Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 1192 (ALL)

LALLU SINGH v. GAYUR FATIMA

2003-05-16

JANARDAN SAHAI

body2003
JANARDAN SAHAI, J. Lallu Singh the appellant in this appeal was declared elected as Block Pramukh, Dungarpur Kuntarki, Moradabad on 8-3-2001. An election petition was filed by the 1st respondent Km. Gayur Fatima challenging the election on the ground that her nomination paper was illegally rejected by the Assistant Returning Officer. It is not in dispute that the seat was reserved for a backward caste candidate. The petitioner claims to be Jhojha by caste. The Assistant Returning Officer rejected the nomination paper of the 1st respondent Km. Gayur Fatima on the ground that she did not belong to the Jhojha caste. The election petition filed by the 1st respondent has been allowed by the impugned order dated 21-10-2002 passed by the Additional District Judge, Moradabad. Aggrieved, this appeal has been filed by Lallu Singh, the returned candidate. 2. The case of the 1st respondent is that she is a resident of Dingapur, Tashil Bilari but she also has an ancestral house in Mohalla Kanth Ka Darwaja, Deewan Ka Bazar, Moradabad City and she temporarily resides in this house too. The petitioner had applied for a case certificate to the Tehsildar Bilari but it was refused whereupon a writ petition was filed by her in which an interim order dated 2-3-2001 was passed by which she was permitted to file her nomination paper and to contest the election subject to the result of the writ petition. The copy of this interim order and the copy of the order dated 9-8-2001 in that writ petition imposing a penalty of Rs. 1,000/- upon the Assistant Returning Officer Rajendra Prasad Saxena for rejecting the nomination of the respondent No. 1 despite the interim order of the High Court were filed. The other papers filed by the 1st respondent included a caste certified issued by the Tehsildar Moradabad certifying her to be Jhojha by caste, a certificate by the Block Development Officer, Dungarpur Kuntarki certifying Smt. Gayur Fatimas brother as of Jhojha caste and Bar Garana 1994-95 showing the respondent No. 1 as Jhojha. The record of the file pertaining to the nominations papers for the election was summoned by the Tribunal from the office of the Assistant Returning Officer. The record of the file pertaining to the nominations papers for the election was summoned by the Tribunal from the office of the Assistant Returning Officer. The copies of the papers relating to nomination and its rejection have been filed alongwith the stay application and counter- affidavit and Counsel for the parties relied upon them in the course of their arguments in this appeal. The appellant Lallu Singh the returned candidate filed the copy of the order of the High Court dated 20-12-2001 in the writ petition filed by the 1st respondent by which the High Court has quashed the order dated 29-1-2001 of the Tehsildar Bilari refusing to issue caste certificate to the 1st respondent and directed the Tehsildar to consider the case afresh and to pass speaking order. The copy of the order of the Tehsildar Bilari passed in compliance of this direction rejecting application of the 1st respondent for issuance of a caste certificate showing her as of Jhojha caste and holding that she belongs to Turk caste (Islam) was also filed. The election tribunal framed various issues. Issue No. 1 is on the point whether the election petitioner is of Jhojha caste while Issue No. 2 is on the point whether her nomination paper was illegally rejected. The election Tribunal decided both these issues in favour of the 1st respondent. On Issue No. 2 the Tribunal relied upon the order of the High Court dated 2-3-2001 and held that the Assistant Returning Officer illegally rejected the nomination paper of the 1st respondent in breach of the direction given by the High Court. 3. I have heard Sri Ravi Kiran Jain, learned Counsel for the appellant and Sri D. S. Mishra, learned Counsel for the respondent No. 1. Sri Ravi Kiran Jain relied upon Rule 11 of the U. P. Kshettra Panchayat Election of Pramukh and Up Pramukh and Settlement of Election Disputes Rules, 1994 and submitted that under sub-rule 2 thereof the Returning Officer is required to examine the nomination paper and decide all objections thereto any may either on such objection or on his own motion after such summary enquiry as he thinks necessary reject any nomination on any of the grounds given in clauses (a) to (g) of the sub- rule. Clause (g) is quoted below : " (g)" That the candidate does not belong to the tribe or caste or class or sex for whom the office is so reserved. " 4. It is submitted that a letter dated 5-3-2001 containing four questions was given by the Assistant Returning Officer to the 1st respondent which set out the objections to his nomination paper. The said letter dated 5-3-2001 of the Assistant Returning Officer is Annexure-1 to the stay application filed in the appeal. The objections stated are (1) the caste certificate is illegible/not clear, (2) it is about ten years old (3) as per information of Tehsildar there is no Jhojha caste in Tehsil Bilari, (4) the caste certificate is to be issued by the Tehsildar of the Tehsil where the candidate resides. 5. The 1st respondent replied to the letter by Annexure 1-A, a letter of the same date. In this reply she stated that the caste certificate submitted by her was attested by the Notary public and that she was shown as Jhojha therein. Reliance is also placed in this letter upon the interim order passed by the High Court in the writ petition filed by her. The Assistant Returning Officer passed an order on the same date 5-3-2001 rejecting the nomination papers of the respondent No. 1 on the ground that the respondent No. 1 has not given any explanation relating to the illegibility of the caste certificate, that the certificate was ten years old and had not been furnished in addyatan roop and no proper explanation in respect of point No. 3 was given by the 1st respondent and lastly that the 1st respondent is a resident of Tehsil Bilari but no caste certificate issued by the Tehsildar Bilari was filed. As regards the interim order of the High Court it is stated by the Assistant Returning Officer that certified copy of that order was not given. 6. The contention of Sri Jain is that the Assistant Returning Officer had given valid reasons in support of his order and the election tribunal ought to have examined the validity of the reasons given by the Assistant Returning Officer in rejecting the nomination within the scope of Rule 11 and could not have held an independent enquiry on the question whether the first respondent was of Jhojha caste. He submits that for the purpose of deciding the validity of the order of rejection of nomination the question raised by letter dated 5-3-2001 and the reply of the same date by the 1st respondent have to be seen to determine whether the decision which the Assistant Returning Officer was to take summarily was correct. 7. As regards the interim order passed by this Court in the writ petition it is submitted that the said order was without jurisdiction as after the election process had commenced the High Court could not have passed any order interfering with the election process. Reliance was placed upon Article 329-B of the Constitution of India,1950 read with Article 226 and upon the decisions of the apex Court in M. P. Ponuswami v. Returning Officer, 1952 SC 64 and Mahendra Singh Gill v. Chief Election Commissioner, New Delhi, AIR 1978 SC 851 . 8. I shall first take up the contention that the interim order passed by the High Court under Article 226 of the Constitution of India,1950 was without jurisdiction. It is to be noted that the writ petition filed by the first respondent was not directed against any order of the Returning Officer but was directed against the order of the Tehsildar Bilari refusing to issue a caste certificate to the first respondent. There was no order of the Returning Officer under challenge in that writ petition far less any order of nomination. In Ponnuswamis case it was held that a two pronged attack one under Article 226 during the process of election and other by election petition after the election was not contemplated by law and rejection or acceptance of a nomination paper cannot be challenged under Article 226. In Mohinder Singh Gills case it was held that Article 329-B furnished a complete base to challenge any slip in the election. The relative scope of Article 329-B and Article 226 of the Constitution of India,1950 has been considered in various decisions. Learned Counsel for the respondents relied upon Election Commission of India v. Ashok Kumar and others, 2000 (2) LBESR 735 (SC) : 2000 (8) SCC 216 . In this case the apex Court considered its previous decision in Ponuswami and Mahindra Singh Gill also. Learned Counsel for the respondents relied upon Election Commission of India v. Ashok Kumar and others, 2000 (2) LBESR 735 (SC) : 2000 (8) SCC 216 . In this case the apex Court considered its previous decision in Ponuswami and Mahindra Singh Gill also. After discussing the law the apex Court made a general summing up of its conclusion in para 32 which is quoted below : "32" For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us herein above. (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of a notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to "calling in question an election". If it observes the progress of the election and facilities the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings; to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. " 9. In Manoj Dube v. Election Commission of India, a Division Bench of this Court held that a writ petition challenging a notification prescribing alternative procedure to that which is provided by statutory rules to check impersonation is maintainable. It was held that in such a case it is not really an attempt to stall the election but to facilitate the process of election. It is thus clear that there is no absolute bar to the maintainability of a writ petition even against the orders passed during the election process if the process of election is not stultied. An order passed by the High Court such as the order dated 2-3-2001 does not stall or stultify the election process and was not void. The order could be challenged before the apex Court but it was binding upon the Assistant Returning Officer. 10. The question about the validity of the order of the Assistant Returning Officer rejecting the nomination of the first respondent may be examined on merits, it is submitted by Sri D. S. Mishra, learned Counsel for the respondents that the Assistant Returning Officer could not have ignored the order of the High Court on the ground that a certified copy of that order was not filed. He refers to the order dated 2-3-2001 itself and emphasis that that order itself permits the first respondent to copy out the order for producing it before the concerned authorities alongwith affidavit. An affidavit indeed was filed by the first respondent before the Assistant Returning Officer. He refers to the order dated 2-3-2001 itself and emphasis that that order itself permits the first respondent to copy out the order for producing it before the concerned authorities alongwith affidavit. An affidavit indeed was filed by the first respondent before the Assistant Returning Officer. There is force in this submission of the learned Counsel for the first respondent and the Assistant Returning Officer acted illegally in not taking note of the interim order. The grounds given by the Assistant Returning Officer in his order for not giving effect to the High Courts order are, therefore, not valid. Reliance is also placed by the learned Counsel for the respondent upon Annexure-7 to the counter-affidavit, which is reply of the first respondent dated 5-3-2001 before the Assistant Returning Officer in which the first respondent has drawn attention of the Assistant Returning Officer to the fact that the certificate of the Tehsildar Moradabad certifying the first respondent to be of Jhojha caste was attested by Notary. In the circumstances the objection of the Assistant Returning Officer that the caste certificate was not legible does not appear to be valid. Another ground of objection of the Assistant Returning Officer is that the caste certificate filed by the first respondent was not issued by Tehsildar Bilari. That certificate was issued by the Tehsildar Moradabad where according to the case of the first respondent she has an ancestral house. No rule has been shown that a caste certificate must be issued by the very Tehsildar where the candidate resides. In these circumstances the order of the Assistant Returning Officer rejecting the nomination of the first respondent was not valid even within the scope of Rule 11. 11. As regards the scope of the power of the election tribunal to decide the question about caste of the respondent being Jhojha it is to be noted that the election tribunal was required to decide the question as to whether the nomination paper was illegally rejected. The tribunal is a body, which has been constituted to determine election disputes. The rules provide a complete scheme for decision of election disputes of Pramukhs and Up-Pramukhs. All questions which, therefore, fall for determination of the issue relating to the validity of the rejection of nomination paper must fall for determination by the Tribunal. The Assistant Returning Officer has under Rule 11 to take a decision in a summary manner. The rules provide a complete scheme for decision of election disputes of Pramukhs and Up-Pramukhs. All questions which, therefore, fall for determination of the issue relating to the validity of the rejection of nomination paper must fall for determination by the Tribunal. The Assistant Returning Officer has under Rule 11 to take a decision in a summary manner. The Tribunal however has been given power under the Rules to record evidence. Rule 40 relates to the procedure to be followed by the Tribunal. It is to follow the procedure provided in the C. P. C. with regard to suits in so far as that procedure is not inconsistent with the Act or any provision of the Rules. The provisions of the Evidence Act have also been made applicable. The very purpose of recording evidence in an election petition is that the material to determine the issue involved is not confined to that which was on the record before the Assistant Returning Officer when he rejected the nomination. To determine the issue as to whether the candidate belongs to the caste for which the seat was reserved the Tribunal can take oral and documentary evidence as provided under Rule 40. Such evidence could also be that which was not before the Returning Officer. 12. The Tribunal has on merits considered the evidence filed before it including the caste certificate issued by the Tehsildar Moradabad showing the Ist respondent to belong to the Jhojha caste the caste certificate issued to her brother Ghayyur Ahmad showing him as of Jhojha caste, the Gram Panchayat Bor Garana of Backward Caste for 1994-95 in which too she is shown as Jhojha. The Tribunal has also considered the documents filed by the appellant including the order of the Tehsildar Bilari showing the 1st respondent as "turk which the Tribunal has held relying upon the Gazette of Rampur State to refer to persons who migrated from `turkistan and does not indicate caste. The finding of the Tribunal has been recorded after considering the evidence and suffers from no error. 13. As a result of the aforesaid discussion I am of the opinion that the nomination paper of the 1st respondent was wrongly rejected and the order of the Tribunal deserves to be affirmed. Appeal dismissed. Appeal dismissed. .