1. This Election Petition filed under Section 80 of the Representation of People Act 1951 (hereinafter referred to as 'the Act') challenges the election of Sri Bhim Prasad Sonkar (respondent) elected as Member to the Legislative Assembly from Alapur (279) constituency of District Ambedkar Nagar. No prayer for declaring petitioner- Ajay Kumar as elected Member of the Legislative Assembly has been made.
2. Briefly stated petitioner's case is that general elections to the Legislative Assembly were notified in the year 2012. Petitioner belongs to Gond caste, which is a Scheduled Castes and armed with a caste certificate, issued by Tehsildar, Akbarpur, Faizabad, on 27.09.1979, he had successfully contested the election of Pradhan, Gram Panchayat, Sugauti in the year 2010. Petitioner wanted to contest the election of the legislative assembly as such, he requested Returning Officer/ADM (Finance) to provide him nomination form which was not issued, asking petitioner to produce his caste certificate, issued after the year 1985, which demand was wholly unjustified.
3. On 14.01.2012, petitioner sent a complaint through FAX to the Chief Election Commissioner, whereupon nomination paper was provided to him on 16.01.2012. Petitioner filed his nomination paper on 19.01.2012, before Assistant Returning Officer/SDM, Alapur, who threatened to cancel the nomination if petitioner did not submit a caste certificate issued after the year 1985. Complaint of this threat was also made to Chief Election Commissioner on 20.01.2012. Scrutiny of nomination papers was done where petitioner produced original caste certificate. Yet Returning Officer rejected the petitioner's nomination paper and declined to provide the copy of the order. Petitioner immediately made complaint to District Election Officer as well as to Chief Election Commissioner, State Election Commissioner etc. On 23.01.2012, petitioner sent an application to the State Election Commision, complaining wrongful rejection of nomination paper, whereafter copy of the rejection order dated 20.01.2012 was provided. Petitioner did seek an information under Right To Information Act, which information showed that Returning Officer had asked Tehsildar, Bhiti to conduct an enquiry regarding petitioner's caste.
4. Tehsildar directed the Revenue Inspector to submit a report after enquiry. On 31.01.2012, Lekhpal submitted a report that upon enquiry, it was found that petitioner belongs to Kahar, a backward caste and relying upon this report, Tehsildar submitted a report that petitioner belongs to Kahar, which is a backward caste. It is stated that neither any information of enquiry was given nor any opportunity was provided to petitioner before submitting report.
5. On 01.02.2012, Returning Officer sent a letter to ADM, Ambedkar Nagar informing petitioner's son - Master Amarkant and Daughter- Km. Savita were getting scholarship under the Scheduled Castes quota but Sri Param Dev, the Head Master of Primary School, Sugauti was called who informed that although their names were included amongst the students belonging to Scheduled Castes but, in fact, they belong to Kahar-backward caste. There is no person of Caste Gond (Scheduled Castes) in village- Sugauti.
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 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 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, 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 27-11-2010 submitted by Sri Vinod Kumar, Circle Officer, Bhiti, Ambedkar Nagar on complaint of Sri Ramesh Kumar
23. 48/7 Certified copy of the order dated 01-04-2011 passed in writ petition no. 3120 (M/B) of 2011 staying the arrest of Sri Ajay Kumar pursuant to FIR lodged by Ramesh Kumar under Sections 419 and 420 IPC
24. 48/9 Certified copy of the final report dated 28-04-2011 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
27. 25/2 A list of Scheduled Castes students in the Primary School, Sugauti, prepared by Sri Param Dev, Principal of the School 9
28. 25/3 Transfer Certificate dated 04-01-2002 issued by the Principal, Thakur Deen Amar Punj Vidyalaya, Gaura Samarsinghpur, Distt. Ambedkar Nagar, stating the petitioner's caste as Gond
19. Respondent has filed following documentary evidence :-
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 19-01-2012 by Head Master Param Dev, that Amar Kant is Kahar ख 4
5. 15/5 Certificate dated 23-06-2012 issued by Principal Ram Baba Inter College certifying that Dayaram is Kahar ख 5
6. 15/6 Uncertified photocopy of admission register maintained by school where Amar Kant is studying ख 6
7. Filed on 28-02-2013
8. 35/3 Certificate of election of Dinesh Kumar as Gram Pradhan, Manaupur ख 7
9. 35/4 Certified copy of application dated 21-02-2013 submitted by Tehsildar, Bhiti to D.M. Ambedkar Nagar to know about the caste of some persons alongwith report dated 23-02-2013 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
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.
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)
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).
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.
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 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 certificate-Wherever 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 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. In case of suspicion, he ought to have got the position checked from the Authorities but he did not verify the certificate validly issued by Tehsildar which was duly issued. Moreover, Returning Officer has failed to draw presumption that nomination paper has to be valid unless proved contrary, as such, benefit of doubt must go to the candidate. It is specifically said that it is always safer, therefore, to adopt a comparatively liberal approach in dealing with minor technical or clerical errors. At this stage, it may be relevant to quote Section 36 of the Act which provides the procedure for scrutiny of nomination, which is as under :-
"36. Scrutiny of nominations.--(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:--
(a) 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: --
Articles 84, 102, 173 and 191, Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34 ; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorize the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:"
47. Grievance of petitioner is that scrutiny ought to have been done in the presence of candidate, their election agent, one proposer of these candidates and one other person duly authorized in writing by his candidate and by no other person but in instant case Returning Officer has permitted objector Ramesh, Jethuram and Paramdev to be present at the time of scrutiny. Complaint to this effect was sent to District Election Officer on 28.01.2012 itself (Exhibit 12). Their presence is not contemplated under Section 36 of the Act. Ramesh Kumar, Ramkaran and Kanti wife of Paramdev had participated in the election of Gram Pradhan alongwith petitioner in the year, 2010 and all had lost their election. There is gross negligence of Returning Officer in rejecting the nomination paper of petitioner.
48. Allegation that Rajesh, Jethuram and Paramdev were present, has to be established. Submission is that if statute permits presence of specified persons, presence of any external agency or outsider would vitiate the decision making process. Returning Officer has definitely acted contrary to Section 36 of the Act as well as Handbook.
49. It is apparent from the order passed by Returning Officer that he had at the very inception started suspecting the correctness of the caste certificate. Even nomination form was given at the intervention of Higher Officer. It is apparent from the order that he had entertained complaint of Ramesh Kumar. Order appears to be passed in the presence of Paramdev. Order does not show that he was authorized to remain present during scrutiny. Persons authorized are mentioned in Section 36 of the Act. This conduct shows that Returning Officer has not followed the guidelines issued by Election Commission of India.
50. Statutory Authority should have in mind if a particular procedure is prescribed, thing has to be done in accordance with that mode or not at all.
51. In view of above, 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.
52. 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.
53. 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.
54. If an underage candidate files nomination and nomination paper is rejected either deliberately or negligently by Returning Officer, without adhering to the procedure provided under Section 36 of the Act, can Election be cancelled on the ground of rejection ? Court has to see whether appellant had a right to contest the election or not. In this case, Court has to decide whether petitioner was qualified to contest as a Scheduled Castes candidate. If petitioner is able to satisfy that he belongs to Scheduled Castes, then rejection of nomination paper might result in the declaration of election as void.
55. Petitioner has made specific allegation in petition that he belongs to Gond Caste which is a Scheduled Castes. In the written statement, this paragraph has been specifically denied by returned candidate and in additional plea, it is stated that petitioner belongs to Kahar Caste, which comes in the category of Other Backward Classes (OBC). Article 341 of the Constitution of India refers to Scheduled Castes, which Article is being reproduced below :-
"341. Scheduled Castes.-(1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be valid by any subsequent notification."
56. Bare perusal of the Article shows that caste mentioned in the presidential order will be deemed to be Scheduled Castes in relation to particular State or Union Territory, as the case may be. Said clause cannot be varied by any notification and Parliament alone may by law include in or exclude from the list of Scheduled Castes, any caste, sub-caste or tribe. It is thus apparent from the above that Scheduled Castes, mentioned in the presidential order subject to the amendment made by the Parliament, were alone Scheduled Castes.
57. Gond has been mentioned as Scheduled Caste in the Presidential Order, in specified districts of U.P.
58. Presidential order displays the list of Scheduled Castes and Scheduled Tribes, which shows that in Uttar Pradesh Gonds have been declared to be Scheduled Castes. Relevant entry is being reproduced hereinbelow :-
36. Gond (excluding Mehrajganj, Sidharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jonpur, Balia, Gazipur, Varanasi, Mirzapur and Sonbhadra Districts)
59. While Gonds are considered to be Scheduled Tribes in Uttar Pradesh in the districts mentioned below:-
6.Gond, Dhuria, Nayak, Ojha, Pathari, Raj Gond (in the districts of Mehrajganj, Sidharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jonpur, Balia, Gazipur, Varanasi, Mirzapur and Sonbhadra).
60. From the above, it is apparent that Gonds are not Scheduled Castes in entire Uttar Pradesh and are Scheduled Castes only in the above mentioned districts. They are Scheduled Tribes in the district of Maharajganj, Mehrajganj, Sidharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jonpur, Balia, Gazipur, Varanasi, Mirzapur and Sonbhadra. Dhuria, has not been declared as Scheduled Castes in Uttar Pradesh rather they are Scheduled Tribes in the above districts. Therefore, in State of the Uttar Pradesh, Dhuria cannot be a scheduled castes.
61. It is nobody's case that this order has been amended by Parliament making change in respect of Gond and Dhuria. Petitioner belongs to District Ambedkarnagar, which was earlier part of District Faizabad, as such, he claims the status of Scheduled Castes. It is relevant to state that in the Presidential Order, no amendment can be made except in the manner provided under Article 341 of the Constitution of India nor by means of interpretation any caste or sub-caste can be added or subtracted.
62. Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 was enacted by which certain entries in the Constitution (Scheduled Castes) Order, 1950 and also in the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967 were amended. Section 3 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 provides that Scheduled Castes Order will stand amended in the manner and to the extent specified as per the Schedule. The Scheduled appended to Amendment, 2002 inter alia provides that in Entry 36 of the Scheduled Castes Order, 1950, at the end, "(excluding Mahrajganj, Sidharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jonpur, Balia, Gazipur, Varanasi, Mirzapur and Sonbhadra Districts)" will be inserted. Entry 36 relates to "Gond Caste" which was inserted in the Constitution (Scheduled Castes) Order, 1950 by Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act No. 108 of 1976). Through 2002 Amendment Act, Gond, Dhuria, Nayak, Ojha, Pathari, Raj Gond (in the districts of Mahrajganj, Sidharth Nagar, Basti, Gorakhpur, Deoria, Mau, Azamgarh, Jonpur, Balia, Gazipur, Varanasi, Mirzapur and Sonbhadra) have been inserted as Scheduled Tribes. Thus, the result of 2002 Amendment would be that so far as district Faizabad or Ambedkar Nagar are concerned, person belonging to "Gond Caste" will be treated Scheduled Caste. However, caste or sub-caste "Dhuria" in relation to resident of district Gonda are neither Scheduled Tribe nor Scheduled Caste as the Scheduled Caste Order has not been amended to the said effect. The caste or sub-caste "Dhuria" does not appear to be included amongst the Scheduled Castes in relation to these districts as per the existing entries in the Scheduled Caste Order.
63. In the case of State of Maharashtra vs. Milind and Ors. [(2001) 1 SCC 4], Hon'ble Apex Court has made clear that States have no power to amend Presidential Orders. Relevant paragraph is being reproduced below :-
"Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group or part of tribe or sub-tribe is included in any one of the Entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said Article, it is expressly stated that said orders cannot be amended or varied except by law made by Parliament. The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with the Parliament and that too by making a law in that regard."
64. Paragraph 28 of the judgment is also relevant and is being reproduced below :-
"28. Being in respectful agreement, we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no inquiry at all is permissible and no evidence can be let in, to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of the entry concerned in the Presidential Order when it is not so expressly or specifically included. Hence, we answer Question 1 in the negative."
65. From the presidential order, it is apparent that Gonds are Scheduled Castes in Districts Faizabad or Ambedkarnagar. In the excluded districts, they have been given the status of Scheduled Tribes.
66. Petitioner's case is that he is Gond as such, he was entitled to contest the election against a constituency reserved for Scheduled Castes. Question before this Court is whether he is Gond, as claimed by petitioner or Kahar, as alleged in the written statement.
67. Petitioner has relied upon the certificate issued by Tehsildar as well as certificate issued in favour of his father, certifying them to be Gond by caste. He has also relied upon the certificate issued by Gram Pradhan (32/4), copy of the certificate declaring petitioner as Gram Pradhan against the reserved constituency, certified copy of the Pariwar Register of Dayaram and Ajay Kumar, transfer certificate of Ajay Kumar, transfer certificate of Kumari Savita, Param Dev and list of Scheduled Castes students, prepared by Param Dev.
68. Learned counsel also relied upon statements of Ajay Kumar (P.W. 1), Dayaram (P.W. 2), Ram Anant (P.W. 3) and Pyare Lal Gond (P.W. 4) the office bearers of Gond Mahasabha.
69. Certificate paper no. C-32/2, a certificate issued by Tehsildar Akbarpur, Faizabad on 27.09.1979, shows that petitioner belongs to Gond caste, which is a Scheduled Caste. Similar Certificate has been issued in favour of petitioner's father on 12.09.1979. Paper no. C 32/4 is a certificate issued by Mohd. Naseem, Pradhan, village- Sugauti stating that Dayaram Dhuria, s/o Shubhkaran Dhuria belongs to Gond caste. This certificate was issued on 26.10.2002.
70. State Election Commission certifies petitioner's election as Pradhan of village Sugauti. This does not say anything on caste. Copy of the Pariwar Register of Dayaram mentions petitioner's caste as Hindu Gond. Copy of the Pariwar Register of Ajay Kumar also mentions them as Hindu Gond. Second copy of the transfer certificate of petitioner issued on 04.01.2002 mentions petitioner's caste as Hindu Gond. Transfer certificate for Kumari Savita, daughter of petitioner mentions her caste as Gond, issued by Param Dev, Headmaster of Primary School, Sugauti on 12.10.2012.
71. It will be useful to deal with the oral evidence led by petitioner at this stage. Ajay Kumar (P.W. 1), while proving these papers stated that he belongs to Gond caste and he had successfully contested the election. In his statement, he also refers to the list of Scheduled Castes students prepared for the purpose of Scholarship by Param Dev, Headmaster of the School. This list mentions the name of Kumari Savita and Amar Kant, (daughter and son of petitioner) belonging to Gond caste. In paragraph 29, petitioner states that Tehsildar had not called him while holding enquiry nor he was given any notice or any opportunity before submitting report.
72. So far as scholarship of Kumari Savita is concerned, since no application is required and scholarship is given automatically and amount being same, admissible to Scheduled Castes or OBC students, it cannot be said as such that he was aware about the change of head of scholarship from Scheduled Castes to OBC. No opportunity was given about the above change.
73. In the cross-examination on 07.05.2013, he was unable to tell whether Grandfather had come from outside or was born here and whether he was original resident of this village or not. In para 8, he states that "My uncles are Faguram Dhuria, Gangaram Dhuria and Mansharam Dhuria". His grandfather was Shubhkaran. Banshraj Dhuria was brother of his grandfather, who is father of Fanguram Dhuria, Gangaram Dhuria and Mansharam Dhuria and sister Prema Devi. Raj Kumar and Jai Kumar are petitioner's brothers and Bittan is sister, who was married in the village Manaupur, Block Tarun, District Faizabad. In para 17, petitioner says "My brother-in-law is Dhuria". In para 18, he says that " Dhuria is synonym of Gond caste. Petitioner is a member of Gond Mahasabha. There is also Dhuria Mahasabha. Kahar is a group of caste, states petitioner.
74. In the cross-examination on 08.05.2013, he states that Dhuria and Gond have matrimonial relations and they can marry each other and his brother-in-law (Gautam), husband of Bittan is also Dhuria (para 7). His father-in-law is Ram Shanker Dhuria. In para 15 he says that "Ravi Kant is in my relation and he belongs to Kahar caste". Kesari is father-in-law of my younger brother, who belongs to Dhuria caste of Kahar (para 21). In para 24, petitioner states "Banshraj is brother of my grandfather. Paper no. 10, which is pariwar register of Banshraj mentions caste as Kahar". In the statement dated 09.05.2013, petitioner states that "Ordinarily profession of 'Gond' caste is the same which is that of Dhuria. Main profession of 'Dhuria' caste is to work domestic works, bring water from well and fry various grains like gram etc".
75. Petitioner states in the cross-examination by Sri H.S. Jain in para 1 that "My father has personally gone to Tehsildar for obtaining caste certificate because I was young at that time. My date of birth is 1.5.1970. Since 1979, certificates were being issued. People belonging to Dhuria caste is belonging to Scheduled Caste". Petitioner was unaware about the formalities that were adopted by petitioner's father. Petitioner has two brothers namely Raj Kumar and Jai Kumar. Raj Kumar is working with some doctor in Delhi and Jai Kumar is a teacher in Jhunjhunwala School. Petitioner's father is a teacher in Primary School.
76. On 22.05.2013, in cross-examination, petitioner in para 2 stated "Dhuriya is sub-caste of Gond caste". He further stated in paras 9 to 11 that "Dinesh Kumar is uncle of my brother-in-law Gautam Kumar. Dinesh Kumar has been Pradhan of village Manaupur. Paper no. 1 filed by opposite party no. 1 was shown to the witness who said that Dinesh Kumar has been elected Pradhan on the seat reserved for other backward classes". In para 15, he admits that "He had not given any application before the said Committee for issuing caste certificate". In para 20, he states that " I did not move any application before the Committee as I had already obtained caste certificate". In paras 22 to 24, he states that "Certificate contains the seal of Tehsildar, therefore, I presume that it must have been signed by the Tehsildar. Certificate does not mention any initial signature of any of the officials except Tehsildar. I did not make any effort to ascertain the name of Tehsildar who has signed the certificate". He denied the suggestion that certificate was vague and does not bear the signature of Tehsildar. He used the certificate for the first time while taking admission in High School. He was given scholarship treating him as Scheduled Caste. In para 36, he stated that " My brothers did not take advantage of this certificate during study. I got as I have applied. My brothers did not apply". He denied the suggestion that papers filed by him are forged papers and the word "Gond" was added by him in pariwar register. He denied the suggestion that he was dummy candidate. On 20.05.2015, petitioner was again examined and he filed certain papers. Petitioner filed complaint made to Election Commission, applied under the RTI Act and a copy of Enquiry Report submitted by District Election Officer.
77. In the cross-examination, petitioner when confronted with Pariwar Register of Banshraj states that it mentions his caste as Kahar. From the above, it is apparent that according to petitioner Dhuria is sub-caste of Gond. His brother-in-law is Dhuria. Brother of his grandfather (Shubhkaran) had three sons and all are Dhuria. His father-in-law is also Dhuria. In one place, he says that Dhuria is synonym of Gond while he also says that Dhuria is sub-caste of Gond. Certificate was issued by Tehsildar, when he was only nine years old and he does not remember his father having completed all formalities.
78. P.W. 2- Dayaram is the father of the petitioner. In para 2, he categorically states that "I belong to Dhuria by caste". In para 4, he states that "Dhuria is sub caste of Gond". In para 13, he states that "Gond are treated as Scheduled Tribes in 13 districts of the State i.e. Maharajganj, Sonbhadra, Devaria, Azamgarh, Mirzapur, Sidharthnagr, Basti, Gonda, Ambedkar Nagar etc. whle in rest 57 districts they are treated as Scheduled Castes". In para 16, he states that " Gond caste persons can marry in caste of Dhuria while Dhuria girl normally did not marry outside the caste". In para 17, he states that " No enquiry was conducted in respect of caste certificate of Ajay Kumar". In para 3 of the statement recorded on 24.05.2013, Dayaram states that in his service record, he was shown as Gond and in para 7, he states that his both sons were issued caste certificate of Gond Scheduled Castes. In para 9, he admits that his son-in-law is Dhuria. In para 15, he states that "Ram Saware Dhuria has also been issued a caste certificate of gond Scheduled Caste. He was a member of BDC for five years. He contested for member of Zila Panchayat on the symbol of Samajwadi Party". In para 17, he states that "Some persons belong to my caste, the Administration is wrongly treating their caste as OBC". In para 18, he states that "Since Administration is not issuing the certificate to Dhuria caste treating them as Scheduled Castes, they are getting the certificate as member of Other Backward Classes". In the cross-examination in para 4, he states that "I am not aware as to what type of enquiry having been conducted by Tehsildar, Kanpur". In para 6, it is stated "No inquiry was conducted by Tehsildar in my village for issuing caste certificate". In paras 7 to 10, he mentions the process of enquiry. Said paras are reproduced below :-
"7. Before issuing caste certificate for me and for Ajay Kumar, enquiry was held by Lekhpal, Kanoongo and thereafter it was submitted before Nazarat, then, certificate was issued by Tehsildar, Akbarpur.
8. Nearly in four days, caste certificate was delivered.
9. No evidence was recorded.
10. Since Lekhpal knew us, he issued caste certificate."
79. It is thus clear that since Lekhpal knew a caste certificate was issued. In para 11, it is stated that "Dhuria is sub caste of Gond. Other sub castes are Nayak, Ojha, Rathari, Rajgond".
80. In the cross-examination dated 22.08.2013, Dayaram states that "Dhuria is sub-caste of Gond. Godiya, Batham, Raekwad, Dheemar etc. are part of Kahar. All these castes fall in Kahar, which is a group of castes". In para 3, it is stated that "Initially Gonds were found in Mirzapur and on the hills of Kaimur and they were declared Scheduled Castes in 1976 in Uttar Pradesh". In para 5, it is stated that "I am Gond as my father was Gond and my relatives are Gond". He was unable to say if the residents of Gond place of Madhya Pradesh were alone treated as Gond. In para 15, he says "Phaagu Ram, Mansa Ram and Ganga Ram are sons of Bansraj. May be, they may be issued certificate of Kahar (O.B.C.). In para 21, it is stated that "In Pariwar-register, entry of caste of Kahar against my father's name has been added under some conspiracy". In para 22, it is stated that "I have not moved any application for caste certificate before the Committee after the judgment of Hon'ble Supreme Court. In para 24, it is stated that "Raj Kumar and Jai Kumar have not been issued caste-certificate as now it is not being issued", "may be because of some objection" (para 28).
81. From the above evidence, it is apparent that Dayaram admits himself as Dhuria. His son-in-law is also Dhuria. Certificate was issued because Lekhpal knew him. Profession of Dhuria and Kahar are same. Raj Kumar was issued certificate from District Kanpur Nagar. His other sons are not being issued certificates of Scheduled Castes. Dhuria is sub-caste of Gond.
82. P.W. 3-Ram Anant claims to be Provincial Organizing Secretary to Akhil Bhartiya Gond Mahasabha. In para 10, he states that in Ambedkar Nagar, for the last 20-25 years, no certificates were issued and according to last census of 2001, 1600 in Faizabad and nearly 1000 (families) in Ambedkar Nagar were belonging to Gond caste. Since certificates are not being issued, they have filed writ petition in the High Court wherein District Magistrate was directed to decide the matter within three months on 30.04.2013. Petitioner- Ajay Kumar belongs to Gond caste.
83. P.W. 3 -Ram Anant was issued certificate by District Welfare Officer- Ram Chandra Singh and he got the appointment on the basis of this certificate, which was later on canceled. Cancellation order has been challenged in the writ petition. It was also tried to trace the history of Gond, who originally belong to Madhya Pradesh. It was stated that Gond caste is found in entire Uttar Pradesh. This witness is not relevant so far as present controversy is concerned. In para 62, it is stated that "I am aware that certificate issued to Ajay Kumar petitioner has been canceled", which order has been challenged before the Commissioner. In para 71, he states that "There are five sub-caste of Gond namely Dhuriya, Nayak, Ojha, Pathari, Rajgond". In para 73, it is stated that "Outside, there are Netang, Ghorang, Dhuria, Ghurwe, Dhurwa, Dhuriyabhi". In para 76, he states that "Since Gond are tribals by nature therefore they should be included in Scheduled tribes". Gonds are not known as Kahar as occupation of Kahar is clearly different. In paras 82 & 83, he does not agree with the statement of his cousin Jagdev, who claims to be Kahar by caste. He denies the suggestion that for promoting the case of petitioner, he has given the statement.
84. From this witness, it is apparent that Dhuria is sub-caste of Gond and claims are being laid for declaring them as Scheduled Castes/Tribes. Witness was confronted with paper whereby his appointment was cancelled as he belongs to Kahar-OBC.
85. Last witness examined is Pyare Lal Gond, who states that his sub-caste is Dhuria, while his caste is Gond. He is a Social Worker and is Prantiya Sachiv of State Akhil Bhartiya Mahasabha. He has been issued a certificate of Scheduled Tribes as per status of Gond in district Varanasi. 'Before that, I was treated as Scheduled Castes' (Para 8). In para 9, it was stated that "Earlier in entire State, Gonds were treated as Scheduled Caste but on account of amendment, in 13 districts Gonds are treated Scheduled Tribe and in rest districts, they are Scheduled Caste". Demand of Gond Mahasabha is declined. Gond caste is Scheduled Tribes. Petitioner- Ajay Kumar is also Gond and he is in my relation (para 13). In para 14, he states that "Ram Ratan Gond is his own relative and he has been issued certificate of Scheduled Tribe in Varanasi. He is Gond by caste". In para 18, he states that "His father is Dhuriya and he actively participates in Gond Mahasabha". Other sub-castes are found in Sonbhadra and Mirzapur districts and in rest districts of Uttar Pradesh, Dhuriya are found. Normally, Dhuriya are married in Dhuriya (para 21).
86. In cross-examination, again witness admits that petitioner is his relative being distant Samdhi and Sadhu (both) and there is no difference between Gond of Scheduled Tribes and Scheduled Castes (para 7, statement dated 20.09.2013). In para 10, he states that "Originally Gond came from Koshal which extended to Allahabad and Maha Koshal extended to Jabalpur. Maha Koshal lies in Madhya Pradesh". In Para 11, it was stated that "In regime of Akbar, Gond people had migrated from Madhya Pradesh to Uttar Pradesh". In para 12, witness states that they are fighting for their existence and declaration as Scheduled Caste. First he was issued certificate of Scheduled Castes in the year 1978. Thereafter, a certificate of Scheduled Tribes was issued in the year 2004 and 2010. In para 15, he states that "Tehsildar had issued the certificate. Certificate is not issued by Three Tier Committee but is only verified. Certificate is issued by Tehsildar. In para 16, he states that "This Three Tier Committee has not verified my claim or certificate". Further in para 17, he states that "Yes, I know that in pursuance of judgment of Apex Court, Three Tier Committee was constituted after the year 1994. "He denied the suggestion that he is deposing falsely for Mr. Ajay Kumar on account of his friendship. It is further stated in para 22 that "It is also wrong to say that I am supporting Mr. Ajay Kumar as I want to expand Gond caste".
87. According to this witness, situation becomes confusing that the same man is a Scheduled Castes and then becomes Scheduled Tribes, after some time but he admits that Ajay Kumar is his relative and father of Ajay Kumar is Dhuria.
88. From the above material submitted by petitioner, it comes out that petitioner and his father were issued certificate by Tehsildar in the year 1979, declaring them as Gond-Scheduled Castes. Committee constituted in pursuance of judgment of Hon'ble Apex Court was not involved in this process. It is also admitted that Dayaram (father of the petitioner) admits himself to be Dhuria. Most of the relatives of the petitioner are Dhuria by caste. Petitioner claims to be Gond by caste and admits Dhuria to be sub-caste of Gond. He does not say that he is not Dhuria or has not inherited the caste- Dhuria from his father. His father, father-in-law, brother-in-law, uncle, cousins are all Dhuria. Dhuria and Gond are definitely two different identities. Dhuria girls ordinarily do not marry Gond. Dhuria is sub caste while Gond is caste. In these circumstances, it is difficult to hold that petitioner is Gond and not Dhuria.
89. Petitioner relies upon the certificate issued by Tehsildar in the year 1979. Authenticity of this certificate has been challenged by contesting respondents, as such, it was for petitioner to have proved the certificate. Under Section 90 of the Indian Evidence Act, a presumption is available to the documents old more than 20 years, in Uttar Pradesh. Once a challenge is made that document is forged and not valid, burden comes to petitioner.
90. Petitioner's evidence as discussed above, does not show that he belongs to Gond caste. He might have been Dhuria. He might have been linked with Gond and his caste might have been sub caste of Gond but he cannot become Scheduled Caste, in view of the Presidential Order, as amended, which does not mention Dhuria as Scheduled Caste.
91. Claim of respondent is that petitioner is Kahar by caste, that evidence also needs to be considered.
92. Exhibit- Kha-1 is Pariwar Register of Gautam Kumar (brother-in-law of petitioner). This does not mention any caste, which was required to be mentioned in case person belongs to Scheduled Caste.
93. Exhibit-Kha-2 is extract of pariwar register of petitioner and his father, wherein against Shubh Karan name, entry of Kahar has been made but against Ajay Kumar, entry of Gond has been made.
94. Exhibit-Kha-3 is letter by District Magistrate, Ambedkar Nagar to State Government informing that after enquiry, it was found that in Ambedkar Nagar district people belonging to Kahar caste represent themselves as Gond, no Gond people are found in the district as such, certificate of Scheduled Caste is not being issued.
95. Exhibit-kha-4 is certificate given by the Headmaster of Primary School showing that petitioner's son-Amar Kant was getting scholarship as OBC candidate. Similar certificate has been issued by Principal of Ram Babu Vidya Mandir Inter College, District Ambedkar Nagar, certifying that caste of Dayaram is Hindu Kahar (Exhibit-Kha-5).
96. Exhibit-Kha-6 is admission register showing petitioner's son as OBC- Kahar.
97. Exhibit-Kha- 7 is certificate given to Dinesh Kumar, who was elected Pradhan as OBC.
98. Exhibit-Kha-7/1 & 7/2 are documents showing that Rambujharat and sons of Faguram Dhuria, Gangaram Dhuria and Mansharam Dhuria belong to OBC- Kahar.
99. Certificate to similar effect given by Tehsildar is Exhibit-kha-7/3.
100. Exhibit-kha-7/4 is the certificate showing that Bhagauti Deen belongs to Kahar. Pariwar register extract of Bhagauti Deen mentions religion as Hindu and does not mention his caste, which was required if are belonged to Scheduled Castes.
101. Exhibit-kha-7/6 is copy of pariwar register of Behram, which does not mention any caste so is the case with Ramjit. Ravikant, Keshri, Ganga Ram, Mansaram's extracts do not mention caste. However, extract relating to Faguram mentions caste as Hindu Kahar.
102. Exhibit-kha-11 is order passed by Tehsildar, whereby he has canceled the certificate issued in favour of petitioner on 27.09.1979, cancellation was done in pursuance of enquiry ordered by District Magistrate, Ambedkar Nagar on the complaint of Ramesh Kumar etc.
103. It appears that Ramesh Kumar filed complaint before District Magistrate challenging the certificate issued to Ajay Kumar alleging that he belongs to OBC- Kahar but his certificate was wrongly issued. An enquiry was conducted by a Committee.
104. Committee headed by District Magistrate came to the conclusion that certificate issued to the petitioner cannot be upheld. Consequently, necessary instructions were issued and Tehsildar cancelled the certificate. Details of the enquiry have been filed before this Court which are Exhibit-Kha-D-3/1 to Kha-D-4/5.
105. Exhibit-Kha-D-4/6 is the extract of Pariwar Register of Faguram, which mentions him as Kahar while that of Dayaram shows him as Hindu Gond (Exhibit-kha-D-4-6/2).
106. Ganga Ram and Mansa Ram have not been shown with their caste.
107. Exhibit-kha-D-7/1 is the certificate issued by Tehsildar which shows that there is no record pertaining to the year 1979 and register has been maintained since 1984.
108. Exhibit-kha-D-10/3 is the statement of Ram Shanker Dhuria, who claims to be Kahar.
109. Exhibit-kha-D-12/1 is the copy of the School Leaving certificate pertaining to Dayaram, showing him to be Kahar. This certificate seems to have been issued on 09.08.1969. Similarly, application for admission of Dayaram shows that he belongs to Hindu Kahar (Exhibit-kha-D-12/2 and D-12/3, which is Scholar's Register).
110. Respondent has examined as many as 16 witnesses. Out of which 14 are official witnesses.
111. DW-1 is the returned candidate who states that petitioner belonged to Kahar caste and he does not belong to Scheduled Caste. In respect of Pariwar Register, witness states that entry against Ajay Kumar showed him as Hindu Gond which was a result of overwriting and even date of birth was changed to 01.05.1970. He also produced the papers showing that Dayaram, father of petitioner has been shown as Kahar and Amarkant son of Ajay Kumar is shown as OBC Kahar. Dinesh Kumar, cousin of Ajay Kumar, brother-in-law Gautam was the election of Pradhan OBC candidate. Son of Faguram, namely, Vinod Kumar, Pawan, Pramod have been shown as Kahar. Gudia and Pooja, daughter of Gangaram, cousin of petitioner have also been shown as Kahar. On maternal side of petitioner Ajay Kumar, Ramjeet has not been shown belonging to Scheduled Caste (Exhibit kha-8). Ravikant maternally related to Dayaram, father of petitioner, is shown as Kahar (Exhibit kha-9). Madhu, daughter-in-law of Faguram, daughter of Ramjeet has also not been shown as Scheduled Caste (Exhibit kha-8). Witness proves the order passed by Tehsildar cancelling the certificate. This witness was issued caste certificate in the year, 1973-74. Witness does not know Ajay Kumar personally as he resides in the village situated about 80-85 kilometres away from petitioner's village.
112. Ramesh Kumar DW-2 belongs to petitioner's village. He had contested against petitioner for the office of 'Pradhan' which was reserved for Scheduled Caste. He had filed objection which was rejected by Returning Officer and Ajay won. He filed election petition before SDM which is still pending. He admitted having objected to the nomination of petitioner before Returning Officer. He gave the details of pedigree of petitioner. In para 18, it is stated that father-in-law of Ajay Kumar Ram Shanker whose father is Bhagautideen has not been shown belonging to Scheduled Caste in Pariwar Register. In para 22, witness states that a Committee was constituted to enquire into the validity of the certificate which examined petitioner, who had also produced two to three certificates in his favour. His father Dayaram appeared as witness and Committee had directed Tehsildar to cancel the certificate of petitioner in cross examination. Witness states that in the year, 2010, he could not know that Ajay Kumar is not Gond but Kahar. He is Scheduled Caste, Chamar. He is a teacher of Bhagat Singh Inter College, Gonda. In the year, 2010, witness states that wife of Paramdev Smt. Kanti had also contested against Ajay Kumar wherein Ajay Kumar got 420 votes while witness got 207 votes. He was merely rival candidate. There is no other enmity. He admitted having lodged F.I.R. against Raj Kumar but the same was found to be false. In cross examination conducted on 11.12.2013, witness states that he had filed election petition in the year, 2012 challenging the election of Pradhan held in the year, 2010. He denied that Paramdev was lying in jail for three months in regard to charge of misappropriation of scholarship. He denied the suggestion that he has filed election petition in the year, 2012 only to extend help to Bheem Prasad Sonkar, MLA.
113. Ram Asre, DW-3 was posted as ADM from 14.12.2012 till 27.09.2013. He proved the enquiry report and the order passed by District Magistrate directing enquiry. In cross examination, witness states that under the Government Order dated 26.11.2011, Committee should be constituted having four members but in this matter Committed had five members. Ajay Kumar was given one day to file documents, dictation of report was given by District Magistrate in the presence of all the members on 21.07.2012. Formal meeting was held. All the Tehsildars had reported that no persons of Gond caste resides in Ambedkar Nagar. He was not competent to give reply in respect of Dhuria caste. While posted as SDM at Siddharth Nagar, he was member of a Committee which had agreed that Dhuria was sub caste of Gond and consequently, committeee recommended to issue Scheduled Caste certificate to such persons.
114. DW-4 Ratibhan was SDM, Sadar at the relevant time who had enquired into the caste of petitioner in pursuance of order passed by District Magistrate. Statements of 15 persons were recorded who all beonged to village Sugauti. In cross examination, witness states that all the statements were recorded on the same day and he is not aware of sub-castes of Gond and he does not know that Dhuria is sub caste of Gond. Report is based upon the statement of witnesses who termed Ajay Kumar as Kahar on the basis of vocation. Since Pariwar Register contained caste after overwriting, adverse inference was drawn by the Committee.
115. Deepcharan Shukla, Gram Panchayat Adhikari in Gram Panchayat Sugauti (DW-6) produced Pariwar Register. According to him, against the entry of Bansraj, Kahar was subsequently mentioned. On page 208, name of Dayaram is entered and against his name Hindu Gond is mentioned. After scoring out 'Hi Kahar', Hindu Gond has been mentioned. Gond is written in concentrated ink and upper part of the paper is torn. In cross examination witness admits that 'hi Kahar' written by same person. If a person is Hindu, then hindu be mentioned, if he belongs to Scheduled Caste, caste is mentioned; sometime other caste like Brahmin. is also mentioned. Against the name of Dayaram, hindu Gond must have been written together.
116. DW-7 Ram Jiyawan Verma posted as Kanoongo in Bheeti district Ambedkar Nagar. He stated that any caste register prior to the year 1984 is not available in Tehsil.
117. DW-8 Raj Kumar Yadav is Gram Panchayat Adhikari who produced Pariwar Register of village Java Bazar. Pariwar Register contained enteries of Bhagautideen, Ram Shanker, Kevalpati, Sushila Devi, Kali Prasad, Santosh Kumar, Gaya Prasad and K. Madhuri and register shows that no caste is mentioned. Caste is only mentioned when one belongs to Scheduled Caste. Pariwar Register does not have any entry of all the daughters of head of the family.
118. Ram Nawal Verma (D.W. 9), Kanoongo, Tehsil Milkipur did not bring register pertaining to Pariwar Register.
119. DW-10 Dinesh Kumar, Tehsildar, Bhikapur brought the register and states that no caste certificate has been issued to petitioner from his Tehsil. This witness brought register pertaining to caste certificate from 2011 onwards and according to witness, name Ram Shanker's father is not mentioned. Arti, daughter of Ram Shanker and his son- Vidya Ratan are shown as Kahar by caste. Witness does not know the caste of petitioner. In para 19 he states that Ram Shanker in his statement has stated that he is Dhuria by caste but Lekhpal has mentioned as Kahar. Witness stated that he cannot say if Dhuria is sub caste of Gond. In para 25, witness states that whenever Gond caste applies, Lekhpal describes them as Kahar. In para 26 witness says Ram Shanker does not belong to Dhuria although he writes Dhuria, Lekhpal does not menion any material on the basis of which he found Ram Shanker is not Dhuria.
120. DW-11 is Raja Ram, ADO, Panchayat who states that Bujharat was elected as village Pradhan of Gop Madhopur against the reserved set of backward class.
121. Prem Nath Singh DW-12 produced the Scholarship register consisting admission form, wherein caste of Dayaram is mentioned as Hindu Kahar. School Leaving Certificate also shows caste of Dayaram as Kahar. Witness admits that register is not properly maintained. Shubhkaran was not literate and witness cannot say that who had filled the form and made the entry. He has affixed thumb impression. He was deposing under the pressure of local MLA, is not correct, says witness.
122. Ashok DW-13 is Gram Panchayat Adhikari, Belia Bariarpur, who produced the Panchayat Register to show that Suchit, son of Darshan has been mentioned as Hindu Kahar. In cross examination, witness could not tell who made entries and corrections thereon.
123. DW-14 Murlidhar, Lekhpal, Sijhauli states that he knew entire family of Suchit who belonged to Kahar caste. In cross examination witness states that since he is Lekhpal, therefore, he knows the caste of Kahar. From the perusal of Pariwar Register and enquiries made from Pradhan from neighbourhood made him make this statement.
124. DW-15 Sant Prasad Maurya's testimony is irrelevant.
125. DW-16- Shiv Bahadur Singh is working as Lekhpal since 2007. He had conducted enquiry in pursuance of order passed by District Magistrate. He went to village alongwith Tehsildar and Kanoongo. Tehsildar has recorded the statement of witness from which it was deduced that Ajay Kumar belongs to Kahar, OBC. Dayaram was also examined. In cross examination, witness states that Tehsildar has recorded the statement but report was written by him. He denied that he submitted report under pressure. Tehsildar had directed him to call the villagers, which he did with the help of mobile.
126. Above is the entire evidence.
127. Respondent has led the evidence to show that not only Ajay Kumar belongs to Kahar caste but his relatives are also Kahar by caste. Documents pertaining to relatives of Ajay Kumar and his maternal side and his in-laws and sisters, his cousins have been filed. Some pariwar register did not mention caste, as such, it is submitted that caste is required to be mentioned only when person belongs to Scheduled Caste, otherwise religion alone will be mentioned. Entire evidence has been filed to show that relatives of Ajay Kumar do not belong to Scheduled Caste or Gond Caste.
128. Sri H.S. Jain, learned counsel for the respondent has placed the order passed by committee presided by District Magistrate which recommended the cancellation of certificate issued by Tehsildar.
129. Since report of Committee is not under challenge and has been filed for the first time in these proceedings and since petitioner may challenge it before other forum, it is not proper to make any comment upon the merits of the enquiry or enquiry report, prepared after rejection of nomination paper.
130. Material available at the time of nomination did show that petitioner was Gond, but this status was challenged there and in this Court, caste certificate having been challenged, evidence led, Court has to see whether decision of rejecting nomination was correct.
131. From the entire discussion, it has come out that except the certificate issued by Tehsildar and the Pariwar Register in which his caste his shown as Gond, there is no other material establishing petitioner's caste. Pariwar Registesr is definitely relevant for determining the caste. Entry in the school certificate, pariwar register and caste of relatives are relevant consideration.
132. So far as Pariwar Register is concerned, against Ajay Kumar entry of Hindu Gond is made but against Shubhkaran, Hindu Kahar is mentioned. Even against Dayaram's name 'Hi Kahar' was written subsequently Hindu Gond was mentioned. Overwriting has been found in the Pariwar Register. In the School Register, petitioner has been shown as Gond by caste and got scholarship also as Scheduled Caste but the admission form and transfer certificate of Dayaram did not show him to be Gond.
133. So far as certificate of caste issued in favour of petitioner and his father are concerned, there is no material on the basis of which Tehsildar issued caste certificate in favour of petitioner or his father Dayaram. Satement of Dayaram that since he knew Lekhpal, therefore, certificate was issued; does not lead to anywhere. Witnesses are unable to give details of any enquiry conducted before the issuance of caste certificate. Certificate has been vehemently challenged by the respondent. Nobody has been examined to prove the signature or author of the certificate. No register showing the details on the basis of which caste certificate was issued, has been filed. Register has been maintained after 1984. When father, cousins, father-in-law, brother-in-law, grandfather's brother are shown as Dhuria, it is difficult to comprehend that petitioner would not be Dhuria. It requires lot of explanation that Father Dayaram is Dhuria while son Ajay Kumar is Gond. Thus all the three witnesses fail to establish that petitioner is Gond. In the absence of any material, register or witness to prove the signature of Tehsildar, Section 90 of Indian Evidence Act cannot be employed to raise the presumption of genuineness.
134. So far as caste of relatives of petitioner are concerned, petitioner's father himself has admitted that he is Dhuria. Petitioner admits that his brother-in-law, uncle, cousin, father-in-law all are Dhuria. Explanation that Dhuria and Gond are synonym or that 'Dhuria' is sub-caste of 'Gond' does not help as in the absence of any mention of Dhuria in presidential order, Dhuria cannot be treated as Gond or Scheduled Caste. Question whether petitioner is Dhuria or Kahar and whether Dhuria is sub caste of Gond is not required to be gone into. In this case only controversy is whether petitioner is Gond, a Scheduled Caste and is entitled to contest the election.
135. Since this Court does not find that petitioner has successfully established himself to be Gond, a Scheduled Caste, other questions are not required to be gone into and it is open to raise the same before appropriate forum. It is clear that Dhuria of Ambedkar Nagar are striving hard to claim recognition as Scheduled Caste or Scheduled Tribe, as reserve category brings automatically some benefits in view of affirmative action contemplated in the Constitution of India.
136. So far as respondent's claim is concerned, their evidence shows that somewhere relatives have been shown as Hindu Kahar, somewhere Dhuria. Some have also written Gond. Explanation submitted by Sri Sanjay Kumar, learned counsel that Kahars also write Dhuria as their vocation is same does not appeal. If they are not Scheduled Caste, then why mention of caste 'Hindu Kahar' as caste is required to be mentioned only when persons is of Scheduled Caste. In some extracts of pariwar register, only Hindu is mentioned, his caste is not mentioned leading to inference that they belong to Scheduled Castes but which caste? Unless caste finds mention in Presidential Order, Court cannot give a declaration. As such, respondents too have failed to establish that petitioner is kahar by caste.
137. Since this 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. Therefore, issue nos. 1 & 2 are decided as under:
"Petitioner's nomination was not improperly rejected as petitioner has failed to establish that he belongs to Scheduled Caste".
Issue no. 3:-
138. Whether election petition is liable to be dismissed for non-compliance of provision of Section 81, 82 and 83 of the R.P., Act.
139. Application no. 75103 of 2012 was moved by respondent seeking dismissal of election petition on the ground that petition has not been filed in conformity with the provision of Sections 81, 82 and 83 of the R.P. Act. Application was decided after hearing both the parties at length vide order dated 17.12.2012 after discussing the decisions of Hon'ble Apex Court given in the cases of Kumari Madhuri Patil and Another Vs. additional Commissioner, Tribal Development and Others, reported in (1994) 6 Supreme Court Cases 241, 2012 (30) LCD 1047; Rajvir Singh Bath Vs. State of U.P. and Others, Laxmi Kant Bajpai Vs. Hazi Yaqoob and Others report in (2010) 4 SCC 81 and Hari Shankar Jain Vs. Sonial Gandhi report in AIR 2001 SC 3689,
140. 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.
141. Apex Court did not interfere in the SLP filed against the above order.
142. In view of above, Issue No. 3 is decided in negative. Petition was not liable to be dismissed for non-compliance of Sections 81, 82 and 83 of R.P. Act.
Issue no. 4:- Relief ?
143. In view of findings recorded on issue nos. 1, 2 & 3, petitioner is not entitled to any relief.
144. There seems to be lot of confusion in respect of Dhuria. In some districts, they are Scheduled Tribes while in other districts, they are being treated as OBC. P.W. 4 (Pyare Lal Gond) has been issued two certificates, one as Scheduled Tribes and the other as Scheduled Castes. In appointment cancellation order, Dhuria has been shown as OBC. It is because of this reason that people are changing their residence and trying to obtain certificate from convenient districts to reap the benefits of reservation. Even petitioner's brothers had been issued certificate of Scheduled Caste from Kanpur District. This state of confusion or uncertainty must end, sooner the better. State Government would do well taking cognizance of this burning issue, to constitute a high level commission to give a report after making an in-depth study, in a fixed time frame, in order to curb unending litigation and do away with uncertainty in the mind of its subject.
145. While concluding, Court would like to appreciate the assistance provided by Sri H.S. Jain, Sri Sanjay Kumar. Court notices the labour put in by Sri Subhash Vidyarthi, Advocate who has meticulously placed his submission before this Court. His preparation and delivery both have been found to be commendable.
Order:
146. Petition is dismissed but with no costs.
Order Date :- 01.07.2016 Nitesh/Krishna