Madhya Pradesh High Court
Shankar Pendaam vs Smt. Jyoti Dhurve on 18 July, 2014
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
Election Petition No. 45/2009
Shankar Pendaam
Vs.
Smt. Jyoti Dhurve
As Per : G.S.Solanki, J.
Shri Vijay Nayak with Shri Anand Nayak, Advocates for the
petitioner.
Shri R.N.Singh, Senior Counsel with Shri Arpan J. Pawar for the
respondent.
___________________________________________________________
Judgment reserved on : 10.7.2014
Judgment delivered on : 18.7.2014
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JUDGMENT
1. This election petition has been filed by the petitioner under Section 80 read with Section 81 of the Representation of the People Act, 1951 for declaring the election of the respondent to be void.
2. It is not in dispute that the petitioner is a citizen of India and resident of District Betul. He belongs to scheduled tribe category. The petitioner and the respondent filled their nomination forms from Betul Loksabha Seat, which is reserved for the persons belonging to scheduled tribe category. The petitioner contested the election as an independent candidate with a symbol of Nagada whereas the respondent contested the election as a candidate of Bhartiya Janta Party. The respondent submitted her caste certificate, which was issued by the SDO in the year 200203, on the basis of which her nomination was accepted.
(2)3. It is further not in dispute that the father of the respondent namely Mahadev was resident of village Tirodi (Khanditola) till 195657.
4. Briefly stated facts of the case are that at the time of submission of nomination forms, an objection was filed before the returning officer to the effect that the respondent is not qualified to contest the election as the certificate was issued in the year 200203 on various grounds, therefore, her nomination form should not be accepted and prayer was made that an inquiry should be made by the returning officer. The returning officer, after hearing the arguments, rejected the objection vide order (P3) on the ground that in view of the instructions of the General Administration Department dated 8.9.1997, a high level committee has been constituted by the State Government for scrutinizing the caste certificate and and with regard to scrutiny and verification of caste certificate the power lies to high level committee, therefore, it is not possible to examine the validity of cast certificate.
5. The petitioner filed an application on 30.5.2009 before the Chief Secretary (Chairman) of High Level Committee, Bhopal along with the documents for making an inquiry with regard to validity of the caste certificate, which is still pending.
6. The grounds taken in the election petition are that the respondent, prior to her marriage, was not the scheduled tribe. Prior to marriage her name was Jyotikiran Thakur. She graduated from Ravishankar Shukla University, Raipur. Copies of her certificates are (P6) and (P7), which show that she is Thakur by caste. The respondent was the resident of Village Tirodi, District Balaghat and at village Kharpatiya Tahsil Katangi, some lands are in joint possession of her father and uncle Heralal. In Rin Pustika, the surname has been mentioned as Bisen. In Rin Pustika (P8) there is no mention that her father or the family members were belonging to Scheduled Tribe, which shows that the respondent by birth is not a scheduled tribe. Heralal (Uncle of the respondent) was (3) a government servant and in government letter (P9), his caste is shown as OBC. In the pension papers issued by the railway department (P10), it has not been mentioned that uncle of the respondent was belonging to the scheduled tribe. It is further submitted that the caste certificate issued by Sub Divisional Officer is without any enquiry and verification, therefore, the same is not valid. Merely because the respondent has married with Prem Singh Dhurve, she cannot be treated as scheduled tribe. The Sub Divisional Officer has flouted the guidelines issued by the General Administration Department for State of M.P., therefore, the returning officer has committed serious error in accepting the nomination of unqualified candidate i.e. the respondent. Her form should not have been accepted and this has affected the mandate of people, thus, the election of the respondent be declared as void.
7. In the reply filed by the respondent, except the undisputed facts, remaining pleadings have been denied. It is submitted that Ojharam Ivne filed baseless objection before the returning officer, Betul alleging that the respondent is not entitled for the benefit of scheduled tribe category as prior to her marriage, she belonged to OBC category. In reply to the aforesaid objection, the respondent categorically stated before the returning officer, Betul that she is a member of scheduled tribe, even prior to her marriage with Prem Singh Dhurve. The respondent also disputed the revenue records pertaining to name of one Mahadev S/o Dashrath (OBC), who is not related to the respondent in any manner. It is further submitted that prior to contesting the aforesaid election, the respondent was the Chairman of M.P. State Scheduled Tribe Commission, Bhopal by virtue of her being Gond by caste. It is further pleaded that Smt. Ganga Potai Thakur, Prem Narayan Thakur and Jhanak Lal Thakur all belong to Gond caste and they use suffix Thakur as their surnames. It is specifically denied that the respondent is Thakur by caste. She is Gond by birth and continues in the same community even after her marriage, therefore, the caste certificate has been (4) issued in her favour on 21.8.1984 by the competent authority. It is further specifically denied that Heralal is her uncle. It is submitted that Heralal is not related to the respondent or her father in any manner. It is further denied that the respondent belongs to OBC category and is a Bisen by caste. It is further denied that the SDO had issued the caste certificate in favour of the respondent without any inquiry or verification. It is submitted that the aforesaid caste certificate has been issued after due enquiry. Even in the matriculation certificate of the year 1983 and in the income certificate of the year 1994, her caste has been mentioned as Gond, therefore, the respondent was Gond by caste before her marriage. It is further denied that the returning officer has committed illegality in rejecting the objection in regard to the caste certificate. On the contrary it is pleaded that the returning officer, Betul has rightly rejected the objection after due and proper enquiry. On the basis of aforesaid pleadings, prayer has been made for dismissal of this election petition.
8. On the basis of aforesaid pleadings, following issues have been framed by this Court :
1. Whether the respondent does not belong to Schedule Tribe category and was therefore, disqualified to contest the election from Betul Parliamentary Constituency No. 29, which was reserved for Scheduled Tribe candidate?
Or The respondent could acquire status of Scheduled Tribe by marriage ?
2. Whether the Returning Officer committed an error in accepting the Nomination Form of the respondent for Betul Parliamentary Constituency No. 29, as a Scheduled Tribe candidate?
3. Whether the election of the respondent from Betul Parliamentary Constituency No. 29 is void and can be declared so under section 100 of the R.P.Act, 1951?
4. Reliefs and cost?
9. During the course of the arguments, learned Senior Counsel appearing for the respondent has submitted that this election (5) petition has become infructuous because the term of the respondent has come to an end by efflux of time on 16th May, 2014 and thereafter general elections have also taken place in May, 2014 and the respondent has already been elected from the same constituency of Loksabha. Thus, the grounds taken in this election petition have been rendered of academic importance and the academic questions should not ordinarily be decided by the Courts. It is further submitted that this election petition has not filed by the petitioner on the ground of corrupt practice, therefore, this election petition may be dismissed as infructuous. In support of the aforesaid contention, learned Senior Counsel has placed reliance on a decisions of Apex Court in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi - 1987 (Supp) SCC 93 and in the matter of Sushma Swaraj Vs. Raj Kumar Patel in SLP (Civil) No. 2951/2014 decided on 5.5.2014.
10. Learned counsel for the petitioner has submitted that the petitioner has filed this petition on the ground that on the date of election, the respondent was not qualified under Section 100(1)(a) of the Representation of People Act to fill the seat and due to improper acceptance of nomination form of the respondent, the result of election has been materially affected. Counsel has further submitted that since the petitioner has raised the point of caste certificate, which has been procured by the respondent by forgery, therefore, the same comes under the corrupt practice. On the basis of aforesaid submission, counsel has prayed that this election petition be decided on merits. However, he has not cited any other case on this point.
11. I have heard the learned counsel for the parties at length and gone through the entire pleadings made by the parties as mentioned hereinabove. None of the grounds has been taken with respect to corrupt practice. As per Section 83(1) of the R.P. Act, an election petition shall contain a concise statement of the material (6) facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. None of such pleadings have been found in this election petition, therefore, in view of sections 98 and 99 of the Representation of People Act, if the pleadings with respect to corrupt practices would have been made in the petition by the petitioner, this petition has to be decided on merits but since there are no pleadings with respect to corrupt practices as mentioned hereinabove and the tenure of the respondent has already come to an end by the efflux of time, in my opinion, there is no need to dispose of this petition on merits.
12. In the instant case, the sole question involved is of improper acceptance of nomination form of the respondent. The Apex Court in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi (supra) has observed that Court should not undertake to decide an issue unless it is a living issue between the parties. If an issue is purely academic and its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in deciding it. Similar question was involved in Sushma Swaraj Vs. Raj Kumar Patel (supra), wherein the main question for consideration was of improper rejection of nomination form of the respondent and the Apex Court has dismissed the same as having been rendered infructuous.
13. Considering the fact that the tenure of the respondent has already come to an end by the efflux of time and the matter has been rendered of academic importance, in view of the aforesaid discussion and in the light of the aforesaid decision of Apex Court in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi (supra) and Sushma Swaraj Vs. Rajkumar Patel (supra), I am of the considered view that nothing further survives in this matter. This petition has (7) become infructuous, same is hereby dismissed as having been rendered infructuous. No order as to costs.
(G.S.Solanki) Judge PB