Kapil Muni Karwariya
Vs. Chandra Narain Tripathi
[Civil Appeal No.2122
of 2012 arising out of SLP (C) No.16734 of 2011]
J U D G M E N T
ALTAMAS KABIR, J.
2nd March, 2009, a Notification under Section 14 of the Representation of the
People Act, 1951, hereinafter referred to as the "1951 Act", 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).
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 April, 2009 and the date of counting was fixed
on 16th May, 2009, a month later, when the results were to be declared.
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 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.
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. 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.
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 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.
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 not entitled to file the Election Petition under Section 81(1) of the 1951
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
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 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.
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
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 of the Appellant herein on the ground that his nomination
paper had been wrongly rejected and that he had been prevented from contesting
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.
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
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.
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
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.
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 there from at a later stage.
It was submitted that
the said question is yet to be decided by the Election 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.
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
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 before a decision can be rendered regarding the validity of the Respondent's
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.
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 Appellant herein
before the Election Tribunal and the same should not influence the outcome of the
pending Election Petition filed by the Respondent herein.
shall, however, be no order as to costs.
(SURINDER SINGH NIJJAR)