DESH RAJ Vs. BODH RAJ

JUDGEMENT

(1.) This petition under Sections 80, 81 read with Section 100 of the Representation of People Act, 1951, has been filed by the petitioner praying for declaring the election of the respondent to the Himachal Pradesh Vidhan Sabha from 35 -Gangath (SC) Assembly Constituency, as void and to set aside the same.

(2.) Case of the petitioner as made out in the petition is that election to the Himachal Pradesh Vidhan Sabha were held on 26th February, 2003, as per the notification issued by the Election Commission. Various nomination papers were fried by the candidates including*the petitioner, who was set up1 by -the Bhartiya Janta Party, and the respondent, who was sponsored by the Indian National Congress, to contest elections from 35 -Gangath Assembly Constituency, which was reserved for the Scheduled Caste. After scrutiny and withdrawal of nomination papers, seven candidates remained in the field. After polling and counting the result was declared on 1st March, 2003 and the respondent was declared elected. The respondent filed his nomination paper by making wrong declaration that he is -a member of Lohar caste which is a Scheduled Caste in the »State of -Himachal Pradesh and alongwith the nomination paper tie filed an attested copy, of the Scheduled -Caste certificate wrongly obtained from the Executive Magistrate, Indora, showing him to be a member of the Lohar caste. It is claimed that the respondent does not belong to Lohar caste but is a Tarkhan by caste which is not a scheduled Caste in the State of Himachal Pradesh. Therefore, not being a candidate belonging to the Scheduled Caste in the State of Himachal Pradesh, the respondent was not qualified to contest the election from 35 -Gangath (SC) Assembly Constituency and his nomination paper was improperly accepted by the Returning Officer Therefore, the election is liable to be declared void and set aside.

(3.) The respondent contested the petition. In the written statement, he took the preliminary objections that complete and attested true copy of the petition had not been served upon him, that the copies of the documents on which the claim in the Election Petition is laid were not supplied to him, that there is in cause of action disclosed in the Election Petition and that no affidavit as required under Order 6 Rule 15 Sub -Rule (4) of the Code of Civil Procedure was filed alongwith the Election Petition, therefore, the petition is liable to be dismissed. On merits, while not disputing the averments in the petition about filing of the nomination papers by the contestants and outcome of the election, the allegation that the respondent is not a Lohar by caste but a Tarkhan has been denied and it is claimed that the respondent was duly qualified to contest the election in the said Constituency reserved for the Scheduled Caste being a Lohar, a Scheduled Caste in the State of Himachal Pradesh.