(1.) THIS election petition under sections 80 and 81 of the Representation of the People Act, 1951 calls into question the election of the respondent Beti Joga to the Legislative Assembly of Madhya Pradesh from the konta Constituency in the General Elections held in March 1972. This constituency is reserved for Scheduled Tribes.

(2.) THE petitioner Jogaya was a rival candidate at the election as a congress nominee. The respondent was a Jansangh nominee. The petitioner alleges that the respondents name was not entered in the electoral roll in force at the relevant time and, therefore, he was not qualified to stand as a candidate under section 5 of the Act. It is also alleged that the name of the respondent is Beti Joga out of which Beti is his familys surname. The entry in the relevant electoral roll on which reliance is placed by the respondent mentions the name beti Hadma. The contention of the petitioner is that Beti hadma is the name of the father of the respondent and not of the respondent. In his written statement the respondent contends that he is known by two names Beti and Joga, and that Beti is not a surname. According to him pudiyami is the surname of his family.

(3.) ON the pleadings of the parties the following issues were framed :

(1.) Is the correct name of the respondent Beti Joga and not Beti alias joga (2) Is the name of the respondents father Beti Hadma or simply hadma (3) Was the respondent entered in the electoral roll as an elector (4) Was the nomination paper of the respondent wrongly accepted by the Returning Officer all the issues are interconnected and the evidence is also common, therefore, it would be convenient to discuss the entire evidence together.

(4.) THE respondent had also successfully contested the General Elections held in the years 1962 and 1967. It has been admitted by the respondent in his evidence that in the electoral roll in force at the time of the General Elections of 1962 his name was shown as Beti Joga Hadma. It is admitted that hadma is the name of the father of the respondent. In the electoral roll for the elections of 1967 which is Ex. P-4 the respondents name was also shown as Beti Joga Hadma. I have already said that the entry in the electoral roll for the elections of 1972, on which reliance is placed by the respondent and on the basis of which the Returning Officer accepted his nomination paper, mentions the name of the elector as Beti Hadma (Exs. P-3 and R-1a).

(5.) THE respondent is a resident of village Idjepal in Bastar District. Ex. P-6 is a certified copy of Jamabandi of village Idjepal for the year 1934-35 which mentions Beti Hadma s/o Ganga Madiya as a tenant. Ex. P-13 is a certified copy of the index of Jamabandi for the year 1934-35 of village Idjepal. It contains names of tenants in a serial number. At serial number 12 Beti hadma S/o Ganga Madiya is entered as a tenant. Ex. P-5 is a certified copy of Kistbandi khatauni for the year 1969-70 of village Idjepal. In this document beti Joga S/o Hadma, Beti Ganga S/o Hadma, Beti Lakhama S/o Hadma and beti Kosa S/o Hadma are shown as tenants. The documents Exs. P-5 and P-6 have been admitted by the learned counsel for the respondent (see order-sheet dated 18-12-1972). It is not disputed that the name of the respondents father was Hadma and the name of the father of Hadma was Ganga. It is also not disputed that Ganga, Lakhama and Kosa are three other brothers of the respondent. It will be noticed that in Exs. P-6 and P-13 the name of the respondents father is entered as Beti Hadma and in Ex. P-5 the names of the respondent and his brothers are entered as Beti Joga, Beti Ganga, Beti Lakhama and Beti Kosa. These entries strongly show that Beti is a surname which is prefixed to the name of every person in the family of the respondent.

(6.) LEARNED counsel for the respondent has referred to Exs. R-2 and r-3. Ex. R-2 is a certified, copy of Jamabandi for the year 1967-68 and ex. R-3 is a certified copy of Jamabandi for the year 1968-69. In these two documents the respondent is entered as Beti Joga and his brothers are entered as Ganga, Lakhama and Kosa. The word beti is not prefixed in these two documents against the names of Ganga, Lakhama and Kosa. That, however, is not of much consequence because the respondents own witness Deva (R. W. 3)has admitted that Beti Lakhama and Beti Ganga are the brothers of the respondent. He has categorically stated that before Gangas name also Beti is prefixed. Similarly, Deva Pide (R. W. 2) also in cross-examination admitted that one of the brothers of the respondent is known as Beti Ganga.

(7.) EXHIBITS P-7 and P-7a to P-7f are certified copies of Kistbandi khatauni of village Gaganpalli, Tahsil Konta for the year 1968-69. They contain seven entries where the word beti is prefixed to the names of the tenants mentioned therein. Exs. P-6 and P-8a to P-8c are certified copies of Kistbandi Khatauni of village Manikonta. Tahsil Konta for the year 1970-71. They contain four entries in which the word beti is prefixed to the names of the tenants recorded therein. Similarly, Exs. P-9 and P-9a to P-9j are certified copies of Kistbandi Khatauni of village Kanker-Lanka Tahsil Konta for the year 1970-71 in which there are eleven entries in which the word beti is prefixed to the names of the tenants. Ex. P-10 is a certified copy of Kistbandi Khatauni of village Birla Tahsil Konta for the year 1970-71. Exs. P-11 and P-11a are certified copies of Kistbandi Khatauni of village Banjam-Guda Tahsil Konta for the year 1970-71. Exs. P-12 and P-12a to P-12c are certified copies of kistbandi Khatauni of village Thodara Tahsil Konta for the year 1971-72. All these documents contain entries of names of tenants were the word beti is prefixed to the names. Although these documents (Exs. P-7 to P-12) relate to different villages and not to the respondents village Idjepal, yet these entries are relevant, for all these villages and the respondents village are in district bastar. These entries also support that Beti is a surname which is prefixed to the name of a person.

(8.) THE petitioner and his witnesses Oyam Dhurva (P. W. 2), Savlam linga (P. W. 3), Soyam Rama (P. W. 4) and Kalmumi Sukkuram (P. W. 5)state that Beti is the name of family and is prefixed to the name of an individual of that family. They also say that the respondents name is not Beti, but his name is Beti Joga. The respondent in his evidence has stated that his name is both Beti and Joga, and that Pudiyami is his surname and Beti is not a sub-caste or sub-tribe. He has further stated that Beti is not the name of any family and he denies knowledge of names where Beti is prefixed to the names. He, however, admits that in all Government papers his name is entered as Beti Joga and it is only in the electoral roll for 1972 elections that his name was entered as Beti Hadma. He denies to have any knowledge if his fathers name was entered in the Government records as Beti Hadma. He also denies that the word beti is prefixed to the names of his brothers in the government records. These denials are of no consequence in view of the documents Exs. P-5 and P-6 which have been admitted. Deva (R. W. 2) said that the name of the respondent is Pudiyami Beti and he is also known as joga. The witness attempted to prove that Beti is not the name of any family and Pudiyami is the name of the respondents family and that the respondents father was known as Pudiyami Hadma. I have already said that in the revenue records Exs. P-6 and P-13 the respondents fathers name was entered as beti Hadma and not as Pudiyami Hadma. Deva admitted in his statement that the respondents brother is known as Beti Ganga. Deva Kosa (R. W. 3)stated in the examination-in-chief that the name of the respondent is Beti and that he is also known as Joga. In cross-examination he admitted that Beti lakhama is respondents brother and he further admitted that Ganga is another brother of respondent before whose name also Beti is prefixed. The oral evidence of the petitioner and his witnesses is consistent with the official records that Beti is only a surname which is prefixed to the names of persons of particular family. The statement of the respondent that his surname is Pudiyami and that Beti is not his surname or familys name appears to be entirely false. There is not a single document in which the name of respondent or any of his family members may have been entered with Pudiyami as surname. The respondent filed two documents purporting to be copies of Kistbandi Khatauni for the years 1970-71 and 1971-72 in which his name is entered as Pudiyami beti. But these copies which purport to have been issued by the Patwari were not admitted by the petitioner and the respondent made no attempt to prove them. There is no official seal or any official mark of true copy or anything from which it could be inferred that copies have been issued by any public officer. The respondent did not examine the Patwari or get the originals of the these documents produced. The respondent did not even state in his evidence that the copies have been obtained by him from the Patwari or that they are signed by the Patwari. The learned counsel for the respondent frankly admitted that these documents have not been proved and cannot be read in evidence. May be that the respondent made some attempt with the help of the Patwari to show that his name was entered as Pudiyami Beti but later did not dare to bring forward those documents in evidence. In his statement the respondent categorically admitted that in all official records his name is entered as Beti Joga Hadma.

(9.) HAVING considered the evidence as a whole, I have no doubt in my mind that Beti is a surname and the respondents name is Beti Joga and his fathers name was Beti Hadma. I am also of opinion that the respondents name is not Beti and that Pudiyami is not his surname.

(10.) LEARNED counsel for the respondent has argued that Beti Hadma which is the name mentioned in the electoral roll is merely an inaccurate description of the correct name Beti Joga Hadma and that it is a clerical, printing or technical error which should be ignored under the proviso to section 33 (4) of the Act. The proviso reads as follows:

"provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or hi s proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomiation paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood, and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate-description, clerical, technical or printing error is the -electoral roll or in the nomination paper shall be overlooked. "

(11.) A reading of the proviso will show that any misnomer or inaccurate description or clerical, technical or printing error in regard to the name of a candidate cannot affect the full operation of the electoral roll "where the description. in regard to the name of the person is such as to be commonly understood". Thus under the proviso it is not every misnomer or error which can be ignored ; the error can be ignored only when the inaccurate description mentioned in the electoral roll can be commonly understood to refer to the proper person. The question, therefore, is whether the description beti hadma mentioned in the electoral roll would be commonly understood to refer to the respondent. It is true that the father of the respondent is dead, yet Beti Hadma being the name of the father of the respondent and not of the respondent, the respondent cannot be commonly understood to be the person entered in the electoral roll. In my opinion, the proviso is not attracted because the respondents name is entirely missing and his fathers name has been entered in its place.

(12.) THE proviso to section 33 (4) of the Act is similar in language to section 241 of the Municipal Corporation Act, 1882 (45 and 46 Vict. c. 50)which was construed in Moor house v. Limey, Thorpe v. Linney ((1885) 15 QBD 273.) In that case the entry in the roll was Charles Burman and the correct name was Charles Arthur burman. In holding that Charles Arthur Burman was not qualified to subscribe a nomination Lopes J. speaking for himself and Grove J. said :

"there is no reason, so far as appeared in the nomination papers and roll, why Charles arthur Burman and Charles Burman should not be different individuals, for instance, one the father and the other the son. "

"but it is said the defect may be cured by section 241 of 45 and 46 Vict. c. 50, which is as follows: No misnomer or inaccurate description of any person, body corporate, or place named in any schedule to the Municipal Corporations Act, 1835, or in any roll, list, notice or voting paper required by this Act, shall hinder the full operation of this Act with respect to that person, body corporate, or place, provided the description of that person, body corporate, or place be such as to be commonly understood. "

x x x x x x

"we do not think this provision applies to a case like the present. We think "commonly understood" means commonly understood by any person comparing the nomination paper and the burgess roll. The abbreviations Frank for Francis, Fred for Frederick, Harry for Henry, Joe for Joseph would be covered by this provision, because everybody of ordinary sense would understand that was what was meant, and this upon a mere comparison of the nomination paper and burgess roll without going further. "can it be said that Charles Burman is so commonly understood be Charles Arthur burman that no person would be misled, and that a mere comparison of the nomination paper and burgess roll would prove this without a further inquiry We think not. If not, the mayor in every case where an objection like the present was taken, would have to hear evidence and decide how far the inaccuracy was likely to mislead or had misled, and whether a person was commonly known by a name other than that by which he was described in a nomination paper. Such a proceeding, it was in Gothard v. Clarke (60 LT 959. 3. 60 LT 959.) never could have been contemplated, and the inconvenience of it is too obvious for argument. "

These observations support the construction adopted by me of the proviso to section 33 (4) of the R. P. Act.

(13.) AN instance of inaccurate description where there could be no mistake in understanding the right person is found in the case of Harding v. Cornwell (60 LT 959.) where the name mentioned in the roll was Henry D. Evereux Davenport but the correct name was Henry Devereux Davenport. An Indian decision of the same category is Aligarh District West Case (1 D. E. C. 79, p. 80)where the name Bhamani Shanker was entered in the roll for Bhawani Shanker and Lajia for Lajja. Other cases of the same nature are Azamgarh District case (1 D. E. C. 118) and Purnea Case (2 D. E. C. 147). But the instant case is of a different nature. Here, as already stated, the respondents name is entirely missing and his fathers name is entered in its place. Such an entry cannot get the protection of the proviso to section 33 (4) of the Act.

(14.) THE conclusion, therefore, is that the name of the respondent was not entered as an elector in any assembly constituency of the State and under section 5 of the Act he was not qualified to be chosen to fill a seat in the Legislative Assembly. The Returning Officer accepted the nomination paper on the ground that there was only a printing error in the electoral roll. He failed to take into account that the description in regard to the name is not such as to be commonly understood for the respondent. The Returning Officer should have rejected the nomination paper.

(15.) MY findings on the issues are as follows : issue No. 1 : the correct name of respondent is Beti Joga, Beti is his surname. Issue No. 2 : the name of the respondents father was Beti Hadma, Beti was his surname. Issue No. 3 : the respondent is not entered as an elector in the electoral roll of any assembly constituency in the State and he was not qualified to stand as a candidate for the assembly. Issue No. 4 : the nomination paper of the respondent was wrongly accepted. Relief and costs:

(16.) ON the findings recorded above, the petitioner has made out grounds mentioned in clauses (a) and (d) (i) of section 100 (1) of the Act. The respondent was not qualified under the Act to be chosen to fill the seat and his nomination paper was improperly accepted. The election of the respondent is, therefore, void.

(17.) THE petition is allowed The election of the respondent is declared to be void. The respondent shall pay Rs. 500/- as costs to the petitioner. Petition allowed.