AJAY KUMAR POEIAversusSHYAM AND ORS.

A                          AJAY KUMAR POEIA
                                      v.
                             SHYAM AND ORS.

                            DECEMBER 11, 2003

B        [V.N. KHARE, CJ., S.B. SINHA AND G.P. MATHUR, JJ.]

         Representation of the People Act, 1951 :

         Ss. 21(1)(3) and 81(1) Election Petition-Statements of material
C facts-Requirement of-Election petition based on the ground that re-
  turned candidate did not belong to Scheduled Caste-Application under
  Order 6, r. 16 CPC for striking out the grounds and certain other
  paragraphs of election petition for not containing material facts-Held,
  documents mentioned in relevant paragraphs indicate that the petitioner
D in effect or substance did not raise any material fact that returned
  candidate was not a member of Scheduled Caste-One of the sub-
  paragraphs contains grounds for setting aside the improper acceptance of
  nomination papers filed by returned candidate and the same cannot be
  treated to be statements containing requisite material facts, which, if
  proved, would entitle the petitioner in obtaining reliefs sought for-
E Furthermore, the said statements were verified and purported to be based
  on legal advice-The said averments do not satisfy the requirement of
  s. 81(1) and as such the plea is not available to the petitioner-Code of
  Civil Procedure, 1908-0rder 6, r.16.

f        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4090 of
    2003.

         From the Judgment and Order dated 10.3.2003 of the Allahabad High
    Court in E.P. No. 8 of 2002.

G        R.C. Srivastva and Ms. Rachna Srivastava for the Appellants.

         Nariman, Rajiv Datta and M.P. Shorawala for the Respondents.

         The following order of the Court was ·delivered :

H        The Election Commission issued a Notification calling upon the
                                      690
                                           •
                        A.K. POEIA v. SHY AM                        691

electorates to elect the Members of the Legislative Assembly in the State A
of U.P. The date of Notification of election was 16th January, 2002 and
the last date for filing nomination papers was 23rd January, 2002. The last
date for withdrawal of nomination was 28th January, 2002. The date of
pol1 was 21st February, 2002. In the said election, the appellant herein and
respondent No. l were the contestirig candidates. As a result of counting B
of votes, respondent No. I was declared elected as having received the
majority of valid votes. The appellant herein filed a petition questioning
the election of respondent No. I as Member of Legislative Assembly from
346 Govardhan (S.C.) Assembly Constituency. The election petition
purported to be based on the ground that respondent No. l is not a member
of Scheduled Caste. After the notices were issued by the High Court in the C
election petition, respondent No. l filed an application under Order 6 Rule
of the Code of Civil Procedure, 1998, for striking off the grounds (i) to
(v) and paragraphs 5-29 of election petition on the ground that those
paragraphs did not contain material facts as required under Section 81 (3)
of the Representation of People Act, 1951 (for short 'the Act'). The High D
Court was of the view that since no fact warranting declaring the election
of the respondent herein void had been alleged and the documents referred
to therein having not been supplied, the same does not satisfy the
requirement of Section 81 of the Act. Since the election of respondent No.
 I was not challenged on any other ground, the High Court dismissed the E
petition. It is in this way, the appellant has preferred this appeal under
Section l l 6A of the Act, challenging the judgment of the High Court.

     We have heard counsel for the parties.

     The sole question which arises in this case is whether there was a F
pleading as regards the grounds that respondent No. l is not a member of
the Scheduled Caste. The relevant paragraphs to this effect runs as under:

              "4. That the election of respondent No. I (Shyam) is void
         on the following grounds :                                     G
                               GROUNDS

         (i)

         (ii)   Because the respondent No. 1 with the malafide intention H
                                  •
    692                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A                 l.\nd freud (sic), obtair:ied a caste certificate showing himself
                  a person belonging to scheduled caste and wrongly and
                  fra,1;1~ulent (sic) contested the election from the seat which
                  i_s reserved for sc.heduled caste where as in fact he does not
                  _belong to s_cheduled caste.
B         (iii)

          6.      That the respondent No. 1 had filed the nomination paper
                  and annexed his caste certificate showing himself to be of
                              .
                  scheduled caste. The caste .certificate was issued
                                                                   . in favour
c                 of the respondent No. 1 by Tehsildar, Mathura on 16.7.2001
                  showing in _belonging to Bahelia caste.

          7.      That in 1991 the respondent No. 1 was issued a caste
                  certificate showing him as of Agaria caste. The caste certifi-
                  cate was issued by the Tehsildar, Ml_\thura on 8.3.1991 as per
D
                  the SCHEDULE A.

          8.      That the r:espondent No. 1 had contested the election of
                  member ofZila P~nchayat in 1995 _from ward No. 15 which
                  is a reserved constitutency and with his nomination paper,
E                 he had annexed a caste certificate showing himselfbelonging
                  to the scheduled caste.

          9.      That an election petition was filed by one Laxman Singh
                  against the respondent No. 1 challenging his caste as sched-
                  uled caste and it was asserted by the petitioner that Shyam
F
                  Singh belongs to Aheria caste which is a backward caste.

          10.     That it is pertinent to mention that the brother of Shyam
                  Singh namely Virendra Singh had filed an affidavit in the
                  aforesaid election petition and said that they belong to
G                 Aheria caste which is a backward caste and not a scheduled
                  caste.

          11.     That it is relevant to mention that the Daughter of the
                  respondent Rani Kumari was studying in Shree Chameli
                  Devi Khandelwal Girls .Inter College, Mathura which issued
H
                        ·A.K. POEIA v. SHYAM                           693

               a transfer certificate to the Rani Kumari on 4.3.2002 which A
               contents the caste as Aheria which is the caste of the
               respondent No. 1.

         12.   That the fact·s stated above is conclusive evidence to prove
               that the respondent No. 1 does not belong to scheduled caste B
               and he is the member of backward caste as such his
               nomination paper ought to have been rejected as per the
               Section 36(2) of the representation of people act.

         13.   That the petitioner moved an application before the Return-
               ing Officer on 24.1.2002 to cancel the nomination of the C
               respondent No. 1 for wrongly showing himself as a member
               of scheduled caste, which he does not actually belong."

      A bare perusal of the documents contained in the aforementioned
paragraphs would show that the appellant in effect or substance did not D
raise any material fact that the first respondent herein was not a member
of the Scheduled Caste. Learned counsel appearing on behalf of the
appellant, however, submitted that the averment contained in ground No.
4(ii) contains the requisite fact. The said paragraph contains the grounds
for setting aside the improper acceptance of the nomination papers filed
by the first respondent and cannot be treated to be statements contained E
the requisite material facts, which, if proved, would entitle the appellant
in obtaining the reliefs sought for. Furthermore, the said statements had
been verified and purported to be based on the legal advise. It may be true
that for improper verification of the material facts pleading in the election
petition, the same cannot be dismissed at the threshold, but apart from the F
fact that the appellant herein did not move any application for reverification
of the election petition, the averments contained in paragraph 4(ii) does not
satisfy the requirement of Section 81 ( 1) of the Representation of People
Act, 1951 and in that view of the matter, the said plea is not available to
the appellant.                                                                 G
      For the aforesaid reason, we do not find any merit in the appeal. It
is, accordingly, dismissed. There shall be no order as to costs.

R.P.                                                     Appeal dismissed.