Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 112 of 2010. Smt. Minta Devi Chauhan, W/O Dr. Digambar Singh Chauhan, R/O Village Kota, Patti Ghurdorsyun, Tehsil Pauri, District Pauri Garhwal, Presently R/O Near ETC Kotdwar Road Pauri, District Pauri Garhwal. … Appellant. Vs. 1. Suman (Smt. Suman Rawat) W/O Sri Brijmohan Singh Rawat, R/O Village Bhatunda Patti Ghurdorsyun, Tehsil Pauri, District Pauri Garhwal and 2. Sri Subhash Kumar Joshi, Returning Officer, Pramukh & Up Pramukh Nirwachan, Block Pabo, Patti Ghurdorsyun, Tehsil Pauri, District Pauri Garhwal, Uttarakhand. …Respondents. Mr. U.P.S.Negi, Advocate, learned counsel for the appellant. Mr. Shailendra Nauriyal, Advocate, learned counsel for the respondent no.1. Date September 30, 2010. Hon’ble B.S.Verma, J. This appeal is directed against the judgment and order dated 17-3-2010 passed by the District Judge, Pauri Garhwal in Election Petition No. 71 of 2008, Suman Rawat Vs. Minta Chauhan and others, whereby the election petition of the respondent no.1 was allowed and the election of the appellant as member of Kshettra Panchayat Pabou as well as to the office of Block Pramukh Pabou were declared void and both the seats were declared vacant. The State Government/Election Officer/District Magistrate Pauri were directed to proceed further in the matter. 2. Relevant facts giving rise to the present appeal in brief are that the respondent no.1 and the appellant herein contested the election to the office of Block Pramukh of Khettra Panchayat Pabou, which was held on 5-10-2008 at Block Office Pabou. The seat of the member of Kshettra Panchayat Pabou is reserved seat for Other Back Ward Class (OBC) Caste and the returned candidate-appellant contested the election of Member of Kshettra Panchayat Pabou against reserved seat and she was declared successful in the election. The election of the appellant-returned candidate was challenged by filing 2 Election Petition No. 71 of 2008 by the respondent no. 1 before the Election Tribunal/District Judge Pauri Garhwal under Rule 35 read with Rule 38 of the Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules 1994 (hereinafter after referred to as the Rules) alleging therein that the returned candidate Smt. Minta Devi Chauhan has fraudulently contested the election against the reserved seat of Other Backward Class (OBC) candidates. The returned candidate belongs to general caste of Rajput Chauhan and is recorded as such in the documents. It was also alleged that neither she is OBC candidate from her parental side nor from the side of her in-laws. She does belong to the OBC caste and was not eligible to contest the election against reserved seat. The election was contested by the petitioner by concealment of true facts. The caste certificate of the returned candidate was not a valid certificate. It was also alleged that the respondent no. 2 in order to give advantage to the returned candidate wrongly rejected one ballot paper whereby the vote was cast in favour of the election petitioner and in that situation the returned candidate and the election petitioner would have secured equal votes and the result would have been declared by draw. On this score, the election was also liable to be declared void. It was also alleged that the returned candidate had resorted to corruption in the election to motivate the voters to her favour by temptation. It was also alleged that the appellant-returned candidate is holding a post of profit and gain and she is a salaried employee of Dr. B. Gopal Reddy Campus Degree College Pauri. On that ground also, she could not have contested the election. It was also alleged that the returned candidate was not eligible to the office of Member of Kshetrra Panchayat Pabou. 3. The election petition was resisted by the appellant by filing objection 14-C and the appellant denied all the material allegations made in the election petition. It was pleaded that no cause of action arose to the respondent no.1 to challenge the election of the returned candidate. It was asserted that the appellant belongs to 3 Chauhan (Sunar caste) and all the members of her in-laws are covered by the Government Order dated 6-9-1995 and as such they are members of the OBC. It was also asserted that in the Census of 2005 conducted by the Uttarakhand Government, the names of members of her family are recorded at serial nos. 180-200 against the backward caste of Sunar and this caste is recorded in the Census of 2000 of the Government of India. The election petition is barred by the principle of estoppel and acquiescence. It was also asserted that the appellant was issued OBC Caste Certificate No. 338 of 1996 on 31-1-1996 after due enquiry and again after creation of Uttarakhand State, the same was renewed on 1-8-2008 after making enquiry and on the strength of valid caste certificate, she contested the election and won the election. The caste certificate of the appellant was cancelled during the pendency of the election petition on account of election rivalry and under pressure without giving opportunity of hearing to the returned candidate. The matter is sub-judice before the High Court in a writ petition. It was also pleaded that the petitioner is an employee of Dr. B. Gopala Reddy Campus Degree College Pauri but she is not covered under the barring clause of office of profit or gain. In the additional pleas it was pleaded that the election petitioner was not a candidate for election of Member Kshettra Panchayat and she is not a voter of Kshettra Panchayat Pabou. No objection was ever raised by the election petitioner against the nomination of the returned candidate. 4. Respondent no. 2 also contested the election petition by filing reply/objection 18-C alleging therein that the office of Pramukh of Kshettra Panchayat Pabou is reserved for woman candidate and the appellant filed her nomination to the office of Kshettra Panchayat Pramukh, which was accepted. It was also alleged that the preference was not recorded by the voter at appropriate place in the disputed ballot paper, therefore, the same was rightly rejected. The election petitioner is not entitled to any relief. 4 5. On the pleadings of the parties, the learned Tribunal framed following issues:- ISSUES. 1. Whether the election of opposite party no. 1 to the office of Pramukh of Kshettra Panchayat and Member of Kshettra Panchayat is liable to be set aside on the grounds raised in the petition? 2. Whether the petition is not maintainable as regards the election of Member of Kshettra Panchayat as alleged in the written statement of the opposite party? 3. Whether the petition of the election petitioner is barred by limitation? 4. Whether the opposite party no. 2 has illegally cancelled one ballot paper? If yet, its effect? 5. To what relief, if any, is the petitioner entitled to get? 6. The learned Tribunal decided the Issue no. 3 as preliminary issue by its order dated 2-9-2009 and came to the conclusion that the election petition was filed on 4-11-2008, while the limitation of 30 days expired on 3-11-2008, therefore, the election petition is barred by limitation. 7. Aggrieved by the order dated 2-9-2009, the election petitioner filed a Writ Petition No. 1534 of 2009(M/S) Smt. Suman Rawat Vs. Smt. Minta Devi Chauhan and another before this Court. This Court by order dated 10-9-2009 has set aside the order of the Tribunal dated 2-9-2009 and has held that the Issue No. 3 stood disposed of in negative. The order passed by this Court dated 10-9- 2009 was not challenged before any higher Forum and has attained finality. Thus, it is obvious that the election petition is not barred by limitation. 5 8. Before the learned Tribunal, both the parties have led documentary as well as oral evidence in support of their respective contentions. 9. The Tribunal recorded the evidence of the parties, heard them and after perusing the evidence of the parties took up Issue No. 4 for decision. The learned Tribunal found that since the preference was not recorded by the voter at appropriate place in the ballot paper, therefore, the ballot paper, to which the election petitioner claims in her favour, was rightly rejected by the Returning Officer. Accordingly the Issue No. 4 was decided against the election petitioner. 10. The learned Tribunal took up Issue Nos. 1 and 2 together for decision. The learned Tribunal has held that the returned candidate ceased to remain eligible for the office of Member of Kshettra Panchayat after her caste certificate was cancelled by Tehsildar concerned by order dated 3-12-2008. The Tribunal has observed in the impugned order that the order of Tehsildar cancelling the caste certificate of the returned candidate is under challenge before the High Court but there is no stay order available on record. The learned Tribunal also held that the returned candidate has contested the election holding an office of profit as alleged in the election petition, therefore, on this ground also she ceases to be eligible for the election in question. Learned Tribunal however did not find favour with the election petitioner that the returned candidate was guilty of corruption in the election. Issue Nos. 1 and 2 were decided in favour of the election petitioner/respondent no.1. Ultimately, in view of the findings recorded on Issue nos. 1 and 2, the election petition was allowed and the election of the appellant (returned candidate) to the office of Pramukh of Kshettra Panchayat Pabou as well as to the membership of Kshettra Panchayat Pabou was cancelled and both the seats were held to be vacant by order dated 17-3-2010. 6 11. Aggrieved by the order dated 17-3-2010, the returned candidate has filed the present appeal before this Court. 12. In this appeal, it has been contended by the appellant that the learned Tribunal/District Judge has not considered the evidence adduced by the parties and has recorded a perverse finding on Issue Nos. 1 and 2. It has also been contended that the finding of the learned Tribunal is not tenable that the appellant is not a member of OBC as the matter is subjudice before the High Court. It has also been contended that the election of the appellant as a member of Kshettra Panchayat Pabou could not have been challenged in the petition wherein the election of Pramukh of Khsettra Panchayat was questioned, therefore, the election petition was not maintainable. It has further been contended that the election petitioner has no locus standi to question the election of appellant as Member of Kshettra Panchayat as she was neither the candidate in that election nor she was a voter in Pabou Kshettra Panchayat constituency. It is further contended that the election of member of Kshettra Panchayat cannot be challenged, which has become final, therefore, the impugned judgment is not tenable. It is also contended that the election petition is barred by time. It has been further contended that the election petition is bad for want of proper presentation as prescribed under the Rules and that the returned candidate/appellant does not hold the office of profit, hence the finding of the learned Tribunal is erroneous. 13. I have heard learned counsel for the parties at length and have perused the entire material placed before this Court including the lower Court record. 14. Learned counsel for the appellant has raised a preliminary objection that the election petitioner/respondent no.1 could not have challenged two elections- i.e. the election of Pramukh of Kshettra Panchayat and that of the Member of Kshettra Panchayat Pabou in a 7 single petition, therefore, the election petition itself was not maintainable. 15. I have pondered over the matter and have carefully perused the pleadings of the parties. The election petitioner- respondent no.1 was aggrieved by the election of the Pramukh of Kshettra Panchayat Pabou Block as the respondent no.1 and the appellant both contested the election of Block Pramukh Kshettra Panchayat Pabou. It reveals from a perusal of record that the election petitioner was elected member of Village Panchayat of village Chopadiyon, while the appellant-returned candidate was elected as Member of village Panchayat Kota Pabou. This seat of Kota Pabou was reserved for OBC. Since election of Block Pramukh is to be held from amongst the elected members of the Kshettra Panchayat, therefore, the election petitioner could not have any occasion to dispute the election of the appellant as Member of village Panchayat until the election of Block Pramukh of Kshettra Panchayat Pabou had taken place. That being so, the election petitioner/respondent no.1 has rightly challenged the election of the appellant to the office of Block Pramukh Kshettra Pabou on the ground of disqualification of the returned candidate on the ground of her caste certificate. The challenge of eligibility of the appellant as Member of Kshettra Panchayat Pabou is only a consequential relief. However, the appellant has not raised any such plea in her written statement, which is paper no. 14-C on the lower court record. No such plea was raised by the appellant in her evidence on affidavit filed under Order 18, Rule 4(1) C.P.C. In this affidavit she has only tried to support her case that she belongs to OBC (Sunar caste). Moreover, this contention was raised before the Tribunal and the learned Tribunal has dealt with the argument elaborately and has rightly held that the election petition of the respondent no.1 was maintainable. I am of the considered view that the respondent no. 1 has rightly filed the election petition under Rule 35 of the Rules questioning the election of the Pramukh of Kshetra Panchayat Block Pabou, which was contested by the 8 respondent no.1 against the appellant. I am also of the view that the election petitioner was not at all required to raise a dispute under Rule 7 of the U.P. Kshettra Panchayats (Removal of Disqualification and Settlement of Disputes relating to Disqualification and Membership) Rules 1994 by filing a separate petition. Besides, the only course open to the respondent no.1 was to challenge the election of Block Pramukh of Kshettra Panchayat Pabou, to which she lost the election. Therefore, the argument of the learned counsel for the appellant is misconceived on this count. 16. Before the learned Tribunal, the election petitioner- respondent no.1 has filed the Form 8 thereby the result of the Pramukh of Kshettra Panchayat Pabou was declared in favour of the appellant by the Election Officer on 5-10-2008. Respondent no. 1 also filed a copy of the order dated 12-12-2008 passed by this Court in Writ Petition No. 2151 of 2008, Smt. Minta Chauhan Vs. State of Uttarakhand and others (Ext-1 to the election petition). This document has been proved by the respondent no.1 in her statement on oath. (However, the order dated 12-12-2008 was challenged in Special Appeal No. 264 of 2008 Smt. Minta Chauhan Vs. State of Uttarakhand and others and by order dated 9-4-2009, the order dated 12-12-2008 was set aside and the matter was remanded by the Division Bench of this Court. Now the writ petition is pending for disposal before this Court.) 17. Some other documentary evidence was also filed by the election petitioner/respondent no.1 before the Tribunal. 18. The election petitioner Smt. Suman has examined herself as P.W.1. She has stated in her testimony before the Tribunal that Smt. Minta Chauhan has wrongly filed the certificate of reserved category in the election contested by her. She also stated that the appellant is a member of general caste. She also stated that she filed her objection in the matter before the Returning Officer which was 9 rejected by him. She also stated that the appellant has resorted to corrupt practice to influence the voters in her favour. 19. On the other hand, the appellant also filed documentary evidence and has filed her affidavit under Order 18, Rule 4(1) of the Code of Civil Procedure and has examined herself as O.P.W. 1. She has stated that her Mayaka is in village Birla Nagar, Tehsil Gwalior (Madhya Pradesh). He belongs to Rawat Meena caste which falls under OBC category. She has also stated that her in-laws belong to Sunar caste and they are doing the business of goldsmith. This caste was declared OBC by the U.P. Government and on the basis of Government Order of 1995, she was granted OBC caste certificate. She disputed that one ballot was wrongly rejected and she denied to have adopted unfair means to win the election. She also denied that she holds an office of profit. In the cross examination, she admitted that she was granted OBC certificate by Naib Tehsildar Gwalior (paper no. 59-C) wherein her caste is Rawat which is OBC caste in Madhya Pradesh. The appellant has also examined Mr. Subhash Chandra Joshi as O.P.W. 2. He has deposed regarding the rejection of disputed ballot paper. His evidence shall be referred to only at appropriate place as and when required. 20. Learned counsel for the appellant has next argued that the learned Tribunal has not recorded any finding of its own that the appellant is an OBC candidate rather on the ground of cancellation of caste certificate of the appellant by Tehsildar concerned, therefore, the impugned order is not tenable in the eye of law. It was also argued by the learned counsel for the appellant that the order dated 3-12-2008 cancelling the caste certificate by the Tehsildar is without jurisdiction in view of the case of Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and others [(1994) 6 Supreme Court Cases 241]. Reliance has also been placed in the cases of Sudhakar Vithal Kumbhare Vs. State of Maharashtra and others [(2004) 9 Supreme Court Cases, 481], “Hasmat Rai and another Vs. 10 Raghunath Prasad” [(1981) 3 Supreme Court Cases, 103], “M.V.Janardhan Reddy Vs. Vijaya Bank and others” [(2008)7, Supreme Court Cases, 738] and “State Bank of India Vs. B.S. Agriculture Industries (I)” [(2009) 5 Supreme Court Cases, 121]. 21. I am not inclined to accept the argument of the learned counsel for the following reasons:- Firstly, from a bare perusal of the impugned order it is obvious that the learned Tribunal has discussed the Issue Nos. 1 and 2 in paragraph nos. 13 and 14 of the order. The learned Tribunal has discussed the issue of in-eligibility of the appellant on the ground of her OBC Caste certificate having been cancelled by Tehsildar Pauri at page nos. 5 and 6 of the judgment. Admittedly, the appellant had contested her election to Member of Kshettra Panchayat from the reserved seat of Pabou. It is admitted to the appellant that the OBC caste certificate issued in her favour was cancelled by Tehsildar, Pauri by his order dated 3-12-2008 (Ext-2). It has been held by the learned Tribunal that as on the date of impugned order, the appellant is not a member of OBC caste, therefore, she ceases to be eligible to be a member of the Kshettra Panchayat against reserved seat of the OBC. The Tribunal has also observed that there is no stay order in favour of the appellant against the cancellation of OBC caste certificate. Secondly, from a perusal of the order dated 3-12-2008 (Ext.-2) it is crystal clear that before cancelling the OBC caste certificate of the appellant, sufficient opportunity of hearing was afforded to her. The appellant now cannot agitate that reasonable opportunity was denied to her in any manner. Thirdly, it is not the case of the appellant that the caste certificate was ever issued to her by the Committee constituted by the State Government in pursuance of the directions contained in the said case of Kumari Mathuri Patil and another (supra) and, therefore, the 11 order passed by the Tehsildar cancelling the OBC caste certificate should be ignored by the Tribunal. It is obvious that the authority, which had issued the OBC Caste certificate in favour of the appellant, is Tehsildar Pauri and the said certificate has been cancelled by the same authority. Moreover, this Court has to assess the evidence on the basis of material on record. The propriety of the order dated 3-12- 2008 shall be examined by the writ court. Unless and until, the order passed by Tehsildar Pauri dated 3-12-2008 is set aside and it is held by the competent authority that the appellant belongs to OBC caste, it cannot be said that as on today, the appellant belongs to OBC caste. Fourthly, the argument of the learned counsel for the appellant that the Tribunal has not recorded its own finding that the appellant does not belong to OBC caste is not acceptable. The learned Tribunal at the foot of paragraph no. 14 of the impugned order has categorically observed that as on today, the appellant is not a member of OBC caste and therefore she ceases to be eligible as a Member of the Kshetra Panchayat Pabou, which is admittedly a reserved seat. 22. In the case of Sudhakar Vithal Kumbhare (supra) the appellant before the Apex Court had filed a petition under Article 226 of the Constitution challenging the order of reversion. The High Court by its judgment and order dated 23-3-2001 dismissed the petition on the ground that the petitioner who comes from the State of Madhya Pradesh though belonged to the Scheduled Tribe “Halba” which is recognized as such in the State of Maharashtra is not entitled to the benefit of reservation. The matter is quite distinct before this Court. Rest of the case law relied upon by the learned counsel for the appellant are not on the point in issue before this Court and they are of no avail to the appellant. 23. Learned counsel for the appellant has next argued that the election petition is bad for want of proper presentation because the election petition was not presented by the election petitioner as the 12 election petition is to be presented in person by the petition as provided under sub-rule (2) of Rule 35 of the Rules. In reply, the learned counsel for the respondent no.1 has submitted that the election petitioner was present along with her counsel at the time of presentation of the petition before the Tribunal and the election petition was not filed by post. The appellant has not taken this plea either in the written statement nor at any time during the course of trial before the Tribunal, therefore, she cannot take this plea at such a belated stage. 24. I have given my anxious thought to this argument. Rule 35(2) provides that an election petition shall be presented in person by the petitioner. I have perused the lower court record. The present election petition was presented before the Tribunal on 4-11-2008. A perusal of the election petition further reveals that the petition was verified by the election petitioner on 4-11-2008 itself and on the back of the petition there are signatures of the election petitioner as well as her counsel. There is no such objection as to the improper presentation of the petition raised either by the office of the Tribunal or the Tribunal itself. Not only this, no such objection was ever raised by the returned candidate even in her written statement or at any time thereafter. Even no such issue was raised before the Tribunal at the time of framing of issues. On the other hand, the appellant has participated in the proceedings of election petition without demeanour of objection before the Tribunal and it was only when the result of the election petition went against the appellant, such a plea was taken in appeal. Be that as it may, all the corroborative circumstances available on record are sufficient to hold that the election petition is not bad for want of proper presentation. The appellant has not disputed the signatures of the election petitioner on the reverse side of the petition on the date of its presentation. Each and every paper filed along with the election petition on 4-11-2008 bear the signature of the election petitioner. There is no iota of evidence on record to cast a