Madhya Pradesh High Court
Laddu Ram Kori vs Jajpal Singh Jajii on 8 November, 2023
Author: Sunita Yadav
1 Election Petition No. 08 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ELECTION PETITION No. 8 of 2019
BETWEEN:-
LADDU RAM KORI S/O SHRI PHOOL CHAND,
AGED ABOUT 53 YEARS, OCCUPATION:
AGRICULTURE R/O NEAR BIJASEN MATA
TEMPLE ASHOK NAGAR DISTT. ASHOK NAGAR
M.P. (MADHYA PRADESH)
.....PETITIONER
(BY MR. R.D. JAIN - SENIOR ADVOCATE ASSISTED BY MR. SANGAM JAIN,
AJAY BHARGAVA AND MAYANK PATHAK - ADVOCATES )
AND
JAJPAL SINGH JAJII S/O NOT MENTION,
AGED ABOUT 57 YEARS, R/O WARD NO. 8, 6
1.
SAHU COLONY TEH. ASHOK NAGAR DISTT.
GUNA M.P. (MADHYA PRADESH)
BAL KRISHAN MAHOBIYA S/O RAM LAL,
AGED ABOUT 53 YEARS, VILL. BAHERIYA
2.
ALIAS ROOP NAGAR, POST TEH. ISAGAD,
(MADHYA PRADESH)
JAGDISH BHANDARI S/O AMAR AHIRWAR,
AGED ABOUT 32 YEARS, VILL. PIPNAODA,
3.
POST NBARAYANPUR, THE. DIST. ASHOK
NAGAR (MADHYA PRADESH)
DAYALAU DAS SHAKYA S/O LAL DAS
4. SHAKYA WARD NO. 14, GALI NO. 2, DIST.
ASHOK NAGAR (MADHYA PRADESH)
DEVI LAL TAKEDAR S/O TEDI RAM, AGED
ABOUT 47 YEARS, OCCUPATION:
5.
THAKEDAR BHAWAN, NIRMAN SHADORA
TEH. ASHOK NAGAR (MADHYA PRADESH)
RAJBAI W/O RAJKUMAR OCCUPATION:
6. KRASHI AND SMAJ SEWA ASHOK NAGAR
(MADHYA PRADESH)
7. LALLIRAM S/O DEVILAL, AGED ABOUT 47
YEARS, OCCUPATION: HOME WORK GRAM
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 11/8/2023
04:12:36 AM
2 Election Petition No. 08 of 2019
AND TEH. SHADORA, (MADHYA PRADESH)
SHYAM SHAKYA S/O RAMLAL SHAKYA,
AGED ABOUT 26 YEARS, OCCUPATION:
8.
NOTHING HOUSE NO. 239/1 VILL. BHADORA
THE. GUNA (MADHYA PRADESH)
JEEVANDAS S/O AMARDAS, AGED ABOUT 27
YEARS, OCCUPATION: LAGOUR WARD NO.
9.
14 SHASHINDRA GALLI (MADHYA
PRADESH)
V P SINGH S/O ASHOK, AGED ABOUT 27
YEARS, OCCUPATION: LABOUR VILL.
10.
MAROOP POST RATIKHEDA, TEH. ASHOK
NAGAR (MADHYA PRADESH)
NILESH SHARMA, SUB DIVISIONAL
MAGISTRATE CUM RETURNING OFFICER
11. ASHOK NAGAR LEGISLATIVE ASSEMBLY
NO. 32 ( SC) ASHOK NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(MR. VINOD KUMAR BHARDWAJ - SENIOR ADVOCATE ASSISTED BY MR.
S.S. GAUTAM - ADVOCATE FOR RESPONDENT NO. 1)
--------------------------------------------------------------------------------------------------------
Reserved on : 26.10.2023
Delivered on : 08.11.2023
_____________________________________________________________________
This petition coming on for hearing this day, the court passed the
following:
ORDER
This election petition has been filed by the petitioner, who contested
election from constituency No. 32, in the elections which were conducted
in the year 2018 so as to constitute the Madhya Pradesh Legislative
Assembly. The petitioner was a candidate from Bhartiya Janata Party,
whereas respondent no.1 was a candidate from Indian National Congress.
FACTS:
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Signed by: ALOK KUMAR
Signing time: 11/8/2023
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3 Election Petition No. 08 of 2019
2. That, On 02.11.2018, the Election Commission of India issued
notification for election to the Legislative Assembly in the State of
Madhya Pradesh. As per the said notification, the election was scheduled
to be held as under;
(i) Last date for making notification :19.11.2018
(ii) Date for scrutiny of nomination form :12.11.2018
(iii) Last date for withdrawal of candidature :14.11.2018
(iv) Date of Pooling :28.11.2018
(v) Date before which election was to be completed :13.12.2018
3. The Petitioner is the resident of Dist. Ashok Nagar. He contested the
M.P. Vidhan Sabha General Election, 2018 (hereinafter to be referred as
"Election Of 2018') as a candidate of Bhartiya Janta Party (hereinafter
referred as "BJP") from Dist. Ashok Nagar assembly Constituency No.32
(S.C.) namely Ashok Nagar (hereinafter to be referred as "Constituency").
The Respondent No.1 contested election as a candidate of Indian National
Congress (hereinafter referred as "INC"). Other Respondents contested
elections are narrated below:-
(i). Respondent No.2 Balkrishna Mahobia contested election as Bahujan
Samaj Party;
Signature Not Verified
Signed by: ALOK KUMAR
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4 Election Petition No. 08 of 2019
(ii). Respondent No.3 Jagdish Bhandari contested election as Bahujan
Sangarsh Dal;
(iii). Respondent No.4 Dayalu Das contested election as a candidate of
Bhartiya Panchayat Party;
(iv). Respondent No.5 Devilal contested election as a candidate of
Sapaks Party;
(v). Respondent No.6 Raj Bai contested election as Mahanvadi Party;
(vi). Respondent No.7 Lalliram contested election as Aam Aadmi Party;
(vii). Respondent No. 8 Shyam Shakya contested election as a member of
socialist Unity Center of India (Communist);
(viii). Respondent No.9 Jeevandas contested election as independent
candidate;
(ix). Respondent No. 10 V.P. Singh contested election as independent
candidate; and
(x). Respondent No.11 is the returning officer Assembly Constituency
No.32 (SC) namely Ashok Nagar.
4. Constituency No.32, Ashok Nagar, M.P. was reserved for Scheduled
Caste (SC) candidates. That, the present Petitioner submitted his
nomination as candidate for BJP on 5th and 6th November 2018 and after
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Signed by: ALOK KUMAR
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5 Election Petition No. 08 of 2019
scrutiny, the nomination was found proper and thus, Petitioner was
declared as one of the candidates for election of 2018 from the
constituency No. 32 (S.C.) as a BJP candidate. The Respondent No. 1
submitted his nomination paper from the constituency No. 32 as a
candidate of INC.
5. That, the Petitioner submitted his objection against nomination of
Respondent No.1 as he was not the candidate belonging to the SC category
and alleged that the Respondent No. 1 has submitted his nomination form
as a S.C. Candidate 'NAT'. It was also submitted by Petitioner that the
Respondent No.1 belonged to Sikh Community. His parents were also
Sikh.
6. It is further submitted in the petition that prior to the present
election, the Respondent No.l obtained a certificate being "Keer" Caste on
02.12.1999 which is within "other backward class" (hereinafter to be
referred as "O.B.C."). The Respondent No.1 also contested election on the
post of Janpad Panchayat member in the year 1994 as a general candidate.
In the year 1999, the Respondent No. 1 contested election as O.B.C.
candidate. The seat was reserved for O.B.C. In the year 2009, Respondent
no. 1 contested election on the post of President of Municipal Council,
Ashok Nagar claiming to be of 'NAT' caste. In the year 2013 he contested
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6 Election Petition No. 08 of 2019
election on the post of M.L.A. and lost the election. The Respondent No.1
contested election as a 'Keer' in 1999 which falls in OBC category.
7. It is further submitted that the respondent No.1 also suppressed the
information that a criminal case was registered against him on 30.1.2017
on FIR No.- 0017 at 11:43 about which the entry was made in general
diary as entry No. 012. This FIR was lodged by Devendra Tamrakar.
Respondent No.l has knowledge about the FIR which was suppressed and
not disclosed in the nomination form.
8. It is further submitted that against nomination form of Respondent
No.l, Petitioner filed objection. The Respondent No.l submitted his reply
on 12.11.18 in which he stated that he was a candidate of 'NAT' caste
which has been declared as Scheduled Caste in 'Gazette of India' and
according to the Constitution (Scheduled Caste) Order 1950 he is
Scheduled caste candidate. He also stated that the Respondent No.l was
certified to be a member of 'NAT' community. Copy of the reply of
Respondent No.l is Annexure- EP/6.
9. That, one objector namely Jeevan Das also submitted objection in
which it was mentioned that the status of Respondent No.l as Scheduled
Caste has not been finally decided and matter is pending in High Court.
His objection is Annexure EP/7 and reply is Annexure EP/8. It is also
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7 Election Petition No. 08 of 2019
stated that a writ petition No.7047/2013 was filed in which he prayed for
stay order which was rejected and against the order dated 9.10.2013 of
learned single Judge, a writ appeal was filed at No. WA-502/2013 which
has been decided and the order dated 9.10.2013 has been cancelled. That
stay order has been directed to remain in operation until the decision of
WP No. 7047/2013. This objection was also replied by Respondent No.l.
10. That, the Respondent No.l0 - V.P. Singh Jatav also filed objection
against the nomination of Respondent No.l in which the caste of
Respondent No.l was alleged to be other than Scheduled caste. It was also
alleged that the Respondent No.l was not the scheduled caste candidate and
the Respondent No.l has done fraud and FIR No.0017 has also been filed
against him. The Respondent No.l filed the reply of the objection and
submitted that his nomination was not based on fraud. Shri. Dinesh
Ahirwar S/o Devilal of Ashok Nagar also challenged the nomination form
of Respondent No.1.
11. The returning officer heard the objection and decided the objections
on 13.11.2018. The returning officer held that in view of order dated
25.10.2013 passed in WA No. 502/13 the stay order has been passed and
the order of the scrutiny committee dated 25.9.13 has been stayed. On the
basis of the pleading taken by the Respondent No.l, the Returning Officer
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8 Election Petition No. 08 of 2019
has rejected the objections.
12. It is further submitted that the respondent No.l was not a candidate
belonging to SC category and was, therefore, not qualified to submit his
nomination form for the Constituency No.32, Ashok Nagar, which was
reserved for SC category candidate. Thus, the Returning Officer has
committed gross illegality in rejecting the objection against
the nomination form submitted by the respondent No.1 and thereby
illegally accepting it. Mere stay of the order dt.16.09.2013 passed by the
High Power Caste Scrutiny Committee, whereby the Scheduled Caste
Certificate of Shri Jaipal Singh was cancelled, does not have an effect of
quashing/setting aside the order dt. 16.09.2013 passed by the Caste
Scrutiny Committee and it cannot be construed that the order passed by the
Caste Scrutiny Committee has been wiped out from existence. Therefore,
the Returning Officer committed mistake in permitting the Respondent
No.1 to contest the election as a Scheduled Caste candidate.
13. That, the Respondent No.1 has done fraud on several occasions.
Firstly, the Respondent No.1 obtained a certificate from Tehsildar Ashok
Nagar on 2.12.1999. In this certificate he claims himself to be person of
'Keer caste'. The order was passed by the Tehsildar on 2.12.1999 which is
filed as Annexure EP/3. By this certificate he was claiming himself to be a
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9 Election Petition No. 08 of 2019
member of O.B.C. The fraud done by the Respondent No.l was got
examined by Superintendent of Police, Guna in which the claim of one
Baijnath Sahu S/o Manu Singh was accepted and the certificate dated
2.5.1999 was set aside vide Annexure EP/15 dated 04.03.2004.
14. That, on 28.7.2008 the Respondent No.l filed an application for
grant of certificate as a member of Scheduled Caste claiming the caste of
Respondent No.l as 'NAT (Baazigar). This application was accepted by
Tehsildar on 29.7.2008 and a certificate of Scheduled Caste was issued to
Respondent No.l in which it was clearly mentioned on 29.7.2008 that if
different documents are found than the certificate may be rejected at any
time. It was temporary caste certificate issued by Tehsildar Ashok Nagar.
The matter was sent to S.D.O., Ashok Nagar for issuing permanent
certificate. Copy of this order of Tehsildar is annexed herewith and marked
as Annexure EP/16. Along with this file, Tehsildar also sent the application
filed by Respondent No.l. In this application it was mentioned that the
Collector Dist. Guna has certified the Respondent No.1 on 13.5.99 to be a
person of 'NAT' (Baazigar) caste. It was also mentioned that in WP No.
1330/2002 on 12.8.2002 and in WP No.520/2004 dated 3.9.2004, the high
level scrutiny committee passed an order on 25.9.2004 and 11.11.2004
respectively and the Respondent No.l also filed an affidavit in which he
has stated that he belongs to the caste 'NAT' (Baazigar). Thus, he claimed
Signature Not Verified
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10 Election Petition No. 08 of 2019
himself to be a 'NAT' describing himself as Baazigar as per the
memorandum issued describing castes as Scheduled caste in which at
Serial No. 41 the description of Scheduled caste is given as under:-
"41-Nat, Kalbelia, Sapera, Navdigar, Kubutar"
In the above description Nat (Baazigar) has not been included and
only NAT has been included. NAT is a person who shows items on the
rope and the "baazigar" is the person who plays with small items to please
the children.
15. That, the Sub-Divisional Officer Ashok Nagar has sent the matter to
Collector, Ashok Nagar on 9.4.12 in which it has been stated that the
Respondent No.1 has been recorded in village papers as a Sikh on Survey
No.6 of Village Hinnod. In the educational record of Government Primary
School Sighada Development Division, Mungaoli at Entry No.145 on
1.8.1969 when the Respondent No.1 took admission in class 1 where he
stated that his caste was 'Sikh'. According to the school record, the
Respondent No.1 is a member of general category. According to the record
of Government Senior Boys Middle School he has been shown as a person
of 'Sikh' community. As per the record his date of birth is 5.7.1960. He got
admission on 22.7.74 and left the school on a TC No.366 on 25.7.1975.
Block Education Officer has written the Letter No.198/2011 dated
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11 Election Petition No. 08 of 2019
3.11.2011 whereby according to the educational record of Government
Primary School Singhada of Mungaoli his admission is No.145 and his
caste is recorded as 'Sikh' on 1.8.1969. That, the State Government issued
an order bearing No.23/76 XXV/5/88 dated 12.12.88 where the 'Sikh'
community was treated in general category caste. On this ground, the
Respondent No.l did not get the benefit of student scholarship.
16. That, the Respondent No.1 is resident of Hinnoda, Tehsil Mungaoli
from 1.8.1969. It has not been proved that under the Constitution
(Scheduled Castes) order 1950 the caste to which he belonged is notified in
the presidential order.
17. That, as per the letter No.107/R-1/2011 Mungaoli dated 26.9.2011 in
which the grand father of Respondent No.1 is Bood Singh S/o Natha Singh
or Nathan Singh whose son is Gurmej Singh and his sons are Rampal
Singh, Jajpal Singh (Jajji), Sheetal Singh and Bittu Singh have been shown
of 'Sikh' community. Prior to 1.8.1969, the Respondent No.1 was not the
resident of Ashok Nagar. A Rifle License was issued to Respondent No.l
where his caste is recorded as Sikh (General Category).
18. That, according to the certificate of Tehsildar, Ashok Nagar the
Respondent No. l is recorded as a member of 'Keer' caste which is O.B.C.
and accordingly the certificate was issued bearing No.143-B-121/99- 2000
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12 Election Petition No. 08 of 2019
dated 2.12.99. This certificate was found to be false. On the basis of this
order, the Collector, Ashok Nagar sent an information to Commissioner,
Scheduled caste department on 24.4.2012 in which the Collector
recommended criminal proceeding against the Respondent No.1.
19. That, as per the Scrutiny committee known as State Level. Doubtful
Schedule Caste certificate Scrutiny committee the Respondent No.1, was
found to have practiced fraud. The said order was challenged in WP
No.7047/2013 and in that matter the stay order was refused on 9.10.2013
against which a Writ Appeal was filed bearing No. WA No. 502/2013 in
which the order dated 16.09.2013 was stayed.
20. That, on the basis of the fraudulent act committed by Respondent
No.l, FIR was submitted by Devendra Tamrakar and a case was registered
under Sections 13(1)d, 13(2) of Prevention of Corruption Act, 1988 and
under Sections 420, 468, 47l and 120B of IPC.
21. That, it was also mentioned that the Respondent No.1 has committed
financial irregularities due to which the Municipal Council suffered a loss
of Rs.58.76 Lakhs. On this ground the case was registered. That, in the
above case the investigation was started and this information was widely
published in Ashok Nagar. The information was published in the
newspaper 'Ashok Nagar Ki Dhadkan'. Similarly, in the newspaper
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13 Election Petition No. 08 of 2019
"Ashok Nagar Ki Dhadkan" issued for the week 29 June to 5 July this
fraud was disclosed. Information was published. These newspapers are
widely read in Dist. Ashok Nagar and the Respondent No.1 had
information about the case registered against him. That the above
newspaper was published by Shri. Devendra Tamrakar which had
published the material and whose address is Purana Bazaar, Ashok Nagar.
He is also Editor and the paper is edited from Sahastra Prakashan
AshokNagar. The respondent no.-1 had knowledge that this case has been
registered but he did not disclose about the FIR case and thus the affidavit
filed by the Petitioner with nomination is false.
22. Thus by concealing the material information regarding pendency of
criminal case for commission of offence under Sections 13(1)(d) & 13(2)
of the Prevention of Corruption Act, 1988 read with Sections 420, 468,471
& 120-B of IPC vide FIR dated.30/2017, the nomination paper submitted
by the respondent No.1 was not in conformity with the provisions
contained under Section 33 of the Representation of People Act, 1951.
23. The nomination form submitted by the respondent No.1 thus
deserves to be rejected at the threshold on the ground of concealment of
the material information as stated above and at the same time, the
respondent No.1 is also guilty of commission of election offence under
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Signing time: 11/8/2023
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14 Election Petition No. 08 of 2019
Section 125-A of the Representation of People Act, 1951
24. That, the Respondent No.1 contested the election as a candidate of
INC. That, the Petitioner was contesting the elections as a candidate of
Bhartiya Janta Party. In the earlier election held in the year 2008, the
Petitioner won the election by a margin of more than 21,000 votes. In
present election, the Petitioner and other candidates obtained votes as
under:-
Respondent No. 1 obtained 65750 votes
Bal Krishna Mahobia obtained 9559 votes
Petitioner obtained 56020 votes
Jagdish Bhandari obtained 1090 votes
Dayalu Das obtained 287 votes
Devilal obtained 1462 votes
Raj Bai obtained 345 votes
Lalli Ram obtained 259 votes
Shyam Shakya obtained 520votes
Jeevan das obtained 613votes
V. P. Singh obtained 558 votes
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15 Election Petition No. 08 of 2019
In view of above, it is clear that the Petitioner would have won the
seat if the votes which fell to the Respondent No.1 would not have been
secured by him. People had notice that he was a general candidate and he
was fighting from Scheduled caste seat. Therefore, people who had
knowledge about the Respondent No.1 being a general candidate voted to
the Respondent No.1. In case the Respondent No.1 would not have
contested the election, petitioner would have been elected. This was
informed by Gajendra Singh S/o Narayan Singh Ward No.2 Ashok Nagar
and Lalit Kori S/o Shri. Surendra Kori Ward No.10 AshokNagar.
25. That, the Respondent No.1 was never accepted as a member of
Scheduled caste. The community also did not consider him to be a member
of the scheduled caste. Persons of 'NAT' community also did not accept
him to be a 'NAT'. Respondent No.1 also calls himself 'NAT' (Baazigar)
and he does not fall in Entry No.41 mentioned above.
26. That, the Respondent No.1 has not disclosed that his family was
living prior to the year 1950 at Punjab. Shri Sita Ram Raghuvanshi S/o
Lalji Ram Raghuvanshi Ashok Nagar Road, Sadora and Rajendra Singh
Raghuvanshi S/o Amar Singh R/o Durga Colony, AshokNagar and
Respondent No.1 and the people living in that constituency No.32, all
knew that the family came to Guna after 1950, the Respondent No.1 was
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16 Election Petition No. 08 of 2019
migrated in Ashok Nagar much after 1950.
27. By filing the written statement vide document no. 6216/2019, the
respondent no.-1 denied the allegations made in the petition and submitted
as below :-
(I). That, election petition filed by the petitioner is in pre-mature
stage because no cause of action arises to the petitioner. At the time of
filing the nomination form and also at the time of filing the instant election
petition the 'NAT' schedule caste certificate of R-1 was in existence.
(II). That the Election Petitioner has raised an imaginary
controversy. The petitioner is a Member of 'NAT' Community. It is
submitted just as the colour of the skin is inherited and it is always
constant, similar is the case of caste. A caste is inherited and the answering
respondent is Member of the 'NAT' Community. The fact that more than
60,000 voters voted in favour of the petitioner shows that the voters
knew about the status of the Answering Respondent. The Election
Petitioner cannot claim that he is entitled to count the votes poled in
favour of Answering Respondent. This assertion is based on imaginative
facts. The fact as to whether a particular person is a member of a particular
Caste or Community has to be determined as a fact. Every Election
furnishes a fresh cause of action and this has to be adjudicated upon every
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17 Election Petition No. 08 of 2019
time. What was said in an earlier litigation cannot be conclusive. An earlier
decision or an earlier plea taken by a person would not operate as res
judicata and any decision given is not a judgment in rem. Earlier decision
would not operate as judicial precedent. Thus the issue has to be decided
on merits. Every election furnishes a fresh cause of action. Earlier
decisions cannot be treated as judgment in rem.
(III). That the contention of the answering respondent is that he is
Member of 'NAT' Community which is covered by Constitution (Schedule
Caste) Order 1950. This issue has to be determined as a fact. The
answering respondent is claiming that he belongs to Punjab where there is
official record to the effect that the Members of his family have been
treated as Scheduled Castes. The Answering Respondent would be
leading evidence on this aspect of the matter and a determination has to be
made in the judicial process. It is, however, submitted that the answering
respondent is the Member of the 'NAT' community.
(IV). That the description given by the answering respondent that he
is a 'NAT', the category of "Bazigar" is only illustrative. 'NAT' Bazigar is
not a separate Caste. When a person describes himself as 'NAT' Bazigar,
he assumes that he is 'NAT'. In any case, this issue has to be determined as
a fact. It cannot be decided on the basis of oral statements made by the
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18 Election Petition No. 08 of 2019
parties. The official records which the Answering Respondent believes is
present in Punjab, from where his family migrated to Madhya Pradesh,
and is clear and categorical. The answering respondent is a Member of the
Scheduled Category.
(V). That merely because the answering respondent has described
himself as a Sikh, does not take away his status as Scheduled Caste.
Among the Sikhs there are persons be1onging to Scheduled Castes and
Backward Classes. Merely because a person is a 'Sikh' it cannot be said
that he cannot be a Scheduled Caste. The fact that the petitioner contested
election as General candidate would not mean that he has ceased to be
Scheduled Caste. Under the Election Law as well as Service Jurisprudence,
a candidate belonging to Scheduled Caste can claim benefits of General
category.
(a). That, the High Level Caste Scrutiny Committee as
per the direction of W.P. No. 7047/2013 dated 01-05-2019
issued the notices to all concerned persons and considering
the oral & documentary evidence and came to conclusion that
the respondent No. 1's ancestor has migrated from Punjab to
Madhya Pradesh. In Punjab as well as in Madhya Pradesh,
Nut caste is a scheduled caste as per the Gazette of India
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19 Election Petition No. 08 of 2019
extraordinarily published on 11-08-1950. The High Level
Caste Scrutiny Committee ultimately came to conclusion that
the certificate No. 31/B-121/08-09 dated 06-11-2008 is valid
certificate. The copy of the order dated 18-12-2019 passed by
the High Level Caste Scrutiny Committee is annexed
herewith and marked as Annexure R-1 and as such the present
petition is not maintainable.
(b). That, the High Level Caste Scrutiny Committee after
appreciating the evidence of either parties, revenue record,
documents and the report of the Vigilance Officer came to the
conclusion that 'NAT' Schedule Caste Certificate No.- 31/B-
121-0809 issued by the competent authority SDO (Revenue)
Ashok Nagar dated 06-11-2008 to respondent no.-01 is valid
and genuine certificate and vide its order dated 18-12-2019
has validated 'NAT' Schedule Caste status/Certificate of the
respondent No.1 (Return - Candidate). Said order was
assailed/challenged by the Election Petitioner by way of filing
the Writ Petition No.- 4794/2020. The Writ Petition was
allowed by the Learned Single Bench vide order dated 12-12-
2022. The respondent No.1 (Return-candidate) had
challenged the Single Bench order dated 12-12-2022 by the
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20 Election Petition No. 08 of 2019
way of filing the Writ Appeal No.- 1668/2022 before the
Hon'ble Division Bench. The Hon'ble Division Bench after
hearing both the parties at length pronounced Final
Judgement/order on 09-08-2023, in which the Hon'ble
Division Bench quashed the order dated 12-12-2022 passed in
W.P. No.-4794/2020. Copy of order dated 09-08-2023 is
being annexed herewith and marked as Annexure - R-1/2.
(c). That, the main allegation levelled against the respondent
No.1 (Return-Candidate) in the Election Petition is that the
return candidate does not belong to the Schedule Caste
category. That, as per the direction of the Hon'ble Apex Court,
the caste status of the candidate shall be verified by the State
Level Caste Scrutiny Committee. The Committee has verified
and validated the 'NAT' S.C. status of the respondent No.1
and the same has been affirmed by the Hon'ble Division
Bench vide its order/judgment dated 09-08-2023 passed in
Writ Appeal No.- 1668/2022.
(d). That, in the light of the judgment Annexure R-1/2, no
issue remains in respect of 'NAT' Schedule Caste status of the
respondent No.1 (Return-candidate). Hence, the Election
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21 Election Petition No. 08 of 2019
Petition has been rendered infructous and is liable to be
dismissed at this stage.
(e). That, in the Election Petition and in Court statement
recorded on behalf of the Election Petitioner and his
witnesses, it is stated that the respondent No.1 has suppressed
the material information about the pendency of F.I.R. Crime
No. - 0017/2017 registered at the Police Station Lokayuta at
the relevant point of filing of nomination form/paper. It has
also come on record, that there is nothing on record to show
that at the time of filing of nomination form up to till date the
charge sheet had been filed or cognizance has been taken by
the competent Court of Jurisdiction. That, at the time of filing
the nomination form, the respondent No.1 (return-candidate)
had no knowledge about the pendency/registration of the
F.I.R. by the Police Station Lokayuta and no notice had been
served. If the respondent No.1 had any knowledge about the
F.I.R. registered by the Lokayuta Police then he certainly had
mentioned it in the nomination form. On this ground also, the
Election Petition is redundant/infructous and in the light of
the judgment passed by the Hon'ble Apex Court, same
deserves to be dismissed.
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22 Election Petition No. 08 of 2019
(f). That, the Election Petitioner has challenged the
Legislative Assembly Election of the year 2018. Later in the
changed circumstances, the humble respondent No.1 (return-
candidate) has resigned from the post of M.L.A. of
constituency no.-32 Ashok Nagar and the same was accepted
by the authority. The notification was issued on 19-03-2020
to give effect to the said resignation since 10-03-2020. The
Election Commission has conducted the By-Election on the
vacant seat of constituency no.-32 Ashok Nagar (Reserved for
SC). In the By-Election the respondent No.1 again
contested/participated on the mandate of BJP and again won
the election with heavy margin of votes. In the By-election,
the present Election Petitioner and other respondents didn't
contest/took participation, however, neither present Election
Petitioner or anyone else raised any objection on the
nomination form of the respondent No.1 (return-candidate)
nor the By-election/subsequent election has been challenged
by the Election Petitioner and others by way of filing fresh
election petition. Every fresh election has fresh cause of
action. Looking to the present circumstances, the Election
Petition as well as the relief claimed by the Election
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23 Election Petition No. 08 of 2019
Petitioner has been redundant/infructous because no cause of
action survives with the petitioner and no relief can be
granted to the Election Petitioner in the changed
circumstances. Hence, the election petition should be
dismissed at this stage.
(g). That, there is no allegation levelled in the entire Election
Petition about committing any corrupt practice by the
respondent No.1 (return-candidate). An Election Petition must
contain a concise statement of material facts. This Election
Petition not only lacks in material facts, it also lacks in
material particulars, effective verification and the affidavit
filed was not in the Prescribed Form No.-25 under Rule 94-A
of the rules 1961. The existence of material facts, material
particular, correct verification and the affidavit in the
Prescribed Form, all are relevant when the petition is based
on the allegation of corrupt practice and in the absence of
these, the Court has the jurisdiction to dismiss the Petition.
On that count also, the Election Petition deserves to be
dismissed.
(h). That, apparently the Petitioner filed the Election Petition
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24 Election Petition No. 08 of 2019
knowing that the facts stated therein are false and as such the
instant Election Petition is meritless, vexatious and bogus,
same deserves to be dismissed. It is further stated that action
must be taken under Chapter 11 of IPC and heavy cost under
section 35 A of CPC may also be imposed against the present
petitioner as he consumed enormous and precious judicial
time.
(VI). That the verification to the petition regarding paragraph 1, 3, 7,
17, 19, 20, 21, 22, 31, 33, 34, 35, 36 are true to the personal knowledge
and belief disclose is a vague affirmation. He has to disclose the source on
the basis of which this information is based. The statement made that
averments made in paragraph 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 18, 23, 24,
25, 28, 29, 30, 32 are based on documents and that statement is believed to
be true does not satisfy the test of affirmation. Similar is the position with
regard to paras 15, 16, 26, 27 and ground "A" to "G". The verification at
the end of the petition is again not in accordance with law. The Election
Petitioner has not verified the documents appended with the petition and
therefore these cannot be made part of the Election Petition. The assertion
in the verification of Annexures that what is contained therein is true to his
personal knowledge is not sufficient verification. The Election Petitioner
cannot vouch for the contents of the Annexures. The Election Petitioner
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25 Election Petition No. 08 of 2019
has not verified all Annexures. By denying the allegations made in the
election petition, it is, therefore, prayed that looking to the facts and
circumstances of the case the election petition filed on behalf of the
Election Petitioner may kindly be dismissed with cost in the interest of
justice.
28. By filing the written statement by document no. 4460/2022, the
respondent no.-3 filed his written statement and submitted that :-
I. That, the present written statement is filed by the Defendant
no. 03, here the defendant no. 03 has also participated in the constituency
no.32 (SC) inVidhan Sabha Election 2018, of State of Madhya Pradesh and
contested the election from the banner of the party Bahujan Sangarsh Dal,
and secured 1091 votes,
II. That, the role of the defendant no.03 is very limited in this
election petition and his written statement is limited to the facts involving
and touching the defendant no.03.
III. That, the present election petition is filed in material mainly
raising the two grounds, firstly: That, at the time of filing the nomination,
the defendant no. 01 was not actually belonging to the schedule caste
'NAT'.
IV. Secondly: the Defendant no. 01 has not disclosed the fact of
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26 Election Petition No. 08 of 2019
pendency of FIR in EOW at the time of filing his nomination form.
V. That, except this the whole election petition is based on the facts
which does not go into the root of the present election petition.
VI. It is relevant to mention that, the ground raised in the present
election petition against the defendant no.01 does not comes under the
corrupt practice under the relevant provision of Representation of the
Peoples, Act,
VII. That, the ground raised that the defendant no.01 is not
belonging to Schedule Caste "NAT" is a issue which cannot be decided in
the scope of Election Petition, for it the separate forum is available and in
respect of the present defendant no. 01 such forum has given its verdict
which is on record and same is in favor of the defendant no.01, therefore
this ground raised is not of any avail for the election petitioner.
VIII. Secondly the ground of pendency of the criminal case against
the defendant no. 01 and suppression of this fact, at the time of filling the
nomination ST constituency no. 32 (SC) in Vidhan Sabha Election 2018, of
State of Madhya Pradesh, such objection made by the election petitioner
before the returning officer has been considered and rejected, therefore
against the such order separate forum is available to challenge the same,
and such issue cannot be the subject matter of the election petition under
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27 Election Petition No. 08 of 2019
the flag of corrupt practice.
IX. That, the defendant no. 03 is made party as a formal
party/defendant, therefore written statement of the defendant no. 03 is
limited to the extent of plaint which effect the defendant no. 03. In his
written he has submitted that the facts narrated in the petition needs to be
proved by leading evidence and proving of the copies of relevant records.
The petitioner has not any case and the petition be dismissed with heavy
cost.
29. Based on the averments in the petition as well as in the written
statements, following issues were framed by the Court on 11.12.2019 as
well as additional issue framed on 29.9.2022. The answers to the issues are
being mentioned before it and the reasons for the answers/conclusion are
being discussed thereafter as below:-
Issues conclusions/answers
(i). Whether the present election petition is not Yes
maintainable for want of cause of action?
(ii). Whether the caste certificate submitted by Yes
respondent no.1 in support of his nomination
form was a valid document ?
(iii). Whether respondent no.1, who contested Yes
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28 Election Petition No. 08 of 2019
election from Assembly Constituency No.32
namely Ashok Nagar in M.P. Vidhan Sabha
General Elections, 2018 is a member of
Scheduled Caste namely "Nat" ?
(iv). Whether the election, in so far it concerns No
respondent no.1, has been materially affected
by improper acceptance of his nomination ?
(v). Whether the election of respondent no.1 is No
vitiated on account of violation of sections 33
or 125A of the Representation of People Act ?
(vi). Since the respondent No. 1 originally hails Yes
from Punjab, whether he could be treated as
member of Scheduled Caste in the State of
Madhya Pradesh ?
(vii). Whether the validity of caste certificate No
can be adjudicated in election petition ?
(viii). Whether the petition is liable to be No, but is liable to be
dismissed on merits.
dismissed for want of non compliance with
mandatory provisions of the Act ?
(ix). Whether election of returned No
candidate/respondent no.1 is void and
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29 Election Petition No. 08 of 2019
petitioner is entitled to be declared elected
having secured highest votes ?
(x). Relief and Costs ? Election petition is
dismissed with cost of
Rs 50,000/-
(xi). Whether the Returning Officer was right in Yes
rejecting the objection raised by the petitioner
?
30. Reasons for the conclusions
Election Petitioner has sought the following relief in the instant
election petition-
(i) That entire record of the election of the respondent no.-01 for
constituency no.-32 including the objection filed against the nomination of
respondent no.-01 may be called.
(ii) It may be held that the election of the respondent no.-01 for
constituency no.-32 in the election of the year 2018 is void.
(iii) It may be further declared that the petitioner is elected to the
constituency no.32 as per Section 88 of the R.P. Act 1952.
(iv) Any other relief which this Court deems fit and proper in the
facts and circumstances of the case in favour of the petitioner may be
granted.
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30 Election Petition No. 08 of 2019
Election petitioner examined himself as E.P.W. No. 1 and also
examined Devendra Tamrakar as E.P.W. No. 2 and Roshan Raj Yadav as
E.P.W. No. 3.
31. ISSUES No. (ii) and (iii)
ISSUE -(ii)
"Whether the caste certificate submitted by respondent no.-01 in
support of his nomination form was a valid document?"
ISSUE - (iii)
"Whether respondent no.-01, who contested election from
Assembly Constituency No.-32 namely Ashok Nagar in M.P. Vidhan
Sabha General Elections 2018 is a member of Schedule Caste namely
"NAT"?
32. These two issues are related to the genuineness of caste certificate
of respondent No. 1; therefore, they are being considered together.
33. As per the case and argument of learned counsel for the election
petitioner, respondent No. 1 was not a member of scheduled caste namely
'NAT', however, he contested the Assembly Election from Constituency
No. 32 Ashok Nagar (M.P.) as a member of scheduled caste. Election
petitioner Laddu Ram Kori (E.P.W. No. 1) in his court-statement has also
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31 Election Petition No. 08 of 2019
deposed in the same line.
34. It is not disputed that this Court vide order dated 01-05-2019 passed
in W.P. No.-7047/2013) set aside the ex-parte order of the Caste Scrutiny
Committee dated 16-09-2013 and remanded the matter back to Caste
Scrutiny Committee for deciding it afresh. In compliance of the order of
this Court, the Caste Scrutiny Committee passed the order providing full
opportunities to either parties and has finalised and validated the 'NAT'
Schedule Caste social status of the respondent no.-01 (return candidate)
vide order dated 18-12-2019. It is also not disputed that during the
pendency of the instant election petition the election petitioner had filed
the W.P. No.- 4794/2020 and had challenged the order of Caste Scrutiny
Committee dated 18-12-2019. The Co-ordinate Bench of this Court
allowed the writ petition by order dated 12-12-2022 and quashed the order
of Caste Scrutiny Committee. The respondent No.-1 filed Writ Appeal,
W.A. No.-1668/2022 challenging the said order dated 12-12-2022 passed
by the single bench. The Division Bench of this court by its order dated 09-
08-2023 set aside the order of Single Bench dated 12-12-2022 and
affirmed the order of the Caste Scrutiny Committee dated 18-12-2019 by
which the Caste Scrutiny Committee has validated the 'Nat' Schedule Caste
status of the respondent no.-01/return candidate. The Hon'ble Apex Court
has also by order dated 16-10-2023, dismissed the SLP (C) No.-
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32 Election Petition No. 08 of 2019
22762/2023 filed by the election petitioner against the order of Division
Bench dated 09-08-2023 passed in Writ Appeal No. - 1668/2022.
35. Thus, after dismissal of S.L.P. No.22762/2023 by the Apex Court
against the judgment dated 09.8.2023 passed in the Writ Appeal
No.1668/2022, the issue of genuineness of caste certificate of respondent
No. 1 has finally been decided now, and the findings of Caste Scrutiny
Committee dated 18.12.2019 have become absolute according to which
respondent No. 1 belongs to the caste 'NAT' Baazigar under the category of
scheduled caste.
36. The Apex Court in the case of Madhuri Patil V/s Additional
Commissioner Tribal Welfare; (1994) 6 SCC 241 has laid down that if
there is any dispute regarding caste status of any person the only authority
is vested in the State Level High Power Caste Scrutiny Committee who
verify, scrutinize and approve the caste claim/status of any person. The
Caste Scrutiny Committee is the "administrative authority" vested the
quasi-judicial function. It is further held that the order passed by the
committee shall be final and conclusive only subject to the proceedings
under Article 226 of the Constitution. Thus any challenge regarding the
caste status of a person, the only remedy is Under Article 226 of the
Constitution of India.
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33 Election Petition No. 08 of 2019
In this Election Petition, the order of Caste Scrutiny Committee is
challenged. However, in the light of case of Madhuri Patil (supra),
petitioner has no cause of action to dispute over the order of the Caste
Scrutiny Committee in this election petition.
37. Accordingly, in respect to issue Nos. (ii) and (iii), it is found that
caste certificate submitted by respondent No.1 in support of his nomination
was a valid document because respondent No. 1 was a member of
scheduled caste namely 'NAT' and he can be treated as member of
scheduled caste in the State of Madhya Pradesh.
Consequently, issue Nos. (ii) and (iii) are answered in the
affirmative.
38. ISSUES No.-(iv) and (xi)
ISSUE No.-(iv)
"Whether the election, in so far it concerns respondent no.-01
has been materially effected by the improper acceptance of his
nomination"?
ISSUE No.-(xi)
"Whether the Returning Officer was right in rejecting the
objection raised by the petitioner with regard to the caste of
respondent no.-01"?
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34 Election Petition No. 08 of 2019
39. These two issues are related to alleged improper acceptance of
nomination of respondent no.-1. The Returning Officer has accepted the
nomination of the respondent no.-1 vide order dated 13-11-2018 Annexure
- EP/14 (Page No.-104- 106).
40. The material available on record reveal that the election petitioner
and other respondents filed their written objections before the Returning
Officer for rejecting the nomination paper/form of the return
candidate/respondent no.-1. vide page no.- 60 to 61 (Ladduram Kori) reply
of return candidate vide page no.-63 to 65, objections of Jeevanlal at page
67 to 69, replied by the return-candidate at page no.-71 to 73, objection of
B.P. Singh Jatav at page no.-89 to 91, replied by the return candidate at
page no.-93 to 96, objection filed by Dinesh Ahirwar at page no.-98 to 99,
reply by the return candidate at page no.-100 to 103.
41. The Returning Officer had rejected the objections of the Election
Petitioner and other respondents and had accepted the nomination of the
return candidate on the grounds that -
(i) On the perusal of the certificate, it is found that certificate no.-
31/B-121/08-09 dated 03-11-2008 is rightly issued by the competent
authority Sub-Divisional Officer, Ashok Nagar, on the basis of the
Constitution (Schedule Caste) order 1950 (SL. No - 41).
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35 Election Petition No. 08 of 2019
(ii) Scrutiny Committee order dated 16-09-2013 is stayed by the
Hon'ble Division Bench vide order dated 25-09-2013 passed in W.A. No.-
502/2013, up to the final decision of the W.P. No.- 7047/2013. Hon'ble
Division Bench order is in existence/effective till date matter is sub-judice.
(iii) Stamps paid by the return candidate is proper according to
Indian Stamp Act, 1899.
(iv) Non-disclosure of pendency of FIR crime no. 17/30-01-2017.
Returning officer in his order dated 13-11-2008 had held that
"According to hand book of returning officer 2018, page no.-116, point
no.04 "yadi vihit shapathpatra dakhil kiya gaya hai kintu yeh kathith taur
par ya trutipurna ya mithya soochna wala paya ya mana jata hai to
namankan ko iss aadhar par aswikrit nahi kiya jana chahiya." and has
rejected the fourth objection raised by the election petitioner and other
respondents.
(v) Rest of objections have also been rejected by the returning
officer on the ground that according to returning officer handbook 2018,
page no. - 115, point no.- 6-10 and section 36(2) of the R.P. Act, 1951,
ground of Objections were not found place in both hand book and R.P. Act,
hence rejected the other objections.
42. The Returning Officer had competence and authority to accept or
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36 Election Petition No. 08 of 2019
reject the nomination paper of the candidate. In view of the reasons
assigned by the Returning Officer for rejection of the objections as
mentioned above, Returning Officer has rightly accepted the nomination
paper of the return candidate respondent no.-1. Jajpal Singh after
appreciating the legal position and instructions of the election commission
of India.
43. In view of the above, issue No.-(iv) is answered in negative and
issue no.-(xi) is answered in affirmative.
44. ISSUE NO. -(v)
"Whether the election of respondent no.-01 is vitiated on
account of violation of sections 33 or 125A of the Representation of
People Act?
45. To decide this issue, Section 33(A) Representation of People Act
(hereinafter refereed to as the "Act") are relevant which are provided as
below:-
"(1) A candidate shall, apart from any information which he is
required to furnish, under this Act or the rules made thereunder, in his
nomination paper delivered under sub-section (1) of section 33, also
furnish the information as to whether--
(i) he is accused of any offence punishable with imprisonment for
two years or more in a pending case in which a charge has been
framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence
referred to in sub-section (1) or sub-section (2), or covered in sub-
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37 Election Petition No. 08 of 2019
section (3), of section 8] and sentenced to imprisonment for one
year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time
of delivering to the returning officer the nomination paper under sub-
section (1) of section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form verifying the information specified in
sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of
information to him under sub-section (1), display the aforesaid
information by affixing a copy of the affidavit, delivered under sub-
section (2), at a conspicuous place at his office for the information of
the electors relating to a constituency for which the nomination paper is
delivered."
In violation of Section - 35 (1) (A) (i) the penalty is prescribed under
Section 125 (A) of the Act, sentenced with imprisonment for a term which
may extend to six months or with fine or with both.
46. In the case in hand, there is no evidence that at the relevant point of
time of filing the nomination paper/form on behalf of the return candidate,
ny case punishable with imprisonment for two years or more was pending
in which a charge has been framed by the court of competent jurisdiction.
Even in their evidence, the election petitioner and his witnesses have failed
to show that the the cognizance in any criminal case has been taken by the
competent court against respondent no.-1. EPW-2 Devendra Tamrakar who
is the author of the FIR crime no.-17/2017 has stated in his Court statement
that he has no knowledge whether order of cognizance has been filed or
not in the present election petition. Since election petitioner has failed to
prove that till date of his evidence any charge-sheet has been filed or
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38 Election Petition No. 08 of 2019
cognizance has been taken, therefore, it is not proved that the election of
respondent no.-01 is vitiated on account of violation of sections 33 or
125A of the Representation of People Act.
47. As per the law laid down in the case of Krishna Murthy vs. Shiv
Kumar & Ors.; (2015) 3 SCC 467, the cognizance of offence/crime
should be taken by the competent Court and mere registration of FIR is not
sufficient to disqualify the candidate to contest the election. In this case,
neither there is pleading nor any evidence that competent court has taken
cognizance on the FIR registered against respondent No.1. Therefore, it
cannot be said that election of respondent No. 1 is vitiated on account of
violation of Section 33 A of Representation of Peoples Act. In view of
above, the defence of the the respondent no.-1/return candidate can not be
disbelieved that he did not suppress the material information about the
pendency of the FIR crime no.-0017/2017 of Police Station Lokayukta
because there is no evidence that the Police Lokayukt had issued any kind
of notice to the return candidate or he was summoned by the court.
48. As discussed above, since provision of Section 33 A of the Act
would not be attracted in the matter; therefore, question of punishment
under Section 125-A would be frustrated.
49. Consequently, issue No.-(v) is answered in negative.
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39 Election Petition No. 08 of 2019
50. ISSUE NO.-(vi)
"Since the respondent no.-01 originally hails from Punjab,
whether he could be treated as member of Schedule Caste in the state
of Madhya Pradesh"?
51. As discussed above the issue of caste of the respondent no.1 has
finally been decided up to the Apex Court and as per the caste certificate,
he belongs to 'NAT' Caste /Scheduled Caste. It is also crystal clear that in
the light of case of Madhuri Patil (supra) the question of genuineness of
the caste certificate can not be decided in this election petition. Therefore,
on the basis of order of the Caste Scrutiny Committee, it is found to be
proved that the respondent No.-1 could be treated as member of Schedule
Caste in the state of Madhya Pradesh.
52. In view of the above, issue No.-(vi) is answered in affirmative.
53. ISSUE NO.-(vii) -
"Whether the validity of caste certificate can be adjudicated in
the election petition" ?
54. In the judgment of the Madhuri Patil (supra), the Apex court held
that verification, scrutiny and approval of any caste certificate can be
adjudicated by the quasi-judicial authority State Level High Power Caste
Scrutiny Committee and had prescribed the procedure. Para 15 of the said
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40 Election Petition No. 08 of 2019
judgment deals with scope, dimension, limit and extent of jurisdiction of
the High Court under Article 226 of the Constitution while addressing a
challenge made to report and recommendations of High Power Caste
Scrutiny Committee. The same is also relevant for the purpose of this
petition and is reproduced as under:-
"15. The question then is whether the approach adopted by
the High Court in not elaborately considering the case is
vitiated by an error of law. High Court is not a court of
appeal to appreciate the evidence. The Committee which is
empowered to evaluate the evidence placed before it when
records a finding of fact, it ought to prevail unless found
vitiated by judicial review of any High Court subject to
limitations of interference with findings of fact. The
Committee when considers all the material facts and
records a finding, though another view, as a court of appeal
may be possible, it is not a ground to reverse the findings.
The court has to see whether the Committee considered all
the relevant material placed before it or has not applied its
mind to relevant facts which have led the Committee
ultimately record the finding. Each case must be considered
in the backdrop of its own facts. "
(Emphasis supplied)
In view of the above law laid down in the case of Ku. Madhuri
Patil (supra), it is crystal clear that validity of caste certificate cannot be
adjudicated in the election petition (trial) and verification, scrutiny and
approval of any caste certificate can be adjudicated by the quasi judicial
authority i.e. State Level High Power Caste Scrutiny Committee.
55. Consequently, issue no.(vii) is answered in negative.
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41 Election Petition No. 08 of 2019
56. ISSUE NO.-(ix)
"Whether election of the return candidate/respondent no.-01 is
void and petitioner is entitled to be declared elected having secured
highest votes?"
57. It is not is dispute between the parties that the election petitioner has
challenged the Legislative Assembly Election 2018 for reserved
constituency No. -032 Ashok Nagar, which was reserved for the Schedule
Caste candidate.
58. It is also not disputed that the respondent No.-01/return candidate
has resigned and by-election has been taken place in the year 2020 in
which the return candidate participated in the election fray and has won the
by-election. In the by-election the election petitioner and other respondents
neither participated nor anyone has challenged the by-election. Therefore,
question to declare election petitioner as elected in place of return
candidate does not arise and therefore, in the present situation the election
petitioner's recrimination claimed would not be survived and no relief can
be granted to the petitioner.
59. Therefore, issue No.(ix) is answered in negative.
60. ISSUE NO.-(i)
"Whether the present election petition is not maintainable for
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42 Election Petition No. 08 of 2019
want of cause of action"?
61. As discussed above, at the time of filling the nomination form and
at the time of declaration of result in favour of Respondent No.-1 the stay
order dated 25.10.2013 was in existence by which the D.B. of this court
had stayed impugned order dated 16.09.2013 passed by the High Level
Caste Scrutiny Committee, and the order was stayed until the final decision
of the writ petition No.-7047/2013. In the light of said stay order the
Returning Officer had rejected the objection no.- 2 raised by the petitioner
vide order date 13.11.2018. Aggrieved by, the election petitioner has filed
an instant election petition.
62. The election petitioner has questioned the caste of the respondent
No.-1 in this case and challenged the election of respondent No.-1 on the
basis of his not being a member of scheduled caste. The issue of caste of
respondent no.-1 has now finally been decided up to the Apex Court and
therefore, due to change in circumstances, no cause of action survives
with the election petitioner.
63. Consequently, issue No. (i) is answered in affirmative.
64. ISSUE NO.-(viii)
"Whether the petition is liable to be dismissed for want of
compliance of the mandatory provision of the Act"?
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Signing time: 11/8/2023
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43 Election Petition No. 08 of 2019
65. The respondent no.-01 has submitted that the petition is liable to be
dismissed for want of compliance of the mandatory provision of the Act.
An election petition must contain a concise statement of material facts.
Provision of Section-83 of the R.P. Act is mandatory in nature and also
requires the filing of the affidavit in the prescribed form where there are
allegations of the corrupt practice. It is lacking on the part of the petitioner
that he has not filed the affidavit in the prescribed format form no.-25
under rule 94-A of 1961 rules. The election petition not only lacks in the
material facts, it also lacks in material particulars, effective verification
and the affidavit filed was not in the form prescribed. The existence of
material facts, material particulars, correct verification and the affidavit are
relevant and important when the petition is based on the allegations of
corrupt practice and in the absence of these, the Court has the Jurisdiction
to dismiss the petition. However, as discussed above the present petition is
filed on two grounds first the respondent No.l was not a candidate
belonging to SC category and was, therefore, not qualified to submit his
nomination form for the Constituency No.32, Ashok Nagar, which was
reserved for SC category candidate and secondly non discloser of
pendency of criminal case. On these two grounds all material facts have
been disclosed by the petitioner. The affidavit has also been filed in
support of the petition. Therefore, the petition is not liable to be
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Signed by: ALOK KUMAR
Signing time: 11/8/2023
04:12:36 AM
44 Election Petition No. 08 of 2019
dismissed for non compliance of mandatory provisions. However, the
petition lacks merits as discussed above and is liable to be dismissed on
merits.
66. ISSUE NO.-(x)
"RELIEF & COSTS"
67. In view of the aforesaid discussions, the petition sans merits and
therefore, instant Election Petition No.- 08/2019 Ladduram Kori V/s
Jajpal Singh "Jajji" & others is hereby dismissed.
68. Learned counsel for the respondent No.1 argued that the allegations
by the election petitioner in the entire election petition are unnecessary,
scandalous and noxious which are tantamount to abuse of process of law
and wasting the valuable time of the Court. The election petitioner filed
the instant Election petition with malafide intention, on the basis of facts
which are false. Therefore, action must be taken under chapter 11 of Code
of Civil Procedure 1908 and heavy cost under Section 35 (A) of the CPC
may also be imposed against the present petitioner while dismissing the
petition. Learned counsel for respondent No.-1 has drawn the attention of
this court on the court statements of election petitioner and his witnesses
and earlier orders of this court to show that the election petitioner is the
political opponent of the respondent No.-1 and also having rivalry.
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Signed by: ALOK KUMAR
Signing time: 11/8/2023
04:12:36 AM
45 Election Petition No. 08 of 2019
69. The statement recorded during the cross examination of EPW-1
Ladduram Kori at para 12, 22,24,25, 26 he has admitted that in the year
2013 also respondent No.-1 contested the election from Ashok Nagar
which was reserved for SC candidates, but he did not raise any objection.
In his cross-examination he expressed his ignorance about his filing the
application in Writ Petition No.-7047/2013 and the order passed in it dated
01/05/2019 (Exhibit D-2).
70. The evidence recorded in this petition indicates that the election
petitioner in his statements made allegation against the Advocate Shri
Gautam about his being given a legal opinion about the caste of respondent
No.-1 to illegally benefit him but neither he pleaded about this fact nor
filed the copy of said order.
71. The election petitioner examined Devendra Tamrakar as EPW-2.
This witness in his cross examination specifically stated that he has not
raised any objection against respondent No.-1 while he contested the
elections in the year 2021 and 2013 in the seat reserved for SC candidate.
This witness has also said that the Senior counsel of petitioner has called
him for evidence. The witness further said that on the basis of information
of petitioner he is saying that Shri Gautam Advocate has wrongly opined
about the caste of the respondent No.-1.
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Signed by: ALOK KUMAR
Signing time: 11/8/2023
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46 Election Petition No. 08 of 2019
72. The EPW-3 Roshan Raj Yadav has also admitted that he has not
raised any objection against respondent No.-1 while he contested the
elections in the year 2021 and 2013 in the seat reserved for SC candidate.
The evidence of this witness is mostly hearsay without having seen the
relevant documents and without having personal knowledge. At para 13 of
his evidence this witness has said that his Advocate Shri Jain (Senior
Counsel) has informed Devendra Tamrakar (EPW-2) and him about the
recording of evidence.
73. The aforesaid evidence of election petitioner and his witnesses
clearly indicate that the preset petition is filed only when the election
petitioner lost the election in the year 2018 objecting that the respondent
No.-1 does not belong to Scheduled Caste whereas he (respondent No.-1)
contested the earlier elections in the year 2013 and also election in the year
2021 under the same category but no objection was raised his not being the
member of SC community. The conduct of the election petitioner along
with the evidence adduced by him indicate that present petition is filed
only on account of political rivalry after defeat in election of 2018 against
respondent No.-1 and for which he (respondent No.-1) has to suffer
enormous amount of mental agony. The evidence of witnesses of election
petitioner indicate that the allegations without pleadings and supporting
documents were made.
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Signed by: ALOK KUMAR
Signing time: 11/8/2023
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47 Election Petition No. 08 of 2019
74. It is also pertinent to mention that in Division Bench of this court in
R.P. No.1721/2018 has held that the respondent No.1 Ladduram Kori
(Election Petitioner in this case) not being an aggrieved person and is a
"busy body"as he had failed to establish that which fundamental,
constitutional Rights of the election petitioner has been infringed by
issuing of the 'Nat' scheduled Caste Certificate to the respondent
No.1/return candidate.
75. In view of the above reasons, it is apparent that because of this
petition in which the issue of caste of the respondent No.1 has been raised
only after the defeat in the election held in 2018 on account of political
rivalry, for which the respondent No.1 had to suffer mental agony, under
Section 35 (A) of the CPC, a cost of Rs. 50,000/- is imposed upon the
election petitioner to be paid to the respondent No.1.
The election petitioner shall bear his own cost.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 11/8/2023
04:12:36 AM
