Dilip Gupta, J. - (1.) THESE two Election Petitions which have been filed under Sections 80/81 of The Representation of the People Act, 1951' (hereinafter referred to as the 'Act') call in question the election of the returned candidate Shambhu Chaudhary from 178, Naurangia Uttar Pradesh Legislative Assembly constituency. This constituency was reserved for a member of the Scheduled Castes. It is the contention of both the petitioners that the returned candidate does not belong to the Scheduled Castes.
(2.) THIRTEEN persons contested the said 2007 State Legislative Assembly election from 178, Naurangia reserved constituency. Shambhu Chaudhary secured 38,308 votes and was declared elected. Pooranmasi Dehati secured 35,118 votes while Chandra Dev Gautam secured 30,861 votes. Election Petition No. 2 of 2007 has been filed by Pooranmasi Dehati for a declaration that the election of the returned candidate beset aside and he be declared elected since he had received the highest number of votes after the returned candidate. Election Petition No. 6 of 2007 has been filed by Chandra Dev Gautam for declaring that the election of the returned candidate is void. The pleadings in both the election petitions are broadly directed against the contest of the election by the returned candidate Shambhu Chaudhary as a candidate belonging to the Scheduled Castes. It has been stated that Shambhu Chaudhary filed his nomination for the said Uttar Pradesh Legislative Assembly constituency reserved for the Scheduled Castes treating himself to be belonging to Kharwar caste and a resident of Basahia @ Kaptanganj, District Kushinagar though in fact he was not an ordinary resident of that village but was an original resident of village Langari, District Kushinagar and belonged to Kamkar caste which is not a Scheduled Caste. It has, therefore, been stated that he was not qualified to be chosen for filling the said State Legislative Assembly seat reserved for Scheduled Castes. It has also been stated that Shambhu Chaudhary had obtained the caste certificate on 6th August, 2005 from Tehsil Hata, District Kushinagar by misrepresenting that he belonged to Kharwar caste and was a resident of village Basahia; that the said caste certificate was issued pursuant to the application and affidavit dated 26th July, 2005 submitted by Shambhu Kharwar mentioning that he was son of late Ram Garib Kharwar and the Tehsil authorities wrongly reported that the applicant Shambhu who was son of Ram Garib belongs to Kharwar caste which is a Scheduled Caste; that his nomination paper was accepted by the returning officer in spite of the objection filed by Deeplal Bharti at the time of scrutiny of the nomination paper; that the family members of the returned candidate are original residents of village Langari, Tehsil Hata, District Kushinagar and also have agricultural holdings in this village; that their caste is also mentioned in the revenue records as Kamkar which is not a Scheduled Caste; that the returned candidate and his family members are registered in the family register of village Langari and not in the family register of village Basahia; that the father of the returned candidate had executed a sale deed dated 25th September, 1996 in respect of his Bhoomidhari land in village Langari in which he had stated that he does not belong to the Scheduled Castes and that according to the census report of 1991, Kamkar is a title of Kahars which is a backward caste in Uttar Pradesh. In support of the contention that Kamkar is not a Scheduled Caste, reliance has been placed on the letter sent by the State Government addressed to the Director, Social Welfare, U.P. dated 27th March, 1996 and also upon the communication dated 18th May, 2007 sent by the District Social Welfare Officer, Kushinagar to Deeplal Bharti.
(3.) THE returned candidate has filed written statements in both the Election Petitions. The averments made in the written statements are that the returned candidate is Kharwar by caste which caste is a Scheduled Caste; that the persons of Kharwar caste are called and known as Kamkars in that region and that is why Kamkar is not mentioned as a caste either in the list of Scheduled Castes or in any other list; that Kamkar is a sub-caste of Kharwar; that it is incorrect to say that the family members of the returned candidate are not Kharwars by caste or that the returned candidate is not Kharwar by caste and that when the caste of a person is mentioned as Kamkar it means that the person belongs to Kharwar caste which is admittedly a Scheduled Caste. It has further been stated that the issue as to whether Kamkar is a sub-caste of Kharwar or not came up for consideration before the State Backward Class Commission and a Committee of the said Commission headed by the Chairman decided on 15th July, 1998 that Kamkar is a sub-caste of Kharwar which is a Scheduled Caste and, therefore, cannot be declared as OBC. This decision was communicated by the letter dated 11 th November, 1998 and 20th August, 2001 to the District Magistrates of Districts Deoria, Kushinagar and Maharajganj mentioning therein that Kamkar is a sub-caste of Kharwar which is a Scheduled Caste. It has further been mentioned in the written statement that the returned candidate is a resident of village Basahia @ Kaptanganj and that the father of the returned candidate migrated and shifted from village Langari long back and started residing in village Basahia @ Kaptanganj and the names of returned candidate and his family members are duly entered in the family register of the said village. It has also been stated that the Sub-Divisional Magistrate, Hata made a detailed enquiry and submitted his report dated 26th May, 2007 mentioning that the Kamkar is a sub-caste of Kharwar which is a Scheduled Caste and thereafter the caste certificate was issued which has not been cancelled till date; that the returned candidate is married in a Kharwar family; that all the relations of the returned candidate are married in Kharwar families and that distant and near relatives belong to Kharwar caste who have also been issued Kharwar caste certificates.;