- (1.) JANARDAN Sahai, J. Lallu Singh the appellant in this appeal was declared elected as Block Pramukh, Dungarpur Kuntarki, Moradabad on 8-3-2001. An election petition was filed by the 1st respondent Km. Gayur Fatima challenging the election on the ground that her nomination paper was illegally rejected by the Assistant Returning Officer. It is not in dispute that the seat was reserved for a backward caste candidate. The petitioner claims to be Jhojha by caste. The Assistant Returning Officer rejected the nomination paper of the 1st respondent Km. Gayur Fatima on the ground that she did not belong to the Jhojha caste. The election petition filed by the 1st respondent has been allowed by the impugned order dated 21-10-2002 passed by the Additional District Judge, Moradabad. Aggrieved, this appeal has been filed by Lallu Singh, the returned candidate.
(2.) THE case of the 1st respondent is that she is a resident of Dingapur, Tashil Bilari but she also has an ancestral house in Mohalla Kanth Ka Darwaja, Deewan Ka Bazar, Moradabad City and she temporarily resides in this house too. THE petitioner had applied for a case certificate to the Tehsildar Bilari but it was refused whereupon a writ petition was filed by her in which an interim order dated 2-3-2001 was passed by which she was permitted to file her nomination paper and to contest the election subject to the result of the writ petition. THE copy of this interim order and the copy of the order dated 9-8-2001 in that writ petition imposing a penalty of Rs. 1,000/- upon the Assistant Returning Officer Rajendra Prasad Saxena for rejecting the nomination of the respondent No. 1 despite the interim order of the High Court were filed. THE other papers filed by the 1st respondent included a caste certified issued by the Tehsildar Moradabad certifying her to be Jhojha by caste, a certificate by the Block Development Officer, Dungarpur Kuntarki certifying Smt. Gayur Fatima's brother as of Jhojha caste and Bar Garana 1994-95 showing the respondent No. 1 as Jhojha. THE record of the file pertaining to the nominations papers for the election was summoned by the Tribunal from the office of the Assistant Returning Officer. THE copies of the papers relating to nomination and its rejection have been filed alongwith the stay application and counter- affidavit and Counsel for the parties relied upon them in the course of their arguments in this appeal. THE appellant Lallu Singh the returned candidate filed the copy of the order of the High Court dated 20-12-2001 in the writ petition filed by the 1st respondent by which the High Court has quashed the order dated 29-1-2001 of the Tehsildar Bilari refusing to issue caste certificate to the 1st respondent and directed the Tehsildar to consider the case afresh and to pass speaking order. THE copy of the order of the Tehsildar Bilari passed in compliance of this direction rejecting application of the 1st respondent for issuance of a caste certificate showing her as of Jhojha caste and holding that she belongs to Turk caste (Islam) was also filed. THE election tribunal framed various issues. Issue No. 1 is on the point whether the election petitioner is of Jhojha caste while Issue No. 2 is on the point whether her nomination paper was illegally rejected. THE election Tribunal decided both these issues in favour of the 1st respondent. On Issue No. 2 the Tribunal relied upon the order of the High Court dated 2-3-2001 and held that the Assistant Returning Officer illegally rejected the nomination paper of the 1st respondent in breach of the direction given by the High Court. I have heard Sri Ravi Kiran Jain, learned Counsel for the appellant and Sri D. S. Mishra, learned Counsel for the respondent No. 1. Sri Ravi Kiran Jain relied upon Rule 11 of the U. P. Kshettra Panchayat Election of Pramukh and Up Pramukh and Settlement of Election Disputes Rules, 1994 and submitted that under sub-rule 2 thereof the Returning Officer is required to examine the nomination paper and decide all objections thereto any may either on such objection or on his own motion after such summary enquiry as he thinks necessary reject any nomination on any of the grounds given in clauses (a) to (g) of the sub- rule. Clause (g) is quoted below : " (g)" That the candidate does not belong to the tribe or caste or class or sex for whom the office is so reserved. " It is submitted that a letter dated 5-3-2001 containing four questions was given by the Assistant Returning Officer to the 1st respondent which set out the objections to his nomination paper. The said letter dated 5-3-2001 of the Assistant Returning Officer is Annexure-1 to the stay application filed in the appeal. The objections stated are (1) the caste certificate is illegible/not clear, (2) it is about ten years old (3) as per information of Tehsildar there is no Jhojha caste in Tehsil Bilari, (4) the caste certificate is to be issued by the Tehsildar of the Tehsil where the candidate resides.
(3.) THE 1st respondent replied to the letter by Annexure 1-A, a letter of the same date. In this reply she stated that the caste certificate submitted by her was attested by the Notary public and that she was shown as Jhojha therein. Reliance is also placed in this letter upon the interim order passed by the High Court in the writ petition filed by her. THE Assistant Returning Officer passed an order on the same date 5-3-2001 rejecting the nomination papers of the respondent No. 1 on the ground that the respondent No. 1 has not given any explanation relating to the illegibility of the caste certificate, that the certificate was ten years old and had not been furnished in 'addyatan roop' and no proper explanation in respect of point No. 3 was given by the 1st respondent and lastly that the 1st respondent is a resident of Tehsil Bilari but no caste certificate issued by the Tehsildar Bilari was filed. As regards the interim order of the High Court it is stated by the Assistant Returning Officer that certified copy of that order was not given. The contention of Sri Jain is that the Assistant Returning Officer had given valid reasons in support of his order and the election tribunal ought to have examined the validity of the reasons given by the Assistant Returning Officer in rejecting the nomination within the scope of Rule 11 and could not have held an independent enquiry on the question whether the first respondent was of Jhojha caste. He submits that for the purpose of deciding the validity of the order of rejection of nomination the question raised by letter dated 5-3-2001 and the reply of the same date by the 1st respondent have to be seen to determine whether the decision which the Assistant Returning Officer was to take summarily was correct.;