# Ajay Kumar v. Sri Bhim Prasad Sonkar

- **Citation:** (2016) 6 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-01
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-sri-bhim-prasad-sonkar-43984
- **Pages:** 36

## Headnote

Election petition-Improper rejection of nomination-Section 100(1)(c)-Representation of the People Act,
1951-Scheduled Castes-Gond caste-Caste certificate-Returning Officer-Scrutiny of nominations-Section
36-Handbook for Returning Officer-Election Commission of India-Indian Evidence Act-Section 90-Article
341-Presidential Order-High Court-Court of original jurisdiction.

This Election Petition filed under Section 80 of the Representation of People Act 1951 (hereinafter referred to
as 'the Act') challenges the election of Sri Bhim Prasad Sonkar (respondent) elected as Member to the
Legislative Assembly from Alapur (279) constituency of District Ambedkar Nagar. No prayer for declaring
petitioner- Ajay Kumar as elected Member of the Legislative Assembly has been made. (Para 1)

Briefly stated petitioner's case is that general elections to the Legislative Assembly were notified in the year

## Text

_Characters 0–39,938 of 100,238. This is a partial read: ask again with offset=39938 for what follows._

408 INDIAN LAW REPORTS ALLAHABAD SERIES

which is proved by the evidence of formal witnesses P.W. 4 and P.W. 5. Moreover, the appellant
was a man of trust of the informant as he was working as servant in his shop and his father also
used to work as servant with the informant which is evident from the evidence of P.W. 1 Gaya
Baksh Singh. Due to such faith and confidence in the appellant he left his minor daughter with the
appellant alone. The said trust and faith which the informant reposed on the appellant, was betrayed
by the appellant who committed such a heinous act against his daughter. From the evidence on
record it is established that the prosecution has prove its case beyond reasonable doubt against the
appellant and the findings of conviction recorded by the trial court is correct one.

21. In my opinion the judgement and order passed by the trial court in convicting the
appellant and sentencing under Section 376(2)(f) I.P.C. for 10 years R.I. appears to be appropriate.

22. In view of the above foregoing discussions, the conviction and sentence passed by the
trial court against the appellant is hereby upheld. The appellant is already in jail and he shall served
out sentence as awarded by the trial court.

23. The appeal lacks merits and is accordingly, dismissed.

24. The Court appreciates the assistance given by Sri Rehan Ahmad Siddiqui as Amicus
Curiae who argued the present appeal on behalf of the appellant. He shall be paid fee as per the
rules of the Court.

25. The Senior Registrar of this Court is directed to send a certified copy of this order to
the District Judge concerned for being forwarded the same to the Jail Superintendent of the
concerned jail, where the appellant is confined, for its necessary information.
------------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.07.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

Election Petition No.- 1 Of 2012

Ajay Kumar ...Petitioner
Versus
Sri Bhim Prasad Sonkar ...Respondent

Counsel for the Petitioner:
Subhash Vidyarthi

Counsel for the Respondents:
H S Jain,Manish Mathur, Sanjay Kumar.
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

409
Election petition-Improper rejection of nomination-Section 100(1)(c)-Representation of the People Act,
1951-Scheduled Castes-Gond caste-Caste certificate-Returning Officer-Scrutiny of nominations-Section
36-Handbook for Returning Officer-Election Commission of India-Indian Evidence Act-Section 90-Article
341-Presidential Order-High Court-Court of original jurisdiction.

This Election Petition filed under Section 80 of the Representation of People Act 1951 (hereinafter referred to
as 'the Act') challenges the election of Sri Bhim Prasad Sonkar (respondent) elected as Member to the
Legislative Assembly from Alapur (279) constituency of District Ambedkar Nagar. No prayer for declaring
petitioner- Ajay Kumar as elected Member of the Legislative Assembly has been made. (Para 1)

Briefly stated petitioner's case is that general elections to the Legislative Assembly were notified in the year
2012. Petitioner belongs to Gond caste, which is a Scheduled Castes and armed with a caste certificate,
issued by Tehsildar, Akbarpur, Faizabad, on 27.09.1979, he had successfully contested the election of
Pradhan, Gram Panchayat, Sugauti in the year 2010. Petitioner wanted to contest the election of the
legislative assembly as such, he requested Returning Officer/ADM (Finance) to provide him nomination form
which was not issued, asking petitioner to produce his caste certificate, issued after the year 1985, which
demand was wholly unjustified. (Para 2)

On 14.01.2012, petitioner sent a complaint through FAX to the Chief Election Commissioner, whereupon
nomination paper was provided to him on 16.01.2012. Petitioner filed his nomination paper on 19.01.2012,
before Assistant Returning Officer/SDM, Alapur, who threatened to cancel the nomination if petitioner did not
submit a caste certificate issued after the year 1985. Complaint of this threat was also made to Chief Election
Commissioner on 20.01.2012. Scrutiny of nomination papers was done where petitioner produced original
caste certificate. Yet Returning Officer rejected the petitioner's nomination paper and declined to provide the
copy of the order. Petitioner immediately made complaint to District Election Officer as well as to Chief
Election Commissioner, State Election Commissioner etc. On 23.01.2012, petitioner sent an application to the
State Election Commision, complaining wrongful rejection of nomination paper, whereafter copy of the
rejection order dated 20.01.2012 was provided. Petitioner did seek an information under Right To Information
Act, which information showed that Returning Officer had asked Tehsildar, Bhiti to conduct an enquiry
regarding petitioner's caste. (Para 3)

Tehsildar directed the Revenue Inspector to submit a report after enquiry. On 31.01.2012, Lekhpal submitted
a report that upon enquiry, it was found that petitioner belongs to Kahar, a backward caste and relying upon
this report, Tehsildar submitted a report that petitioner belongs to Kahar, which is a backward caste. It is
stated that neither any information of enquiry was given nor any opportunity was provided to petitioner
before submitting report.(Para 4)

On 01.02.2012, Returning Officer sent a letter to ADM, Ambedkar Nagar informing petitioner's son - Master
Amarkant and Daughter- Km. Savita were getting scholarship under the Scheduled Castes quota but Sri Param
Dev, the Head Master of Primary School, Sugauti was called who informed that although their names were
included amongst the students belonging to Scheduled Castes but, in fact, they belong to Kahar-backward
caste. There is no person of Caste Gond (Scheduled Castes) in village- Sugauti.(Para 5)

On 03.02.2012, Deputy District Election Officer, Ambedkar Nagar informed Chief Election Officer that as per
report of Tehsildar, Bhiti, petitioner does not belong to Gond- a Scheduled Caste of village-Sughauti. Sri
Param Dev, the Head Master of Primary School, Sugauti who had removed the names of the petitioner's
children from the list of Scheduled Castes had himself issued a Transfer Certificate on 02.07.2007, certifying
that petitioner's daughter- Km. Savita belongs to Gond caste. (Para 6)
Rejection of petitioner's nomination on the ground thatpetitioner does not belong to Gond caste ignoring the
caste certificate issued to him, is absolutely illegal and arbitrary. After rejection of the petitioner's nomination
410 INDIAN LAW REPORTS ALLAHABAD SERIES

paper, Bhim Prasad Sonkar (respondent) was declared as elected M.L.A. from Alapur constituency. Illegal
rejection of nomination paper has rendered the election of Bhim Prasad Sonkar, void and same be
annulled(Para 8)

Written statement was filed by Sri Bhim Prasad Sonkar denying the allegations made in the Election Petition.
It was submitted that petitioner is Kahar by caste and he does not belong to Gond caste. The caste certificate
dated 27.09.1979, allegedly issued by Tehsildar Akbarpur, is not genuine. Returning Officer, who had rejected
the nomination paper has done it after holding requisite and proper enquiry as he did not belong to Gond
caste and his minor children were getting scholarship, claiming themselves to be members of the Backward
Caste. In addition to this, it was submitted that there is no material on record to establish that petitioner
belongs to Gond caste. Some persons of the locality of Tehsil Akbarpur belonging to Kahar caste had started
writing themselves as Gond. An intimation to this effect was sent by District Magistrate, Ambedkar Nagar on
26.09.2006 to the State Government.(Para 9)

Held: (Para-142-146 )

1. In view of above, Issue No. 3 is decided in negative. Petition was not liable to be dismissed for noncompliance of Sections 81, 82 and 83 of R.P. Act.
Issue no. 4:- Relief ?

2. In view of findings recorded on issue nos. 1, 2 & 3, petitioner is not entitled to any relief.

3. There seems to be lot of confusion in respect of Dhuria. In some districts, they are Scheduled Tribes while
in other districts, they are being treated as OBC. P.W. 4 (Pyare Lal Gond) has been issued two certificates,
one as Scheduled Tribes and the other as Scheduled Castes. In appointment cancellation order, Dhuria has
been shown as OBC. It is because of this reason that people are changing their residence and trying to obtain
certificate from convenient districts to reap the benefits of reservation. Even petitioner's brothers had been
issued certificate of Scheduled Caste from Kanpur District. This state of confusion or uncertainty must end,
sooner the better. State Government would do well taking cognizance of this burning issue, to constitute a
high level commission to give a report after making an in-depth study, in a fixed time frame, in order to curb
unending litigation and do away with uncertainty in the mind of its subject.

4. While concluding, Court would like to appreciate the assistance provided by Sri H.S. Jain, Sri Sanjay Kumar.
Court notices the labour put in by Sri Subhash Vidyarthi, Advocate who has meticulously placed his submission
before this Court. His preparation and delivery both have been found to be commendable.
Order:

5. Petition is dismissed but with no costs.

Case Law discussed: --

Uttamrao Shivdas Jankar v. Ranjitsingh Vijaysingh Mohite Patil, (2009) 13 SCC 131-Paras 27, 33, 36, 48, 49
N.T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422-Paras 28, 34
Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604-Paras 28, 35
Somnath Rath v. Bikaram K. Arukh, AIR 1999 SC 3417-Para 29
Balram Singh Yadav v. Abhay Kumar Singh, (2014) 6 SCC 699-Para 31
Anil Baluni v. Surendra Singh Negi, (2005) 5 SCC 793-Para 32
Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673-Para 43
State of Maharashtra v. Milind, (2001) 1 SCC 4-Paras 63, 64
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

411
(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

1. This Election Petition filed under Section 80 of the Representation of People Act 1951
(hereinafter referred to as 'the Act') challenges the election of Sri Bhim Prasad Sonkar (respondent)
elected as Member to the Legislative Assembly from Alapur (279) constituency of District
Ambedkar Nagar. No prayer for declaring petitioner- Ajay Kumar as elected Member of the
Legislative Assembly has been made.

2. Briefly stated petitioner's case is that general elections to the Legislative Assembly were
notified in the year 2012. Petitioner belongs to Gond caste, which is a Scheduled Castes and armed
with a caste certificate, issued by Tehsildar, Akbarpur, Faizabad, on 27.09.1979, he had
successfully contested the election of Pradhan, Gram Panchayat, Sugauti in the year 2010.
Petitioner wanted to contest the election of the legislative assembly as such, he requested Returning
Officer/ADM (Finance) to provide him nomination form which was not issued, asking petitioner to
produce his caste certificate, issued after the year 1985, which demand was wholly unjustified.

3. On 14.01.2012, petitioner sent a complaint through FAX to the Chief Election
Commissioner, whereupon nomination paper was provided to him on 16.01.2012. Petitioner filed
his nomination paper on 19.01.2012, before Assistant Returning Officer/SDM, Alapur, who
threatened to cancel the nomination if petitioner did not submit a caste certificate issued after the
year 1985. Complaint of this threat was also made to Chief Election Commissioner on 20.01.2012.
Scrutiny of nomination papers was done where petitioner produced original caste certificate. Yet
Returning Officer rejected the petitioner's nomination paper and declined to provide the copy of the
order. Petitioner immediately made complaint to District Election Officer as well as to Chief
Election Commissioner, State Election Commissioner etc. On 23.01.2012, petitioner sent an
application to the State Election Commision, complaining wrongful rejection of nomination paper,
whereafter copy of the rejection order dated 20.01.2012 was provided. Petitioner did seek an
information under Right To Information Act, which information showed that Returning Officer had
asked Tehsildar, Bhiti to conduct an enquiry regarding petitioner's caste.

4. Tehsildar directed the Revenue Inspector to submit a report after enquiry. On
31.01.2012, Lekhpal submitted a report that upon enquiry, it was found that petitioner belongs to
Kahar, a backward caste and relying upon this report, Tehsildar submitted a report that petitioner
belongs to Kahar, which is a backward caste. It is stated that neither any information of enquiry
was given nor any opportunity was provided to petitioner before submitting report.

5. On 01.02.2012, Returning Officer sent a letter to ADM, Ambedkar Nagar informing
petitioner's son - Master Amarkant and Daughter- Km. Savita were getting scholarship under the
Scheduled Castes quota but Sri Param Dev, the Head Master of Primary School, Sugauti was called
who informed that although their names were included amongst the students belonging to
Scheduled Castes but, in fact, they belong to Kahar-backward caste. There is no person of Caste
Gond (Scheduled Castes) in village- Sugauti.
412 INDIAN LAW REPORTS ALLAHABAD SERIES

6. On 03.02.2012, Deputy District Election Officer, Ambedkar Nagar informed Chief
Election Officer that as per report of Tehsildar, Bhiti, petitioner does not belong to Gond- a
Scheduled Caste of village-Sughauti. Sri Param Dev, the Head Master of Primary School, Sugauti
who had removed the names of the petitioner's children from the list of Scheduled Castes had
himself issued a Transfer Certificate on 02.07.2007, certifying that petitioner's daughter- Km.
Savita belongs to Gond caste.

7. It is further stated that in the caste certificate issued topetitioner that he belongs to Gond-
a Scheduled Caste has not been cancelled nor it has been challenged by anybody before any
committee/forum. Tehsildar had no jurisdiction to recall or cancel the same nor he can adjudicate
upon the controversy regarding caste certificate.

8. Rejection of petitioner's nomination on the ground thatpetitioner does not belong to
Gond caste ignoring the caste certificate issued to him, is absolutely illegal and arbitrary. After
rejection of the petitioner's nomination paper, Bhim Prasad Sonkar (respondent) was declared as
elected M.L.A. from Alapur constituency. Illegal rejection of nomination paper has rendered the
election of Bhim Prasad Sonkar, void and same be annulled.

9. Written statement was filed by Sri Bhim Prasad Sonkar denying the allegations made in
the Election Petition. It was submitted that petitioner is Kahar by caste and he does not belong to
Gond caste. The caste certificate dated 27.09.1979, allegedly issued by Tehsildar Akbarpur, is not
genuine. Returning Officer, who had rejected the nomination paper has done it after holding
requisite and proper enquiry as he did not belong to Gond caste and his minor children were getting
scholarship, claiming themselves to be members of the Backward Caste. In addition to this, it was
submitted that there is no material on record to establish that petitioner belongs to Gond caste.
Some persons of the locality of Tehsil Akbarpur belonging to Kahar caste had started writing
themselves as Gond. An intimation to this effect was sent by District Magistrate, Ambedkar Nagar
on 26.09.2006 to the State Government.

10. In the Parivar Register of Gram Panchayat Sugauti, petitioner's caste is mentioned as
Kahar but after over-writing, Gond is written. In the school admission register, caste of minor son
of the petitioner is shown as Kahar. Principal, Ram Babu Vidya Mandir Inter College, District
Ambedkar Nagar has issued a certificate that petitioner's father belongs to Kahar, by caste.

11. Principal of Primary School, Sugauti has also issued a certificate to the effect that
petitioner's son- Master Amarkant is getting scholarship being Kahar. Election petition is not
maintainable in view of Sections 81, 82 & 83 of the Act as grounds of challenge to the election
have not been specified. No grounds contemplated under Section 100 (1) of the Act have been
specified. No concise statement of facts has been given as required under Section 83 of the Act.
Documents submitted along with the petition have not been verified as required by Section 82 of
the Act. Since there is no allegation of corrrupt practice, affidavit filed by petitioner cannot be part
of the election petition. No triable issue has been raised in the election petition. Moreover, same
suffers from the vice of nonjoinder of necessary party. Certificates of caste issued by Tehsildar on
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

413
12.09.1979 & 27.09.1979 cannot be conclusive and are subject to scrutiny and proof etc. etc. It was
claimed that petition be dismissed with costs.

12. A replication was filed by petitioner on 23.08.2012 reiterating the case set up in
election petition and further stating therein that petitioner was not informed about the enquiry being
conducted regarding his caste and he was not provided any opportunity before determining his
caste. Petitioner's father belongs to Gond caste. Tehsildar had issued certificate to petitioner's father
showing him to be of Gond caste.

13. Caste of a person is determined on the basis of caste of his father as such, petitioner
also belongs to Gond caste, which is further verified from the certificate issued by Tehsildar.
Petitioner's son- Master Amarkant and daughter- Km. Savita were getting scholarship admissible to
the Scheduled Castes as Gond but Sri Param Dev, the Head Master of Primary School, Sugauti,
who informed that although they were getting scholarship as Scheduled Castes but they belong to
Backward Caste Kahar. Headmaster had no authority to determine or change the caste. Said
headmaster had himself issued transfer certificate on 02.07.2007 certifying that petitioner's
daughter- Km. Savita belongs to Gond caste. Petitioner never applied for scholarship claiming his
children to be Kahar by caste and he had absolutely no knowledge that children were paid
scholarship admissible to other backward classes. Amount of Scholarship being same i.e. @ Rs.
300/- per month admissible to other backward classes and Scheduled Castes students, as such,
petitioner could not know about this change. In any case, change made by Headmaster of this
school, would not alter petitioner's caste. In para 23 of the replication, it is stated that petitioner as
well as his father both belong to Gond caste and certificates were issued accordingly in the year
1979. Letter written by ADM is based upon an enquiry, which was not conducted after notice to the
petitioner. Effect of certificate issued by Tehsildar cannot be affected in any manner by a letter
written by ADM. In the Parivar Register, initially caste was wrongly mentioned, which was
corrected showing him to be of Gond caste. There is no technical defect in the election petition and
the same is liable to be allowed with cost.

14. On the basis of pleadings, following issues were framed by the Court on 15.01.2013:-

"1.Whether petitioner belongs to Scheduled Castes. If so, its effect ?

2.Whether nomination of petitioner has been wrongly rejected. If so, its effect?

3.Whether election petition is liable to be dismissed for non-compliance of the
provisions of Sections 81, 82 and 83 of the Representation of the People Act, 1951, as alleged in
para 31 of the written-statement ?

4.Relief, if any, to which petitioner is entitled ?"

15. Before trial could commence, two applications (C.M. Application Nos. 75103 & 75100
of 2012) were moved by respondent with the prayer that election petition be dismissed under
414 INDIAN LAW REPORTS ALLAHABAD SERIES

Section 86 of the Representation of People Act. Principal grounds for seeking dismissal of the
petition were :-

"(a) Petition has not been filed in conformity with the provisions of Section 81, 82
and 83 of the Act,

(b) Returning Officer has not been impleaded as party,

(c) Annexures to the petition have not been verified,

(d) Grounds as required under Section 100(1) of the Act and 101 have not been
specified,

(e) No material facts have been given etc. facts mentioned are irrelevant."

16. Another application was filed under Order VI Rule 16 and order VII Rule 11 of C.P.C.
for striking off paras 3 to 22 of the Election Petition. This Court vide order dated 17.12.2012
dismissed both the applications. It was informed at the Bar that Special Leave Petition against this
very order was dismissed by Hon'ble Apex Court.

17. This Court held that impleadment of Returning Officer was not necessary. One of the
grounds provided under Section 100 (1) (c) of the Act is improper rejection of nomination. Thus, it
cannot be said that petition did not contain the ground contemplated under Section 100 of the Act.
It was further held that schedules were properly verified. Petition has raised a triable issue.
Relevant paragraphs of the order passed by this Court are being reproduced below clarifying the
controversy:-

"In para 35, Hon'ble Court holds that an Election Petition must clearly and
unambiguously set out all the material facts which the appellant is to rely upon during the trial,
and it must reveal a clear and complete picture of the circumstances and should disclose a definite
cause of action. In the absence of the above, an Election Petition can be summarily dismissed.

In the petition, it is mentioned that petitioner belongs to the Gond (schedule caste).
He has a certificate issued by Tahsildar Akbarpur, Faizabad. He had filed nomination which was
rejected on 20.01.2012 which he claims, was erroneous exercise of power by the Returning Officer.
It is apparent that the petitioner has given all the material facts. In fact petition does not involve
much factual disputes. Controversy is whether petitioner's nomination was wrongly rejected as he
was not found to be a Scheduled Castes candidate. No other ground has been taken by the
petitioner like corrupt practice etc. as such, it cannot be said that the respondent is taken by
surprise and it is not clear as to what allegations he has to meet."

18. Petitioner has filed following documentary evidence, in support of petition:-
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

415
Sl.
Paper no.
Particulars
Ext.
1.
32/2
Petitioner's caste certificate
1
2.
32/3
Caste certificate of petitioner's father issued by Tehsildar
2
3.
32/4
Caste certificate of petitioner's father issued by Gram
Pradhan
3
4.
32/5
Copy of certificate dated 28-10-10 regarding petitioner's
election as Gram Pradhan
4
5.
32/6
Certified copy of Parivar Register of Dayaram
5
6.
32/7
Certified copy of Parivar Register of Ajay Kumar
6
7.
32/8
Transfer Certificate of Ajay Kumar

8.
32/9
Transfer Certificate of Km. Savita issued by Param Dev
8
9.
6/28
Copy of complaint dated 14-01-2012
10
10. 6/29
Copy of complaint dated 19-01-2012

11. 6/32
Copy of complaint dated 20-01-2012

12. 6/36
Copy of application dated 23-01-2012

13. 6/40
Certified copy of rejection order dated 20-012012

14. 6/42
Application under R.T.I. Act

15. 6/45
Copy of reply dated 24-02-2012

16. 6/47
Copy of letter dated 28-01-2012
16 A
17. 6/48
Copy of letter dated 01-02-2012
17
18. 6/49
Copy of letter dated 03-02-2012
17 A
19. 6/51
Copy of G.O. dated 05-01-1996
416 INDIAN LAW REPORTS ALLAHABAD SERIES

20. 6/54
Copy of G.O. dated 28-02-2011

21. 48/2
Certified copy of the complaint dated 15-102010 by Sri
Ramesh Kumar to SC/ST Commission

22. 48/4
Certified copy of the investigation report dated 27-11-2010
submitted by Sri Vinod Kumar, Circle Officer, Bhiti,
Ambedkar Nagar on
complaint of Sri Ramesh Kumar

23. 48/7
Certified copy of the order dated 01-04-2011 passed in writ
petition no. 3120 (M/B) of 2011 staying the arrest of Sri
Ajay Kumar pursuant to FIR lodged by Ramesh Kumar
under
Sections 419 and 420 IPC

24. 48/9
Certified copy of the final report dated 28-042011 in FIR
lodged by Sri Ramesh Kumar under Sections 419 and 420
IPC against Sri Ajay Kumar

25. 52/14
Copy of report dated 21-07-2008 submitted by a
Committee comprising of all Tehsildars of
District Siddharth Nagar, Deputy Collector
Siddharth Nagar Sri Ramashray and Sri
Umashankar Gond, Advocate

26. 52/18
Copy of Circular dated 12-12-2013 issued by
Additional District Magistrate Administration, Gorakhpur

27. 25/2
A list of Scheduled Castes students in the Primary School,
Sugauti, prepared by Sri Param Dev, Principal of the
School
9
28. 25/3
Transfer Certificate dated 04-01-2002 issued by the
Principal, Thakur Deen Amar Punj Vidyalaya, Gaura
Samarsinghpur, Distt. Ambedkar Nagar, stating the
petitioner's caste as Gond

19. Respondent has filed following documentary evidence :-
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

417

Sl.
No.
No.
Filed with W.S. on 26-07-2012

1.

Certified Copy Parivar Register of Gautam
ख 1

Kumar, which is not mentioned in any list of documents
and which does not bear any paper number

2.
15/2
Certified copy of parivar register of Ajay Kumar
ख 2
3.
15/3
Certified copy of letter dated 26-09-2006 sent by
Collector, Ambedkar Nagar to U.P.
Govt.
ख 3
4.
15/4
Uncertified Photocopy of Certificate dated 19-01-2012
by Head Master Param Dev,
that Amar Kant is Kahar
ख 4
5.
15/5
Certificate dated 23-06-2012 issued by Principal Ram
Baba Inter College certifying that Dayaram is Kahar
ख 5
6.
15/6
Uncertified photocopy of admission register maintained
by school where Amar Kant is studying
ख 6
7.

Filed on 28-02-2013

8.
35/3
Certificate of election of Dinesh Kumar as Gram
Pradhan, Manaupur
ख 7
9.
35/4
Certified copy of application dated 21-022013 submitted
by Tehsildar, Bhiti to D.M. Ambedkar Nagar to know
about the caste of some persons alongwith report dated
23-022013
ख 7/1
418 INDIAN LAW REPORTS ALLAHABAD SERIES

10. 35/11
Copy of reply obtained under RTI relating to caste of Sri
Ravi Kant along with information supplied from office
of Tehsildar
ख 9
11. 35/14
Certified copy of parivar register of Ram Bujharat
ख 10/2
12. 35/16
Certified copy of parivar register of Suchit and Bahram ख 10/4
13. 35/17
Certified copy of parivar register of Kesri
ख 10/5
14. 35/18
Certified copy of parivar register of Ganga Ram &
Mansa Ram
ख 10/6
15. 35/19
Certified copy of parivar register of Agnu & Surma Devi ख 10/6
16. 35/20
Certified copy of parivar register of Sri Phulvas & Phagu
Ram
ख 10/7
17. 35/21
Certified copy of order dated 24-07-2012 passed by
Tehsildar Bhiti
ख 10/11
18. 35/24
Certified copy of order dated 21-07-2012 passed by
Scrutiny Committee

19. 35/29
Certified copy of letter dated 26-09-2006 issued by D.M.
Ambedkar Nagar to the Govt.

20. 35/30
Certified copy of judgment of Divisional Level
Committee dated 04-01-2013 passed by Commissioner
ख 10/
21. 35/34
Certified copy of election certificate of Ram
Bujharat as Gram Pradhan, Madhupur Miranpur

22. 35/35
Certified copy of list of students receiving OBC
scholarship in Primary School Sugauti

Filed on 04-09-2013
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

419
23. 40/2
Order dated 04-04-2005 passed by U.P. Madhymik
Shiksha Sewa Chayan Board Re:
Ram Anant Gond

24. 40/4
Report dated 10-08-2007 by Tehsildar, Sadar, Faizabad

20. The defendant's witnesses produced the following documents :-

52/1-2
Letter dated 19-06-2012 by Ratibhan, S.D.M., Akbarpur,
Ambedkar Nagar, to D.M.
D 3/2
52/3
Statement of Mohd. Idris and 16 others
D 3/2
52/4
Statement of Jhabbu Singh
D 3/2
52/5
Statement of Dayaram
D 3/2
52/6
Letter dated 02-06-2012 of Pinki Joval D.M. to Ratibhan,
S.D.M.
D 3/1
52/7
Order dated 21-07-2012 passed by District Level Caste
Scrutiny Committee
D 3/4
52/12
Attendance sheet dated 20-07-2012 of hearing on complaint
of Ramesh Kumar
D 3/3
59/1
Letter dated 02-06-2012 of Pinki Joval D.M. to Ratibhan,
S.D.M.
D 4/4
59/2
Letter dated 19-06-2012 by Ratibhan, S.D.M., Akbarpur,
Ambedkar Nagar to D.M.
D 4/5
59/4
Statement of Mohd. Idris and 16 others
D 4/1
59/5
Statement of Jhabbu Singh
D 4/2
59/6
Statement of Dayaram
D 4/3
C 64
Page 89 of Parivar Register of Phagu Ram
D 6/1
64/
Page 208 of Parivar Register of Dayaram
D 6/2
64/
Page 209 of Parivar Register of Ram Shiromani
D 6/3
420 INDIAN LAW REPORTS ALLAHABAD SERIES

64/
Page 279 of Parivar Register of Ganga Ram and Mansha
Ram
D 6/4
65
Letter dated 25-03-2014 by Ram Jiawan Sharma
D 7/1
70
Parivar Register of Bhagauti Deen
D 8/1
77/1
OBC certificate register 2011
D 10/1
77/2
Page 22 of register
D 10/2
77/3
Statement of Ram Shankar
D 10/3
77/4
Report of Lekhpal re: Family details of Ram Shankar
D 10/4
85/1
School leaving certificate of Dayaram
D 12/1
85/2
Application for admission of Dayaram
D 12/2
85/3
Scholar's register and T.C. of Dayaram
D 12/3
90/1
Page 40 of Parivar Register of Bhupati
D 13/1
90/2
Page 41 of Parivar Register of Suchit
D 13/2

21. As many as 4 witnesses were examined by the petitioner and respondent examined 16
witnesses-including 14 official witnesses.

22. I have heard Sri Subhash Vidyarthi, learned counsel for the petitioner, Sri H S Jain and
Sri Sanjay Kumar, learned counsels for the respondent.

23. Ground taken by the petitioner in the election petition is that his nomination paper was
improperly rejected. Section 100 of the Representation of the People Act, 1951 prescribes the
grounds for declaring election to be void. Section 100(1)(c) of the Act is relevant for the purpose of
petition and is being reproduced below:

"100. Grounds for declaring election to be void:-

[(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion-

(c) that any nomination has been improperly rejected; or
..................
the High Court shall declare the election of the returned candidate to be void."
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

421
24. Thus, it is apparent that improper rejection of nomination paper is a ground for
declaring the election to be void.

25. Contention of Sri Subhash Vidyarthi, counsel for petitioner is that once he is able to
show procedural irregularity or infraction of instructions issued by the Election Commission, it has
to be assumed that nomination paper has been improperly rejected, and therefore, nothing more is
required to be seen while submission of Sri H.S. Jain, learned counsel is that on merits also High
Court has to see whether petitioner had a right to contest. Submission is based upon Section 5 of
the Act. Section 5(a) of the Act is being reproduced below:

"5(a) Qualifications for a membership of a legislative assembly: In the case on a
seat reserved for a Scheduled Castes or for Scheduled Tribes of that State, he has a member of any
of those castes or of those Tribes, as the case may be, as an elector for any assembly constituency
in that State."

26. Submission of Sri H.S. Jain is that petitioner being a person not belonging to Scheduled
Castes had no right to contest the election from a reserved seat, even if there is some irregularity in
the process of scrutiny while rejecting the nomination paper, and same would not cloth petitioner
with a right to contest the election which he does not have.

27. In the case of Uttamrao Shivdas Jankar Vs. Ranjitsingh Vijaysingh Mohite Patil
[(2009) 13 SCC 131], Hon'ble Apex Court has decided the similar controversy. Court held that
there exists distinction between the decision making process allotted by Statutory Authority and the
merits of the decision. Para 36 of the judgment is being reproduced below:

"36. It is also now a trite law that once a finding is arrived at by the Election
Tribunal that the order of rejecting the nomination was improper which would take within its
umbrage not only the decision making process but also the merit of the decision, no further
question is required to be gone into. The Tribunal had no other option but to set aside the election
of the winning candidate."
 (emphasis supplied)

28. Relying upon the decision of N.T. Veluswami Thevar Vs. G. Raja Nainar (AIR 1959
SC 422) and Birad Mal Singhvi Vs. Anand Purohit (1988 Supp. SCC 604), improper rejection
has been made referable to Section 36 of the Act. Section 36 (2)(a) is being reproduced below:

"that on the date fixed for the scrutiny of nominations the candidate either is not
qualified or is disqualified for being chosen to fill the seat under any of the following provisions
that may be applicable, namely......."

29. Sri Subhash Vidyarthi, learned counsel has relied upon the decision of Hon'ble Apex
Court in the case of Somnath Rath Vs. Bikaram K. Arukhand others [AIR 1999 SC 3417]
422 INDIAN LAW REPORTS ALLAHABAD SERIES

wherein Court has held that improper rejection of a nomination paper by itself and without
anything more is a ground under Section 100(1) (c) of the Act to declare the election void.

30. Improper rejection of nomination itself has been held a ground to declare the election
void and material effect on result is not to be seen.

31. In the case of Balram Singh Yadav Vs. Abhay Kumar Singh [(2014) 6 SCC 699],
Hon'ble apex Court has held that "once the Court comes to the conclusion that the nomination
paper has been improperly rejected, it is obliged in law to declare the election void."

32. In the case of Anil Baluni Vs. Surendra Singh Negi [(2005) 5 SCC 793], Hon'ble
Apex Court has held that only issue before the court is to examine the correctness and propriety of
the order by which the nomination papers of a candidate are rejected. Relevant paragraph 19 of the
judgment is being reproduced below:

"19. Shri Mohta has also submitted that the result of the election should not be
lightly interfered with and the election petitioner must lead strong and cogent evidence to establish
his case for setting aside the election of a returned candidate. This principle is not of universal
application. This is not a case where the election petition may have been filed on the ground of
corrupt practice or improper acceptance or rejection of ballot papers or any error in counting of
votes. The election petition has been filed on the ground that the appellant's nomination papers had
been improperly rejected, which is a ground contemplated by Section 100(1)(c) of the Act. In such
a case the only issue before the Court is to examine the correctness and propriety of the order by
which the nomination papers of a candidate are rejected and the scope of inquiry is limited to the
said consideration."
 (emphasis mine)

33. Hon'ble Apex Court has given the meaning to 'improper rejection' by saying that
correctness as well as propriety of the rejection order has to be examined by the Court, therefore,
order has to be both correct and proper. If rejection order is proper but incorrect, ground under
Section 100(1)(C) would not be attracted. This has been clarified in the Apex Court in the case of
Uttamrao Shivdas Jankar (supra).

34. Thus, Returning Officer has to see while rejecting nomination paper whether the
candidate is qualified or disqualified for being chosen to fill the seat. Such decision is assailable in
election petition. Therefore, election tribunal is required to go into the merits of the matter.
Relevant part of paragraph 8 of the judgment in the case of N.T. Veluswami Thevar (supra) can
be useful to be quoted hereunder:

"In the context, it appears to us that the improper rejection or acceptance must
have reference to Section 36(2), and that the rejection of a nomination paper of a candidate who is
qualified to be chosen for election and who does not suffer from any of the dis- qualifications
mentioned in Section 36(2) would be improper within s. 100(1)(c), and that, likewise, acceptance of
6 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

423
a nomination paper of a candidate who is not qualified or who is disqualified will equally be
improper under Section 100(1)(d)(1)"

35.Similarly, in the case of Birad Mal Singhvi (supra), in para 10, Hon'ble Court opines
that it is open to the High Court to take a final decision in the matter in rejection order of Returning
Officer. Relevant para of para 10 of the judgment is being reproduced below:

"In an election petition it is open to an election petitioner to place cogent evidence
before the High Court to show that the candidate whose nomination paper was rejected had in fact
attained the age of 25 years on the relevant date. It is open to the High Court to take a final
decision in the matter notwithstanding the order of the returning officer rejecting the nomination
paper. If on the basis of the material placed before the High Court it is proved that the candidate
whose nomination paper had been rejected was qualified to contest the election it is open to the
High Court to set aside the election. Enquiry during scrutiny is summary in nature as there is no
scope for any elaborate enquiry at that stage. Therefore it is open to a party to place fresh or
additional material before the High Court to show that the Returning Officer's order rejecting the
nomination paper was improper. It should be borne in mind that the proceedings in an election
petition are not in the nature of appeal against the order of the returning officer. It is an original
proceeding. In the instant case it was open to the respondent election petitioner to place material
before the High Court to show that the two candidates were qualified and their nomination paper
was improperly rejected."

36. Apex Court made the important observations in paras 48 and 49 of the judgment
rendered in the case of Uttamrao Shivdas Jankar (supra). Paragraph nos. 48 and 49 of the
judgment are being reproduced below:

"48. In an election petition, the High Court acts as a Court of original jurisdiction
and the election petition is a civil trial and the jurisdiction in such a trial, stricto sensu cannot be
said to be appellate in nature. Clearly, the High Court acted illegally in treating its power only as
an appellate authority and not as an original authority for it only proceeded to try and determine
as to whether or not the decision making process is legal. That approach of the High court in our
considered opinion was illegal and unjustified.

49. The High court was duty bound to treat the matter on merits by framing
issues and thereafter calling for production of evidence in support of their respective cases. The
High court should have examined the veracity of the rival claims based on the evidence produced
by the parties and should have tested the correctness of the affidavits. The opinion of the hand
writing expert in that regard would have been sufficient and on the basis of the same it could be
possible for the High court to decide the entire lis between the parties. The High Court despite
being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the
petition without allowing the parties to produce evidence in support of their contention."

(emphasis supplied)
424 INDIAN LAW REPORTS ALLAHABAD SERIES

37. If a person is not qualified to contest the election and there is some procedural error in
rejecting the nomination paper, holding that order is erroneous, same would not remove the
disqualification and High Court has to decide whether person is eligible to contest the election or
not.