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2015 DIGILAW 216 (UTT)

HEM CHANDRA ARYA v. STATE OF UTTARAKHAND

2015-04-17

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT : Per : Hon’ble Alok Singh, J. (Oral) Present special appeal has been preferred assailing the judgment and order dated 5.3.2013 passed by learned Single Judge of this Court whereby WPMS 1809/2012 was dismissed. 2. Brief facts, inter alia, of the present case are that elections for the Legislative Assembly of the State of Uttarakhand were notified in the month of January 2012; Legislative assembly seat of Nainital was reserved for the scheduled caste candidates. Petitioner as well as respondent no. 5 filed their respective nomination papers claiming themselves to be scheduled caste candidates. Nomination papers of the petitioner as well as respondent no. 5 were scrutinized, as required under Section 36 of the Representation of the People Act, and were found to be in order and both of them along with other candidates were allowed to contest the elections from Nainital Seat of Legislative Assembly as scheduled caste candidates. It is important to mention herein that the petitioner never raised any objection at the time of scrutiny of the nomination papers of the candidates that respondent no. 5 did not belong to scheduled caste community and, in fact, belonged to higher community, therefore, nomination papers submitted by respondent no. 5 were accepted. In the said elections, respondent no. 5 was declared winning candidate. Thereafter petitioner filed the present petition under Article 226 of the Constitution of India stating that biological father of the respondent no. 5 was one Mr. Kuldeep Singh Anand, a Sikh gentleman belonging to higher caste, therefore, respondent no. 5, for all practical purposes, should be held belonging to higher caste, and merely because her mother was scheduled caste and she has married to schedule caste man, she should not be treated as scheduled caste candidate. It is stated in the writ petition that the fact that respondent no. 5 is the daughter of Kuldeep Singh Anand was not in the knowledge of the petitioner at the time of scrutiny of the nomination papers, therefore, objections against her nomination could not be taken at the time of scrutiny of the nomination papers. 3. It is stated in the writ petition that the fact that respondent no. 5 is the daughter of Kuldeep Singh Anand was not in the knowledge of the petitioner at the time of scrutiny of the nomination papers, therefore, objections against her nomination could not be taken at the time of scrutiny of the nomination papers. 3. In the writ petition, petitioner has sought the following relief: “(1) A writ, order or direction in the nature of mandamus directing the respondent nos.1, 2, 3 and 4 to cancel the caste certificate issued to the respondent no.5 and consequently withdraw all the benefits taken by her on the basis of the Scheduled Caste Certificate so issued to her. (2) Any other writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. (3) To award cost of the Petition to the Petitioner throughout.” 4. Learned Single Judge of this Court was pleased to dismiss the writ petition saying that the election of a winning candidate can be challenged by way of election petition only, and by no other means, as provided under Section 80 of the Representation of the People Act. Feeling aggrieved, petitioner has preferred the present appeal. 5. We have heard Mr. B.D. Upadhyaya, Sr. Advocate, assisted by Mr. C.S. Rawat, Advocate for the petitioner/appellant; Mr. Sharad Sharma, Sr. Advocate, assisted by Mr. Aditya Sah, Advocate for the respondent no. 5; Mr. S.C. Upadhyaya, learned C.S.C., for the State/respondents 1 to 4 and have carefully perused the record. 6. Undisputedly, Smt. Jiwanti Devi, mother of respondent no. 5, was scheduled caste by birth and she was married to one Mr. Ram Lal belonging to scheduled caste; Ram Lal lateron deserted Smt. Jiwanti Devi and remarried with Smt. Mohini Devi; Smt. Jiwanti Devi developed relations with Kuldeep Singh Anand and out of that relationship between Smt. Jiwanti Devi and Kuldeep Singh Anand, respondent no. 5 was born in the year 1961. It has also come on the record that Kuldeep Singh Anand, in fact, had legally married to Smt. Kirath Kaur in the year 1963 and always stayed with Smt. Kirath Kaur as married couple, while Jiwanti Devi, mother of respondent no. 5, always resided with respondent no. 5 separately in village Bhumidhar of District Nainital. Neither Smt. Jiwanti Devi nor respondent no. 5, always resided with respondent no. 5 separately in village Bhumidhar of District Nainital. Neither Smt. Jiwanti Devi nor respondent no. 5 stayed with Kuldeep Singh Anand as his family members nor have inherited any property from Sri Kuldeep Singh Anand. 7. Mr. B.D. Upadhyaya, learned Sr. Counsel appearing for the petitioner/appellant, has vehemently argued that although there is no proof of marriage between Kuldeep Singh Anand and Jiwanti Devi, however, presumption can be drawn as per Section 50 of the Evidence Act that both of them were married to each other. Section 50 of the Evidence Act along with its illustrations reads as under:- “50. Opinion on relationship, when relevant.- When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under setions 494, 495, 497 of 498 of the Indian Penal Code (45 of 1860). Illustrations:- (a) The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.” 8. Illustration (a) is really important to understand the mandate of Section 50. As per illustration (a), if the question is, whether A and B were married, the fact that they were usually received and treated by their friends as husband and wife is relevant. 9. In view of undisputed facts that Smt. Jiwanti Devi and respondent no. 5 never resided in the house of Kuldeep Singh Anand and always resided separately in village Bbumiyadhar, and Kuldeep Singh Anand had married with Smt. Kirath Kaur and always resided as husband and wife with Smt. Kirath Kaur, it is thus clear that Smt. Jiwanti Devi was not the married wife of Kuldeep Singh Anand. There is another aspect of the matter. Admittedly, Smt. Jiwanti Devi, mother of respondent no. There is another aspect of the matter. Admittedly, Smt. Jiwanti Devi, mother of respondent no. 5, was earlier married to Ram Lal, and Ram Lal had deserted her, but their marriage was never got dissolved by the decree of any competent court. Therefore, Smt. Jiwanti Devi could not have legally married with Kuldeep Singh Anand without there being any divorce with Ram Lal. Consequently, Section 50 of the Evidence Act cannot be pressed in service in the present case. 10. Undisputedly, respondent no. 5 was married to N.K. Arya, who was scheduled caste. Respondent no. 5 always claimed herself to be scheduled caste because before her marriage, she always resided with her mother in village Bhumiyadhar and after her marriage, she resided with her husband, who was also a scheduled caste person. 11. Section 36, 80 and 100 of the Representation of the People Act are being reproduced hereunder: “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, 7. [Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)]; or 7 (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: Provided that in case [an objection is raised by the returning officer or is made by any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned. (6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. [(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950). (8) Immediately after all the nomination papers have been scrutinized and decisions accepting or ejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.] 80. Election petitions.—No election shall be called in question except by an election petition presented in accordance with the provisions of this Part 100. Election petitions.—No election shall be called in question except by an election petition presented in accordance with the provisions of this Part 100. Grounds for declaring election to be void.— [(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion— (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected— (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent], or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non—compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.] [(2)] If in the opinion of [the High Court], a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice 4 but [the High Court] is satisfied— (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and [without the consent], of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then [the High Court] may decide that the election of the returned candidate is not void.” 12. As per Section 36, nomination papers of every candidate shall be scrutinized and at the time of scrutiny, all the candidates or their agents shall have every right to point out any illegality in the nomination papers of other candidates. In the present case, as stated hereinbefore, no objection was preferred by the petitioner against the nomination of respondent no. 5 and her nomination papers were accepted and she was allowed to contest the elections as a scheduled caste candidate. As per the mandate of Section 80 of the Representation of the People Act, no election shall be called in question except by an election petition presented in accordance with the provisions of this Part. Therefore, if the petitioner wanted to challenge the election of respondent no. 5 on the ground that she was not qualified to contest the elections as scheduled caste candidate and she wrongly submitted her nomination papers, then he could have filed an election petition. 13. As per sub-section 1(d)(i) of Section 100 of the Representation of the People Act, election of the returned candidate can be challenged on the ground of improper acceptance of the nomination papers. Therefore, learned Single Judge seems to be correct and justified in saying that the petitioner, if so advised, may approach the Election Tribunal. 14. There is yet another aspect of the matter. The language of the relief, sought by the petitioner, suggests that the petitioner not only wants that the caste certificate of respondent no. 5 be cancelled, but all the benefits derived on the basis of that caste certificate should be quashed. It seems that he wants to challenge the election of the respondent no. 5 under Article 226 of the Constitution of India, which is not permissible in view of Section 80 of the Representation of the People Act. 15. Consequently, the appeal fails and it is hereby dismissed. No order as to costs.