. 2, stated that he gave an opportunity by showing her the nomination filed by her and the variation between the nomination and the electoral roll. In this case even if the scrutiny is adjourned to next date, and even to the petitioner produced evidence to show that Raheema Bee is her alias, it would not have been made any difference because the name 'Ratnamma' which is the only name mentioned in the nomination is not found in the electoral roll. As rightly contended 'Raheema Bee' is not a Hindu name. The Constituency in question is reserved for Scheduled Caste candidate. As per Clause 3 of the Order a person other than Hindu, Sikh or Buddist cannot be a member of Scheduled Caste. Therefore, question of petitioner proving herself to be a member of Scheduled Caste, with the name 'Raheema Bee' may not arise. Only if the name of the petitioner is shown as 'Raheema Bee alias Ratnamma' in the electoral roll, and if the Returning Officer failed to give an opportunity to prove that petitioner belongs to Scheduled Caste, can the petitioner have a grievance, but not otherwise.
15. K. Parthasaraty (supra) relied on by the learned counsel for the petitioner, has no application to the facts of this case. In that case the candidate who belonged to Scheduled Caste community, did not specify the particular caste to which he belongs, and described himself as a Harijan only. The High Court held that that defect is not a defect of substantial character as contemplated by Section 36(4) of the Act. In this case absence of name Ratnamma cannot be said to be a formal defect. It is a defect of substantial nature. In Masood Case (supra) relied on by the learned counsel for the petitioner, the name of the candidate is printed as Masood though his name is Madood. Therefore his nomination was rejected. The High Court held that defect is not a defect of substantial nature, and so the rejection of the nomination is improper. Spelling mistake is different from complete absence of the name itself in the electoral roll. When the name mentioned in the nomination does not find place in the electoral roll and a different name, said to be an alias of the candidate only is found, and if such alias is not mentioned in the nomination, the defect, by no stretch of imagination can be said to be a formal defect. It is a defect of substantive nature.
16. In Jagannath Ramchandra Nanekar (supra) the candidate along with a nomination paper filed a certified copy of the electoral roll, in which his name appeared. The nomination was rejected by the Returning Officer, on his own objection that the copy was from a defunct electoral roll, without giving an opportunity to the candidate to rebut the objection. Such rejection, without affording an opportunity to establish that the electoral roll relied on did not become defunct was held by the High Court to be improper. The facts of this case are entirely different from the facts In the above case. The name Ratnamma mentioned in the nomination admittedly is not found in the electoral roll. Even if the Returning Officer granted time to the petitioner, it would not have made a difference, because petitioner could not have produced any electoral roll showing the name of Ratnamma as a voter. So. Returning Officer not granting time to petitioner did not cause any prejudice to the petitioner.
17. Rosamma Punnose (supra) is a case where there was a mistake in the number of proposer in the nomination when compared with the electoral roll. The Court held that such defect Cannot be said to be a defect of substantial nature. In my opinion the said decision has no application to the facts of this case. Moreover, it should be deemed to have been impliedly overruled in view of Dharam Singh Rathi (supra) and Brij Mohan (supra) cases where serial number of candidate and his proposer were correctly given, but the part numbers have been wrongly mentioned. So, the nomination was rejected. That rejection was upheld by the Supreme Court holding that whether a defect is of substantial character or not depends on the facts and circumstances of each case. Same view was taken by a 3-Member Bench of the Supreme Court in Lila Krishan v. Mani Ram Godara. .
18. In this case since the name of the petitioner as Ratnamma is not found in the electoral roll, and since her name is shown only as Raheema Bee, rejection of her nomination containing the name Ratnamma only by the Returning Officer on the ground that name is not found in the electoral roll, is not, and cannot be said to be, improper. Hence I hold this issue in favour of the 1st respondent and against the petitioner,
19. ISSUE NO. 2;
Since on issue No. 1 I held that the rejection of nomination of the petitioner is not improper. I find no grounds to set aside the election of the 1st respondent. Therefore I hold this issue against the petitioner and in favour of the 1st respondent.
20. ISSUE NO. 3:
In the result, the Election Petition is dismissed with costs of 1st respondent.