# Ajay Kumar v. Sri Bhim Prasad Sonkar

- **Citation:** (2016) 7 ILRA 98
- **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-44095
- **Pages:** 32

## Text

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98 INDIAN LAW REPORTS ALLAHABAD SERIES

-----------
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 Petitioner:
Subhash Vidyarthi

Counsel for Respondent:
H S Jain, Manish Mathur, Sanjay Kumar

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.

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.

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.

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. High Court, being original

Court in the election matters, has to give its decision on merits as well on impropriety in rejection of
nomination paper. Order has to be correct on both counts procedural as well as substantive. On merits also
petitioner has to satisfy that he was qualified to contest. Court is of the view that in this election petition not
only decision making process adopted by Returning Officer but also genuineness of petitioner's claim to
contest the election has to be examined.
7 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

99
After analyzing the fact, Court is not satisfied with the procedure adopted by the Returning Officer while
rejecting the nomination paper Returning Officer has not adhered to Section 36 of the Act as well as
guidelines issued by the Election Commission of India. Neither he has raised presumption of validity of the
nomination paper nor sent the certificate for verification to the authority issuing it, as such, he has failed to
follow the instructions issued by the Election Commission of India. It has been stated above that mere
regularity in procedure in rejecting the nomination paper will not be sufficient to declare the election void
unless it is found that on merits also, decision was not sustainable. Controversy does not rest here as it is
settled position that High Court does not sit in appeal against the order passed by Returning Office while
exercising original jurisdiction and therefore, High Court will have to record the finding on the basis of
material available whether nomination was rightly rejected and whether applicant was qualified to contest the
election.

Court is of the opinion that petitioner has not been able to establish that he is 'Gond' and belongs to
Scheduled Caste, he was not entitled to contest the election in view of Section 5 of the R.P. Act. As such,
decision of Returning Officer on merits rejecting the petitioner's nomination was correct.

Court came to conclusion that petition does not deserve rejection as it contains all the material facts
contemplated under Section 83(1) of the R.P. Act. This Court found that petitioner has raised a triable issue
and enough material facts have been pleaded which cannot be said to be irrelevant. Grounds for declaring
election petition to be void have been specifically pleaded. With these findings, application was dismissed.

Petition is dismissed but with no costs.

(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
100 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

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 to petitioner 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 that petitioner 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
7 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

101
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 non-joinder of necessary party. Certificates of caste issued by Tehsildar on
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
102 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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,
7 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

103
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:-

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 20-01-2012

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

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

21.
48/2
Certified copy of the complaint dated 15-10-2010 by Sri
Ramesh Kumar to SC/ST Commission

22.
48/4
Certified copy of the investigation report dated 27-112010 submitted by Sri Vinod Kumar, Circle Officer,
Bhiti, Ambedkar Nagar on complaint of Sri Ramesh
104 INDIAN LAW REPORTS ALLAHABAD SERIES

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 28-04-2011 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
9
27.
25/2
A list of Scheduled Castes students in the Primary
School, Sugauti, prepared by Sri Param Dev, Principal
of the School

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 :-

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

1.

Certified Copy Parivar Register of Gautam
Kumar, which is not mentioned in any list of
documents and which does not bear any paper
number
ख 1
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 1901-2012 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 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

105
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 21-02-2013
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
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

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
106 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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.
7 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

107
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."

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)
108 INDIAN LAW REPORTS ALLAHABAD SERIES

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]
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).
7 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

109
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
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.
110 INDIAN LAW REPORTS ALLAHABAD SERIES

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)

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. High Court, being original Court in the election matters, has to give its decision on merits as
well on impropriety in rejection of nomination paper. Order has to be correct on both counts
procedural as well as substantive. On merits also petitioner has to satisfy that he was qualified to
contest.

38. In view of above discussion, this Court is of the view that in this election petition not
only decision making process adopted by Returning Officer but also genuineness of petitioner's
claim to contest the election has to be examined. Consequently, Court proposes to decide the issue
nos. 1 & 2 together.

Issue nos. 1 & 2:

39. Contention of Sri Subhash Vidyarthi, learned counsel is that petitioner belongs to
Scheduled Castes and certificate to this effect was issued by Tehsildar in favour of petitioner as
well as his father Sri Dayaram who was also elected as 'Pradhan' of the village Sugauti. His
children were getting scholarship, admissible to Scheduled Castes. Presumption of correctness
attached to the certificate was not drawn by Returning Officer.

40. Submission is that certificates were issued on 27.09.1979 and 12.09.1979 in favour of
petitioner and his father respectively (Exhibit 1 and 2). These documents were produced on
19.01.2012 on the date of filling of nomination, as such, documents were more than 20 years old
and presumption had to be drawn regarding their genuineness. Section 90 of Indian Evidence Act is
being reproduced below:

"Section 90 in The Indian Evidence Act, 1872 90. Presumption as to documents
thirty years old.--Where any document, purporting or proved to be thirty years old, is produced
from any custody which the Court in the particular case considers proper, the Court may presume
that the signature and every other part of such document, which purports to be in the handwriting
of any particular person, is in that person's handwriting, and, in the case of a document executed
7 All. Ajay Kumar Vs Sri Bhim Prasad Sonkar

111
or attested, that it was duly executed and attested by the persons by whom it purports to be
executed and attested. Explanation.--Documents are said to be in proper custody if they are in the
place in which, and under the care of the person with whom, they would naturally be; but no
custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the
particular case are such as to render such an origin probable. This Explanation applies also to
section 81. Illustrations........"

41. Learned counsel for petitioner has relied upon Section 114 of the Indian Evidence Act
to contend that presumption in this regard may be drawn by the Court.

42. Submission is that in view of above provisions, presumption of genuineness regarding
petitioner's Caste certificate had to be drawn which was not done by the Returning Officer, as such,
he committed error of law.

43. Apart from submitting that Returning Officer had failed to raise a presumption
available under Section 90 of the Indian Evidence Act. He has committed some more irregularities.
Election Commission of India has issued certain guidelines for the Returning Officers regarding
conduct of elections. These guidelines have been held to be statutory in nature. Similarly,
Handbook of Returning Officer has been issued by Election Commission of India which prescribed
the procedure for scrutiny. These guidelines have been held to be binding being statutory.
Reference may be made to the case of Sushil Kumar Vs. Rakesh Kumar [(2003) 8 SCC 673].

44. Contention of learned counsel is that guidelines issued by the Election Commission of
India have been brazenly violated. Clause 6.3 of the Handbook list of Returning Officer is being
reproduced below:

Question of genuine case certificate (ECI's No. 4/3/2008/JS-II/Vol.III dt 2.7.2008)
RO at the time of scrutiny should satisfy himself that candidate from a reserved constituency
belongs to SC or ST. In case of doubt, the RO must insist on production of SC/ST certificateWherever certificate produced is also challenged. RO. need not go into question, except where it is
alleged that the certificate is forged. In case of any allegation/suspicion about the genuineness of
the certificate, RO should get the position cross checked with the authority with issued the
certificate.

45. Similarly, Chapter VI of the Handbook for Returning Officer deals with the scrutiny.
Clause 6.9 of the aforesaid handbook is being quoted hereunder:

"There is a presumption that every nomination paper is valid unless the contrary is
prima facie obvious or has been made out. In case of a reasonable doubt as to the validity of a
nomination paper, the benefit of such doubt must go to the candidate concerned and the
nomination paper should be held to be valid. Remember that whenever a candidate's nomination
paper is improperly rejected and he is prevented thereby from contesting the election, there is a
legal presumption that the result of the election has been materially affected by such improper
112 INDIAN LAW REPORTS ALLAHABAD SERIES

rejection and the election will, therefore, be set aside. There is no such legal presumption
necessarily in the converse case where a candidate's nomination has been improperly accepted. It
is always safer, therefore, to adopt a comparatively liberal approach in dealing with minor
technical or clerical errors."

46. Submission of learned counsel is that Returning Officer ought to have presumed
certificate to be genuine unless it is alleged that same is forged.