B.S.VERMA, J. - (1.) 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 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. 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 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.
(3.) 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.;