Kapil Muni Karwariya vs Chandra Narain Tripathi

was issued by the Election Commission of India to

constitute the 15th Lok Sabha by calling upon

Parliamentary Constituencies of India to elect

Members of the House of the People (Lok Sabha).

3. District Allahabad consists of two

Parliamentary Constituencies, namely, 51-Phulpur

Parliamentary Constituency and 52-Allahabad

Parliamentary Constituency. The District

Magistrate, Allahabad, was appointed by the

Election Commission of India as the Returning

Officer for 51-Phulpur Parliamentary Constituency.

The Returning Officer notified the date of filing

of nomination papers from 28th March, 2009, to 4th

April, 2009, from 11.00 a.m. to 3.00 p.m. Separate

dates were given for the other stages of the

election. The date of polling was fixed on 16th

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April, 2009 and the date of counting was fixed on

16th May, 2009, a month later, when the results were

to be declared.

4. The Special Leave Petition is directed against

the judgment and order dated 5th May, 2011, passed

by the Allahabad High Court (Election Tribunal) in

Election Petition No.1 of 2009, filed by the

Respondent herein, Shri Chandra Narayan Tripathi @

Chandu Tripathi, in connection with the said

election, under Sections 80, 80A/81 of the

Representation of the People Act, 1951, for a

declaration that the election of Shri Kapil Muni

Karwaria as a Member of Parliament from 51-Phulpur

Parliamentary Constituency of District Allahabad be

set aside and be declared null and void. The said

prayer was made in the background of the rejection

of his nomination paper for election to the said

Constituency by the Returning Officer. The said

Chandra Narain Tripathi, who is the Respondent

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herein, filed his nomination paper for election to

the said Lok Sabha constituency as a candidate of

Krantikari Jai Hind Sena. He challenged the

Appellant's election on the ground that the

nomination papers which he had filed to contest the

election had been wrongly rejected.

5. There is no dispute that the Appellant filed

his nomination paper as a candidate of the Bahujan

Samaj Party and the Respondent filed his nomination

paper for contesting the election to the aforesaid

51-Phulpur Parliamentary Constituency as a

candidate of Krantikari Jai Hind Sena, which is an

unrecognized political party. Accordingly, under

Section 33 of the Representation of the People Act,

1951, his nomination paper was required to be

subscribed by ten (10) proposers. His nomination

paper was found to be defective, inasmuch as, the

name of the second proposer, Pramod Kumar was found

to have been deleted from the electoral roll.

5 According to the Appellant herein, Pramod Kumar,

who was not a voter from 1st January, 2009, and had

been declared "Vilopit", had subscribed to the

nomination paper of the Respondent, though he was

not a voter from the aforesaid constituency.

According to the Appellant, the name of the said

proposer No.2 was deleted from the electoral roll

and, hence, the Respondent's nomination fell short

of the reasonable number of proposers in terms of

the first proviso to Section 33 of the 1951 Act.

6. After scrutinizing the nomination papers, the

Returning Officer found that the nomination paper

filed by the Election Petitioner, the Respondent

herein, was invalid and defective and he,

accordingly, rejected the said nomination paper.

After the votes were counted, on 16th May, 2009, the

Returning Officer declared the Appellant elected

from the 51-Phulpur Parliamentary Constituency, as

having secured the highest number of votes polled

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for the said Lok Sabha seat. It is the said order

of the Returning Officer which was challenged

before the Election Tribunal by the Respondent

herein by way of an Election Petition, being No.1

of 2009, on the ground that his nomination paper

had been improperly rejected.

7. On 5th October, 2009, the Appellant filed an

application under Section 86(1) of the 1951 Act, in

Election Petition No.1 of 2009, praying for

dismissal of the Election Petition on the ground of

non-compliance of the provisions of Section 81(1)

of the 1951 Act. One of the grounds taken by the

Appellant in the application was that the

Respondent was not an elector of 51-Phulpur

Parliamentary Constituency within the meaning of

Section 2(e) of the 1951 Act. It was urged that

since the Respondent was not a duly elected

candidate and did not also claim to be so, he was

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not entitled to file the Election Petition under

Section 81(1) of the 1951 Act.

8. The Appellant also filed another application

under Order VII Rule 11 of the Code of Civil

Procedure in the said Election Petition before the

Election Tribunal on 5th November, 2009, for

dismissal of the Election Petition for non-

disclosure of the cause of action. In this

application it was categorically indicated that the

name of the proposer No.2, Mr. Pramod Kumar, had

been struck off from the electoral roll and he was

no more an elector from the said place and was not,

therefore, entitled to propose the name of the

Respondent for election to the 51-Phulpur

Parliamentary Constituency.

9. The applications filed by the Appellant, the

one under Section 86(1) of the 1951 Act and the

other under Order VII Rule 11 of the Code of Civil

Procedure, were heard together and were dismissed

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by the Election Tribunal on 5th May, 2011. The

Election Petition was, thereafter, directed to be

listed for disposal of the amendment applications

moved on behalf of the Appellant and also for

settlement of issues.

10. It is the said interim order of the Election

Tribunal, based on the two applications filed by

the Appellant herein, against which this Special

Leave Petition has been filed.

11. Appearing for the Appellant herein, Mr. Ranjit

Kumar, learned Senior Advocate, submitted that the

Respondent had filed his nomination for contesting

the election as an independent candidate. His

nomination paper was, however, rejected by the

Returning Officer on the ground that the nomination

paper had not been subscribed by 10 proposers. The

Respondent, thereafter, filed an Election Petition

in the Election Tribunal challenging the election

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of the Appellant herein on the ground that his

nomination paper had been wrongly rejected and that

he had been prevented from contesting the polls. In

the said Election Petition, the Appellant herein

filed two separate applications, one for setting

aside the order passed by the Returning Officer

holding that the Election Petition filed by the

Respondent was not maintainable and the other for

dismissal of the Election Petition under Order VII

Rule 11 of the Code of Civil Procedure since the

name of one of the proposers, Pramod Kumar, had

been deleted from the voters' list and he was,

therefore, not an elector on the date of nomination

in the electoral roll relating to 261 Allahabad

West Assembly Constituency. Accordingly, since he

was not an elector of the said Constituency on the

date of filing of the nomination papers, he was not

eligible to subscribe the nomination paper of the

Election Petitioner.

10 12. Both the objections taken by the Appellant

herein were rejected by the Election Tribunal and

the Election Petition filed by the Respondent

herein, was held to be maintainable.

13. It was further submitted that Pramod Kumar's

name having been deleted from the electoral roll,

it would be clear from the electoral roll, which

had been made an integral part of the Election

Petition, that on the date of filing of nomination

papers Pramod Kumar could not have been one of the

10 proposers of the Election Petitioner. Mr.

Ranjit Kumar submitted that in the absence of the

required number of proposers for the nomination

paper of the Election Petitioner, as required under

Section 33 of the 1951 Act, the Election Petitioner

was not a duly nominated candidate and his

nomination had been rightly rejected by the

Returning Officer.

11 14. In support of his submissions, learned counsel

referred to and relied upon the judgment of this

Court in Charan Lal Sahu Vs. K.R. Narayanan [(1998)

1 SCC 56] and the decision in the case of Charan

Lal Sahu Vs. Giani Zail Singh[(1984) 1 SCC 390] and

a couple of other cases which do not say anything

different from the other decisions. Mr. Ranjit

Kumar urged that since the Election Petitions were

original proceedings and not appealable, the

Election Tribunal's jurisdiction cannot be confined

to the grounds on which the Returning Officer

rejected the nomination paper. In fact, it is not

precluded from considering any other ground or

fresh material having any relevance to the

rejection of the Respondent's nomination paper.

In this regard, reference was also made to the

decision of this Court in J.H. Patel Vs. Subhan

Khan [(1996) 5 SCC 312] and in the case of Uttamrao

Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite

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Patil [(2009) 13 SCC 131]. Urging that his

interlocutory applications had been wrongly

rejected, the Appellant prayed for setting aside

the order passed by the Election Tribunal and to

hold that the Election Petition was not

maintainable.

15. The Respondent herein, whose nomination paper

had been rejected, appeared and with the permission

of the Court, was allowed to advance submissions in

support of his case that the applications filed by

the Appellant (the returned candidate) had been

rightly rejected by the Election Tribunal. The

Respondent urged that it has been wrongly held by

the Returning Officer that the Respondent's

nomination paper was not in order, since the name

of Pramod Kumar was very much there in the voters'

list, but may have been removed therefrom at a

later stage. It was submitted that the said

question is yet to be decided by the Election

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Tribunal in the pending Election Petition and,

accordingly, no order is called for in the present

Appeal. As far as the decisions cited by Mr. Ranjit

Kumar are concerned, it was submitted that the same

did not help the Appellant's case, inasmuch as, the

same related to the question that as Election

Petitions were original proceedings, the Court's

jurisdiction to consider the matter could not be

confined only to the grounds on which the Returning

Officer had rejected the nomination paper. In the

said decisions it was also held that the Returning

Officer was not precluded from considering any

other ground or fresh material having bearing on

the question of rejection of the nomination paper.

It was further held that it is not only the

decision making process but the merit of the

decision of the Returning Officer which has to be

seen while trying an Election Petition.

14 16. Having carefully considered the submissions

made on behalf of the respective parties and having

considered the fact that the Election Petition is

yet to be disposed of by the Election Tribunal, we

are of the view that making any observations in

this proceedings would certainly have an effect on

the pending proceedings before the Election

Tribunal. We are, however, inclined to agree with

the view taken by the Election Tribunal that the

Election Petition filed by the Respondent herein

was required to be considered on evidence on

account of the allegations made therein.

17. The question regarding the right of Pramod

Kumar to be a subscriber to the nomination paper

filed by the Respondent herein is the fundamental

question which is required to be considered in this

case. Being the central question involved in the

pending Election Petition, in our view, the

allegations contained therein have to be decided

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before a decision can be rendered regarding the

validity of the Respondent's Election Petition.

Whether the above-mentioned Pramod Kumar was

eligible to subscribe to the nomination paper of

the Respondent is a question which can only be

decided on evidence. The Election Tribunal, in our

view, did not commit any error in dismissing the

applications filed by the Appellant herein for

rejection of the Election Petition filed by the

Respondent herein. In our view, no interference is

called for with the order of the Election Tribunal

and the Appeal is, therefore, liable to be

dismissed. It is for the Election Tribunal to take

up the matter and decide the same at an early date.

18. The Appeal is, therefore, dismissed in view of

the observations made hereinabove. We, however,

make it clear that the views expressed in this

judgment are only confined to the disposal of the

two objections which have been filed by the

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Appellant herein before the Election Tribunal and

the same should not influence the outcome of the

pending Election Petition filed by the Respondent

herein.

19. There shall, however, be no order as to costs.

..................................................................J.

(ALTAMAS KABIR)

New Delhi ..................................................................J.

Dated:15.02.2012 (SURINDER SINGH NIJJAR)