D.P.SINGH, J. - (1.) THE present election petition has been preferred by the petitioner for declaring election of the sole respondent, the returned candidate from 10 -Dumka Assembly Constituency reserved for scheduled tribe category as null and void. The petitioner's case is as under: i. That he as a voter from the Dumka assembly constituency, had filed his nomination paper to contest election of assembly seat held in the year 2005. However, his nomination paper was rejected illegally by the Returning Officer -cum -S.D.M., Dumka on 7.2.2005. ii. That illegal rejection of the nomination paper filed by the petitioner was just to help the returned candidate and was against the provisions of law. iii. That the petitioner being 'Lohar' by caste had been declared scheduled tribe in Part III list of scheduled tribes at Sl. No. 22 for the State of Bihar by the President of India under Article 342 of the Constitution of India. iv. That recognition of 'Lohar'/'Lohra' otherwise spelt as 'Lohar' by different authorities, which describes 'Lohar' as scheduled tribe and synonyms to 'Lohra' as well as 'Lohara' have been ignored and his nomination paper was illegally rejected. v. That the petitioner has got valid documents in support of his claim as scheduled tribe with caste certificate issued by B.D.O. and SDM, Dumka vide certificate No. 65 dated 11.1.1994. Accordingly, the petitioner has prayed that election of opposite party be declared null and void.
(2.) THE sole respondent Sri Stephen Marandi, sitting MLA from Dumka reserved constituency filed a detailed written statement refuting the claims made in the Election Petition. According to Sri Marandi, the present election petition lacked adequate details even for admission of the present petition. According to him the petitioner has got no cause of action and the present petition was liable to be dismissed under Order 7 Rule 11 of C.P.C. as well as Section 86(1) of the Representation of Peoples Act, 1951 (hereinafter referred to as 'the Act'). Further the present petition was barred under the principles of res judicata and constructive res judicata as on same facts and reason his nomination paper for the year 1995 Assembly Elections was also rejected. The petitioner had then filed Election Petition No. 2/95 before the Patna High Court, which was ultimately dismissed declaring 'Lohars' of the backward community and not member of scheduled tribe. The respondent relied upon decision of Apex Court in Nitya Nand Sharma and Ors. v. The State of Bihar : [1996]2SCR1 , wherein Lohra/Lohara' have been held to be different from 'Lohars'. As such rejection of nomination paper filed by the petitioner was correct and in accordance with law. It is also asserted that by not impleading Returning Officer of Dumka Constituency as party in the present petition, mandatory requirements under Section 82 of the Act was lacking. The petitioner belonged to 'Lohar' community and cannot be held to be Scheduled Tribe and his nomination paper was rightly rejected by the Returning Officer on 7.2.2005. In Hindi version dated 6.6.1997 of the Election Manual issued by the State of Bihar wrongly described 'Lohar' as Scheduled tribe and the petitioner taking advantage of that wrongly translated version obtained a caste certificate in his favour. However, the matter has been set at rest in Nityanand Sharma's case (Supra) declaring that 'Lohar' community belonged to other backward class and they were not Scheduled tribes. As such, the question whether ''Lohar'' is synonyms to ''Lohra' or not need no investigation now and the impugned order dated 7.2.2005 need not be interfered with. It further mentions that the State of Bihar, Personnel Administrative Reforms Deptt. Subsequently vide letter No. 43 dated 23.3.1996 already directed all concerned to cancel such caste certificate issued in favour of 'Lohars' declaring them as Scheduled tribes. As such caste certificate No. 65 dated 11.1.1994 automatically stood cancelled. Accordingly, the petitioner having no valid ground to file Election Petition, deserves to be dismissed with heavy costs.
(3.) FOLLOWING issues would be relevant to decide this petition: (I) Has the petitioner got a valid cause of action? (II) Whether the present election petition is liable to be dismissed summarily for non compliance of the provisions of Section 82 and 83 of the Representation of People's Act, 1951? (III) Whether petitioner was declared member of Scheduled Tribes in the State of Jharkhand being 'Lohar' by caste? (IV) Whether order of the returning officer dated 07.02.2005 is, illegal and bad in law? (V) Whether the question that 'Lohar' and 'Lohra' are synonyms to each other, is any more res -integra after decision of the Apex Court in Nityanand Sharma and Anr. v. The State of Bihar reported in : [1996]2SCR1 ? (VI) Whether the present Election Petition is barred by principles of Resjudicata and constructive Resjudicata in view of dismissal of Election petition No. 2 of 1995 by Patna High Court between the same parties having decided that petitioner was not a member of Schedule Tribe and his nomination paper was therefore rightly rejected? ;