Kapil Muni Karwariya vs Chandra Narain Tripathi

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.

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.

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 6 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.

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 9 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.

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 15 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 16 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.