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2016 DIGILAW 996 (ORI)

Jogesh Kumar Singh v. Ajay Kumar Patel

2016-10-28

B.K.NAYAK

body2016
JUDGMENT B.K. NAYAK, J. - This misc. case has been filed by respondent no. 1 in ELPET No. 17 of 2014, under Order-6, Rule-16 and Order-7, Rule-11 of the Code of Civil Procedure read with Section 86 of the Representation of the People Act (in short, the Act‘) praying to strikeout the pleadings in paragraphs-9 (A) to 9 (O) election petition and to reject the election petition itself, on the ground that the pleadings are vague, scandalous, vexatious and lack in material particulars and do not disclose any cause of action. 2.For convenience, the petitioner in the Misc. Case is described as respondent no. 1 and opposite party no. 1 Election petitioner is described as the petitioner in this order. 3.The petitioner has filed ELPET No. 17 of 2014 challenging respondent no. 1’s election to 9-Sundargarh (ST) Assembly Constituency. The election to the said constituency was held on 10.04.2014 and the result thereof was published on 16.5.2014 declaring respondent no. 1 elected. The petitioner, an elector of the constituency, has challenged the election of respondent no. 1 on the ground that respondent no. 1 does not belong to Scheduled Tribe and as such he was not eligible to file nomination and contest the election from 9-Sundargahr (ST) Assembly Constituency, which was reserved for Scheduled Tribes only. It is alleged that he filed his nomination by submitting false and fabricated caste certificate (Scheduled Tribe Certificate), which was obtained by him from the office of the Tahasildar, Lephripara by practicing fraud and misrepresentation. It is also alleged that his nomination was illegally and improperly accepted by the Returning Officer, which materially affected the result of election. A further prayer has been made in the election petition to declare respondent no. 2 elected from the Constituency concerned. 4.On receipt of notice of the election petition, respondent no. 1 appeared and filed his written statement denying the allegations. On the basis of the pleadings, issues were settled on 04.12.2014 and trial of the election petition proceeded analogously with ELPET No. 20 of 2014, which has been filed by an unsuccessful candidate challenging the very election of respondent no. 1, almost on similar grounds. While the trial was at the fag end, this misc. case has been filed by respondent no. 1. 1, almost on similar grounds. While the trial was at the fag end, this misc. case has been filed by respondent no. 1. 5.It is alleged in the miscellaneous petition that the averments made in the election petition are not in conformity with the requirements of Section 83 of the Act. In particular, it is alleged that the petitioner has not supplied concise statement of material facts as required under Section 83(1) (a) of the Act and as such the election petition does not disclose any cause of action and, hence it is liable to be rejected under Order-7 Rule-11 of the C.P.C. It is also stated in the petition that the caste certificate was granted in favour of respondent no. 1 by the competent authority in accordance with the provisions of the Orissa Caste certificate (for Scheduled Castes and Scheduled Tribes) Rules, 1980 after making thorough enquiry, on the basis of which respondent no. 1 filed his nomination. The aforesaid Rules incorporate a complete code with provisions to file appeal, revision etc. by person aggrieved and, therefore, neither the Returning Officer nor this Court, while hearing the election petition, is competent to decide the question of caste of an elected candidate and hence there is no cause of action for filing the election petition. It is also stated that in the past, issue of caste of respondent no. 1 had been raised before this Court in a writ petition and as per order of this Court the matter was enquired into by the Collector, Sudargarh, who has already held that the petitioner is a Scheduled Tribe belonging to ‘Bhuyan’ community . It is also state that in paragraph-10 of the election petition, the petitioner alleged that respondent no. 1 has adopted corrupt practice, but full particulars and the details of the corrupt practice have not been furnished, nor affidavit to that effect as per Form-25 read with Rule 94-A of the Conduct of Election Rules, 1961 (in short, ‘the Rules) has been filed and, therefore, the election petition is liable to be rejected and the pleadings in paragraphs- 9(A) to 9(O) of the Election Petition being vexatious and frivolous are liable to be struck off. 6.The learned counsel for the petitioner made oral objections to the miscellaneous application stating that concise statement of material facts and full particulars have been furnished in the election petition with regard to obtaining of Scheduled Tribe certificate by respondent no. 1 by practicing fraud and misrepresentation and suppressing material facts. Even though the majority of documents, particularly record of rights of properties belonging to respondent no. 1 and his family and predecessors go to show that respondent no. 1 belongs to ‘Khandayat Bhuyan’, which is not a Scheduled Tribe, respondent no. 1 by resorting to fraudulent means obtained the Certificate indicating that he belongs to ‘Bhuyan’ (ST) Community and, therefore, it cannot be said that the election petition does not disclose cause of action. It is also stated that it is trite law that the High Court hearing an election petition is competent to go into the question as to whether the returned candidate belongs to a particular caste, where his caste would determine his/her eligibility or qualification to contest the election. It is also stated by him that the petitioner has not alleged adoption of any corrupt practice as defined in Section 123 of the Act by respondent no. 1 in the election and, therefore, no full particulars of any corrupt practice was required to be furnished, nor affidavit in Form-25 as per Section – 94-A of the Act was required to be filed. It is stated that the cause of action for the election petition is that respondent no. 1 was not qualified to contest the election from a constituency, which was reserved for Scheduled Tribes, but he contested by filing false and fabricated Scheduled Tribe Certificate obtained by fraudulent and corrupt means and, therefore, the result of election has been materially affected. 7.Paragraph-9 containing sub-paragraphs-9 (A) to 9 (O) of the election petition describe that respondent no. 1 and his father and ancestors are ‘Khandayat Bhuyan’ by caste and belong to a Jamindar family and that ‘Khandayat Bhuyan’ is not a Scheduled Tribe as per the Schedule Castes and Schedule Tribes Order 1950, as amended from time to time. It is stated that respondent no. 1 and his father and ancestors are ‘Khandayat Bhuyan’ by caste and belong to a Jamindar family and that ‘Khandayat Bhuyan’ is not a Scheduled Tribe as per the Schedule Castes and Schedule Tribes Order 1950, as amended from time to time. It is stated that respondent no. 1 by fraudulent means and by suppressing material documents managed to get a certificate from the Tahasildar, Lephripara to the effect that he belonged to ‘Bhuyan’ Tribe, which is a Scheduled Tribe and on the basis of such certificate he filed the nomination, though he was not qualified to contest from the reserved constituency. Therefore, it is stated that the averments made in para-9 of the election petition are neither fraudulent nor malicious nor vexatious, but, on the other hand, they give detail particulars describing the cause of action for the election petition. 8.In the case of H.D. Revanna v. Puttaswamy Gowda: (1999) 2 SCC 217 , the Hon’ble Supreme Court has held that an election petition can be dismissed for non-compliance with Section 81, 82 and 117 of the Representation of the People Act, 1951 but it may also be dismissed if the matter falls within the scope of Order 6 Rule 16 or Order- 7 Rule 11, C.P.C. 9.In the case of Liverpool & London S.P. and I Assn. Ltd. V. M.V. Sea Success : (2004) 9 SCC 512 , the Hon’ble Supreme Court held that the disclosure of a cause of action in the plaint is a question of fact and the answer to that question must be found only from the reading of the plaint itself. The Court trying a suit or an election petition shall while examining whether the plaint or the petition discloses a cause of action, to assume that the averments made in the plaint or the petition are factually correct. It is only if despite the averments being taken as factually correct, the Court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint. It is only if despite the averments being taken as factually correct, the Court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint. In Harkirat Singh v. Amrinder Singh : (2005) 13 SCC 511 , the Hon’ble apex Court stated the distinction between material facts and particulars and declared that material facts are primary and basic facts which must be pleaded by the plaintiff while particulars are details in support of those facts meant to amplify, refine and embellish the material facts by giving distinct touch to the basis contours of a picture already drawn so as to make it more clear and informative. To the same effect are the decisions in Virender Nath Gautam v. Satpal Singh: (2007) 3 SCC 617 and Umesh Challiyill v. K.P. Rajendran: (2008) 11 SCC 740 . 10.The main plank of argument of the learned counsel for respondent no. 1 is that the election petition does not disclose any cause of action. It is further highlighted by him that the only ground urged by the petitioner is that respondent no. 1 is not a Scheduled Tribe person and, therefore, he is not qualified to file nomination and contest the election. It is submitted further that the High Court while deciding an election case has no jurisdiction go into the question of caste of a candidate and that the decision on the question of caste is within the jurisdiction of the State Level Scrutiny Committee as decided by the apex Court in the case of Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others: (1994)6 SCC 241 . It is submitted that since the question of caste of respondent no. 1 is pending before the State Level Scrutiny Committee which has not decided that respondent no. 1 does not belong to Schedule Tribe, and that respondent n.1 has already got a Scheduled Tribe Certificate under the relevant Rules from the competent authority, this Court cannot decide the issue relating to the caste of respondent n. 1 in this election petition. In this connection, the learned counsel for respondent no. 1 placed reliance on the decision of the apex Court reported in (1986)4 SCC 78 : Bhagawati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi, wherein the election of late Mr. In this connection, the learned counsel for respondent no. 1 placed reliance on the decision of the apex Court reported in (1986)4 SCC 78 : Bhagawati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi, wherein the election of late Mr. Rajeev Gandhi to the Lok Sabha from Amethi Parliamentary Constituency was challenged on the ground that because of his marriage with an Italian lady and acquisition of property in his own name as well in the name of his wife in Italy, late Mr. Gandhi had ceased to be a citizen of India in terms of Section 9(2) of the Citizenship Act, 1955 and, therefore, he was disqualified to be a candidate for election under Article 102(1) (d) of the Constitution. Interpreting the provisions of the Citizenship Act, the Hon’ble apex Court in that case held that when the question whether a person has acquired the citizenship of another country arises before the High Court in an election petition filed under the Representation of the People Act, 1951, the High Court while trying the petition will have no jurisdiction to decide that question. It was further observed that whatever may be the proceeding in which the question of loss of citizenship of a person arises for consideration, the decision in that proceeding on the said question should depend upon the decision of the authority constituted for determining the said question under Section 9(2) of the Citizenship Act, 1955. It was further held that Section 9 of the Citizenship Act, 1955 is a complete code as regards the termination of Indian citizenship on the acquisition of the citizenship of a foreign country. When the matter falls within Section 9(2) of the Citizenship Act, all other provisions of law are excluded. 11.Taking a cue from the aforesaid decision, the learned counsel for respondent no. 1 submitted that since the Orissa Caste Certificate (for Scheduled Castes and Secluded Tribes) Rules, 1980 provide a complete code for grant of caste certificate and also makes provision for filing appeal and revision against the order of the competent authority either allowing or refusing to issue caste certificate and that the caste certificate granted in favour of the present respondent no. 1 having not been challenged and set aside in appeal as per the provision of the said Rules, this Court hearing the election petition cannot decide the question of caste. 1 having not been challenged and set aside in appeal as per the provision of the said Rules, this Court hearing the election petition cannot decide the question of caste. Similarly taking a cue from the directions issued in the case of Kumari Madhuri Patil (supra), learned counsel for respondent no. 1 submitted that it is the State Level Scrutiny Committee which is competent to decide the social status of a person and the final decision of the Scrutiny Committee is only subject to the writ jurisdiction of the High Court. It is submitted that the State Level Scrutiny Committee having not yet decided the social status of respondent no. 1, the High Court hearing the election petition is not competent to decide the social status of respondent no. 1. 12.Relying on the decision of the apex Court in the case of Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju & Ors: AIR 2006 SC 543 , learned counsel for the petitioner submitted that where the cause of action in an election petition relates to decision on the caste or Tribe of a particular candidate or returned candidate, the High Court hearing the election petition can decide such question. In the said decision, a contention was raised on behalf of the returned candidate in election dispute that the caste certificate issued by the competent authority under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 that the candidate belongs to Scheduled Tribe, “Konda Dora” was final and binding on the Court. the contention was repelled by the Hon’be apex Court in paragraph-4 of the judgment where it has been held as follows: “4. the contention was repelled by the Hon’be apex Court in paragraph-4 of the judgment where it has been held as follows: “4. ……… Though, he faintly raised the contention that the issue of the certificate under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 was conclusive and binding on the proceedings under the Representation of the People Act, 1951, he did not seriously pursue that contention, obviously because of the fact that the certificate issued under that Act served a different purpose and could not stand in the way of an election petition filed under the Representation of the People Act, 1951 being tried in accordance with law by the High Court … … …” 13.It was further held in the aforesaid decision of Satrucharla Vijaya Rama Raju (supra) that judgment in an earlier election petition deciding the issue of caste of a candidate or returned candidate is not a judgment in rem and, therefore, it does not operate as res judicata in respect of the question of caste of the candidate arising in a subsequent election petition, where the parties were not the same in both the election petitions. It was held that the election petition is not a representative action and that every election furnishes a fresh cause of action. 14. The decision of the apex Court in Satrucharla Vijaya Rama Raju (supra) leaves no room for doubt that the High Court hearing the election petition can decide the question of caste of the candidate where the cause of action is about the qualification or disqualification of the candidate to contest the election is based on his caste, in spite of the fact that a caste certificate as per the Act or Rules of the State has been issued by the authority thereunder. The decision in the case of Kumari Madhuri Patil (supra), which related to the question of caste of a candidate seeking admission to medical course on the basis of a caste certificate issued by the competent authority is no guidance for holding that the High Court hearing an election petition cannot go into the question of caste of the candidate, which is the issue before it. Similarly, the decision in Bhagwati Prasad Dixit Ghorewala‘ (supra) cited by the learned counsel for respondent no. Similarly, the decision in Bhagwati Prasad Dixit Ghorewala‘ (supra) cited by the learned counsel for respondent no. 1 is of no assistance in as much as there the question involved was loss of Indian Citizenship of the returned candidate under the provisions of the Citizenship Act, 1955 and not relating to eligibility of the candidate to contest election on the basis of his caste. 15.In the recent decision of the Hon’ble apex Court in the case of Mohammad Sadique v. Darbara Singh Guru: Civil Appeal No. 4870 of 2015 decided on 29.04.2016, the returned candidate contested the election as a Scheduled Caste candidate to a Constituency reserved for Scheduled Castes. His election was challenged on the ground that he was not qualified to file nomination and contest the election as because he did not belong to any Scheduled Caste. The High Court decided the question of caste on merits in spite of grant of Scheduled Caste Certificate by the competent authority of the State Government of Punjab, and that appeal against the judgment of the High Court was heard by the apex Court on merits with regard to the caste of the candidate. Though specifically the question whether the High Court hearing an election petition can decide the question of caste of the returned candidate was not the issue, the issue relating to caste of the candidate which was determinative of his eligibility was decided by the High Court in the election petition as well as the Hon’ble Supreme Court in the Civil Appeal on merits on the basis of evidence led by the parties. This no doubt suggests that the High Court in an election petition can decide the question of caste of a candidate, if that is relevant to determine the eligibility of the candidate to contest election. 16.The election of respondent no. 1 in the instant election petition has been challenged on the ground that respondent no. 1 does not belong to Scheduled Tribe of ‘Bhuyan’ community, but he belongs to the community of ‘Khandyat Bhuyan’ which is not a Scheduled Tribe in the State of Orissa, and that by practicing fraud and misrepresentation he managed to obtain the Scheduled Tribe Certificate from the Tahasildar and on that basis filed the nomination and contested the election for the constituency, which was reserved for Scheduled Tribes. Since the High Court hearing the election petition is competent to decide the question of caste of a candidate when such question is relevant for deciding his qualification or disqualification for contesting election, it must be said that the averments made in the petition do disclose a cause of action and, therefore, the election petition is not liable to be rejected in terms of Order-7, Rule-11 of the C.P.C. 17.Regarding the further contention raised on behalf of respondent no. 1 that the election petitioner alleges corrupt practices adopted by respondent no. 1 without furnishing full particulars of the corrupt practice as required under Section 83 (1) (b) of the Act, I am afraid, the learned counsel has misconstrued the averments made in paragraph-9 of the election petition. Though the words ‘corrupt practice’ has been used in the averments, such averments relate to practicing fraud and misrepresentation and manipulation by respondent no. 1 in obtaining the Scheduled Tribe Certificate from the Tahasildar. There is no allegation that respondent no. 1 adopted corrupt practice in election as defined in Section 123 of the Act. Therefore, the use of the expression, “corrupt practice” loosely in the election petition is of no consequence, which does not require any separate affidavit in Form-25 read with Rule-94-A of the Rules to be filed by the petitioner. 18.A faint contention was also raised on behalf of respondent no. 1 that the details of respondent no. 2-Kusum Tete has not been furnished in the cause title of the election petition though the petitioner has sought for additional relief for declaring respondent no. 2 as elected and as such the election petition is not in conformity with Section 82 of the Act and hence liable to be dismissed in terms of Section 86(1) of the Act. With regard to the lack of detailed particulars of respondent no. 2, it is submitted that her husband’s name has not been furnished for the purpose of full identification of the said party. 19.There is no quarrel over the fact that respondent no. 2 is none other than the wife of the election petitioner and she was a candidate in the election from the constituency concerned. She has already entered appearance in the election petition by engaging advocate. Therefore, mere non-mention of husband’s name of respondent no. 19.There is no quarrel over the fact that respondent no. 2 is none other than the wife of the election petitioner and she was a candidate in the election from the constituency concerned. She has already entered appearance in the election petition by engaging advocate. Therefore, mere non-mention of husband’s name of respondent no. 2 in the cause title of the election petition cannot be a ground to dismiss the election petition as being not in conformity with the requirement of Sections 82 or 83 of the Act. 20.The learned counsel for respondent no. 1 has further relied upon a catena of decisions to highlight the principle that an election petition, which does not disclose a cause of action is liable to be dismissed in accordance with the provisions Order-7 Rule-11 of the C.P.C. Since, there is no quarrel over the proposition, it is not necessary to go into all those decisions in this order. In the light of the discussions made in the forgoing paragraphs. I find no merit in the misc. petition and accordingly, the misc. case is dismissed. Misc. Case dismissed.