KAPIL MUNI KARWARIYAversusCHANDRA NARAIN TRIPATHI

                         [2012] 1 S.C.R. 956


A                     KAPIL MUNI KARWAP.IYA
                                  v.
                   CHANDRA NARAIN TRIPATHI
                  (Civil Appeal No. 2122 of 2012)

B                       FEBRUARY 15, 2012

    [ALTAMAS KABIR AND SURINDER SINGH NIJJAR,JJ.]

        Representation of the People Act, 1951: ss.81, 86 -
  Election petition - Maintainability of - Election petition
C challenging the election of returning candidate on the ground
  that nomination papers of respondent were wrongly rejected
  by the returning officer - The ground of rejection of nomination
  papers was that the name of the second proposer was deleted
  from the electoral roll and, therefore, nomination was not
D subscribed by ten proposers as required u/s.33 - Returning
  candidate filed applications for dismissing election petition for
  non-compliance of s.81(1) and for non-disclosure of cause of
  action - Election Tribunal dismissed the applications - On
  appeal, held: The view taken by the Election Tribunal was
E correct that the Election Petition filed by the Respondent was
  required to be considered on evidence on account of the
  allegations made therein - The question regarding the right
  of the second proposer to be a subscriber to nomination paper
  filed by the respondent was the fundamental question which
F could only be decided on evidence - No interference called
  for with the order of the Election Tribunal.

       The District Allahabad consists of lwo Parliamentary
  Constituencies, namely, 51-Phulpur Parliamentary
  Constituency and 52-Allahabad Parliamentary
G Constituency. The appellant filed his nomination paper as
  a candidate of the Bahujan Samaj Party. The Respondent
  filed his nomination paper for contesting the election to
  the said 51-Phulpur Parliamentary Constituency as a

H                                956
  KAPIL MUNI KARWARIYA v. CHANDRA NARAIN               957
                 TRI PATH I

candidate of Krantikari Jai Hind Sena. The nomination of       A
the respondent for contesting election was rejected on
the ground that the nomination was not subscribed by
10 proposers as per the requirement of Section 33 of the
Representation of the People Act, 1951 since the name
of the second proposer, 'PK' was found to have been            B
deleted from the electoral roll. The appellant was
 declared elected.

    The Respondent filed election petition for a
declaration that the election of the appellant as a Member     C
of Parliament from 51-Phulpur Parliame11tary
Constituency of District Allahabad be set aside and be
declared null and void on the ground that his nomination
paper which he had filed to contest the election were
wrongly rejected.
                                                               D
     The appellant filed an application under Section 86(1)
of the 1951 Act, in election petition praying for dismissal
of the election petition on the ground of non-compliance
of the provisions of Section 81(1) of the 1951 Act. The
appellant also filed another application under Order VII       E
Rule 11, CPC in the said Election Petition 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, 'PK" had been struck
off from the electoral roll and he was no more an elector      F
from the said place and was not, therefore, entitled to
propose the name of the Respondent for election to the
51-Phulpur Parliamentary Constituency. These
applications were dismissed by the Election Tribunal. The
Election Petition was, thereafter, directed to be listed for   G
disposal of the amendment applications moved on behalf
of the appellant and also for settlement of issues. The
 instant appeal was filed challenging the said interim order
 of the Election Tribunal.
                                                               H
     958      SUPREME COURT REPORTS              [2012] 1 S.C.R.

A          Dismissing the appeal, the Court

        HELD: Having considered the fact that the Election
   Petition is yet to be disposed of by the Election Tribunal,
   making any observations in this proceedings would
   certainly have an effect on the pending proceedings
8
   before the Election Tribunal. The view taken by the
   Election Tribunal was correct that the Election Petition
   filed by the Respondent was required to be considered
   on evidence on account of the allegations made therein.
  The question regarding the right of 'PK' to be a
C subscriber to the nomination paper filed by the
  Respondent is the fundamental question which is
  required to be considered in this case. Being the central
  question involved in the pending Election Petition, the
  allegations contained therein have to be decided before
D a decision can be rendered regarding the validity of the
  Respondent's Election Petition. Whether 'PK' was eligible
  to subscribe to the nomination paper of the Respondent
  is a question which can only be decided on evidence.
  The Election Tribunal did not commit any error in
E dismissing the applications filed by the Appellant for
  rejection of the Election Petition filed by the Respondent
  herein. 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
F matter and decide the same at an early date. [Paras 16,
  17] [965-B-E]

      Charan Lal Sahu v. K.R. Narayanan (1998) 1 ·sec 56;
  1997 (5) Suppl. SCR 317; Charan Lal Sahu v. Giani Zail
  Singh (1984) 1 SCC 390: 1984 (2) SCR 6; J.H. Patel v.
G Subhan Khan (1996) 5 SCC 312:1996 (3) Suppl. SCR 864;
    Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil
    (2009) 13 SCC 131: 2009 (9) SCR 538 - referred to.


H
  KAPIL MUNI KARWARIYA v. CHANDRA NARAIN                  959
                 TRI PATH I

                    Case Law Reference:                           A
    1997 (5) Suppl. SCR 317 referred to             Para 14
    1984 (2) SCR 6              referred to         Para 14
    1996 (3) Suppl. SCR 864 referred to              Para 14      B
    2009 (9) SCR 538            referred to          Para 14

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2122 of 2012.

    From the Judgment & Order dated 5.5.2011 of the High          C
Court of Judicature at Allahabad in Election Petition No. 1 of
2009.

    Ranjit Kumar, Prashant Kumar, Anurag Sharma, K.R.
Singh (for AP & J Chambers) for the Appellant.                    D

    Caveator-ln-Person.

    The Judgment of the Court was delivered by

     ALTAMAS KABIR, J. 1. Leave granted.                          E
     2. On 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   F
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         G
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      H
     960     SUPREME COURT REPORTS                 [2012] 1 S.C.R.


 A 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.

        4. The Special Leave Petition is directed against the
 8
   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
C 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
D 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 rJiallenged the Appellant's election on the
E 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
F 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
G 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
H not a voter from 1st January, 2009, and had been declared
   KAPIL MUNI KARWARIYA v. CHANDRA NARAIN                   961
          TRIPATHI [ALTAMAS KABIR, J.]

"Vilopit", had subscribed to the nomination paper of the            A
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     B
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        c
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       0
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    E
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 RP-spondent was not an elector of      F
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 Act.                               G

      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   H
     962      SUPREME COURT REPORTS                    [2012) 1 S.C.R.


A 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-
B 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 by the Election Tribunal on 5th May, 2011.
C 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,
D 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
E   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
F   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
G   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
H   nomination in the electoral roll relating to 261 Allahabad West
  KAPIL MUNI KARWARIYA v. CHANDRA NARAIN                      963
         TRIPATHI [ALTAMAS KABIR, J.]

Assembly Constituency. Accordingly, since he was not an               A
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.

     12. Both the objections taken by the Appellant herein were       B
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 C
of the Election Petition, that on the date of filing of nomination
papers Pramod Kumar could not have been one of the 1O
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, D
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.

     14. In support of his submissions, learned counsel referred      E
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. Ranjil Kumar         F
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             G
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            H
    964      SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A   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
B    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
C   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 Tribunal in the pending Election
     Petition and, accordingly, no order is called for in the present
D   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
E   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
F   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.

        16. Having carefully considered the submissions made on
  behalf of the respective parties and having considered the fact
G 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
H
   KAPIL MUNI KARWARIYA v. CHANDRA NARAIN                    965
          TRIPATHI [ALTAMAS KABIR, J.]

that the Election Petition filed by the Respondent herein was        A
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                 B
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               C
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     D
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.
                                                                     E
      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
Appellant herein before the Election Tribunal and the same           F
should not influence the outcome of the pending Ele9tion
Petition filed by the Respondent herein.

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

D.G.                                         Appeal dismissed.       G