REKHA Vs. SPECIAL JUDGE E C ACT

JUDGEMENT

(1.) Present writ petition has been filed by the petitioner questioning the validity of decision dated 8.3.2010 taken by Special Judge (EC.Act), Mirzapur/Election Tribunal in election petition No. 7 of 2006, Rajendra Prasad v. Rekha and others, setting aside the election of the petitioner as Chairman of Nagar Palika Parishad, Ahraura, District Mirzapur and further declaring Rajendra Prasad as elected Chairman of Nagar Palika Parishad, Ahraura, District Mirzapur.

(2.) Brief background of the case is that election for the post of Chairman of Nagar Palika Parishad, Ahraura, District Mirzapur, was held on 31.10.2006. The seat in question was reserved for Scheduled Caste category candidate. In the said election, petitioner as well as respondent Nos. 2 to 6 were also the contestant for being elected as Chairman of Nagar Palika Parishad, Ahraura, District Mirzapur. Petitioner claims to be of Kinnar community and also claimed to Scheduled caste category candidate. In the elections so held results were declared on 6.11.2006 and the petitioner was declared elected, as he had secured maximum votes. Rajendra Prasad who polled second in the aforesaid election filed election petition No. 7 of 2006, Rajendra Prasad v Rekha and others before District Judge, Mirzapur, challenging the election of the petitioner on the ground that he was not scheduled caste category candidate, rather he hailed from other backward classes, and therefore, he was not entitled to contest the election from a constituency which was reserved for scheduled caste category candidate, and in this background, it was claimed that the nomination of the petitioner ought not to have been accepted by the Returning Officer. According to the election petitioner, the petitioner Rekha, who is kinnar, is daughter of Kameshwar who was "Sonar'' by caste, and comes under backward class category and not the scheduled caste. It was further mentioned that the father of the petitioner along with his family members used to reside at Sasaram in the State of Bihar in Mohalla Kothatali, Nagar Palika Sasaram, District Rohtash, and therein respective names of petitioner's father, mother, grandmother and other family members were entered in the electoral roll of Sasaram Assembly constituency in part No. 33. Certified copy of the caste certificate of Kameshwar Seth from Sasaram, wherein his caste was shown as 'Sonar1, which belonged to other backward classes, was also filed. Election petitioner's stand had been that on admitted position the petitioner was daughter of Kameshwar Seth and same was fully correlated with the documents, which were produced in respect of his initial residence at Sasaram, and in such circumstances the petitioner belonged to backward class candidate and not the Scheduled caste. In order to further substantiate the aforesaid stand, the election petitioner also filed documents to show that the name of Kameshwar was also entered in the electoral roll of Nagar Palika Parishad Ahraura in Ward No. 16, Nai Bazar at serial No,614, which was prepared in the year 2006. The names of other family members shown in the electoral roll of Nagar Palika Parishad, Ahraura, Mirzapur, were similar to those shown in the electoral roll of Sasaram, and based on the said document, it was claimed that Kameshwar who happened to be the father of the petitioner was the same person, who earlier resided at Sasaram and belonged to other backward classes.

(3.) Reply was filed on behalf of the petitioner to the pleadings mentioned in the election petition and therein stand was taken that petitioner hailed from Kinnar community, and he was told by his guru that his father's name was Kameshwar, who was Chamar by caste. As a result of the aforesaid statement, the petitioner believes himself to be scheduled caste category candidate, It was also mentioned that Kameshwar Seth, who was shown to be resident of Sasaram was not the same person, and who has been shown to be resident of Nagar Palika Parishad, Ahraura; was not father of the petitioner, and it was reiterated that the caste certificate was valid, and further in the electoral roll of Sasaram, name of petitioner was not there and the names of mother and brother were also different at the aforesaid two places.